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TMI Blog2015 (10) TMI 2045X X X X Extracts X X X X X X X X Extracts X X X X ..... vs K.Ramachandra Rao (supra), we hereby set aside the impugned order and direct the AO to re-compute the assessed income after granting the benefit of section 54F of the Act to the assessee. - Decided partly in favour of assessee for statistical purposes. - I.T.A. No. 2692/Ahd/2014 - - - Dated:- 10-9-2015 - SHRI G.D. AGARWAL,VICE PRESIDENT (AZ) And SHRI KUL BHARAT, JUDICIAL MEMBER For The Appellant : Shri Mehul Shah, AR For The Respondent : Shri Narendra Singh, Sr.DR ORDER PER SHRI KUL BHARAT, JUDICIAL MEMBER : This appeal by the Assessee is directed against the order of the Ld.Commissioner of Income Tax(Appeals)-V, Surat [ CIT(A) in short] dated 17/07/2014 pertaining to Assessment Year (AY) 2008-09. The Assessee has raised the following grounds of appeal:- Denying exemption u/s.54F 1. On the facts and in the circumstances of the case, the learned CIT(A s) erred in not allowing exemption u/s.54F. 2. On the facts and in the circumstances of the case, the learned CIT(A s) erred in not appreciating that the investment in residential property was made before the expiry of 2 years from the relevant date. 3. On the facts and in the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 148 of the Act. 4. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. In support of the contention that the action of the AO is barred by time for reopening of the assessment, the assessee has not placed any material on record. Moreover, the ld.counsel for the assessee could not point out as to how the order of the reopening is barred by time. As per section 149 of the Act, no notice u/s.148 can be issued for relevant assessment year, if four years have elapsed from the end of the relevant assessment year, unless he case falls under clause (b). If four years, but not more than six years, have elapsed from the end of the relevant assessment year unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to one lakh rupees or more for that year. In the case in hand, it is not in dispute that the notice was issued on 27/03/2012 and served upon the assessee on 28/03/2012. The relevant AY is 2008-09 that would end on 31/03/2009 and the four years are to be reckoned from 01/04/2009. Therefore, we see no merit in the ground of assessee s appeal and the same is reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs after that date [constructed, one residential house in India] (hereinafter in this section referred to as the new asset), the capital gain shall be dealt with in accordance with the following provisions of this section, that is to say,- (a) if the cost of the new asset is not less than the net consideration in respect of the original asset, the whole of such capital gain shall not be charged under section 45; (b) if the cost of the new asset is less than the net consideration in respect of the original asset, so much of the capital gain as bears to the whole of the capital gain the same proportion as the cost of the new asset bears to the net consideration, shall not be charged under section 45: [Provided that nothing contained 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 trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishing the return of income under sub-section (1) of section 139] in an account in any such bank or institution as may be specified in, and utilised in accordance with, any scheme which the Central Government may, by notification in the Official Gazette, frame in this behalf and such return shall be accompanied by proof of such deposit; and, for the purposes of sub-section (1), the amount, if any, already utilised by the assessee for the purchase or construction of the new asset together with the amount so deposited shall be deemed to be the cost of the new asset: Provided that if the amount deposited under this sub-section is not utilised wholly or partly for the purchase or construction of the new asset within the period specified 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 139(4) would be 31.3.1990. The assessee did not file the return within the extended due date. However, the assessee had utilized the entire capital gains by purchase of a house property within the stipulated period of section 54(2) i.e., before the extended due date for return u/s 139. The assessee technically may have defaulted in not filing the return u/s 139(4). But, however, utilized the capital gains for purchase of property before the extended due date u/s 139(4). The contentior of the revenue that the deposit in the scheme should have been made before the initial due date and not the extended due date was held to be an untenable contention. In the present case, the assessee had proved the payment of substantial amount of sale consideration for purchase of a residential property on or before 31.3.2008, that was within extended period of limitation of filing of return. Only a sum of ₹ 24 lacs was paid out of total sale consideration on 23.4.2008, though possession was delivered to the assessee on execution of the power of attorney on 30.3.2008. Since the assessee, has acquired a residential house before the end of the next FY in which sale had taken place, there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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