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TMI Blog2018 (12) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - Dated:- 21-12-2018 - Shri. A. K. Garodia, Accountant Member And Shri. Laliet Kumar, Judicial Member For the Assessee : Shri. S. Ganesh, Advocate For the Revenue : Shri. Vikas K. Suryawamshi, Addl. CIT ORDER PER LALIET KUMAR, JUDICIAL MEMBER : The present appeal is filed by the assessee against the order of the CIT(A)-4, Bengaluru, dt.27.11.2017, for the assessment year 2013-14, on the following effective grounds of appeal : 2. The Cd. CIT (Appeals) erred in upholding the disallowance Of the exemption claimed under section 54F to the extent of Rs. being cost of land for the reason that, the land purchased is prior to the disposal of Asset resulting in Capital Gain. The provisions of Section 54F d6esn't bar such a scenario as long as the new residential house property is constructed within 3 years after the date of disposal of Asset resulting in Capital Gain. 3. The Ld. CIT (Appeals) erred in not considering the judicial precedence in the following cases wherein it is held that amounts spent even before the date of transfer of Asset has to be considered for allowing exemption. High Court Of Karnataka in the case of CIT v. J R Subramany ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following effect : 40.After considering the various authorities, some of which are adverted to above, we are compelled to observe how true it is to say that there exists unsatisfactory state of law in relation to interpretation of exemption clauses. Various Benches which decided the question of interpretation of taxing statute on one hand and exemption notification on the other, have broadly assumed (we are justified to say this) that the position is well settled in the interpretation of a taxing statute: It is the law that any ambiguity in a taxing statute should endure to the benefit of the subject/assessee, but any ambiguity in the exemption clause of exemption notification must be conferred in favour of revenue and such exemption should be allowed to be availed only to those subjects/assesses who demonstrate that a case for exemption squarely falls within the parameters enumerated in the notification and that the claimants satisfy all the conditions precedent for availing exemption. Presumably for this reason the Bench which decided Surendra Cotton Oil Mills Case (supra) observed that there exists unsatisfactory state of law and the Bench which referred the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reduced by any expenditure incurred wholly and exclusively in connection with such transfer. (2) Where the assessee purchases, within the period of two years after the date of the transfer of the original asset, or constructs, within the period of three years after such date, any residential house, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount 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 as 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 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. From the perusal of the above provision it is clear that for the purpose of claiming benefit of deduction under section 54F it is incumbent upon the assessee to satisfy one of the following ingredients : i) That the Capital asset should be purchased within one year before the sale of the long term capital asset Or ii) The Capital asset should have been acquired within two years after the date on which the transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital gains arose to the assessee for a sum of ₹ 10,47,95,925/- and the assessee after purchasing another property on 14.05.20 with super structure for a total consideration of ₹ 15,96,46,443/- had raised construction at the cost of ₹ 18,73,85,491/- and claimed long-term capital gains. In this case though the land was purchased on 14.05.2007 and the capital gains arose to the assessee on account of sale of the land on 15.02.2010, but the long-term capital gains was restricted to the capital gains as the cost of construction was more than the capital gains arising to the assessee and the cost of the land which was purchased on 14.05.2007 was not included , while granting the benefit under section 54F of the Act . Further we find that the Hon ble High Court had not answered question no.2 mentioned in para 11 of the decision either in affirmative or negative. Hence we do not find the judgment is applicable either on facts or law in this case, to be a binding precedence on this Tribunal. 09. The second decision relied upon by the assessee was in the matter of ACIT v. Subhash Sevaram Bhavnani [(2013) TaxPub(DT) 0592 ITAT, Ahmedabad. In that case also the brief f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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