TMI Blog1999 (9) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... mount that was received by way of sale of his property as such was not utilised. 2. Section 45 of the Act, provides that Any profits or gains arising from the transfer of a capital asset effected in the previous year shall, save as otherwise provided in sections 53, 54, 54B and 54D, be chargeable to income-tax under the head Capital gains , and shall be deemed to be the income of the previous year in which the transfer took place. In the facts of the present case, during the accounting year relevant to the assessment year, the assessee sold 93.33 cents of land along with building. The claim put forward by the assessee that it was an agricultural land and, therefore, no income-tax under the head of Capital gains is liable to be paid, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en constructed within two years of the sale of the property for the purpose of his own residence. The sale was on 28-10-1983 and the new house property was constructed during the period between May, 1982 and December, 1983. 3. The Commissioner (Appeals) took the view that the portion of the land other than the portion occupied by the building sold by the assessee has to be considered as agricultural land and the sale price of that portion, being agricultural land, will have to be excluded from the computation of income. It was also held that even if the entire property is considered as non-agricultural land, the assessee is entitled for the claim of benefit under section 54 in view of the fact that the assessee constructed a house proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Vikram Birla v. CIT [1968] 70 ITR 657 (Cal.), in support of his contention. We do not find any merit in the above contention raised by the revenue. A mere reading of section 54 would make it clear that the statute has not laid out a condition for the assessee to get the benefit under section 54 that he should utilise the sale consideration for the purpose of acquisition of property. Section 54 reads as follows : Profit on sale of property used for residence.-Where a capital gain arises from the transfer of a capital asset to which the provisions of section 53 are not applicable, being buildings or lands appurtenant thereto the income of which is chargeable under the head Income from house property , which in the two years immediately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... house property for his own residence in order to get the benefit of section 54. The wording of the section itself would make it clear that the law does not insist that the sale consideration obtained by the assessee itself should be utilised for the purchase of house property. The main part of section 54 provides that the assessee has to purchase a house property for the purpose of his own residence within a period of one year before or after the date on which the transfer of his property took place or he should have constructed a house property within a period of two years after the date of transfer. Clauses (i) and (ii) of section 54 would also make it clear that no provision is made by the statute that the assessee should utilise the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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