9911796707
TMI Blog2016 (10) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... capital gains, on 28.07.2012, such amount was deposited under the Capital Gains Tax Scheme, 1988 by way of a Fixed Deposit in the State Bank of Patiala. It is the case of the petitioner that even after the aforesaid 04 kanals of land had been sold, 27 kanals 16 marlas continued to be in its ownership and possession, on which a residential house was intended to be constructed, but the same could not be done in view of the interim orders granted by this Court, as also the Apex Court, prohibiting construction in the area in which the afore-referred 27 kanals 16 marlas of land was situated. According to the petitioner, the interim order still continues. Since the petitioner was precluded from constructing the residential house, within the period of three years, as stipulated under Section 54-F of the Act, fearing that the afore-referred amount of Rs. 2.25 crores, being capital gain from sale of a long term capital asset, would be taxed, an application was moved on its behalf for seeking condonation of delay and simultaneous grant of extension of time beyond the stipulated three years to raise the construction. No heed, having been paid to the application, the petitioner moved another r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seeking extension of time to claim such deduction beyond the prescribed period of three years. Ms. Urvashi Dugga, learned counsel appearing on behalf of the Revenue, opposed the petition on several grounds. It was submitted that the present petition had been filed by Shivinder Singh Brar, Karta HUF, whereas the revenue record appended with the petition clearly depicted the owner of the land in question to be Shivinder Singh Brar in his individual capacity. It was further submitted that Shivinder Singh Brar had been named as one of the beneficiaries of the systematic land grabbing and illegal acquisition of shamlat land by a Tribunal constituted by this Court under the Chairmanship of Justice Kuldeep Singh, former Judge of Supreme Court of India. Shivinder Singh Brar being a senior bureaucrat in the State of Punjab, at the time of purchase and sale of the aforesaid land, was presumed to be aware of the fact that the same was forest land and lying in the catchment area of Sukhna Lake, on which construction was not possible. It was further submitted that Shivinder Singh Brar was owner of two residential properties. Without prejudice to the afore submissions, it was urged on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsection 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (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. xx xx xx xx Section 119. (1) xx xx xx xx (2) Without prejudice to the generality of the foregoing power,- (a) xx xx xx xx (b) xx xx xx xx (c) the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order for reasons to be specified therein, relax any requirement contained in any of the provisions of Chapter IV or Chapter VI-A, where the assessee has failed to comply with any requirement specified in such provision for claiming deduction thereunder, subject to the following conditions, namely:- (i) the default in complying with such requirement was due to circumstances be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the most, have been claimed by the petitioner in the assessment year 2015-16 i.e. the previous year 2014-15. As per Section 119(2)(c) of the Act, on a genuine hardship shown by any assessee, the Board can order relaxation in any requirement contained in any of the provisions of Chapters IV or VI-A of the Act, which requirement the assessee has failed to comply with for claiming a deduction therein. Such power of Board is subject to two riders, which are :- (i) that the default in complying with such requirement was due to circumstances beyond the control of the assessee and (ii) that the assessee had already complied with the requirements before the completion of assessment in relation to the previous year in which such deduction is claimed. Even otherwise, to claim a deduction under Section 54-F of the Act, the petitioner was well within its rights to raise construction of a residential house on any land other than the 27 kanals 16 marlas of land referred to above. Having failed to do so, no relief to the petitioner, as claimed, can be granted. Moreover, sub-clauses (i) and (ii) of Section 119(2)(c) are cumulative. Both the conditions must be fulfilled in order to extend the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not the year in which he chooses to claim the same. The relaxation in terms of Section 119 (2) (c) can be sought by the assessee at the time of claiming deduction and such claim can be made only within the time period, as prescribed under the Act for making such claim. There is nothing in Section 119 (2) of the Act which gives any power to the Board to extend the time to claim the deduction. While applying the afore principle, to the facts of the present case, the petitioner could have applied for relaxation for claiming the benefit under Section 54-F only within the time prescribed under that Section and that too, if before making such claim, he had complied with the required conditions to claim such deduction. That not being there in the present case, we are of the opinion that the Board rightly rejected the petitioner's application. Learned counsel for the Revenue has stated that the petitioner is a Hindu Undivided Family, whereas the revenue record appended with the petition shows that the owner of the land in question is a Karta of the Hindu Undivided Family in his individual capacity. In view of what we have held above, even if we assume the owner of the land to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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