TMI Blog2020 (1) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... hase or construction of a new asset. The next part of the proviso itself lays down that when the amount deposited in the Scheme is utilized only partly for the purchase or construction of a new asset, the amount by which the amount of Capital Gains 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, of clause (b) of sub-section (1), exceeds the amount that would not have been so charged, had the amount been actually utilized by the assessee for the purchase or construction of a new asset within the period specified in sub-section (1) of Section 54F been the cost of the new asset, shall be chargeable under Section 45 as inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'the said Act') was issued to the appellant. The said show-cause notice was based on admitted facts. The appellant sold an immovable property held by him and out of the sale consideration received by him, he deposited a sum of ₹ 1,15,00,000/- in the Capital Gain Account Scheme, 1988. A return of income for the assessment year 2013-14 was filed on 14th July, 2013 by claiming exemption under Section 54F of the said Act. 3. The appellant purchased a premises for the price of ₹ 21,32,470/- on 20th August, 2013 which was before the expiry of three years from the date of transfer of the capital assets. The notice which was the subject matter of challenge in the writ petition filed by the appellant was issued with a vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax under Section 45 of the said Act. 6. We have heard the learned counsel appearing for the respondent. We have considered the submissions. 7. Sub-section (4) of Section 54F of the said Act reads thus: 54F. - Capital gain on transfer of certain capital assets not to be charged in case of investment in residential house. (1) To (3) ** ** ** (4) The amount of the net consideration which is not appropriated by the assessee towards the purchase of the new asset made within one year before the date on which the transfer of the original asset took place, or which is not utilized by him for the purchase or construction of the new asset before the date of furnishing the return of income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 45 as income of the previous year in which the period of three years from the date of the transfer of the original asset expires; and (ii) the assessee shall be entitled to withdraw the unutilized amount in accordance with the scheme aforesaid. Under the said provision, the amount of net consideration which is not appropriated by the assessee towards the purchase of the new asset made within one year before the date on which the transfer of the original asset took place, or which is not utilized by him for the purchase or construction of the new asset before the date of furnishing the return of income under Section 139, shall be deposited by him before furnishing such return in an account in any such bank or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 54F of the said Act been the cost of the new asset, shall be chargeable under Section 45 as income of the previous year in which the period of three years from the date of transfer of the original asset expires. 9. Thus, it is very clear that if only a part of the amount deposited in the Capital Gains Account Scheme is utilized for the construction or purchase of a new asset within the specified time, income tax is chargeable on the unutilized amount. That is why the learned Single Judge, by the impugned order, has directed that the appellant is entitled for withdrawal of the amount deposited under sub-section (4) of Section 54F of the said Act subject to deduction of tax applicable. 10. We find no error in the vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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