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TMI Blog2007 (7) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... This writ petition has been filed by the petitioner claiming the following reliefs: "(i) quash the impugned attachment order dated April 17, 2007 (annexure 11) and further direct the respondents to release all the three FDRs of Rs.1,00,00,000 lying with Jaipur Thar Gramin Bank, at Bhankrota, Distt. Jaipur; (ii) direct the respondents to exclude the period during which the FDRs of the petitioner remained attached in computing the period of two years as prescribed in section 54B of the Act for the purchase of agricultural land; (iii) quash and set aside the impugned order dated May 1, 2007 (annexure 12) followed by order dated May 16, 2007 (annexure 13) passed by respondent Nos. 3 and 2; and kindly direct respondent No. 3 to keep the recovery proceedings in abeyance till the disposal of first appeal pending before the Commissioner of Income-tax (Appeals) III, Jaipur; (iv) the costs of the writ petition may also be awarded to meet the ends of justice; and (v) any other order/relief as your Lordships may deem fit and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner, in the interest of justice, equity and good conscience." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree FDRs of Rs. 1 crore under attachment by the Revenue authorities does not serve any purpose and on the contrary, it has seriously prejudiced the legal rights of the petitioner-assessee. He fairly submits that the assessee would pay such 50 per cent. of the demand, namely, Rs.15,48,550, which may be realised out of the 3 FDRs in question and the balance amount may be released to him. He further submits that the period of two years for purchase of another agricultural land should be treated as extended so that the assessee be held entitled to exemption under section 54B of the Act. 5. Learned counsel for the Revenue, Mr. R. B. Mathur, submits that interest of the Revenue should be safeguarded as the petitioner is an agriculturist and it may be difficult to recover the entire demand from the petitioner-assessee in case he does not succeed in his appeal. He further submits that the question regarding exemption from capital gains is involved in the appeal, which is pending before the learned Commissioner of Income-tax (Appeals), therefore, this court may not decide the said issue. 6. Learned counsel for the petitioner Mr. Naresh Gupta has relied upon the Division Bench judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utilised. It was held by the Kerala High Court that no provision is made by the statute that the assessee should utilise the amount which he obtained by way of sale consideration for the purpose of meeting the cost of the new asset. It was held that section 54 only provides that the assessee has to purchase a house property for the purpose of his own residence within a period of one year before or after the date on which the transfer of his property took place or he should have constructed a house property within a period of two years after the date of transfer. It was further held that entitlement of exemption under section 54 relates to the cost of acquisition of a new estate in the nature of a house property for the purpose of his own residence within the specified period. 12. In the case before us, the ratio laid down by the hon'ble Kerala High Court squarely applied to the case before us as the assessee had acquired the house at a cost more than the capital gains within the specified period. 13. Therefore, we hold that the assessee is entitled for the exemption under section 54 of the Act for the entire long-term capital gain of Rs. 29,73,048. Accordingly, we allow the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the assessee or a parent of his for agricultural purposes (hereinafter referred to as the original asset), and the assessee has, within a period of two years after that date, purchased any other land for being used for agricultural purposes, then, instead of the capital gain being charged to income-tax as income of the previous year in which the transfer took place, it shall be dealt with in accordance with the following provisions of this section, that is to say,— (i) if the amount of the capital gain is greater than the cost of the land so purchased (hereinafter referred to as the new asset), the difference between the amount of the capital gain and the cost of the new asset shall be charged under section 45 as the income of the previous year; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase, the cost shall be nil; or (ii) if the amount of the capital gain is equal to or less than the cost of the new asset, the capital gain shall not be charged under section 45; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve effect after the expiry of a period of six months from the date of the order made under sub-section (1) Provided that the Chief Commissioner, Commissioner, Director General or Director may, for reasons to be recorded in writing, extend the aforesaid period by such further period or periods as he thinks fit, so, however, that the total period of extension shall not in any case exceed two years: Provided further that where an application for settlement under section 245C is made, the period commencing from the date on which such application is made and ending with the date on which an order under sub-section (1) of section 245D is made shall be excluded from the period specified in the preceding proviso." 8. Though the judgment of the Gauhati High Court appears to be supporting the case of the petitioner, however, since the issue relating to exemption from capital gains is pending before the appellate authority, this court would not express any final opinion on that issue at this stage and the appellate authority should consider the said issue in accordance with law on the basis of material placed before him. 9. That as far as the attachment of three FDRs of Rs.1 crore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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