TaxTMI 
TaxTMI 
2021 (3) TMI 412
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....see and examined the same in the light of the facts and circumstances. At the outset, it is important to note that there is no dispute with regard to facts of the case. To be precise, on account of entering into a JDA 'Cum GPA in respect of plot of land held in the name of assessee with M/s. Western Constructions, the assessee did not receive any monetary consideration. On the other hand, in the project developed thereof, i.e., "Western Pearl", the assessee received built up area of commercial space admeasuring 19,878 sq.ft. consisting of 1200 sq. ft. in ground floor and 1st floor each and 17,478 sq.ft. in 10th floor. 7.2 As such, the assessee was not having any funds in her hands received on account of said transfer in order to make investment in the new asset. On the other hand, the assessee claimed to have made investment towards construction of new asset to the extent of Rs. 63,90,560/- during the period 13.07.2011 to 02.06.2012 i.e., on or before due date for filing the return of income u/s.139(1) of the Act for the impugned AY 2012-13. In this regard, during the course of assessment proceedings, the assessee filed a statement showing amounts paid for construction....
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....of the assessee's own income/funds rather than borrowed funds or funds belonging to other persons. On the other hand, in the instant case, the assessee has claimed to have made investment out of the funds received from outside parties. In this regard, reliance is placed on the following judicial precedents. 1. Kaushal Kishore Maheshwari Vs [2017] 85 taxmann.com 205 (Delhi-Trib.) In this case, Hon'ble ITAT has been held that investment made in the new asset i.e., purchase of residential house out of loan taken from bank in the name of wife in which the assessee has joined only for the purpose of repayment, it cannot be construed that the assessee had made investment of sale proceeds of plot of land for purchase of residential house and, thus, assessee was not entitled to deduction under section 54F of the Act. The relevant portion of the decision is reproduced below for ready reference: "5.3.6 In view of the above decision, what is important is that for deduction under section 54F of the Act that investment in the new property has to be made by the assessee. But in the present case before us, though the property has been purchased in the name of th....
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....ase the assessee constructs or purchases a residential house out of borrowed funds, he is not eligible for exemption u/s.54F of the Act. While doing so, it is observed by the Hon'ble ITAT that the fiscal provisions are to be constructed in such a manner so that intention of legislature behind introduction of such provisions would be achieved. The relevant portion of the decision is reproduced below for ready reference: "19. It is well-settled that residential property should either be acquired or constructed by the assessee out of his personal funds or the sale proceeds of the capital asset on which deduction undersection 54F is claimed. If the assessee constructs or purchases a residential house out of the borrowed funds, he is not eligible for a deduction under section 54F. If it is not construed in such a manner the object of introduction of the beneficial provisions would be frustrated. The fiscal provisions are to be constructed in such a manner, so that its objects of introduction can be achieved. 20. In the instant case, sale proceeds of the capital assets received by the assessee were utilized or appropriated for different purpose and the asse....
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.... the issue of exemption u/s.54EA of the Act wherein it is held that Section 54EA does not prevent assessee from making investment out of available compensation amount even before enhanced compensation is received. As such, the assessee has once again tried to misrepresent the case before the appellate authority by quoting irrelevant case laws. 7.9 Further, the assessee place reliance on P.Thirumoorthy Vs ITO [2011] 7 ITR (Trib) 10 (Chennai) which is also found to be not applicable to the case on hand on account of distinguishable facts and legal issues involved. To be precise, in the said case the Hon'ble ITAT, Chennai has dealt with the issue of allowability of exemption u/s.54F of the Act in respect of amount deposited in Capital Gains Deposit Scheme account wherein it is held that- Where assessee had sold property in impugned assessment year and sale consideration was deposited ill his bank under Capital Gains Deposit Scheme, exemption under section 54F could not be disallowed. Thus, all the decisions relied up on by the assessee are irrelevant and, therefore, cannot be applied to the case on hand. 7.10 In view of the aforementioned case laws, the provision....
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....ontradictory stand. Meaning thereby that on the one hand it has alleged that since the assessee had received developed commercial area from the developer in lieu of the capital asset handed over to the latter thereby not resulting in any capital gains or consideration money, it has, however, treated an equal sum of Rs. 1,94,35,276/- as assessable under the head 'long term capital gain'. We thus see no reason to accept the Revenue's stand on these mutually contradictory lines. 5. Next comes the equally significant aspect of the reinvestment of assessee's capital gains by utilising her joint family's funds. Learned counsel at this stage invited our attention to the assessee's detailed paper book filed on 09-02- 2021 placing on record all the relevant details of her house constructed in plot Nos.30 and 31, Magadha Village, Kokapet, Rajendra Nagar Mandal, R.R.District purchased on 21-09- 2005 followed by sanction of construction dt.16-06-2007 and completed on 18-05-2012. We hold in this factual backdrop that larger interest of justice would be met in case the Assessing Officer examines the entire issue of re-investment of assessee's capital gains in the above stated property afresh.....