TMI Blog2013 (1) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... s) erred in holding that the assessee is eligible for exemption u/s.54F even the investment in capital gains scheme was made after the due date of filing the return u/s.139(1) of the Act 2.1 The learned CIT(A) failed to appreciate that there is an obligation cast on the part of the assessee to deposit the consideration not utilized before the date of furnishing the return u/s.139(1) of Act by a specific period. 2.2 The learned CIT(A) ought to have appreciated the fact that the specific period in this case cannot be later than the due date applicable in the case of the assessee for furnishing the return of income under sub section (1) of Sec.139 of the Act. 2.3 It is submitted that the decision of Hon'ble High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns Account Scheme to be utilized for construction. According to the Assessing Officer, as per the provisions of section 54F(4), the assessee was required to deposit the amount of the net consideration in a Capital Gains Account Scheme not later than the due date for furnishing of return by the assessee u/s 139(1) of the Act and since the due date was 31.7.2009 and the deposit was made by the assessee on 25.2.2010, he disallowed the claim u/s 54F of the Act. The Assessing Officer noticed that the assessee together with his wife made payment to the extent of ₹ 52,17,625/- wherein the share of each of the assessees was ₹ 26,08,813/- before 31.7.2009 and hence, he restricted the deduction u/s 54F to ₹ 25,48,253/-. Similarly, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... house property before the due date of filing of return u/s 139(1) of the Act. 5. The CIT(A), after considering the submissions, allowed the appeal of the assessee. 6. The CIT/DR relied on the decision of the Hon'ble Kerala High Court in the case of CIT vs V.R. Desai (supra). 7. After considering the rival submissions and perusing the orders of the lower authorities and materials available on record, we find that in the return of income filed the assessee claimed deduction u/s 54F of ₹ 58,60,718/- on the ground that an amount of ₹ 51,48,094/- was paid to Chettinad Housing towards investment in new asset as his share alongwith his wife, and deposit in CGAS of ₹ 7,50,000/- to be utilized for construct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO in the appellant's case to deny part of the deduction u/s 54F. In the said judgement the Tribunal also considered the judgements of Punjab Haryana High Court, Karnataka High Court and Guwahati High Court relied on by the appellant. The relevant portion of the judgement of the Tribunal is reproduced hereunder: 13. Thus, in the instant case, we find that the eligible new asset was not purchased within one year before the date on which the transfer of the original asset took place. Thus, the amount which is not utilized by the assessee for the purchase of new asset before the date of furnishing the return of income u/s 139 was required to be deposited as per the provisions of sub-section(4) for availing deduction u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d proper opportunity of hearing to the assessee before adjudicating the issue afresh. 14. Before parting with this appeal, we would like to observe that the decision relied on by the DR is distinguishable on facts and is not applicable for deciding the issue under consideration. In that case, the Hon'ble Kerala High Court found that consideration for transfer of long term capital asset was actually not utilized by the assessee either for construction of new residential house or for depositing the same in any bank under the notified scheme of 54F of the Act. The Hon'ble High Court found that the assessee allowed the partnership firm to retain the consideration amount with the firm for its business purposes. We find that the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
