TaxTMI 
TaxTMI 
2017 (10) TMI 1148
X X X X Extracts X X X X
X X X X Extracts X X X X
....d.CIT(Appeals) erred in not appreciating that the appellant/assessee is entitled for the exemption u/s.54 if the sale consideration utilized for investment in new residential property within the due date stipulated under section 139(4) of the Act. 2. On facts and in the circumstances of the case and in law, the Ld.CIT(Appeals) erred in restricting the claim of deduction u/s.54 to Rs. 5,00,000 on the ground that utilization of sale consideration was no within the "due date" of return as u/s.139(1) but within the "due date" of filing return as under section 139(4). The Ld.CIT(A) ought to have accepted the appellant's claim that she is entitled to deduction u/s.54 for an amount of Rs. 35,23,226. The appellant, therefore, prays that the Ld.A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that the assessee has not acquired the new property before filing of return of income. The claim of exemption under s.54 was thus refused. 4. Aggrieved by the order of AO, the assessee preferred the appeal before CIT(A). 5. Before the CIT(A), the assessee submitted that the assessee received her share in the sale consideration of co-ownership property being Rs. 57,50,000/- on 21/02/2011. The assessee claimed that against the indexed capital gain of Rs. 35.23 lakhs arising on sale of aforesaid residential property, the assessee acquired new residential property for Rs. 35 lakhs and therefore eligible for exemption under s.54 of the Act. The assessee also submitted as per the 'statement of facts' before the CIT(A) that it invested Rs. 30 la....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t a new residential property was acquired by the assessee jointly along with her husband for a total consideration of Rs. 70 lakhs. Her ownership in the joint property stands at Rs. 35 lakhs. It was claimed that the payment for this property was made between 28/05/2011 to 15/12/2011. In support of the purchase of the new residential property, the Ld.AR referred to allotment letter dated 13/02/2012 issued by the builder "Maruti Finebuild". The Ld.AR submitted that the property was acquired and put to use within the period of two years and it was thus pleaded that the assessee deserves full relief under s.54 as claimed. The Ld.AR relied upon the decision of Ahmedabad Bench in Ashok Kapasiawala vs. ITO (2015) 63 taxamnn.com 284 (Ahd) and Gopal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hough, as per section 54, the assessee is given two years for purchase of House property (or three years for construction thereof) yet the taxable event of capital gains on transfer of original House property is the year in which it is sold. In terms of s.54(2), however, the assessee may at his discretion invest the capital gains before the filing of return of income to avoid incidence of tax. Section 54(2) inter alia specifies an alternative in the form of deposit under 'capital gain accounts scheme' before the due date of filing of return of income under s.139(1) of the Act. Thus, the amount of capital gains which is not utilized by the assessee for purchase or construction of new house before the date of furnishing of return of income ou....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... s.139(4) of the Act even after filing of return do not coincide with the plain language employed under s.54(2) of the Act. Nonetheless, the capital gain employed towards purchase of new asset before the actual date of furnishing return of income either under s.139(1) or under s.139(4) of the Act will be deemed to be sufficient compliance of section 54(2) of the Act. 9.3. The assessee, in the instant case, does not claim to have deposited the money in these specified bank account under capital gain scheme at all. Therefore, the claim of the assessee is required to be weighed on the second limb of section 54(2) of the Act, i.e. whether the capital gain has been utilized for purchase of new asset before the date of furnishing of return of in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....receive beneficial construction in view of unambiguous and express provision of s.54(2) of the Act. The suggestion on behalf of the assessee on eligibility of payments subsequent to furnishing of return of income is not aligned with and militates against the plain provision of law certified in s.54(2) of the Act. 9.4. In the light of the mandate of section 54(2) as noted above, we shall now turn to the facts of the case. It is the case of the assessee that Rs. 40 lakhs in aggregate has been utilized towards purchase of new asset before furnishing the return of income under s.139(4) of the Act. The assessee claims to have invested Rs. 20 lakhs (being ½ of her share) for purchase of new asset. However, we notice that assessee appears ....