TMI Blog2012 (7) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing various precedent - decided in favor of assessee. - ITA No.2756/Del./2011 - - - Dated:- 11-6-2012 - SHRI U.B.S. BEDI, AND SHRI S.V. MEHROTRA, JJ. Assessee by : Shri G.S. Grewal, Revenue by : Shri S.K. Upadhyay, Sr.DR ORDER PER U.B.S. BEDI, J.M. This appeal of the assessee is directed against the order passed by the CIT (A)- XXII, New Delhi, dated 28.01.2009, relevant to assessment year 2006-07, whereby confirmation of disallowance of Rs.14,62,362/- out of Rs.1,90,95,606/- claimed u/s 54 of the I.T. Act, 1961 from the long term capital gains has been challenged. 2. The facts indicate that during the previous year relevant to assessment year 2006- 07, the assessee sold a residential property in Bangalo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment proceedings for assessment year 2006-07 were carrying on, the assessee was informed that due to reasons beyond the control of the builder, the construction would not be completed before the time limit to construct a residential house i.e., before 28.4.2008. 2.4 In the mean time, the assessee had taken the possession of the immovable property at Park View Apartments within three years from the date of sale of the residential property at Bangalore on 3which the capital gain of Rs.3,95,38,545/- arose. 2.5 Based on the opinion taken from an expert, the assessee suo moto approached the Assessing Officer vide letter dated 30.10.2008 and claimed that he may be allowed deduction from long term capital gain u/s 54 of the Act of Rs.1,9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this subsection expired on 31.3.2008. iii) The appellant has utilized the entire amount of Rs.1,90,95,606/- before 31.03.2008. The last payment was of Rs.14,62,363/- was made on 19.06.2007. There is no dispute with regard to payments made by the appellant to the builder, in this transaction. Since no further amount was required to be utilized for purchase of the new asset, no further fund was required to be deposited in separate designated bank account and the appellant is entitled to claim deduction of Rs.1,90,95,606/-u/s 54 of the Act. iv) The Assessing Officer understood that the time limit is the due date for filing return under sub-section (1) of section 139 and extended time limit under section 139(4) would have no application. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which this decision in the cases of DCIT vs. Manjula J. Shah, 318 I.T.R. 417 (Mum.)(SB), CIT vs. Rajesh Kumar Jain, 286 I.T.R. 274 (Gauh.) and CIT vs. Jagriti Aggarwal, 339 I.T.R. 610 (P H) have been followed, similarly in another case of G Bench of ITAT, Delhi in the case of DCIT vs. Sapna Dimri, I.T.A. No.151/Del./2012 for assessment year 2008-09 dated 15.3.2012, these decisions were relied upon to conclude the issue in favour of the assessee. Since, new asset has been purchased within the time limit prescribed for filing of return u/s 139(4), therefore, it was urged for deleting the disallowance made by the Assessing Officer and confirmed by the CIT(A). 5. The Ld.Sr.DR. strongly pleaded that language of the relevant provision is v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 2,50,00,000/- 27.07.07 30,00,000/- 22.08.07 35,00,000 Total: 3,65,00,000 (b) Rs.1,90,95,606/- paid to Park View Apartments Private Limited for an apartment in their project named Park View City at Gurgaon, Haryana. The following payments were made: 21.10.06 1,53,74,172/- 31.08.06 20,00,000/- 29.09.07 2,59,072/- 19.06.07 14,62,363/- Total: 1,90,95,606/- (c) The payment of Rs.3,65,00,000/- made to M/s Triumph Estate Private Limited for construction of residential property at Bangalore was claimed as deduction u/s 54 from the long term capital gain by the assessee while filing his income tax return. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax return for assessment year 2006-07. 7. Since various courts and Benches of the ITAT, while considering this issue, have taken a view in favour of the assessee and in the case of ACIT vs. Smt. Sapna Dimri (supra), the exemption u/s 54 of the Act has been allowed under almost similar circumstances in favour of the assessee while following various precedent in which it was held in paras.9 10 of the order of the ITAT which reads as under: 9. Now, coming to the cost of indexation, in the case of previous owner, the cost of acquisition is to be as on 1.4.1981, it will be illogical to apply the cost indexation with reference to the date on which the assessee became the owner of the property. Therefore, cost of indexation has to be wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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