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TMI Blog2025 (4) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... of law and the established facts, kindly be deleted in full. 3. Deduction claimed u/s. 54B not allowed Rs. 33,56,070/-: The Ld. CIT(A) further erred in law and on the facts of the case in assessing Long Term Capital Gain by disallowing the deduction claimed u/s. 54B of the Act of Rs. 33,56,070/- (i.e. Rs. 32,76,000/ cost of new house and Rs. 1,63,830/- being registry charges). The disallowance so made and confirmed by the Id. CIT (A), being contrary to the provisions of law and the established facts, kindly be deleted in full. 4. Registry charges not included in COA - Rs. 4,55,540/-: The Ld. CIT(A) further erred in law and on the facts of the case in assessing Long Term Capital Gain by not allowing the registry charges of Rs. 4,55,540/-(while allowing the deduction claimed u/s. 54B of the Act for purchase of agriculture land of Rs. 70,00,000/-). The disallowance so made and confirmed by the Id. CIT (A), being contrary to the provisions of law and the established facts, kindly be deleted in full. 5. The ld. CIT (A) further erred in law as well as on the facts of the case in confirming of charging interest u/s. 234A & 234B of the Act. The appellant totally denies its liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal. 5. It is observed that during the year under consideration the assessee sold property situated at Village Deoli Arab Road, Tehsil Ladpura, and Kota for Rs. 3.08 Cr. Which was jointly owned by the assessee himself and some Mr. Naveen Kumar in 50:50, meaning thereby the share of the assessee in sale consideration was Rs. 1.54 Cr. Issue here for our consideration was allowability of deductions u/s. 54F and 54B of the Act, as the assessee filed return belatedly u/s. 139(4) of the Act. The property purchased by the assessee for the purposes of section 54F of the Act was purchased on 31.03.2017 and property for the purposes of section 54B of the Act on 25.08.2016, i.e. after the due date of filing the return and money was not deposited in the Capital Gain Account Scheme (CGAS). 6. We have gone through the order of the AO, Order of the Ld. CIT (A) and various submissions of the assessee and observed that the figures of sales, purchase, and cost of acquisition/improvement are not under challenge. The only issue under challenge is allowability of deduction u/s. 54B and 54F of the Act. We have gone through the legal citations relied upon by both the sides and refer the pronouncemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 225 Taxman 86/363 ITR 54 (Punj. & Har.). ii. CIT v. Smt. Bharati C. Kothari [2001] 117 Taxman 538/ [2000] 244 ITR 352/160 CTR 0165 (Cal. HC). iii. Ms. Jagriti Aggarwal (supra). iv. CIT v. Manjula J. Shah [2011] 16 taxmann.com 42/ [2012] 204 Taxman 691/ [2013] 355 ITR 474 (Bom.). v. Mrs. Seema Sabharwal v. ITO [2018] 91 taxmann.com 2/169 ITD 319 (Chd. - Trib.). vi. Rajendra Pal Verma v. Asstt. CIT [2019] 104 taxmann.com 303/176 ITD 211 (Mum. - Trib.). vii. ITO v. Mrs. Pamela Pritam Ghoseh [IT Appeal No. 5644 (Mum.) of 2016, dated 27-7- 2018]. viii. Hasmukh N. Gala v. ITO [2017] 83 taxmann.com 49 (Mum. Trib.) 7. Ld. CIT (A) relied upon the decision of Hon'ble Jurisdictional High Court in the case of Humayun Suleman Merchant v. Chief CIT [2016] 73 taxmann.com 2/242 Taxman 189/387 ITR 421 (Bom.) after considering various other judgements on the time available for investment, the Court has adjudicated a similar issue- time limit upto which the invested amount is to be considered for exemption u/s. 54F. The condition of 54(2) & 54F(4) are identical with respect to the time limit except that 54F required entire sale proceeds to be invested and 54 stipulates only the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee for prescribed purposes within one year before; or on or before the due date of filing of return of income under section 139 shall be deposited in the capital gains account scheme. It needs to be emphasized that the literal reading of section 54(2) provides for the two dates i.e. the due date under section 139 and the due date under section 139(1). Pertinently, section 139 cannot be said to mean only section 139(1), but it means all subsections of section 139. 11. It may be noted that the aforesaid provision mandates that the period of utilization or appropriation of the capital gains in purchase or construction of the new residential house is to be considered till the due date under section 139 [which also covers sub-section (4) and (5) of section 139]. However, for the purpose of taking the benefit of Capital Gains Account Scheme, the time limit for making such deposit has been prescribed to be till the due date under section 139(1) [see the text of section 54(2) as contained in the parenthesis]. 12. In other words, the sub-section (2) clearly provides a pigeonhole in the sense that the investment by way of purchase or construction, without resorting to the Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning of the Kerala High Court in the underlying order reported in Dr. Xavier J. Pulikkal v. Dy. CIT [2015] 64 taxmann.com 457/[2016] 242 Taxman 206. The Kerala High Court held as under: "So far as the facts of the present case, we have already stated above, it is possible that facts of the other appeal considered by the Appellate Tribunal along with appeal of the revenue may be different. The scheme for depositing capital gain is contemplated under section 54F (4) and it depends upon when the property of the assessee is sold and when exactly the amounts were invested, whether it was invested in a residential house or otherwise. All these facts have to be considered with reference to provisions of section 54F (4) along with section 139 (1) of the Act, as the due time would be under section 139(1) only not under section 139(4) of the Act." 15. Tribunal, as a matter of fact, has accorded one more opportunity to the appellant assessee to place on record relevant facts for consideration and if his case were to be different from the facts of the other case and makes a vast difference altogether. So far as provisions of law are concerned, it is always open to him to place such facts b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court." 17. It is also submitted that the order passed by the Hon'ble Supreme Court, albeit in brief, is the declaration of law in terms of Article 141 of the Constitution of India, the exemption needs to be allowed if the amount is invested on or before the due date of filing of return under section 139(4). 18. We have deliberated at length the issue under consideration i.e. the entitlement of the assessee's claim of exemption under section 54. In our considered view in the backdrop of the facts of the case considered in the light of judicial pronouncements relied upon by the Revenue and by the assessee, particularly the ratio laid down by the Hon'ble Supreme Court of India in the matter of Xavier J. Pulikkal (supra), It can be safely be concluded that the assessee in the case before us is entitled to claim exemption under section 54 to the extent she had invested towards the purchase of new residential property under consideration upto the date of filing of belated return under section 139(4) i.e. 31-3-2014. In the case before us a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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