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TMI Blog2020 (8) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... r. DR ORDER PER DR. B.R.R. KUMAR, ACCOUNTANT MEMBER: The present appeal has been fi led 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 benef it admissible u/s 54 of the Income Tax Act, 1961 by wrongly relying upon Clause 2(a) of Section 54F 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awal for construction from the above CG Savings A/c of house at D-279, Defence Colony, New Delhi (on demolition of the ancestral house) is as under: 1. Oriental Bank of Commerce (Capital Gain A/c)- A/c No. 0913208100066 From 13.08.2012 to 13.05.2013 ₹ 63,29,745/- 2. Induslnd Bank A/c No.100011312441 From 01.08.2011 to 24.07.2012 Total ₹ 15739401 = 7869700/- ₹ 78,69,700/- (Joint with Brother Ani l) 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 subsectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) to new asset shall be construed as a reference to the two residential houses in India: Provided further that where during any assessment year, the assessee has exercised the option referred to in the first proviso, he shall not be subsequently entitled to exercise the option for the same or any other assessment year. [***] [(2) The amount of the capital gain which is not appropriated by the assessee towards the purchase of the new asset made within one year before the date on which the transfer of the original 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b) the amount that would not have been so charged had the amount actual lyutilised 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. 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 state ..... X X X X Extracts X X X X X X X X Extracts X X X X
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