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TMI Blog2012 (9) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... or in the asset qualifying for relief under S.54F, by securing the money spent out of the capital gains or from other sources available to it either by borrow or otherwise, and the assessee are eligible for relief under S.54F in respect of the entire amount of capital gains so deposited - in favour of assessee - ITA No.1866 & 1867/Hyd/2011 - - - Dated:- 15-6-2012 - SHRI D.KARUNAKARA RAO, AND SHRI SAKTIJIT DEY, JJ. Assessees by : Shri K.A.Sai Prasad Revenue by : Smt. Nivedita Biswas O R D E R Per D.Karunakara Rao, Accountant Member: These two appeals filed by the assessees, who are related to each other, are directed against separate orders of the Commissioner of Income-tax(Appeals)-IV, Hyderabad both dated 30.9.2011 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011, are that the assessee, Shri J.V.Krishna Rao, sold 26,200 shares of M/s. Swaqath Seeds P. Ltd. @ Rs.396.46 per share for a total consideration of Rs.1,03,87,252/- during the year. After deducting the indexed cost, the assessee had shown long term capital gains at Rs.99,96,867. The assessee claimed the entire capital gains as exempt under S.54F, on the ground that he has deposited the net consideration with State Bank of India, under Capital Gains Account Scheme, 1988. On verification of details, the assessing officer noticed that the assessee s deposit in the Capital Gains Accounts Scheme included borrowed funds to the extent of Rs.52,01,000/- It was submitted by the assessee before the assessing officer that the said funds had been b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessing officer concluded that since the net consideration in the instant case had not been so utilized or appropriated by the assessee, the exemption claimed u/s. 54F was required to be curtailed to the corresponding amount utilized and that the borrowed funds of Rs.52,01,000 did not deserve consideration for exemption u/s. 54F of the Act. 4. On appeal, the CIT(A) confirmed the disallowance made by the assessing officer out of the assessee s claim for exemption under S.54F of the Act, in respect of long term capital gains realised during the year. 5. But for the number of shares and amounts involved, facts involved in the case of Smt. Sri Lakshmi(ITA No.1867/Hyd/2011) are identical to those discussed above. In her case, number o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time specified by the statute. In support of this proposition, he reiterated the contentions urged before the lower authorities and placed reliance on the decision of the Hyderabad Bench of the Tribunal in the case of Muneer Khan V/s. ITO (41 SOT 504), which according to him squarely covers the issue in favour of the assessee. He also placed reliance on the decisions of the Delhi Bench decision of the Tribunal in the case of Sita Jain V/s. ACIT(ITA No.4754; 4755 5036/Del/10 dated 20.5.2011; and of the Mumbai Bench of the Tribunal in the case of Bombay Housing Corporation V/s. ACIT (81 ITD 545); and of the Mumbai Bench of the Tribunal in Mrs. Prema P. Shah V/s. ITO(100 ITD 60), duly furnishing a copy each thereof in the paper-book filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s entitled to exemption. The later decision of the Mumbai Bench of the Tribunal in the case of Mrs. Prema P.Shah (supra) is also to the same effect, and it in fact followed the earlier decision of the Mumbai bench in the case of Bombay Housing Corporation (supra). We have perused the decision of the Hon ble Kerala High Court in the case of V.R.Desai (197 Taxman 52), relied upon by the learned CIT(A), and find that it is distinguishable on facts in as much as in that case the assessee has failed to make investment in eligible asset within the specified period, and therefore, in our opinion, the CIT(A) erred in following that decision in the impugned order. 10. In the light of the above discussion, following the Hyderabad Bench of the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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