9911796707
TMI Blog2017 (5) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of the capital gains which was deposited in capital gain account. 3. The assessee is an individual and sold immovable property on 30.01.2012 for a consideration of Rs. 1 Crore. The assessee purchased a plot at J.P. Nagar on 16.2.2012 for a consideration of Rs. 35 lakhs. The total cost of acquisition of plot is Rs. 37,70,690 including registration charges and stamp duty. The assessee deposited the net consideration out of Rs. 1 Crore in capital gain account scheme with the Indian Oveseas Bank and claimed exemption under Section 54 for long term capital gain arising from sale of immovable property. The Assessing Officer noted that the capital gain account shows the balance of Rs. 62,15,502 as on 29.02.2012 and the assessee has not wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 2013-14 and therefore the capital gain cannot be assessed in the assessment year under consideration. The learned Authorised Representative has pointed out that since there was a dispute on the property in J.P Nagar and therefore the assessee could not carryout the construction on the said plot and accordingly the assessee has offered the capital gain in the Assessment Year 2013-14. He has filed the copy of the return of income along with the statement of income showing the capital gain offered to tax. 5. On the other hand, the learned Departmental Representative has contended that when the assessee has failed to invest the capital gain in purchase of new house property within the period stipulated as per provisions of section 54 & 54F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivided family], the capital gain arises from the transfer of any long-term capital asset, not being a residential house (hereafter in this section referred to as the original asset), and the assessee has, within a period of one year before or [two years] after the date on which the transfer took place purchased, or has within a period of three years after that date [constructed, one residential house in India] (hereafter in this section referred to as the new asset), the capital gain shall be dealt with in accordance with the following provisions of this section, that is to say,- (a) if the cost of the new asset is not less than the net consideration in respect of the original asset, the whole of such capital gain shall not be charged und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of three years after such date, any residential house, the income from which is chargeable under the head "Income from house property", other than the new asset, the amount of capital gain arising from the transfer of the original asset not charged under section 45 on the basis of the cost of such new asset as provided in clause (a), or, as the case may be, clause (b), of sub-section (1), shall be deemed to be income chargeable under the head "Capital gains" relating to long-term capital assets of the previous year in which such residential house is purchased or constructed. (3) Where the new asset is transferred within a period of three years from the date of its purchase or, as the case may be, its construction, the amount of capital ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount deposited under this sub-section is not utilised wholly or partly for the purchase or construction of the new asset within the period specified in sub-section (1), then,- (i) the amount by which- (a) the amount of capital gain arising from the transfer of the original asset not charged under section 45 on the basis of the cost of the new asset as provided in clause (a) or, as the case may be, clause (b) of sub-section (1), exceeds (b) the amount that would not have been so charged had the amount actually utilised by the assessee for the purchase or construction of the new asset within the period specified in sub-section (1) been the cost of the new asset, shall be charged under section 45 as income of the previous year in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ires. Therefore it is neither the discretion of the assessee nor the discretion of the Assessing Officer to assess the said amount to capital gain tax in the assessment year other than the year as provided in Section 54/54F and particularly as per proviso to sub-section (4) of the said section so long the amount is deposited in Capital Gain Account. Thus the addition made by the Assessing Officer for the year under consideration is not sustainable and the same is deleted. However the Assessing Officer is at liberty to assess the capital gain as per the provision of section 54/54F of the Act.
7. In the result, the assessee's appeal is allowed.
Order pronounced in the open court on 31st Mar., 2017. X X X X Extracts X X X X X X X X Extracts X X X X
|
