IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 ITA.No. 5 of 2007() ------------------- M.P NO. 76/COCH/2006 IN ITA.905/COCH/2004 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT ----------------------------- M.ANIL, JAY SANITATION, NARMADA SHOPPING COMPLEX, KAUDIAR, THIRUVANANTHAPURAM. BY ADV. SRI.V.G.SANKARAN RESPONDENT(S): --------------- 1. COMMISSIONER OF INCOME TAX (APPEALS)-II THIRUVANANTHAPURAM. 2. INCOME TAX OFFICER WARD 2(2) THIRUVANANTHAPURAM. ADVS. SRI. P.K.R MENON, SR. COUNSEL SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 10/12/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & HARUN-UL-RASHID, JJ. -------------------------------------------- I.T.A. No. 5 OF 2007 -------------------------------------------- Dated this the 10th day of December, 2008 JUDGMENT Ramachandran Nair,J. The question raised is whether the assessee is entitled to relief under Section 54 of the Act in capital gains arising from the transfer of the land. We have heard counsel appearing for the assessee and senior standing counsel appearing for the respondent. On going through the Tribunal's order we find that assessee in the sale deed declared the land conveyed to the developer as 24.5 cents of vacant land with survey numbers of the same. The assessee was granted relief under Section 54F and the claim for relief under Section 54 is a belated claim without being supported by any material to hold that the property sold is residential building and land appurtenant thereto. Assessee had not made the claim even before the appellate authority. Therefore the claim is only an after-thought and contrary to the facts in the sale deed itself which shows that the land sold is vacant land or in other words 2 free of any building. Since the issue decided by the Tribunal is based on finding of fact that the property sold is vacant land, we do not find any substantial question of law arising from the order of the Tribunal. Appeal is consequently dismissed. (C.N.RAMACHANDRAN NAIR) Judge. (HARUN-UL-RASHID) Judge. kk 3