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TMI Blog2019 (3) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... T Act', on 12.11.2011. 3.Thereafter, the case was selected for scrutiny and assessment was completed on 13.03.2014, assessing the income of the respondent assessee at Rs. 2,37,10,011/-. It appears that in the previous year 2010-11, corresponding to the Assessment Year 2011-12, the assessee had sold immovable property at Neelangarai, Chennai 600041, being vacant land measuring 2.64 grounds for consideration of Rs. 2,35,00,000/-. 4.In her income tax return, the assessee had claimed that the cost of acquisition of the land had been Rs. 3,00,000/-. Taking into account the indexed cost as per the provision of Section 49 of the IT Act, the assessee had claimed Rs. 44,43,750/- as deduction and computed the total capital gain at Rs. 2,12,55,250/-. The respondent assessee had further claimed deduction under Section 54F of the IT Act, for an amount of Rs. 2,15,56,250/-, which, according to the respondent assessee was on account of investment of Rs. 2.6 crores in a new asset. The respondent assessee claimed that the capital gain chargeable to tax was 'Nil'. 5.In the course of assessment, the assessee furnished the sale deed of the old asset and the purchase deed of the new asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer observed that there was no residential house in the nanja land and the incomplete structure in the said nanja land did not have any kind of resemblance to a completed residential house. Furthermore, a vast area of land had been kept unutilized and the incomplete structure was at one corner of the land. The Assessing Officer, thus, found that no residential house had been constructed and completed within three years from the date of sale of the old asset. 8.The Assessing Officer also took note of the fact that the respondent assessee had obtained supply of electricity from the Tamil Nadu Electricity Board under Tariff No.V, which is given in cases where more than 25% of the built-up area is utilised for commercial purpose. The Assessing Officer deduced that the intention of the respondent assessee was not to construct a wholly residential house, but a structure for commercial purpose. The Assessing Officer, thus, disallowed the claim to deduction under Section 54F of the IT Act and added Rs. 2,15,56,250/- to the income of the assessee under the head 'Income from long term capital gain'. 9.Being aggrieved by the aforesaid order, the respondent assessee filed an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rges and stamp duty) w.e.f. 06/05/2011 to 04/06/2011 which was invested after the date of sale of the original asset on 04/11/2010 and before the due date of filing of return of income u/s 139(1). The amount of Rs. 20,20,000/- was deposited in Capital Gains Account Scheme before the date of filing of return of income u/s. 139(1) which was later withdrawn for construction of residential house property 17.From the above, it is evident that the amount of capital gain was invested by the appellant towards purchase of the land on which residential house was constructed and deposited in Capital Gain Scheme Account within the stipulated time period as envisaged in section 54F. The decisions of the Hon'ble jurisdictional High Court in the case of Mrs.Seetha Subramanian vs. ACIT (1996) 59 ITD 94 and CIT vs Sardamal Kothari (2008) 302 ITR 286 wherein it has been held that the assessee need not complete the construction of the house and occupy the same within three years from the date of sale of the original asset if the construction had commenced within the period of three years. In the present case of the appellant, not only the capital gains amounts were invested in the purchase of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant paragraphs of the judgment of the Supreme Court in Hero Vinoth (supra) are set out herein below : "21. The phrase substantial question of law, as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying question of law, means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction withtechnical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of substantial question of law by suffixing the words of general importance as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta [(1927-28) 55 IA 235 : AIR 1928 PC 172] the phrase substantial question of law as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179] .) 24.The principles relating to Section 100 CPC relevant for this case may be summarised thus : (i) An inference of fact from the recitals or contents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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