TMI Blog2019 (1) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... e of original asset. If the assessee is unable to invest entire capital gain before furnishing of return of income u/s. 139, he has to deposit the unutilized amount of capital gain by opening an account in any nationalized bank under the Capital Gain Scheme. From the perusal of the order of the authorities below, we find that the assessee has furnished his return of income on 31.03.2010 u/s. 139(4) and he has spent money to the extent of ₹ 61,33,234/- upto the filing of its return. CIT(A) has followed the decision in the case of CIT v. Rajesh Kumar Jalan [2006 (8) TMI 126 - GAUHATI HIGH COURT]. The assessee can deposit the balance capital gain amount in capital gain account scheme upto the date of filing of return u/s. 139(4) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SAHU, A.M.: This is an appeal filed by the Revenue against the order of ld. CIT(A)-23, New Delhi dated 30.04.2013 for the assessment year 2009-10 on the following ground: 1. On the facts and on the circumstances of the case the ld. CIT(A) has erred in allowing the deduction claimed u/s. 54 of the Act amounting to ₹ 1,22,48,857/-. 2. The brief facts of the case are that the assessee filed return of income on 31.03.2010 declaring total income of ₹ 15,21,169/-. The case was selected for scrutiny and statutory notices were issued. The assessee derived income from salary has shown income from house property, business and profession, being share of partnership firm and other sources. It was noticed that the assessee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this property including copy of bank statement of HSBC Bank. The Assessing Officer observed that the said property at A-26, New Friends Colony, New Delhi was purchased on 27.09.2004 and payment was also made in 2004 vide cheque No. 389560 dated 21.09.2004 and vide pay order No. 191818/- dated 13.09.2004. The Assessing Officer also noticed that the assessee has incurred ₹ 61,33,234/- towards construction of the house property which was paid from her saving bank account and capital account of the partnership firm out of which ₹ 49,03,637/- related to the period from 01.06.2008 to 30.09.2009, i.e., from the date of sale to the date of furnishing of return of income and he also noted that the assessee failed to open capital gain ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee has filed her return of income on 31.03.2010 which is a belated return as per section 139 of the Act. It is also not disputed that the assessee had purchased property A-26, New Friends Colony on 29.09.2004 by taking a loan of ₹ 1.94 crores from HSBC Bank and the loan was entirely utilized for the purchase of land. The assessee has earned long term capital gains of ₹ 1,71,52,494/- and has spent money for the construction of house of ₹ 61,33,234/- and upto 30.09.2009, total amount was spent on the construction of house to the tune of ₹ 49,03,637/- which has been allowed as exempt u/s. 54 of the Act by the Assessing Officer out of the total capital gain. It is also not in dispute that the assessee has not opene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apital gain and the cost of the new asset shall be charged under section 45 as the income of the previous year; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase or construction, as the case may be, the cost shall be nil ; or ( ii ) if the amount of the capital gain is equal to or less than the cost of the new asset, the capital gain shall not be charged under section 45; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase or construction, as the case may be, the cost shall be reduced by the amount of the capital gain. (2) The amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee shall be entitled to withdraw such amount in accordance with the scheme aforesaid. Explanation .-[ Omitted by the Finance Act, 1992, w.e.f. 1-4-1993. ] From the above provisions, it is clear that the assessee is eligible for getting deduction u/s. 54(1) if (i) he has purchased a property within one year prior to the date of sale of property and (ii) if the assessee purchased a new property within two years from the date of sale of original asset or if the assessee has constructed the house within three years from the date of sale of original asset. If the assessee is unable to invest entire capital gain before furnishing of return of income u/s. 139, he has to deposit the unutilized amount of capital gain by opening an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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