TMI Blog2018 (11) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... ain account scheme before the due date prescribed u/s 139(1) of the Act. As the assessee invested the sale consideration in construction of a residential house within three years from the date of transfer, we are of the view that the assessee should be given the benefit of deduction u/s 54F - decided in favour of assessee. - I.T.A No. 502/Kol/2017 - - - Dated:- 20-11-2018 - Shri S.S.Godara, JM And Shri M.Balaganesh, AM For The Appellant : Shri A.K. Tibrewal, FCA For The Respondent : Shri Saurabh Kumar, Addl. CIT Sr. DR ORDER Per M.Balaganesh, AM 1. This appeal by the Assessee arises out of the order of the Learned Principal Commissioner of Income Tax-2, Kolkata [in short the ld CIT] in Appeal No. 2503/CIT(A)-2/15-16 dated 23.12.2016 against the order passed by ITO, Ward-4(4), Kolkata [ in short the ld AO] under section 143(3) of the Income Tax Act, 1961 (in short the Act ) dated 18.01.2016 for the Assessment Year 2013-14. 2. At the outset, we find that there is a delay of one day in filing of appeal by the assessee. The reasons adduced by the assessee for the same are convincing and accordingly we hereby condone the delay and admit the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 139(4) of the Act. The assessee placed reliance on the decision of Hon ble Supreme Court in the case of Xavier J Pulickal vs. DCIT reported in 379 ITR 534 in support of his contentions. It was also pleaded that even though the assessee had not made any deposit in capital gains account scheme, ultimate purpose of reinvestment in any residential property had been duly complied with by the assessee in the instant case. Accordingly, it was pleaded that the claim of exemption u/s 54F of the Act should have been granted to the assessee. The Ld. CIT(A) however did not agree to the contention and reiterated the finding of the ld. AO and dismissed the contention of the assessee. Aggrieved, the assessee is in appeal before us. 6. We have heard the rival submissions. It is not in dispute that the assessee in the instant case had invested net sale consideration for purchase of new residential flat before the date specified u/s 139(4) of the Act. We find that issue under dispute is squarely covered in favour of the assessee by the Co-ordinate Bench decision of this Tribunal in the case of Sunayana Devi vs. ITO reported in 86 taxmann.com 72 dated 13.09.2017 wherein it was ordered as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property was ₹ 3,50,000/-. The assessee had paid stamp duty and registration charges of ₹ 31,839/-. The CIT(A) treated the investment in purchase of the land as eligible for deduction u/s 54F of the Act and there is no dispute before the Tribunal on this aspect. The CIT(A) had not allowed the stamp duty and registration charges of ₹ 31,839/-. In our view this sum should be considered as utilisation by the assessee in purchase or construction of a new asset. To this extent order of the AO and CIT(A) is not correct and they are directed to allow the deduction to the extent of ₹ 31,839/- u/s 54F of the Act. 9. The remaining unutilised net consideration with the assessee was a sum of ₹ 16,50,000/-. As per the provision of section 54F(4) of the Act the assessee if he wants to claim exemption u/s 54F of the Act, the net consideration received on transfer of the capital asset, to the extent it is not utilised for the purpose of purchase of a new asset, had to be deposited in a specified bank account on or before the due date of filing the return of income u/s 139(1) of the Act. The cut off date for such deposit for A.Y.2004-05 is 31.07.2004. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds which is found located at the bye-lane of Sister Nivedita Road at Gurung Busty, Pradhan Nagar, Siliguri and which is also found can be viewed opposite of the location of the office premises of West Bengal State Electricity Board, Pradhan Nagar, Siliguri. The structure of the building is found with building plan for Ground plus three storied residential purposes. Therein, I met Smt Sunayana Devi, who assisted me throughout my enquiry. As per my spot enquiry Smt Sunayana Devi told and also showed me documentary proof like application made to the Chief Executive Officer, Siliguri Municipal Corporation and also certificate from the Ward Councillor certifying the completion of building. As per the documents and also of the replies of the query regarding the construction and completion period of the building, it was told by the assessee that she had started constructing the residential house building during the period 2005 and completed during the period 2006. To ascertain the same, further discreet enquiries were made with the locals of the locality and the consequence of all reply were found in the affirmative. During my spot enquiry of each floor, it was found that the building is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of new house expires. Considering the above facts I hold that the assessee is entitled to exemption U/S 54F to the extent of investment of ₹ 3,50,000/- made for purchase of land for the purpose of construction of residential house thereon and deposit of ₹ 2,60,000/- made in the Capital Gains Account Scheme by the assessee by the due date of filing of return U/S 139(1) of the Act. Thus the assessee is allowed exemption of ₹ 6,10,000/- U/S 54F of the Act. The disallowance of exemption U/S 54F of the Act of the entire Capital Gain by the Ld AO was not justified as the claim of exemption U/S 54F to the extent ofRs. 6,10,000/- to the assessee is held to be justified. 16. After considering the remand report and the Inspectors report it is clear that the construction of a residential house was completed by the assessee within the period of three years from the date of transfer as is required u/s 54F(1) of the Act. The absence of completion certificate cannot be a ground to deny the benefit of deduction u/s 54F of the Act. The ld.counsel for the assessee in this regard has placed reliance on the decision of the Hon'ble Madras High Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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