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TMI Blog2023 (12) TMI 1163X X X X Extracts X X X X X X X X Extracts X X X X ..... T (Appeals), Raipur, deleting addition of Rs. 30,00,000/-. The ITAT, Raipur Bench has upheld the determination of long term capital gains at Rs. 36,66,284/-. According to the appellant, out of the sale proceeds of the assessee purchased agricultural lands as under : Rs. 5,52,000/- 27-7-2011 Own name Rs. 9,90,300/- 01-8-2011 in the name of wife-Amt. Rs. 8,62,000/- 01-8-2011 includes stamp duty Rs. 24,04,300/- 3. Since the Assessing Officer determined the long term capital gains arising out of sale proceeds of urban agricultural land at Rs. 66,66,284/- and did not allow deduction under Section 54B of the Income Tax Act, 1961 (for short 'the IT Act') in respect of investments made in purchase of agricultural lands in the name of his wife. The assessee filed an appeal before the CIT (A) and the CIT (A), after perusal of the evidence, accepted the contention that the land was sold for Rs. 45,80,000/- and Rs. 30,00,000/- was received as gift from father-in-law Sant Ram Chaturvedani in cash, which was deposited in the bank account. The CIT (A) allowed exemption under Section 54B for an amount of Rs. 9,90,300/- and Rs. 8,62,600/- invested in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was purchased in the name of wife taking dictum laid down by the Delhi High Court the deduction should have been allowed and interpretation should be in favour of the assessee. He also placed reliance upon the decision rendered by the High Court of Karnataka in the matter of Dy. Director of Income Tax International Taxation v Jennifer Bhide (2012) 349 ITR 0080 (ITA No.169 of 2011 decided on 26-9-2011). 6. Learned counsel appearing for the respondents, per contra, would submit that the word 'assessee' has been defined under Section 2(7) of the IT Act. She would further submit that while interpreting the word 'assessee' the same cannot be interpreted while interpreting Section 54B & 54F and the entire income tax the word 'assessee' has been used. She would also submit that strict interpretation of taxing statute is required. To buttress her contention, learned counsel would place reliance upon the decision rendered by the Supreme Court in the matter of Commissioner of Customs (Import), Mumbai v Dilip Kumar and Company and Others (2018) 9 SCC 1. She would submit that when the property has not been purchased by the assessee in his own name then the property purchased in the name of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT Act was claimed for. The same was allowed by the CIT (A) whereby the exemption under Section 54B for an amount of Rs. 9,90,300/- and Rs. 8,62,600/- was allowed. Against the said order, the revenue preferred an appeal before the ITAT. The ITAT vide its order dated 17-1-2018 disallowed the exemption in view of law laid down by the Punjab & Haryana High Court in the matter of CIT v Shri Dinesh Verma ITA No.381 of 2014 (O&M) (order dated 6-7-2015). 10. In the case of M/s Vegetables Products Ltd. (supra), it has been laid down that if two reasonable constructions of a taxing provision are possible that construction which favours the assessee must be adopted. It is also submitted that in the pari materia provisions of Sections 54, 54B and 54F when the exemption is claimed it should be interpreted in favour of the assessee. 11. For ready reference the provisions of Section 54B of the IT Act are quoted below : 54B. Capital gain on transfer of land used for agricultural purposes not to be charged in certain cases.--(1) Subject to the provisions of sub-section (2), where the capital gain arises from the transfer of a capital asset being land which, in the two years immediately preced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or partly for the purchase of the new asset within the period specified in sub-section (1), then,- (i) the amount not so utilised shall be charged under section 45 as the income of the previous year in which the period of two years from the date of the transfer of the original asset expires; and (ii) the assessee shall be entitled to withdraw such amount in accordance with the scheme aforesaid. 12. Primary reading of aforesdaid provision would shows that in the Section the word 'assessee' has been used and the claim of the appellant to be covered under exemption. 13. The word 'assessee' has been defined under Section 2(7) of the IT Act, which reads as under : 2(7) "assessee" means a person by whom any tax or any other sum of money is payable under this Act, and includes- (a) every person in respect of whom any proceeding under this Act has been taken for the assessment of his income or assessment of fringe benefits or of the income of any other person in respect of which he is assessable, or of the loss sustained by him or by such other person, or of the amount of refund due to him or to such other person; (b) every person who is deemed to be an assessee under any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acing reliance upon the decision rendered in the matter of Vegetables Products Ltd. (supra). Therefore, prima facie, reading of provisions and the decisions of the Supreme Court, the wife of the appellant cannot be termed as an 'assessee' as per Section 2 (7) of the IT Act. So enlarging the scope of the assessee as defined under Section 2(7) to envelope the wife of the appellant to envelop the transaction to "exemption" would amount to superseed the legislative requirement and the spirit of the provision. 16. The Constitution (Five Judges) Bench of the Supreme Court in the matter of Commissioner of Customs (Import), Mumbai v Dilip Kumar and Company and Others (2018) 9 SCC 1 held thus at paras 34 & 35 : 34. The passages extracted above, were quoted with approval by this Court in at least two decisions being Commissioner of Income Tax vs. Kasturi Sons Ltd., and State of West Bengal vs. Kesoram Industries Limited, [hereinafter referred as 'Kesoram Industries Case' for brevity]. In the later decision, a Bench of five Judges, after citing the above passage from Justice G.P. Singh's treatise, summed up the following principles applicable to the interpretation of a taxing statute: " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concession. A provision providing for an exemption, concession or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the Statute and the object and purpose to be achieved. If exemption is available on complying with certain conditions, the conditions have to be complied with. The mandatory requirements of those conditions must be obeyed or fulfilled exactly, though at times, some latitude can be shown, if there is a failure to comply with some requirements which are directory in nature, the non-compliance of which would not affect the essence or substance of the notification granting exemption. (emphasis supplied) 18. Reading of the aforesaid judgment would show that when the person who claimed "exemption or concession" he has to establish that he is entitled to that exemption or concession. A provision providing for an exemption, concession or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the Statute and the object and purpose to be achieved. Plain reading of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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