TMI Blog2023 (1) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... e in dispute, we do not find any error in the order of the Ld.CIT(A) on the issue and accordingly, we uphold the same. Ground 2 of the appeal of the assessee is accordingly dismissed. - ITA No. 2404/Mum/2019 - - - Dated:- 12-1-2023 - Shri Aby T Varkey (Judicial Member) And Shri Om Prakash Kant (Accountant Member) For the Revenue : Shri Satyapal Kumar, Sr.AR For the Assessee : Shri.Srinivas S Kota ORDER PER OM PRAKASH KANT, AM This appeal by the assessee is directed against the order dated 15/02/2019 passed by the Ld.CIT(A)-28, Mumbai [in short, the Ld.CIT(A)] for Assessment Year 2011-12, raising following grounds:- 1. On the facts and circumstances of the case and in law, the learned Assessing Officer has erred in reopening the assessment under Section 147 of the Act. 2. On the facts and circumstances of the case and in law, the Hon ble Commissioner of Income Tax (Appeals) has erred in denying the exemption claimed by the Appellant under section 54F of the Act, amounting to ₹87,89,121/- 2. At the outset, we may like to mention that ground No.1 of the appeal was not pressed and, therefore, the same is dismissed as infructuous. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 148, the assessee, though offered additional capital gains to the extent of ₹2,02,39,9999/- out of the amount remained unutilized, however, the amount of ₹81,89,121/- was not offered to tax. The main contention of the assessee was that the delay for utilization of the amount in Capital gains Account Scheme, 1998 was beyond her control as initial investment was cancelled due to unavailability of the project and the payment for second project got delayed on account of the builder who did not being complete the construction as per the time frame agreed initially. In support of the contention, the assessee relied on following judicial pronouncements:- 1. T Shiva Kumar vs ITO 9158 ITD 329 (Bangalore Tribunal) 2. Satish Chandra Gupta vs AO (54 ITD 508) (Delhi Tribunal) 3. ACIT vs Kamlakar Moghe (378 ITR 561)(Bom.HC) 4. Sunil Kumar Saha vs ITO (156 ITD 1)(Kol.Trib) (iv) The Assessing Officer rejected the contention of the assessee and denied the claim of deduction of payment made for purchase of property beyond the period of 3 years from the date of the sale of the original property. (v) On appeal, the Ld.CIT(A) also upheld the finding of the Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars as discussed in detail above has been breached due to the circumstances beyond the control of the appellant as the project was delayed. This may indeed be so, however, that does not take away any material stipulation from the legal position that when the legislature in its wisdom has prescribed a certain period i.e. in the instance matter, the limit of 3 years for utilizing the unutilized amount in the capital gain account, then this limit cannot be extended at the whim of the appellant. It has to be strictly followed. (vi) The Ld.CIT(A) further relied on the decision of the Hon ble Supreme Court in the case of Commissioner of Customs (Import) Mumbai vs. M/s Dilip Kumar and Company and Ors 9 SCC 1 (FB)(SC) by holding that exemption provision has to be interpreted strictly. He also relied on other decisions. The relevant part of his decision is reproduced as under:- 5.6 It is of paramount importance to note that recently, a Constitution Bench (Bench of Five Judges) of Hon ble Supreme Court of India in a Landmark judgement in the case of Commissioner of Customs(Import)Mumbai Vs. M/s Dilip Kumar and and Company and Ors has overruled the Three-Judge judgement in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be avoided, unless it is covered 'by the rule of exception, including that of necessity (see Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd, v. Custodian of Vested Forests, Palghat A/R 1990 SO 1747; Smt, Shyam Kishori Devi v. Patna Municipal Corporation AIR 1966 SC 1678; A.M. Antuluy v. Ramdas Sriniwas Nayak [19S4] 2 SCR 914). Indeed the Court cannot reframe the legislation as it has no power to legislate (State of Kerala. v. Mathai Verghese[1987] 1 SCR 317; Union of India v. Deoki Nandan Aggarwal AlR 1992 SC 96). When words used are not ambiguous, literal meaning has to be applied (Dental Council of India v. Hari Prakash [200 Ij 8 SCC 61). There is no question of interpretation if the words of the statute are clear. Grammatical construction has been accepted as the golden rule (Raghunandan Saran Ashok Saran v. Pearey Lal Workshop (P) Ltd. AIR 1986 SC 1682). The hon'ble Supreme Court observed as follows in S.P. Gupta v. President of India MR 1982 SC 149 : But there is one principle on which, there is complete unanimity of all the courts in the world and. this is that where words or the language used in a statute are clear and cloudless, plain, simple and explicit uncloud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain the meaning and intendment of the legislature, the court should presume that the provision was designed to effectuate a particular object to meet a particular requirement [Easland Combines v. Collector of Central Excise [2003] 1 RC 29(SC)]. 5.12 In view of the above factual and legal matrix, I find that the action of the AO in making the impugned disallowance cannot be faulted and as such the disallowance u/s.54F is upheld. Consequently, the ground nos. 1 ,2 3 stand DISMISSED. 4. Before us, the Ld.Counsel of the assessee has relied on the decisions which were cited before the Ld.CIT(A) and in view of the decisions, he submitted that provisions of the Act should be construed liberally due to situations beyond control of the assessee. 5. The Ld.DR, on the other hand, relied on the orders of the lower authorities. 6. We have heard the rival submissions of the parties on this issue and perused the relevant materials on record. The issue in dispute involved is regarding the proviso below section 54F(4) which clearly states that if the amount deposited into the Capital gain Account Scheme is not utilized wholly or partially for the purchase or construction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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