9911796707
TMI Blog2014 (12) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... it has not paid substantial amount within a period of 2 years from the date of transfer of property for acquisition of the residential flat nor deposited the money in the specified capital gain account with any specified bank and the money was deposited in her saving bank account which was upheld by the CIT(A) – assessee entered into an agreement for purchase of flat on 14-10-2009 - the details of payment made towards the purchase flat are already given – Assessee relied upon the decision delivered by SC in Sh. Sanjeev Lal Etc. Versus Commissioner of Income Tax & Another [2014 (7) TMI 99 - SUPREME COURT] - However, it is a very recent decision and was neither available before the AO nor before the CIT(A) - Revenue authorities had no opportunity to go through the ratio laid down in the said case, vis-a-vis the facts of the case of the assessee – thus, the matter is remitted back to the AO with a direction to decide the issue in the light of the decision of the SC – Decided in favour of assessee. - ITA No. 2281/PN/2012 - - - Dated:- 8-8-2014 - Shri Shailendra Kumar Yadav and Shri R.K. Panda, JJ. For The Appellant : Shri P.S. Shingte For The Respondent : Smt. S. Praveena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.5,00,000/- 03-06-2011 Rs.5,00,000/- 25-07-2011 Rs.2,27,675/- 2.2 From the above the A.O. noted that the assessee has made payment of ₹ 5,07,825/- only within two years from the date of transfer of property for acquisition which cannot be treated as substantial portion of ₹ 35,72,240/-. He noted that the assessee has failed to open separate bank account for the unutilized portion of the investment in the notified bank and has kept the amount in her routine saving bank account. Further, the amount has been utilized for making short term fixed deposits and earned interest thereon. The A.O., therefore, was of the opinion that the assessee has failed to comply with the provisions as stipulated in Sec. 54 of the I.T. Act. He, therefore, disallowed the claim of deduction of ₹ 30,73,912/- made u/s.54 of the I.T. Act by the assessee. 3. Before the CIT(A) it was submitted that the assessee received an amount of ₹ 21,87,500/- on 22-10-2007 and the balance amount of ₹ 31,25,000/- was received on 26-01-2008. The above amounts were deposited into a new and spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njustified and therefore, the same should be allowed to the assessee. 3.1 However, the Ld. CIT(A) was not satisfied with the explanation given by the assessee. Distinguishing the various decisions cited before him and relying on the decision of the Ahmedabad Bench of the Tribunal in the case of Thakorlal Harkisandas Intwala Vs. ITO reported in 43 SOT 347 (Ahd), he upheld the order of the A.O. in disallowing the claim of the assessee. While doing so he further noted that since the assessee has not opened a capital gains saving account with the bank, she has not fulfilled the conditions prescribed u/s. 54F(4) of the I.T. Act. Further, agreement with the builder Saha Associates was made as late as on 14-10-2009 i.e. almost after expiry of 2 years from the date of transfer of land. He noted that assessee, on receipt of consideration of ₹ 21,87,500/- on 27-10-2007 has made fixed deposit of ₹ 11,00,000/- and the balance amount ₹ 10,00,000/- was withdrawn by her. Out of the balance consideration of ₹ 31,25,000/- received on 19-02-2008 she converted ₹ 30,00,000/- into a fixed deposit on 02-04-2008. This clearly shows that at that point of time the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 191, he submitted that the Tribunal in the said decision has allowed the claim of exemption u/s. 54 when the assessee, doing construction business, deposited capital gain from transfer of building in the housing division of his construction business for the purpose of constructing new residential building. Referring to the decision of the Hon'ble Gauhati High Court in the case of CIT Vs. Rajesh Kumar Jalan reported in 286 ITR 274 he submitted that the Hon'ble High Court in the said decision has held that in construing a beneficial enactment, the view that advances the object of the enactment and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the beneficial enactment. It was held in the said decision that a plain reading of Sub-sec. 2 of Sec. 54 clearly shows that only Sec. 139 is mentioned in Sec. 54(2) in the context that the unutilized portion of the capital gain on the sale of property used for residence should be deposited before the due date of furnishing the return of income u/s. 139. Sec. 139 cannot be meant only Sec. 139(1) but it means all Subsections of Sec. 139. Under Sub-sec. 4 of Sec. 139, any person who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hare in the joint property sold on 25-10-2007. There is also no dispute to the fact that the assessee kept the money in her savings account and did not deposit the money in the specified capital gain account scheme within the stipulated time. We find the A.O. denied the benefit of deduction u/s. 54 on the ground that the assessee has not fulfilled the conditions prescribed u/s. 54 of the I.T. Act since it has not paid substantial amount within a period of 2 years from the date of transfer of property for acquisition of the residential flat nor deposited the money in the specified capital gain account with any specified bank and the money was deposited in her saving bank account. We find the CIT(A) also upheld the disallowance made by the A.O. It is the case of the assessee that the assessee has invested the capital gain towards construction of new residential flat within the period prescribed u/s. 54F of the I.T. Act and therefore, she is entitled to benefit of deduction u/s. 54F of the I.T. Act. 6.1 From the various details furnished by the assessee, we find the assessee received sale consideration on 25-10-2007. She entered into an agreement for purchase of flat on 14-10-2009. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
