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TMI Blog2014 (1) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... the capital gains, the assessee claimed cost of improvement to the extent of Rs.3,50,000. According to the ld.senior counsel, the assessee borrowed a loan from Maradu Service Co- operative Bank for improving the house property. The assessee has also produced a certificate from Maradu Service Co-operative Bank. The assessing officer disallowed the claim of the assessee merely because the loan was classified as a general loan and not as a housing loan. According to the ld.senior counsel, the borrowed funds from Maradu Service Co-operative Bank was used for improvement of the building, therefore, there is no reason for any disallowance. 4. On the contrary, Shri K.K. John, the ld.DR submitted that there is no material available on record to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Co-operative Bank Ltd is a general loan and not a housing loan. Maradu Service Co- operative Bank is serving the rural population, more particularly, agriculturists. Therefore, they would have advanced agricultural loan, gold loan and personal loan, etc. When the assessee borrowed loan and it was used for improvement or maintenance of the building we cannot say that the assessee could not have used the funds merely because housing loan was not borrowed. The question is whether the assessee could have invested some funds for improving the property in the absence of any material? This Tribunal is of the considered opinion that the assessee could have invested the funds due to passage of time after the construction, therefore, rejecting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rival submissions on either side and also perused the material available on record. It is not in dispute that by a letter dated 18-09-2009, the assessee admitted the receipt of Rs.9 lakhs over and above the sale consideration disclosed in the sale deed. The assessing officer has also found that this Rs.9 lakhs was credited in the account of the assessee's wife Smt. K.S. Beena. Since the amount was received by cheque and it was credited in the name of the assessee's wife Smt. K.S. Beena and the same was also admitted by the assessee by a letter dated 18-09-2009, this Tribunal is of the considered opinion that the CIT(A) has rightly confirmed the addition. Accordingly, this Tribunal do not any merit in the order of the CIT(A). 10. The next g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lized the portion of the amount before the due date for filing the return of income u/s 139(1). Therefore, according to the ld.DR, the assessee is not entitled for exemption of the entire amount of Rs.33,33,805. Therefore, the CIT(A) has rightly confirmed the disallowance. 13. We have considered the rival submissions on either side and also perused the material available on record. Section 54(2) reads as follows: "(2) The amount of the capital gain which is not appropriated by the assessee towards the purchase of the new asset made within one year before the date on which the transfer of the original asset took place, or which is not utilized by him for the purchase or construction of the new asset before the date of furnishing the return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not been utilized for the purpose of construction of the new asset before the date of furnishing the return of income u/s 139(1), then the same shall be deposited before furnishing such return. In this case, admittedly, the assessee has not utilised the entire amount before expiry of one year. Moreover, it was also not deposited in the prescribed account before due date for furnishing the return of income u/s 139(1) of the Act. 15. We have carefully gone through the judgment of the Punjab & Haryana High Court in Jagriti Agarwal (supra). In the case before the Punjab & Haryana High Court, the assessee sold house property and claimed exemption u/s 54 of the Act. After referring to sub clause (2) of section 54 and section 139(1) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms used in section 276CC is "in due time". The time within which the return is to be furnished is indicated only in sub-section (1) of section 139 and not in sub-section (4) of section 139. That being so, even if a return is filed in terms of sub-section (4) of section 139 that would not dilute the infraction in not furnishing the return in due time as prescribed under sub-section (1) of section 139. Otherwise, the use of the expression "in due time" would lose its relevant and it cannot be said that the said expression was used without any purpose. Before substitution of the expression "clause (i) of sub-section (1) of section 142" by the Direct Tax Laws (Amendment) Act, 1987, with effect from April 1, 1989, the expression used was "sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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