TMI Blog2012 (12) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... it is confusing as to how the tax authorities have mentioned the date of construction agreement as 04.7.2007. Both the parties did not offer any explanation about this contradiction. The assessee did not furnish a copy of conveyance deed dated 04.07.2007 also before us and hence we did not have the benefit of examining the same. This factual aspect requires verification, even though it appears that it may not have any effect on the eligibility of deduction u/s 54F in view of the view expressed by us in the preceding paragraph. However, the Tribunal, being a fact finding authority cannot allow the confusion to continue as it is. The facts prevailing in the instant case require examination at the end of AO. Accordingly, we set aside the order of Ld CIT(A) and restore the matter to the file of the AO with the direction to examine the matter afresh and decide the issue in the light of discussions made supra. The assessee is free to file any other document/explanation in support of its claim u/s 54F of the Act. - I.T.A. No. 372/Coch/2011 - - - Dated:- 7-12-2012 - SHRI N.R.S.GANESAN, JM and B.R.BASKARAN, AM For the Petitioner : Shri R.E. Balasubramanyam, CA For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set 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 of income under section 139, shall be deposited by him before furnishing such return (such deposit being made in any case not later than the due date applicable in the case of the assessee for furnishing the return of income under subsection (1) of section 139) in an account in any such bank or institution as may be specified in, and utilized in accordance with, any scheme which the Central Government may, by notification in the Official Gazette, frame in this behalf and such return shall be accompanied by proof of such deposit; and, for the purposes of sub-section (1), the amount, if any, already utilized by the assessee for the purchase or construction of the new asset together with the amount so deposited shall be deemed to be the cost of new asset: 4. The AO found that the assessee s claim of deduction u/s 54F was not in accordance with the conditions stipulated in that section for the following reasons: (a) The date of conveyance of undivided share of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) Nipun Mehrotra Vs. ACIT (110 ITD 523)(Bang.) (e) ACIT Vs. Sapna Dimri (ITA No.151/D/2012)(Delhi) However, in the instant case, there was no necessity to make investment in the Capital Gains Account scheme, since the entire sale proceeds had been invested in purchase of new house before the extended time limit, i.e. before 31.3.2007 (one year from the end of the assessment year). (e) Sec. 54F, being a beneficial provision, it should be interpreted liberally so as to achieve the intention of encouraging housing and to provide shelter for all. 6. The Ld CIT(A) accepted the contention that the purchase of flat from a builder would fall in the category of Construction and hence the time limit for making investment is three years from the date of transfer of the land. However, the Ld CIT(A) did not accept the contention of the assessee that the new house was constructed within three years. The relevant observations made by Ld CIT(A) are extracted below:- 9 The argument of the appellant is that she had booked the flat which is termed as construction of flat and had paid advance money during the period between 22.12.2005 and 22.3.2006 and therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stions arise for our consideration:- (a) Whether the time limit for making deposit under capital gain account scheme is the one prescribed under sub-sec.(1) of sec. 139 or under subsec. (4) of sec. 139. (b) Whether the assessee can be treated as complied with the conditions prescribed u/s 54F of the Act for availing deduction under that section. 8. With regard to the first question, we feel it apposite to extract below the observations made by Hon ble Punjab and Haryana High Court in the case of CIT Vs. Ms. Jagriti Aggarwal (339 ITR 610):- 10 Having heard learned counsel for the parties, we are of the opinion that sub-s (4) of s. 139 of the Act is, in fact, a proviso to sub-s. (1) of s. 139 of the Act. Sec. 139 of the Act fixes the different dates for filing the returns for different assessees. In the case of assessee as the respondent, it is 31st day of July of the assessment year in terms of cl. (c) of the Expln. 2 to sub-s. (1) of s. 139 of the Act, whereas sub-s. (4) of s. 139 provides for extension in period of due date in certain circumstances. It reads as under: (4) Any person who has not furnished a return within the time allowed to him under sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the property got delayed since she was residing abroad. In various case law relied upon by the assessee, it is clearly stated that the registration (required to be done under the Registration Act) is not material, in order to decide about the ownership of the property. However, it also clearly stated that the said relaxation is permissible, provided the assessee has obtained possession of the property by paying the substantial sale consideration. The Ld CIT(A) has also come to the very same conclusion. 10. However, in the Circular issued by CBDT (referred supra), it is clearly stated that the taking the delivery of possession is only a formality. Hence, the condition of taking possession also looses its importance in the context of sec. 54F, as per the circular issued by CBDT. The Mumbai bench of Tribunal, in the case of Kishore H Galaiya Vs. ITO (2012)(137 ITD 229), has taken the view that the deduction could not be denied merely because possession had not been taken within three years, as the action of taking of possession may be delayed on account of many factors. 11. In the instant case, the assessee has furnished the account statement obtained from the builder at pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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