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2022 (1) TMI 598 - HC - Income TaxDeduction u/s 54F - Withdrawal of Amount Deposited with the Bank of India in terms of Capital Gains Scheme Accounts, 1988 - rejecting the request of issuance of no objection certificate to the petitioner, who has already paid the advance tax which is more than the amount of Capital Gain tax that may be required to pay - HELD THAT:- If a depositor other than the eligible company when desires to close its account an application needs to be made with the approval of the AO having jurisdiction over the depositor to the deposit office. The deposit office shall pay the amount of balance including interest accrued, to the credit in the account of the depositor by means of crediting such amount to any Bank account of the depositor. Here is a case where it is not on account of the depositor having fulfilled the requirement of Section 54 F of the Act is choosing to close the account, but he has instead shown his inability to purchase any residential house and therefore, on payment of tax he has sought to close the account and permit the withdrawal of the remaining amount for the same to be utilised as may be legally permissible. However, for so doing he would be requiring not only the payment of the tax as provided u/s 54 F of the Act in the proviso clearly while reading the said provision and Section 45 of the Act. With no mechanism or modality provided for the withdrawal of the amount which at one point of time had been contemplated for the purchase of the residential premises from the amount of Capital Gains under the said scheme, the request had been made to the respondent for issuance of the No Objection Certificate to which for the apprehension ventilated before this Court, it has chosen not to issue the same. We see no reason for the authority concerned not to allow this. More particularly, on the entire amount the advance tax of ₹ 1.25 crore is already paid. It is given to understand that ordinarily the tax which is being offered from the professional income is over the period of time being regularly paid and at no stage the petitioner has defaulted. The said amount of ₹ 1.25 Crore is not to be adjusted against any possible loss which is quite unlikely and the same has been stated by way of an affidavit. It has been undertaken further that while filing of the return, physical copy shall be also given to the AO having the jurisdiction. With all possible loopholes having been plugged cementing the same with the affidavit tendered before this Court additionally pursuant to the submissions made by the learned senior standing counsel, Ms.Maithili Mehta, the action of the Assistant Commissioner, Income Tax dated 20.10.2021 whereby he denied to issue the No Objection Certificate for the balance withdrawal of the deposit deserves and warrants interference. From the robust facts which have been set out coupled with the circumstances which exist in the instant case and being convinced with the credibility of the petitioner as the assessee of income tax department over the years, the Court is of the opinion that this petition deserves to be permitted. We accordingly allow the present petition and direct the respondent authority concerned that from the part of the amount deposited in the Capital Gain Account Scheme, the amount which remains shall be permitted to be withdrawn. Let No Objection Certificate in respect of Account No.200116810000015 be issued within a period of one week from the date of receipt of a copy of this order.The petitioner, over and above the additional affidavit dated 01.12.2021 tendered before this Court, shall file an undertaking before the concerned Assessing Officer along the same line.
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