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TMI Blog2019 (3) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... s are, the assessee is an individual. For the assessment year under dispute, the assessee filed her return of income on 29th July 2005, declaring total income of Rs. 5,40,491, after claiming deduction under section 54 of the Income Tax Act, 1961 (for short "the Act"). Assessment in the case of assessee was originally completed under section 144 of the Act determining the total income at Rs. 69,66,219. Against the assessment order so passed, the assessee carried appeal before the first appellate authority and thereafter to the Tribunal. The Tribunal vide order dated 14th February 2013, restored the matter back to the Assessing Officer for de novo adjudication. In pursuance to the directions of the Tribunal, the Assessing Officer took up the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e drew our attention to the sale deed dated 17th May 1999 and sale deed dated 12th July 2004. He submitted, the sale deed under which the assessee sold the property clearly mentions existence of a building over the land. He also drew our attention to a photograph of a building kept in a paper book. He submitted, since existence of the building is very much evident, assessee's claim of deduction under section 48 of the Act towards cost of improvement/development cannot be disallowed entirely. He submitted, in case, assessee was unable to furnish evidence to support the fact that an amount of Rs. 40 lakh was paid towards construction of the building, the Assessing Officer could have estimated the cost of improvement. 5. The learned Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and the actual amount of expenditure incurred by it towards construction of the building. Once the assessee brings all the evidences on record to justify its claim, the onus shifts to the Assessing Officer to consider allowability of assessee's claim qua the evidences furnished. It is relevant to observe, except furnishing the photograph of the building the assessee has not furnished any other evidence even at this stage also to support its claim that an amount of Rs. 40 lakh was spent towards cost of improvement/development. Therefore, assessee's claim cannot be allowed on mere face value. However, for enabling the assessee to justify its claim by furnishing credible supporting evidence, we are inclined to restore the issue to the file o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted, there is also no requirement under section 54 of the Act that for claiming deduction under the said provision, the assessee has to invest the sale proceeds of the old asset towards purchase of the new house. He submitted, the assessee can make investment out of any other funds available with her including borrowed fund. In support of such contention, learned Authorised Representative relied upon the following decisions:- i) Asstt. CIT v/s. Dr. P. S. Pasricha - [(2008) 20 SOT 468 (Mum)] Now Approved in. CIT v/s. Dr. P. S. Pasricha - [I.T.A. No. 1825 of 2009; Order Dated 07.10.2009, Bombay High Court]; ii) Kapil Kumar Agarwal v/s. ACIT - [(2014) 63 SOT 22 (Del - Trib.) (URO)] Now Affirmed in: CIT v/s. Kapil Kumar Agarwal - [(2016) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it in capital gain account scheme. Therefore, if the investment is not made out of the capital gain, the assessee's claim of deduction under section 54 of the Act is not allowable. Further, he submitted, assessee has purchased two flats, whereas, as per section 54 of the Act deduction is allowable in respect of one flat. 12. We have considered rival submissions and perused material on record. At the outset, it is relevant to observe, learned Commissioner (Appeals) has recorded a factual finding that the investment in new house/flat is within the time limit prescribed under section 54 of the Act. Against the aforesaid decision of the learned Commissioner (Appeals), the Revenue has not preferred any appeal. Therefore, we have to proceed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t allowing assessee's claim of cost of development/improvement is Rs. 58,13,728. Therefore, the quantum of investment made by the assessee towards purchase of new house is much more than the long term capital gain computed by the Assessing Officer. That being the case, the provision of section 54(2) of the Act does not apply. There being no pre-condition under section 54(1) of the Act providing for investment of the long term capital gain in purchase of new house for claiming deduction under section 54 of the Act, the departmental authorities cannot import such restriction/condition to the statutory provision. The decisions cited by the learned Authorised Representative clearly support this view. In fact, the Hon'ble P&H High Court in CIT v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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