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TMI Blog2018 (1) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... Y. 2012-13 wherein the assessee has raised following grounds of appeal: 1. That on the facts and in the circumstances of the case the ld. CIT(A) is wrong, unjust and has erred in law in upholding finding recorded by the assessing officer that deposit by the appellant in capital gain account of ₹ 1,25,00,000/- on 28.03.2013 for construction of residential house within extended due date of 31-03-2014 u/s 139(4) of the I.T. Act, 1961 cannot be considered as investment for the purpose of deduction in accordance with section 54F of the I.T.Act, 1961 from long term capital gain and thereby confirming the action of Ld. AO in allowing deduction u/s 54F to ₹ 1,08,53,775/- as against ₹ 2,32,23,657/- correctly claimed by the assessee. 2. That the appellant craves the permission to add to or amend to any of the above grounds of appeal or to withdraw any of them. 2. Brief facts of the case are that the assessee is an individual deriving income from firm(s) M/s Rajnikant Nem Chand Co. and Goregaon Gan Agency. The assessee during the year sold a land at 5/B, Laxmi Industrial Estate, Link Road, Goregaon, Mumbai on 21.10.2011 for a consideration of ₹ 3,6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.03.2011 RTCG 12,50,000/- 31.03.2011 931042-HDFC Bank 12,50,000/- 11.10.2011 202328-S.V. Co-op. Bank 52,75,000/- 11.02.2012 202333-S.B.Co-op. Bank 1,43,75,000/- 11.06.2012 202337-S.B.Co.op.Bank 1,43,75,000/- However at the request of purchaser the assessee required to present the cheque No. 202333 dated 11.02.2012 for ₹ 1,43,75,000/-19.04.2012 and the same was credited in his Bank A/c on 21.04.2012. Similarly at the request of purchaser the assessee required to accept the cheque No. 202378 dated 18.10.2012 in place of Cheque No. 202337 dated 11.06.2012 which was credited in his Bank A/c on 20.10.2012. thus assessee received major part of consideration for sale much after date of conveyance i.e. transfer of property and ₹ 1,43,75,000/- after due date of filing of return. In view of the above facts of the case and from positions of law the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai vs. I.T.O. (2009) 32 DTR (Kar.) 243. The various ITAT Benches followed the said judgments in case of CIT vs. Rajesh Kumar Jalan and Fathima Bai vs. I.T.O. while deciding various case. In case of Nipun Mehrotra vs. ACIT ITAT, Bangalore Bench in (2008)110 ITR 520 (Bang.) held the same view. In a recent decision in case of G. Ramesh vs. ITO Chennai (2016) 159 ITD 633 wherein it is held that as per sec. 54F(4), in the event ofthe assessee not investing the capital gains either in purchasing the residential house or in constructing a residential house within the period stipulated in sec. 54F (1), if the assessee wants the benefit of sec. 54F, then he should deposit the said capital gains in an account which is duly notified by the Central Government. In other words, if he wants claim of exemption from payment of income-tax by retaining the cash, then the said amount is to be invested in the said account notified by Central Government on this behalf. If the intention is not to retain cash but to invest in construction or any purchase of the property and if such investment is made within the period stipulated therein i.e. Section 139 (4), then section 54F (4) is not at all attracted an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1,43,75,000/-) on 20.10.2012 i.e. after the due date of furnishing return u/s 139 (1) i.e. 30.09.2012 and so it was impossible for him to deposit the money in Capital Gain Deposit A/c before that date. The similar issue came up for consideration before Pune Tribunal in case of Mahesh Nemi Chandra Geneshwade vs. I.T.O. (2012) 73 DTR/147 TTJ 488. The Hon ble ITAT took into consideration the CBDT Circular No. 791 dated 02.06.2000 and appreciated the impossibility of the assessee being able to invest the amount in specified assets and held that period of 6 months for the purpose of investment in specified assets must be reckoned from the date of receipt of consideration. The said judgment of Hon ble ITAT held as under:- The assessee entered into a development agreement on 12.07.2005 in which the consideration was fixed at ₹ 2.50 crores. A correction deed was entered into on 2.7.2007 in which the sale consideration was increased to ₹ 4.90 crores. The assessee invested ₹ 50 lakhs in section 54EC bonds on 3.8.2007 and 27.10.2007. The Assessing Officer held that the date of transfer was 12.7.2005 and as the section 54EC investments had been made beyond a period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,23,39,802/- made to declared long term capital gain in the hands of assessee deserves to be allowed on this ground also. It is, therefore, prayed that the deduction of ₹ 1,23,39,802/- claimed by assessee u/s 54F may kindly be allowed to him. 5. On the other hand, ld. DR relied on the order of authorities below. 6. We have heard both the sides. The conveyance deed for transfer of property was presented on 09.09.2011 and registered on 20.10.2011 by Sub-Registrar, Borivali. Part of the consideration was received by that date by assessee. The details of cheques are as under: Details of consideration and post dated cheques. Date Cheque No. Amount (Rs.) 12-03-2011 RTCG 12,50,000/- 31-03-2011 931042-HDFC Bank 12,50,000/- 11-10-2011 202328-S.V. Co-op. Bank 52,75,000/- 11-02-2012 202333-S.B. Co. op. Bank 1,43,75,000/- 11-06-2012 202337- S.B. Co. op. Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-tax Act, 1961, is mentioned in section 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 date of furnishing the return of the Income-tax under section 139 of the Income-tax Act. Section 139 of the Income-tax Act, 1961, cannot be meant only section 139(1) but it means all sub-sections of section 139 of the Income-tax Act, 1961. Under sub-section (4) of section 139 of the Income-tax Act any person who has not furnished a return within the time allowed to him under sub-section (1) of section 142 may furnish the return within the time allowed to him under sub-section (1) of section 142 may furnish the return for any previous year at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment year whichever is earlier. Such being the situation, it is the case of the respondent/assessee that the respondent/assessee could fulfil the requirement under section 54 of the Income-tax Act for exemption of the capital gain from being charged to income-tax on the sale of property used for residence up to March 30, 1998, inasmuch as the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act. According to ld. AR of the assessee, the investment was made before of 31.03.2009 i.e. the time limit provided u/s 139(4), the claim of the assessee u/s 54F was rightly allowed by the ld. CIT(A). For this proposition reliance is placed on the following decisions: [ 2006] 286 ITR (Gau) CIT v. RAJESH KUMAR JALAN [ 2011] 339 ITR 610 (P H) CIT v. MS. JAGRITI AGGARWAL ACIT v. SMT. SAPNA DIMRI ITA NO. 151/DEL/2012 [ITAT DEL0 NIPUN MEHROTRA VS. ACIT (2008) 110 ITD 520 Regarding the observation of the AO that no evidence was found for payment of on-money at the time of acquisition of new property, it is submitted by the AR that in the seized documents, evidences were found for the receipt of onmoney and subsequent investment in the acquisition of new properties. The husband of the assessee Shri R.K. Sharma in his preliminary statement recorded during the course of search u/s 132(4) had also admitted the unexplained investment in the acquisition of new properties which is a further proof from the return of income filed by the assessee where such investment was declared as additional undisclosed income, thus the AO cannot play blow hot and blow cold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impossible for assessee to make the investments on/before due date of filing of return. On the issue of impossibility of performance to invest the amount in specified assets within 6 months from date of transfer, the CBDT appreciated such situation and has clarified that the period of 6 months for making investments in specified assets has to be reckoned from the date of the sale of such stock-in-trade when the right to collect sale consideration in such cases arose, which was much after the date of transfer as contemplated for the purpose of taxation. The Hon ble ITAT, Pune Bench (supra) has taken such view and the relevant para is as under: The interpretation placed by the CBDT in consultation with the Ministry of Law to the condition of making investment within six months from the date of transfer in section 54EC would support the claim of the assessee in this case also for exemption from capital gain with respect to the impugned sum of ₹ 50 lakhs invested in specified assets on 03-08- 2007 and 27-10-2007. In the present case, admittedly the impugned amount of sale proceeds have been received by the assessee much after the date of transfer i.e., 12-7-2005, so howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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