Ita/260/2013 Of Shri, Geroge Dominic v. Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC &THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 16TH DAY OF JULY 2015/25TH ASHADHA, 1937 ITA.No. 260 of 2013 () ----------------------- AGAINST THE ORDER IN ITA 176/COCH/2012 of I.T.A.TRIBUNAL,COCHIN BENCH DATED26-04-2013. APPELLANT/RESPONDENT/APPELLANT: -------------------------------------------------------- SHRI, GEROGE DOMINIC, C/O.CASINO HOTEL, W/ISLAND, COCHIN-3. BY ADVS.SRI.JOSEPH MARKOSE (SR.) SRI.V.ABRAHAM MARKOS SRI.BINU MATHEW SRI.TOM THOMAS (KAKKUZHIYIL) SRI.ABRAHAM JOSEPH MARKOS SRI.TOM THOMAS (KAKKUZHIYIL) SRI.ABRAHAM VARGHESE THARAKAN RESPONDENT/APPELLANT/DEPARTMENT: ----------------------------------------------------------- ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 3 (1) MATTANCHERRY. BY SRI. P.K.R. MENON (SR.) STANDING COUNSEL FOR INCOME TAX SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 16-07-2015, THECOURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.T.O. I.T.A.NO.260 OF 2013 APPENDIX APPELLANT'S ANNEXURES: ANNEXURE-AA TRUE COPY OF THE ASSESSMENT ORDER DATED 28.12.2009. ANNEXURE-BA TRUE COPY OF THE ORDER PASSED IN THE APPEAL DATED 31.05.2012 OF THE COMMISSIONER OF INCOME TAX (APPEALS)-II. ANNEXURE-CA TRUE COPY OF THE ORDER DATED 26.04.2013 PASSED BY THE ITAT IN ITA NO.176/COCH/2012. RESPONDENT'S ANNEXURES: NIL //TRUE COPY// P.S. TO JUDGE St/- ANTONY DOMINIC & SHAJI P. CHALY, JJ. ----------------------------------------------- I.T.A.No.260 of 2013 ----------------------------------------------- Dated this the 16[th] day of July, 2015 JUDGMENT Antony Dominic, J. The assessee has filed this appeal against the order passed by the Income Tax Appellate Tribunal, Cochin Bench inI.T.A.No.176/Coch/2012. By this order, the Tribunal hasconfirmed the order passed by the Assessing Officer denyingexemption under Sec.54F of the Income Tax Act, 1961, whichorder was confirmed by the Commissioner of Income Tax(Appeals). It is aggrieved by these orders, the appeal is filed.The questions of law raised are the following: “(a)Whether in the facts and circumstances ofthe case the Tribunal is justified in holding that theappellant is ineligible to claim exemption under Section54F of the Act. (b)Whether in the facts and circumstances ofthe case the finding of the Tribunal that the residentialhouse at Kadavanthra the construction of which hadcommenced before the date of transfer of the originalasset and completed subsequently cannot be consideredas an existing building on the date of transfer of the Whether in the facts and circumstances of I.T.A.No.260 of 2013 original asset in conformity with the object behindSection 54F of the Act. (c)Whether in the facts and circumstances ofthe case is not the appellant eligible to get exemptionfrom payment of tax on capital gain in respect of a flatacquired from M/s. JGT Constructions.” 2.We heard the learned Senior Counsel for theappellant and the learned Senior Standing Counsel appearingfor the Revenue. 3.The assessee had transferred an original assetmentioned in Sec.54F in the assessment year 2007-2008 andalso acquired a new asset. However, he constructed aresidential house which was completed in the assessment year2009-2010. Taking note of this and also the proviso toSec.54F that nothing contained in sub-section (1) of Sec.54Fshall apply where the assessee constructs any residentialhouse, other than the new asset, within a period of three yearsafter the date of transfer of the original asset, the benefit ofexemption be denied. It is this order of the Assessing Officerwhich was confirmed by all authorities. I.T.A.No.260 of 2013 2.We heard the learned Senior Counsel for theappellant and the learned Senior Standing Counsel appearingfor the Revenue. 3.The assessee had transferred an original assetmentioned in Sec.54F in the assessment year 2007-2008 andalso acquired a new asset. However, he constructed aresidential house which was completed in the assessment year2009-2010. Taking note of this and also the proviso toSec.54F that nothing contained in sub-section (1) of Sec.54Fshall apply where the assessee constructs any residentialhouse, other than the new asset, within a period of three yearsafter the date of transfer of the original asset, the benefit ofexemption be denied. It is this order of the Assessing Officerwhich was confirmed by all authorities. I.T.A.No.260 of 2013 4.Admittedly, the construction of the residential housewas completed in the assessment year 2009-2010 and theoriginal asset was transferred in the assessment year 2007-2008. This shows that the construction of the residentialhouse was within a period of three years after the date oftransfer of the original asset. Such being the case, the benefitof Sec.54F was rightly denied to the asssessee. In such circumstances, we do not find any illegality in theorders passed. Therefore, answering the questions of lawraised against the assessee, the appeal is dismissed. Sd/-ANTONY DOMINIC JUDGE Sd/- SHAJI P. CHALY JUDGE //true copy// P.S. to Judge