TMI Blog2017 (10) TMI 1148X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed from the personal account of the assessee is stated to have been made after furnishing the return of income but before extended the due date of filing of return of income. However, as noted above, once the return has been furnished, the subsequent payments made towards purchase would not be eligible for exemption unless the same was first deposited in capital gain account scheme and utilized therefrom. Therefore, the assessee is entitled to relief to the extent of ₹ 20 lakhs only out of indexed capital gain subject, however, to the necessary verification of the claim of the other joint-owner as noted above. The decision relied upon by the assessee does not spell anything different. The issue is set aside and remanded back to the file of AO for the limited purpose of verification of extent of claim made by other joint-owner on payment of ₹ 40 lakhs towards purchase made out of joint Bank account as elaborated earlier. The assessee shall be at liberty to adduce the necessary evidences in this regard and remove prevailing ambiguity. Appeal of the assessee is allowed in part for statistical purposes. - I.T.A. No.3154/Ahd/2015 - - - Dated:- 18-9-2017 - SHRI RAJ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... computed at NIL by the assessee. The Assessing Officer (AO), however, denied exemption claimed under s.54 of the Act on the ground that conditions postulated under s.54 of the Act has not been fulfilled. The AO observed that out of ₹ 35 lakhs towards purchase, the assessee has invested ₹ 30 lakhs between September-2011 to December-2011 and thus has not invested the money before filing of return of income. Besides, the AO further observed that the assessee has not acquired the new property before filing of return of income. The claim of exemption under s.54 was thus refused. 4. Aggrieved by the order of AO, the assessee preferred the appeal before CIT(A). 5. Before the CIT(A), the assessee submitted that the assessee received her share in the sale consideration of co-ownership property being ₹ 57,50,000/- on 21/02/2011. The assessee claimed that against the indexed capital gain of ₹ 35.23 lakhs arising on sale of aforesaid residential property, the assessee acquired new residential property for ₹ 35 lakhs and therefore eligible for exemption under s.54 of the Act. The assessee also submitted as per the statement of facts before the CIT(A) that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R for the revenue Mr.Deepak Sutaria, on the other hand, relied upon the order of the CIT(A) and submitted that in order to claim exemption under s.54 of the Act, the assessee is required to fulfill certain conditions stipulated therein. The Ld.DR adverted our attention to section 54(2) of the Act and submitted that the amount of capital gain which is not appropriated by the assessee towards purchase of new residential House before the date of furnishing of return of income ought to have been deposited in the designated account in specified bank or institution in accordance with capital gains accounts scheme 1988 on or before the due date of filing of return of income under s.139(1) of the Act. The Ld.DR submitted that the CIT(A) has already granted the relief of ₹ 5 lakhs towards her contribution in purchase of new asset as eligible to the assessee having regard to the provisions of section 54(2) of the Act. The Ld.DR accordingly pleaded that no interference with the order of the CIT(A) is called for. 9. We have carefully considered the rival submissions and perused the orders of the authorities below. The assessee in the present appeal has controverted the denial of exemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of capital gain can be made before the extended date for filing of return of income under s.139(4) of the Act even after filing of return do not coincide with the plain language employed under s.54(2) of the Act. Nonetheless, the capital gain employed towards purchase of new asset before the actual date of furnishing return of income either under s.139(1) or under s.139(4) of the Act will be deemed to be sufficient compliance of section 54(2) of the Act. 9.3. The assessee, in the instant case, does not claim to have deposited the money in these specified bank account under capital gain scheme at all. Therefore, the claim of the assessee is required to be weighed on the second limb of section 54(2) of the Act, i.e. whether the capital gain has been utilized for purchase of new asset before the date of furnishing of return of income under s.139 of the Act. At this juncture, we notice that the legislature in its own wisdom has used the expression section 139 for purchase etc. of new asset while on the other hand, time limit under section 139(1) has been specified for deposit in the capital gain account scheme. When viewed liberally, the distinction between the two different fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances, the assessee, in our view, would be entitled to exemption to the extent of ₹ 20 lakhs being 50% of her share in the utilization of capital gain subject to the satisfaction of the AO that the aforesaid claim of payments from joint account has not been simultaneously availed by other joint owner also. 9.5 The other portion on the investment claimed from the personal account of the assessee is stated to have been made after furnishing the return of income but before extended the due date of filing of return of income. However, as noted above, once the return has been furnished, the subsequent payments made towards purchase would not be eligible for exemption unless the same was first deposited in capital gain account scheme and utilized therefrom. Therefore, the assessee is entitled to relief to the extent of ₹ 20 lakhs only out of indexed capital gain subject, however, to the necessary verification of the claim of the other joint-owner as noted above. The decision relied upon by the assessee does not spell anything different. 10. In view of the foregoing discussion, the issue is set aside and remanded back to the file of AO for the limited purpose of verif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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