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TMI Blog2017 (5) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial house or construction of new residential house before the date of furnishing the return of income, the amount shall be deposited by him in the capital gain account for availing the deduction under Section 54/54F of the Act - The consequence of non-utilisation of the capital gain within period of three years would lead to assessment of the capital gain to tax in the assessment year relevant to the previous year in which the three years expires. It is neither the discretion of the assessee nor the discretion of the Assessing Officer to assess the said amount to capital gain tax in the assessment year other than the year as provided in Section 54/54F and particularly as per proviso to sub-section (4) of the said section so long the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n account shows the balance of ₹ 62,15,502 as on 29.02.2012 and the assessee has not withdrawn and utilized any amount till date from the capital gain account. The Assessing Officer further noted that the assessee has not completed the construction of residential house on or before 30.01.2015 as required under Section 54 and therefore the Assessing Officer proposed to disallow the long term capital gain of ₹ 87,13,115 claimed under Section 54 of the Act. The Assessing Officer after conducting the enquiry and verification of the status of the new asset disallowed the claim of the assessee under Section 54 of the Act. As per the Assessing Officer, the assessee has not utilized the capital gain till the stipulated period of three y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in purchase of new house property within the period stipulated as per provisions of section 54 54F then the assessee cannot claim the benefit of section under the said provision. He has further contended that even in case the assessee has deposited the amount in capital gain account the said amount is to be considered as per the provisions of Section 54 of the Act. He has relied upon the orders of the authorities below. 6. I have considered the rival submissions as well as relevant material on record. There is no dispute that the assessee has sold immovable property on 30.1.2012 for a consideration of ₹ 1 Crore. The amount was deposited in capital gain account. However the assessee has then utilized a sum of ₹ 37,70,690 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss 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 ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e new asset is transferred within a period of three years from the date of its purchase or, as the case may be, its construction, 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 such new asset as provided in clause ( a ) or, as the case may be, clause ( b ), of sub-section (1) shall be deemed to be income chargeable under the head Capital gains relating to long-term capital assets of the previous year in which such new asset is transferred.] [(4) The amount of the net consideration which is not appropriated by the assessee towards the purchase of the new asset made within one year before the date on which the transfer of the original asset took place, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. As per proviso to sub-section (4) of Section 54F if the amount deposited in capital gain account is not utilized wholly or partly for purchase or construction of new asset within the period specified in sub-section (1) then the amount of capital gain shall be charged under Section 45 as income of the previous year in which the period of three years fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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