R.S. Syal, Accountant Member. - This appeal by the assessee is directed against the order passed by the Commissioner of Income-tax (Appeals) on 11.09.2008 in relation to the assessment year 2001-02.

2. The learned Counsel for the assessee filed application for admission of the following additional ground reading as under :-

"On the facts and in the circumstances of the case, the learned Commissioner of Income Tax (Appeals) XXIV, Mumbai, erred in confirming the order of the Assessing Officer in respect of charging receipt of Rs. 20,00,000 and notional market value of flat amounting to Rs. 19,06,800 to be received from developers under the head "Capital Gains", particularly when, the developer has not fulfilled the conditions stated in Agreement for development dated November 11, 1999 and thus not complied with requirements of Section 53A of Transfer of Property Act and therefore the transaction is not covered by section 2(47)(v) of the Income Tax Act, 1961."

3. In support of the admission of this additional ground, the learned A.R. submitted that it involved only adjudication of substantial question of law and no fresh facts were required to be examined. The learned Departmental Representative opposed the admission of additional ground. Keeping into consideration the entire conspectus of the facts and circumstances of the case and the additional ground raised before us we are convinced that its adjudication does not require any fresh investigation of facts and involves substantial question of law. Respectfully following the judgement of the Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 we admit this additional ground for disposal on merits.

4. The first ground about the reopening of assessment u/s 147/148 was not pressed. The same is, therefore, dismissed.

5. Grounds Nos. 2 and 3 and also the additional ground involve common issue. The facts of the case are that during the course of reassessment proceedings for assessment year 2004-05 it was noticed by the A.O. that the assessee claimed exemption u/s 54F in respect of two properties namely a flat to be given by builder/developer and a flat purchased from Prithvi Builders. As only one property is eligible for exemption u/s 54F, the Assessing Officer reopened the assessment by opining that exemption u/s 54F was claimed in excess. Notice u/s 148 was issued. The assessee's working of long-term capital gain was noted as under:-

6. The assessee was called upon to explain as to why exemption u/s 54F should not be restricted to investment in one residential house as against two claimed by the assessee. The assessee stated that she had not received possession of flat from Karasha Construction Private Limited and Graceland Construction Private Limited. Considering these facts, the Assessing Officer held that the exemption u/s 54F was to be granted only in respect of flat from Prithvi Builders. As against the NIL capital gain declared by the assessee, the A.O. determined long-term capital gain at Rs. 13,09,490. The assessee was not successful before the learned CIT(A) as well.

7. We have