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TMI Blog2010 (9) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Rs. 65 sq. mtr." 5. The above ground No. 1 pertains to Long-Term Capital Gains (LTCG) determined at Rs. 15,52,184 as against Rs. 46,109 shown by the assessee. The assessee purchased a plot of agricultural land on 9-2-1979 measuring 6171 Sq. Mtrs. at the rate of Rs. 5.20 per Sq. Mtr. jointly with Shri Jasubhai Gohil. The assessee during the year under consideration sold the land for Rs. 18,75,000 and declared LTCG of Rs. 46,109 after taking cost of the land as on 1-4-1981 at the rate of Rs. 65 per Sq. Mtr. In support of valuation as on 1-4-1981, valuation report of Government Approved Valuer was filed. The Assessing Officer noticed that during the last 2 years from 1979 to 1981, the assessee increased the cost of the land from Rs. 5.20 per Sq. Mtr. to Rs. 65 per Sq. Mtr. The Assessing Officer collected the sales instances from the neighbouring area from the Talati of Maktampur, Bharuch between the period 13-11-1980 to 7-10-1981. The rate of land noted by the Assessing Officer as per the instances varied from Rs. 15.28 per Sq. Mtr. to Rs. 29.28 per Sq. Mtr. Such instances were intimated to the Government Approved Valuer who in his reply to the Assessing Officer intimated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the increase in the rate of plot of land as on 1-4-1981. However, as pointed out in para No. 8 of the assessment order, the valuer has admitted that he did not consider the sale instances during the relevant period for the determination of the market value of the land as on 1-4-1981. According to him, the sale instances do not give a fair picture of the market value. It is important to mention that sale instances are also important evidence for the determination of the market value of the land. The valuer should have considered the sale instances for the valuation purpose. The approved valuer also failed to take into account the fact that the other co-owner Jasubhai Gohil has also declared the cost of land as on 1-4-1981 at Rs. 20 per sq. m. for the assessment year under consideration on the basis of same support. It is difficult to believe that the rate of same plot of land is being taken at 2 widely different figures by the two co-owners for the purpose computation of capital gain. Therefore, taking into account, the reasons given by the Assessing Officer in not accepting the valuation done by the approved valuer as also the facts considered by the valuer, I am of the view t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n over all appreciation of the material on record and considering the relevant factors rightly proceeded to apply average rate of Rs. 42 per Sq. Mtr. in order to grant substantial relief to the assessee. The learned CIT(A) on proper appreciation of facts and material on record already allowed substantial relief to the assessee. The learned Counsel for the assessee has not been able to rebut the findings of the learned CIT(A) through any material on record. No basis is explained as to why the rate of Rs. 65 per Sq. Mtr. should be adopted as on 1-4-1981. Considering the above discussions in the light of the findings of the authorities below, we do not find it to improper to interfere in the order of the learned CIT(A) to grant any further relief to the assessee. We accordingly, do not find any merit in the appeal of the assessee on this ground. Same is accordingly dismissed. Ground No. 1 of the appeal of the assessee is accordingly dismissed. 9. Ground No. 2 of the appeal reads as under : "2. That the ld. CIT(A), considering the admitted facts and circumstances of the case that investment of Rs. 9,50,484 was made in acquiring the new house property within the time specified under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated account as per the Capital Gains Accounts Scheme, 1988 and the entire sale proceeds were to be deposited in this account only and not in the normal saving account. The appellant has violated the provisions of section 54F(4) by not opening a designated account and deposit the proceeds in this account. The appellant's contention that this is only technical default and substantial compliance of law has been made by fulfilling all other conditions and hence full deduction should be allowed. This contention of the appellant is not convincing since in the cases relied upon, the substantial compliance of law was fulfilled by the assessee where the sale document was registered late on account of paper work and formalities involved. In the appellant's case, no paper work or registration of sale documents was to be carried out. In the appellant's case, the entire Capital Account Scheme, 1988 has been bypassed and ignored and the sale proceeds have been deposited in normal saving account. The whole purpose of capital gain account scheme has been defeated. Therefore, the decisions relied upon by the appellant are clearly distinguishable. In my view the appellant is not entitled for exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make it workable. A particular provision cannot be picked up and interpreted to defeat another provision made in that behalf under the statute. It is the duty of the court to make such construction of a statute which shall suppress the mischief and advance the remedy". He has also relied upon the decision of the Hon'ble Supreme Court in the case of Mysore Minerals Ltd. v. CIT [1999] 239 ITR 775 in which it was held that "section 32 of the Act confirms a benefit on the assessee. The provisions should be so interpreted and the words used therein should be assigned such meaning as would enable the assessee to secure the benefit intended to be given by the Legislature to the assessee". He has also relied upon the decision of the Hon'ble Gujarat High Court in the case of CIT v. Gujarat Oil & Allied Industries [1993] 201 ITR 325 in which it was held that "requirement that audit report should be filed along with the return is not a mandatory condition. Audit report filed after the return was submitted before the assessment was framed, sufficient compliance of the conditions". 13. On the other hand, the learned DR relied upon the orders of the authorities below and submitted that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this sub-section shall apply where- (a) the assessee,- (i) owns more than one residential house, other than the new asset, on the date of transfer of the original asset; or (ii) purchases any residential house, other than the new asset, within a period of one year after the date of transfer of the original asset; or (iii) constructs any residential house, other than the new asset, within a period of three years after the date of transfer of the original asset; and (b) the income from such residential house, other than the one residential house owned on the date of transfer of the original asset, is chargeable under the head "Income from house property".] Explanation.-For the purposes of this section,- ** ** ** [***] "net consideration", in relation to the transfer of a capital asset, means the full value of the consideration received or accruing as a result of the transfer of the capital asset as reduced by any expenditure incurred wholly and exclusively in connection with such transfer. (2) Where the assessee purchases, within the period of [two years] after the date of the transfer of the original asset, or constructs, within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecified in sub-section (1), then,- (i) the amount by which- (a) the amount of capital gain arising from the transfer of the original asset not charged under section 45 on the basis of the cost of the new asset as provided in clause (a) or, as the case may be, clause (b) of sub-section (1), exceeds (b) the amount that would not have been so charged had the amount actually utilised by the assessee for the purchase or construction of the new asset within the period specified in sub-section (1) been the cost of the new asset, shall be charged under section 45 as income of the previous year in which the period of three years from the date of the transfer of the original asset expires; and (ii) the assessee shall be entitled to withdraw the unutilised amount in accordance with the scheme aforesaid. Explanation.-[Omitted by the Finance Act, 1992, with effect from 1-4-1993.]" Sub-section (4) of section 54F of the Income-tax Act as noted above provides the amount of net consideration which is not appreciated by the assessee towards the purchase of the new asset made within one year before the date on which the transfer of the original asset took place or which is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cannot pick up particular provisions in his own way and to defeat the benefit of introduction of section 54F of the Income-tax Act. The provisions contained under section 54F of the Income-tax Act is substantive provisions under the law and cannot be given go by, by the assessee in order to get the benefit from exemption of taxes. It is admitted fact that the assessee had deposited the sale proceeds in normal saving bank account as against the scheme specified by the Central Government through notification in the Official Gazette as per section 54F(4) of the Income-tax Act. The Assessing Officer specifically noted that the assessee utilized only Rs. 45,000 towards construction of new house and balance amount of Rs. 9,50,484 could not be utilized for construction of the house as per notified scheme before the due date of filing of the return. Since the assessee did not deposit the sale proceeds as per section 54F(4) of the Income-tax Act in the notified bank account scheme, therefore, the assessee would not be entitled for any benefit under the provisions of law. It would, therefore, show that the assessee has violated the provisions of section 54F(4) of the Income-tax Act by not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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