TMI Blog2022 (3) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... period in case of construction of a residential house/flat. Thus the question of deposit in Capital Gains account does not arise in this case. Therefore, we set aside the orders of both the lower authorities and direct the AO to delete the disallowance made and allow the entire claim of deduction to the assessee. Thus, the ground of assessee appeal is allowed. - ITA No.321/Ahd/2019 - - - Dated:- 28-2-2022 - S/Shri Pramod M. Jagtap, Vice President And T.R. Senthil Kumar, Judicial Member For the Assessee : Shri Manish J. Shah, Advocate For the Revenue : Shri V.K.Singh, Sr.DR ORDER PER T.R. SENTHIL KUMAR, JUDICIAL MEMBER: This appeal is filed by the assessee against order dated 21.01.2019 passed by Ld.Commissioner of Income-tax (Appeals)-13, Ahmedabad [for short Ld.CIT(A)] in Appeal No.CIT(A)- 13/Intl.Taxn./Ahd/75/2017-18 relating to the assessment year 2015-16. 2. Assessee s grounds of appeal are as follows: On the facts and in the circumstances of the case the learned CIT(A) erred in restricting deduction U/s.54 at ₹ 48,00,572/ as against claim of ₹ 2,31,60,656 made by your appellant, Your appellant therefore i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1348000 Stamp on Document (Febl6) 3896122 Other payments TOTAL 25453193 5. From the above two tables, it can be seen that the sale consideration received in installments has been re-invested in new property by the assessee, and also claimed deduction under section 54/54F of the Act. However, the assessee is required to file his Return of income under section 139 on or before 31.8.2015 and thereby he filed original return. As part of the sale consideration of the sale of the property was received on 12.10.2015, the assessee filed a Revised return claiming the entire benefit under section 54/54F of the Act. 6. The assessee s case was selected for scrutiny assessment. The AO held that the assessee has made certain payments amounting to ₹ 48,00,572/-with respect to purchase of new flat after the due date of filing of return of income u/s.139, and the same is not eligible for deduction under section 54/54F of the Act, and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Humayun Suleman Merchant and whereas Karnataka High Court judgment in the case of CIT -Vs- K. Ramachandra Rao reported in [2015] 56 taxmann.com.163 is rightly applicable to the facts of the assessee. However there is no direct judgement by Jurisdictional High Court on this issue but jurisdictional ITAT Bench order dated 18-10-2016 in ITA NO.996/AHD/2104 in the case of Sanjay K Rana -Vs- ITO, the Hon ble ITAT had occasion to consider both these judgements of Bombay High Court and Karnataka High Court and following the Apex Court ruling in the case of CIT -Vs- Vegetable Products Ltd [1973] 88 ITR 192, followed the ratio of judgement rendered by Karnataka High Court in the case of K. Ramachandra Rao and allowed the assessee appeal. The Ld AR pleaded to adopt the same principle in the present case and thereby allow the appeal of the assessee. 11. Per contra the Ld DR appearing for the Revenue supported the orders of the lower authorities and pleaded that they are well considered orders which does not require any interference and thereby requested to confirm the addition. 12. We have gone through records placed before us and perused orders of the authorities below. The fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee for reinvestment or to be deposited in Capital Gains account, before filing the RoI. 12.2. Now let us look in to the Karnataka High Court judgement in the case of CIT -Vs- K. Ramachandra Rao held as follows: ... Sub-section (4) is attracted only to a case where the sale consideration is NOT utilized either for purchase or for construction of a residential house. It has no application to a case where the assessee invests the sale consideration derived from the transfer either in purchasing the property or constructing the residential house within the period stipulated in Section 54F(1). The proviso to Section 54F puts an embargo on the application of Section 54F to cases which are mentioned in the said proviso. That is to be eligible for the benefit under Section 54F(1) the assessee should not be owning more than one residential house other than the new asset acquired or he should not purchase any residential house other than the new asset within a period of one year after the date of transfer of residential asset or constructs any residential house other than the new asset within a period of three years after the date of transfer of the residential asset. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court also referred its two more judgements on similar issues as follows: . 6. The substantial question of law framed for consideration in this appeal has been answered in several decisions and the issue is no longer res integra. To answer the substantial question of law, we may have to refer to the two decisions of the Hon'ble Division Bench of this Court namely (i) in the case of CIT v. R. Srinivasan [2010] 235 CTR 588 wherein the question, which was framed for consideration, was as to whether the Tribunal was right in law in holding that the investment in the new asset for the purpose of deduction under Section 54F need not be out of sale consideration received on sale of the original asset. The question was answered in the following lines : 10. Section 54F provides option to the assessee to invest even within a period of one year before the date on which the transfer takes place. No such precondition to that effect is imposed by the provision. Only the Assessing Officer assumed that there is a precondition, which is not contemplated by the provision. Section 54F is clear, unambiguous and plain. It is only a mere presumption and assumption of the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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