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TMI Blog2015 (5) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... ces of the case, the Ld. Commissioner of Income-tax has Erred in assuming the jurisdiction u/s. 263 of the IT Act 1961 in as much as the assessment order dated 16.12.2011 is neither erroneous nor it is prejudicial interest of the revenue. 3. On the facts and in the circumstances of the case, the Ld. Commissioner of Income-tax has erred in restricting the exception granted u/s. 54F to the extent of Rs. 1,04,51,312/- which is the amount out the sale consideration utilized in the acquisition of a residential house ignoring the fact that the appellant has also utilised an amount of Rs. 45,45,885/- in the acquisition of same residential house even though this amount was borrowed from a bank. He is not justified in ignoring the fact that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of Rs. 45,45,855 has to be disallowed representing bank loan used in the purchase of house by the assessee. The learned counsel for the assessee submitted that the assessee has invested a sum of Rs. 1,49,97,000 in the purchase of house. Out of the total investment made in the acquisition of house property, the assessee has utilised an amount of Rs. 45,45,855 by availing housing loan from Kotak Mahindra Bank and the balance amount of investment was from the direct receipts from the sale of shares. The Commissioner in the order under S.263 has treated the assessment as erroneous and prejudicial to the interests of Revenue to the extent of deduction under S.54F of Rs. 45,45,855 being the bank loan utilised in the acquisition of the house. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted a sum of Rs. 1,04,51,312 out of the sale proceeds from shares of Rs. 1,63,45,644 and therefore, the Commissioner was justified in directing the Assessing Officer to redo the assessment by not allowing deduction under S.54F on the amount of Rs. 45,45,855 invested by the assessee by availing the housing loan from the bank. He submitted that the Hyderabad Bench Tribunal in Smt.V.Kumuda V/s. DCIT (135 ITD 116) has decided similar issue on similar facts in favour of the Revenue. He relied on the order of the Commissioner passed under S.263 of the Act. 5. We have considered the rival submissions carefully and also perused the orders of the Assessing Officer and the Commissioner. We find that the basic facts of the case are not in dispute. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief under S.54F as ultimately the assessee deposited the requisite amounts in the Capital Gains Investments Scheme for exemption under S.54F within the time stipulated by the statute. In Munnir Khan V/s. ITO (supra), Hyderabad Bench of the Tribunal held that it was not necessary that the same fund must be used for the purchase of new residential house and that neither law nor any circular requires establishing direct nexus between the amount received on sale and utilization in the purchase of residential house for the purpose of S.54F and other relevant provisions. The Tribunal held that since money has no colour, all that is required is compliance with the conditions of investment within stipulated time. In Puspa Devi Tibrewala (supra), Hy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tmental Representative relates to a decision in the Miscellaneous Application preferred by the assessee. At any rate, it is clear that two views are possible on this issue before us, and the view taken by the Assessing Officer was a possible view and could not be said to be a perverse view. The issue of granting deduction/exemption under S.54F on the borrowed money can at best be called a debatable issue. In our considered view, the Assessing Officer has taken a possible view permitted under law, and is as per the series of decisions of different benches of the Tribunal. It could not be said that the order of the Assessing Officer was erroneous or prejudicial to the interests of the Revenue. In this view of the matter, we hold that the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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