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2023 (1) TMI 753 - AT - Income TaxDenial of exemption u/s. 54 - Assessee had not disclosed capital gain in the return filed u/s 139(1) - Assessee should deposit the proceeds in the special capital gains account before the due date of filling of the return of income u/s. 139(1) which Assessee has failed to do so and Assessee has to satisfy the condition prescribed u/s. 54(2) - HELD THAT:- There is no dispute that Assessee had earned capital gain on sale of flat and the same was invested in purchase of new house within the time provided u/s. 54. The entire purchase consideration was paid by 31st March, 2012 and possesion was obtained on 23.04.2012. However, in the return filed u/s 139(1) Assessee had not disclosed capital gain albeit had made a claim before the AO in the revised computation. We agree with the contention of that if a claim was not made in the return of income the same can be made during the course of assessment proceedings and the judgment of in case of GOETZE (India Ltd.) [2006 (3) TMI 75 - SUPREME COURT] applies only to the power of the AO and not to the power of the appellate authorities to admit the claim. Whether the benefit or exemption from capital gain tax can be given, if the investment has been made in terms of section 54 within date specified u/s. 139(4); or can capital gain exemption be denied mearly because on account of failure on part of the Assessee to deposit the capital gains in the capital gains account scheme before the due date specified u/s 139 (1). Find that, this issue stands covered by the decision in the case of CIT vs. M/s. Jagriti Aggarwal [2011 (10) TMI 279 - PUNJAB AND HARYANA HIGH COURT] Thus hold that if the investment u/s 54 has been made within the time limit of date specified u/s. 139(4), exemption cannot be denied. Thus, the claim of exemption u/s. 54 is allowed to the Assessee.
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