9911796707
TMI Blog2021 (6) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... me during the course of assessment proceedings and, therefore, the said amount is liable to tax. - Decided in against assessee. - ITA No.9859/Del/2019 - - - Dated:- 28-5-2021 - Shri R.K. Panda, Accountant Member For the Assessee : Shri Upender Bhatt, FCA For the Revenue : Shri Farath Khan, Sr. DR ORDER This appeal filed by the assessee is directed against the order dated 18.11.2019 of the CIT(A)-35, New Delhi, relating to assessment year 2012-13. 2. Facts of the case, in brief, are that the assessee is an individual. It was noted by the AO that during the course of assessment proceedings for A.Y. 2010-11 that the assessee had sold a flat for ₹ 70 lakhs during the F.Y. 2008-09 and earned long-term capital gain of ₹ 50 lakhs which was deposited by him in capital gain account of SBI on due date. Out of this amount of capital gain the assessee has invested ₹ 35.10 lakhs in new project within 36 months and could not utilize a sum of ₹ 14.90 lakhs. It was seen that the assessee had filed his return of income for A.Y. 2012-13 declaring the returned income of ₹ 18,49,027/- without offering the unutilized amount of ₹ 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be utilised within 36 months. The appellant invested ₹ 35.1 lakh within 36 months. And the balance of ₹ 14.9 lakh could not be used during this period. The AO has accordingly made the addition. iii. It is also undisputed fact that as per the agreement the premises was to be handed over in 36 months as per Clause 5 A of the agreement. All the investments as demanded by the builders till date to the tune of Rs, 35.10 Lacs have been made from this very account directly to Unitech only. Also given is a statement of the demands made by the builder and payments made along with the statement of Account issued by the Builder. Various letters dated 13- 10-11, 29-12-2011,8.8.2015, 18-08- 2016, and 3-12-2016 were written by the appellant to the builders about the delay made by them. The fact was published in various Newspapers cases in this regard are pending against the builder which are being taken up by the Hon ble Supreme Court of India. iv. It has further been submitted that the appellant held back the balance amount of ₹ 15 lakh payable to the builder with the bank till date of assessment to be invested in this flat with Unitech Ltd. It was submitted that an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal by raising the following grounds:- 1. That the Ld. CIT(A) has erred in law and on Facts of the cases in not deleting the addition of ₹ 1490000/- made by the Ld. A.O. Treating the unpaid amount out of the capital gains account to the Builder as income of the Assessee. 2. That there has been no default on part of the assessee. The Ld. CIT(A) having agreed that the assessee has neither concealed income nor furnished inaccurate particulars and accordingly the CIT(A) erred in accepting the forced surrender of the assessee as a ground of upholding the addition. 3. That the appellant craves leave to add, alter, amend or delete any of the grounds of appeal at the time of hearing and all above grounds are without prejudice to each other. 5. The ld. counsel for the assessee submitted that the AO taxed the unutilized amount ignoring the belief of the assessee that the full amount could not be utilized because of the circumstances beyond the control of the assesseee since the builder had delayed the project. He submitted that as per the agreement with the builder, he was supposed to handover the flat within a period of 36 months. All the installments as dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt could not be utilised because of circumstances beyond the control of the assessee since the builder had delayed the project. It is also his submission that since the builder who was supposed to handover the flat within a period of 36 months defaulted in delivering the same, the assessee withheld the amount. It is his submission that the provisions of section 54 and 54F being beneficial provisions should be interpreted liberally and the assessee should not be given the benefit of section 54. 7.1 The provisions of section 54 read as under:- Profit on sale of property used for residence. 54. (1) Subject to the provisions of sub-section (2), where, in the case of an assessee 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 thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn 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 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 ) th ..... 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