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TMI Blog2014 (1) TMI 1362X X X X Extracts X X X X X X X X Extracts X X X X ..... ngwith the amount incurred on stamp duty and incidental expenses within a period of three years as stipulated u/s 54F - The issue has been restored for fresh adjudication - Partly allowed in favour of assessee. - ITA No. 6696/Mum./2012 - - - Dated:- 15-1-2014 - Shri P. M. Jagtap And Shri Amit Shukla,JJ. For the Petitioner : Mr. Hitesh P. Shah For the Respondent : Mr. Surendra Kumar ORDER Per Amit Shukla, J. M. The present appeal has been preferred by the assessee against the impugned order dated 29th August 2012, passed by the Commissioner (Appeals)-XXVII, Mumbai, for the quantum of assessment passed under section 143(3) of the Income Tax Act, 1961 (for short "the Act") for the assessment year 2009-10. Following grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsferred the shares on 30th April 2008. As a result of transfer of shares which was a long term capital asset, the assessee received consideration of Rs. 7 crores which was received in the bank account of the assessee on 14 th May 2008. As a result of this transfer, a long term capital gain of Rs. 6,90,45,902 arose to the assessee. Immediately after the receiving of the sale consideration, the assessee invested the entire sum for purchase of under construction flat with the builders M/s./ Sunshine Housing Development Ltd. in the following manner:- Date Name of Bank Cheque No Amount (Rs. ) 16.05.2008 Bank of India 302899 6.75 crores 23.05.2008 Bank of India 302900 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of filing of return of income i.e., as on 31st July 2009, the assessee had only invested Rs. 1 crore in the purchase of flat and he had not deposited any amount in the specified accounts for the capital gains as envisaged in section 54F(4). He thus, held that since the amount invested for purchasing of new flat is less than the sale consideration, therefore, the deduction allowable under section 54F would be Rs. 98,63,700 and balance amount of Rs. 61,36,000 was disallowed. 6. Before the learned Commissioner (Appeals), it was submitted that the assessee had bonafide intention to buy residential house (under construction), from the amount received against the sale of long term capital asset i.e., shares. Under the peculiar circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce sum, the assessee had paid the tax under long term capital gain. Thus, the assessee has fully complied with the provisions of section 54F. As regards applicability of provisions of section 54F(4), he submitted that there is no violation in this case, firstly the assessee had invested the entire money in the first instance for the purchase of newly constructed flat and secondly, the investment in flat under construction was made within the period of three years. Therefore, there is no question of depositing the amount in specified capital gain account. In support of his contention, he relied upon the decision of the Tribunal, Mumbai Bench, in Mukesh G. Desai v/s ITO, [2009] 18 DTR (Trib.) 71 (Mum.), Kishore H. Galiaya v/s ITO, [2012] 150 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with another builder for acquiring a flat which under construction for Rs. 1.40 croes on 11th June 2009. The assessee has also incurred stamp duty and other incidental charges of Rs. 26,79,674. As per the details furnished before us, the assessee has made payment to the second developer i.e, Green Valley Developers in the following manner:- Date Bank Cheque no. Amount 11.06.2009 Bank of India 283169 10,00,000 18.06.2009 Bank of India 283170 15,00,000 25.06.2009 Bank of India 283174 55,00,000 08.07.2009 Bank of India 283175 10,00,000 17.07.2009 Bank of India 283176 10,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of transfer of long term capital asset is 14th May 2008. At the first instance, the assessee had invested the entire sale consideration with a builder for acquiring a under construction flat, which dispenses with the condition of section 54F(1). However, when the said transaction got failed, the assessee thereafter, had immediately after receiving the money made the investment in another flat which was under construction in the year 2009-2011. Thus, the intention of the assessee was to immediately invest his capital gain from transfer of long term capital asset towards acquiring of residential flat and there was no intentional delay on the part of the assessee for not appropriating the net consideration towards acquiring the same which is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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