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TMI Blog2020 (5) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... R, ACCOUNTANT MEMBER: The present appeal has been filed by the assessee against the order of ld. CIT(A)-18, New Delhi dated 04.07. 2016. 2. Following grounds have been raised by the assessee: 1. That the learned ITO erred in law in denying the benefit admissible u/ s 54 of the Income Tax Act, 1961 by wrongly relying upon Clause 2 ( a) of Section 54 F of the Income Tax Act, 1961 which on the facts of the case in not applicable. 2. That the learned CIT( A) erred in law in upholding the assessment on wrong facts and maintaining the disallowance and additions of the Long Term Capital Gain at ₹ 1,76, 95, 024/- 3. That the orders of the authorities below are against the facts and pleading before the authorities below in respect of the construction on the property at D- 279, Defence Colony, New Delhi in respect of which the deductions u/s 54F was claimed. There is no dispute with regard to the amount of investment in the construction of the house at D-279, Defence Colony, New Delhi claimed at ₹ 1,76,95,024/- which was provided out of the capital gain a/ c. scheme provided permissible under the law. 3. During the year under consideration, the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Induslnd Bank A/c No.100011312441 From 01.08.2011 to 24.07.2012 Total ₹ 15739401 = 7869700/- ₹ 78,69,700 /- ( Joint with Brother Anil) 3. Induslnd Bank A/c No.100003514235 From 04.06.2011 to 31.07.2012 ( Joint with Wife Reema) ₹ 34,73,934 /- Total ₹ 1,76,73,379/- 9. The provisions of Section 54 and 54F are as under: Section 54 : [(1 )] [[Subject to the provisions of sub- section (2 ), where, in the case of an assessee 51 being an individual or a Hindu undivided family], the capital gain arises from the transfer of a long- term capital asset [***], being buildings or lands appurtenant thereto, and being a residential house, the income of which is chargeable under the head Income from house property (hereafter in this section referred to as the original asset), and the assessee has within a period of [one year before or two years after the date on which the transfer took place purchased], or has within a period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asset took place, or which is not utilised by him for the purchase or construction of the new asset before the date of furnishing the return of income under section 139, shall be deposited by him before furnishing such return [ such deposit being made in any case not later than the due date applicable in the case of the assessee for furnishing the return of income under sub-section (1 ) of section 139 ] in an account in any such bank or institution as may be specified in, and utilised in accordance with, any scheme which the Central Government may, by notification in the Official Gazette, frame in this behalf and such return shall be accompanied by proof of such deposit; and, for the purposes of sub- section (1 ), the amount, if any, already utilised by the assessee for the purchase or construction of the new asset together with the amount so deposited shall be deemed to be the cost of the new asset : Provided that if the amount deposited under this sub- section is not utilised wholly or partly for the purchase or construction of the new asset within the period specified in sub-section (1 ), then,- (i) the amount not so utilised shall be charged under section 45 as the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the income from which is chargeable under the head Income from house property , other than the new asset, 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 residential house is purchased or constructed. (3) Where the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid. Explanation.-[ Omitted by the Finance Act, 1992, w.e.f. 1 -4 -1993.]] 10. On going through the facts of the case and the provisions of the Act, the following scenario emerges: As on the date of transfer of the original asset on 28.04.2011, the assessee doesn t own more than one residential house. The capital gains were not utilized for the Rajendra Nagar flat purchase on 13.09.2011. The capital gains have been duly deposited in the CG Savings A/c. The same amounts from the CG savings A/c have been utilized for the payment of various expenses incurred for the construction of house at D-279, Defence Colony, New Delhi which can be verified from the bank statement. The remaining expenditure incurred for the construction of the house have been met from the joint A/c maintained with Indusind Bank. The occupancy certificate reveals that the completion of the construction was within 2 years from the date of sale of the original asset (28.04.2011 -01.02.2013). 11. Thus, from the perusal of the facts, we hold that the revenue authorities have mislead themselves on holding that the purchase of the Rajendra Nagar flat out of the sale proce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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