TaxTMI 
TaxTMI 
2014 (12) TMI 886
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.... deceased assessee." 4. We have heard the rival submissions and carefully considered the same. We noted that this is a fact that Shri Gopaldas Nema in whose name assessment has been made already died on 1.3.2009. The notice u/s 143(2) was also served I the name of Shri Gopal Das Nema. The Assessing Officer even then without including the legal heir completed the assessment on the deceased person who was no more in existence even as on the date of the order i.e. 30.12.2011. The assessee has taken a specific ground in this appeal being ground no.2 before the CIT(A). The ld. CIT(A) took the view that it was duty of the legal heir of the assessee to bring the fact of the death to the notice of the Assessing Officer alongwith the address of the legal heir with documentary proof of being a legal heir. The ld. Authorized Representative before us even though vehemently contended but did not produce any cogent material or evidence which may prove that the assessee has informed the Department about the death of Shri Gopal Das. From the assessment order, it appeared the return had been filed through e-filing by Shri Gopal Das. Even though the appeal before the CIT(A) has been filed in Form N....
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....wners of the property at Keshar Bagh Road with Shri Gopaldas Nema and Shri Subhash Chandra Nema, the property was sold for a consideration of Rs. 7 crores to M/s. Brij Real Estate, the share of each of the coowner was Rs. 1.75 crores and against which each of the owner invested in REC Bond on 25.3.2008. The transfer of the property has taken place subsequent to the investment although each of the owner has received advances prior to the date of investment against the sale of the said property. 8. The assessee went in appeal before the CIT(A). The ld. CIT(A) noted from the copy of the agreement filed by the assessee that the agreement to sale is dated 22.1.2008 and the schedule of the payment as per the agreement was as under : Cheque No. 501186 dated 22.1.2008 Rs. 95,00,000 Cheque No. 501182 dated 24.1.2001 Rs. 80,000/- Payment to be made till 01.05.2008 as per convenience Rs. 5,25,00,000/- 9. The Assessing Officer, therefore, took the view that the transfer has not taken place before 25th March, 2008 i.e. the date of investment of Rs. 50 lacs in REC Bond by each of the coowner. He, therefore, confirmed the order of the Assessing Officer. 10. We have heard the rival submissio....
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.....3.2008, it is apparent that each of the coowner had received more than Rs. 50 lakhs on 25.3.2008. The each of the coowner had received more than Rs. 50 lakhs on 25.3.2008. The each of the coowner has issued the cheque for purchase of the bond. Out of the part of the consideration received each of the seller. The bonds were ultimately allotted to each of the coowner on 31.3.2008. Therefore, this remains an undisputed fact that the investments are made in the REC Bond. Out of the part of the consideration received for the sale of the aforesaid property. This is also fact that the Revenue has assessed the capital gains in respect of the said property in the hands of the each of the coowner in the aforesaid assessment year in view of the provisions of Section 2(47). The only contention of the Revenue before us is that since the provisions of Section 54EC specifically provides that the deduction u/s 54EC has to be made if the investments are made within a period of six months after the date of such transfer. In this regard, the assessee has relied on the following circular issued by the Department, which reads as under :- "Circular No. 359 dated 10th May, 1983. Sub : Section 54E - Wh....
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....ify for exemption u/s 54E of the Income-tax Act, 1961. Even though this circular has been issued for the purpose of availing of the exemption u/s 54E, but if we see the logic and the language of both the sections, the purpose of allowing the exemption to the assessee for making the investment in specified assets is that the assessee should invest in the specified assets out of the part of the consideration received by him. On the facts of this, it is apparent that each of the assessee has invested into the REC Bond even though prior to the transfer but out of the part of the consideration received on the sale of the assets in respect of which the capital gain has been assessed. 14. We noted that the similar issue has arisen before the Pune Bench B of I.T.A.T. in I.T.A.No. 1672/PN/2011 and I.T.A.No. 152/PN/2012 in the case of Subhash Vinayak Supnekar, Pune, in which the Hon'ble Tribunal while allowing the relief to the assessee held as under :- "We find the CBDT vide Circular No.359 (F.No.207/8/82- IT(A-ll) dated 10-05-1983 has held that earnest money or advance is a part of the sale consideration and therefore if the assessee invests the earnest money or the advance received ....