SHRI ANIL JHALANI, Ratlam V. THE DCIT, Ratlam

CO 36/IND/2015

• Counselvise Citation: [2017] 119 COUNSELVISE.COM (IT) 3396 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 9 month(s) 7 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 30-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 22-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: AVINASH GOUR
• Keywords: Deduction for capital gain; Capital asset; Bonafide belief; Question of law; Date of conversion; Benefit of exemption
• Section: 45(2); 54F; 145; 148; 54

Judgement Text

DCIT VS. ANIL JHALANI ITA NO.246/IND/2015 & CO36/IND/2015 1 IN THE INCOME TAX APPELLATE TRIB UNAL, INDORE BENCH, INDORE BEFORE SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER I.T.A. NO. 246/IND/2015 ASSESSMENT YEAR 2008-09 DY.COMMISSIONER OF INCOME TAX RATLAM :: /APPELLANT VS SHRI ANIL JHALANI RATLAM PAN ABCPJ 3376K :: / RESPONDENT CO NO. 36/IND/2015 ARISING OUT OF ITA NO. 246/IND/2015 ASSESSMENT YEAR 2008-09 SHRI ANIL JHALANI RATLAM :: /APPELLANT VS DY.COMMISSIONER OF INCOME TAX, RATLAM :: / RESPONDENT / REVENUE BY SHRI MOHD. JAVED ! '#$ / ASSESSEE BY SHRI AVINASH GOUR % !&$' DATE OF HEARING 29.3.2017 ()*+, $' DATE OF PRONOUNCEMENT 3 0 .3.2017 DCIT VS. ANIL JHALANI ITA NO.246/IND/2015 & CO36/IND/2015 2 / O R D E R PER BENCH THE APPEAL HAS BEEN FILED BY THE REVENUE WHEREAS TH E ASSESSEE HAS FILED THE CROSS OBJECTION AGAINST THE ORDER OF THE LEARNED CIT(A), UJJAIN, DATED 30.1.2015 IN FIRST AP PEAL NO. U- 156/2014-15 FOR THE ASSESSMENT YEAR 2008-09. 2. THE GROUNDS OF APPEAL RAISED BY THE REVENUE READ AS UNDER :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS ERRED IN (A) ALLOWING DEDUCTION U/S 54F OF THE ACT AS THE ASSESS EE HAS NOT DEPOSITED THE AMOUNT INTO THE CAPITAL GAIN SCHE ME ACCOUNT BEFORE FILING RETURN OF INCOME AND AS SUCH NOT FULFILLED THE CONDITION AS PROVIDED 54F(4) OF THE ACT. (B) ALLOWING DEDUCTION U/S 54F AS THE ASSESSEE HAS ALRE ADY OWN TWO HOUSES AS SUCH THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION AS PER PROVISO (A)(I) OF SECTION 54F(1) O F THE ACT. 3. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND DERIVES INCOME FROM CIVIL CONTRACTORSHIP, INCOME FR OM LONG TERM CAPITAL GAIN AND AGRICULTURAL INCOME. THE RETURN OF INCOME DCIT VS. ANIL JHALANI ITA NO.246/IND/2015 & CO36/IND/2015 3 DECLARING TOTAL INCOME AT RS.3,88,662/- HAS BEEN FI LED B Y THE ASSESSEE. THE ASSESSING OFFICER MADE THE ADDITION O F RS.75,55,894/- ON ACCOUNT OF LONG TERM CAPITAL GAIN , RS.8,72,925/- ON ACCOUNT OF SHORT TERM CAPITAL GAIN AND RS.2,48,1 08/- ON ACCOUNT OF INTEREST AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. ON APPEAL, THE LEARNED CIT(A) OBSERVED AS UNDER :- FROM THE ABOVE IT IS CLEAR THAT THE TRANSFER OF TH E PROPERTY HAS BEEN TAKEN PLACE WITHIN THE MEANING OF SECTION 2(47)(V) ON THE TAKING OVER OF POSSESSION BY THE TRANSFEREE FROM THE TRANSFERER. THE CAPITAL GAIN IS CHARGEABLE IN THE Y EAR IN WHICH THE POSSESSION WAS HANDED OVER BY THE APPELLA NT SHRI ANIL JHALANI TO M/S SHUBHAM CONSTRUCTION. THE A.O. HAS WORKED OUT THE CHARGEABLE LONG TERM CAPITAL GAI N AT RS.75,55,894/-. THE APPELLANT HAS NOT AGITATED IN R ESPECT OF THE QUANTUM OF THE ADDITION. AS IT IS PREVIOUSLY NARRATED THAT THE LONG TERM CAPITAL GAIN OF RS. 75,55,894/- IS CHARGEABLE IN THE A.YU. 2008-09 I.E. YEAR UNDER CONSIDERATION. 4.1.1 THE APPELLANT HAS MADE THE CLAIM OF DEDUCTION U/S 54F OT THE ILTE ACT ON THE LONG TERM CAPITAL GAIN. THE A.O. DCIT VS. ANIL JHALANI ITA NO.246/IND/2015 & CO36/IND/2015 4 DENIED THE CLAIM OF DEDUCTION U/S 54 ON THE GROUND THAT HE HAS NOT MADE CLAIM IN THE ORIGINAL RETURN OF INCOME FILED OR RETURN FILED IN RESPONSE TO NOTICE U/S 148. THE A.O . HAS NOT CITED ANY REASON FOR DENYING THE CLAIM OF DEDUCTION U/S 54F. IN THE PRESENT CASE THE APPELLANT HAS TRANSFER RED THE CAPITAL ASSET PERTAINING TO A.Y. 2008-09.THE APPELL ANT AS PER THE SALE AGREEMENT HAS RECEIVED THE CONSIDERATI ON AS UNDER :- - . /012345 6!3 . 89:;- . -? ;; ;;; @ A 8 . /012345 6!3 . 89:;8 . -? ;; ;;; @ A B . /012345 6!3 . 89:;B . -? ;; ;;; @ A C . /012345 6!3 . 89:;C . -? ;; ;;; @ A ? . /012345 6!3 . 89:;? . = ;; ;;; @ A +D > . := ;; ;;; @ A EFG H I>.8?;;;;;@AJ % D$!6G'K % JGLMK! $G ) /0 12 345 6 !3. ;89=BB . 8?;;;;;@A.-8?;;;;@A.-8?;;;;@A.-8?;;;;@A.-8?;;;;@A.?;;;;;;@A+D THE APPELLANT HAS FURTHER MADE THE DEPOSIT OF RS.17,00,000/- IN THE LONG TERM CAPITAL GAIN ACCOUN T NO.2467101013655 WITH CANARA BANBK ON 20.11.2009. THEREFORE, IN THE BALANCE SHEET AS ON 31.03.2010 TH E APPELLANT HAS SHOWN THE CAPITAL GAIN DEPOSIT ACCOUN T AT RS.17,09,917/- + RS.50,16,541/- INCLUDING INTEREST. SINCE APPELLANT HAS MADE THE INVESTMENT IN THE CAPITAL GA IN ACCOUNT IMMEDIATELY AFTER RECEIPT OF THE MONEY AS P ER SALE DEED, THE APPELLANT IS ENTITLED FOR EXEMPTION U/S 5 4F. BY MERELY THE APPELLANT HAS NOT CLAIMED THE EXEMPTION U/S 54F HE CANNOT BE DENIED THE BENEFIT OF EXEMPTION IF HE HAS FOLLOWED THE PROCEDURE FOR CLAIMING EXEMPTION UNDIS CLOSED INCOME/S 54F. THE APPELLANT HAS NOT CLAIMED THE EXEMPTION IN THE ORIGINAL REFUND BECAUSE HE HAS NOT OFFERED THE CAPITAL GAIN DURING THE YEAR UNDER CONSIDERATIO N ON THE DCIT VS. ANIL JHALANI ITA NO.246/IND/2015 & CO36/IND/2015 6 ASSUMPTION THAT IT IS NOT TAXABLE IN THE YEAR UNDER CONSIDERATION. THE CONCLUSION OF THE A.O. THAT IT I S TAXABLE DURING THE YEAR UNDER CONSIDERATION IS CORRECT BUT AT THE SAME TIME HE SHOULD HAVE CONSIDERED THE EXEMPTION I N RESPECT OF 54F. THE VARIOUS JUDICIAL AUTHORITIES DE ALT REGARDING THE CHARGEABILITY OF THE LONG TERM CAPITA L GAIN WHEN SALE CONSIDERATION IS NOT RECEIVED :- I. CIT VS. SMT. NAJOO DARA DEBOO (2013) TAXMANN 743 IT HAS BEEN HELD THAT CAPITAL GAIN IS CHARGED ONLY ON RECEIPT OF SALE CONSIDERATION AND NOT OTHERWISE. PERSON CANNOT PAY CAPITAL GAIN IF HE HAS NOT RECEIV ED ANY AMOUNT. II. IOTAT HYDERABAD IN CASE OF GULF OIL CORPRATION LTD. VS. ACIT REPORTED ON 39 CCH 023 HELD THAT SAME ITEM OF INCOME CANNOT BE TAXED IN TWO DIFFERENT ASSESSMENT YEARS. III. MAHESH NEMICHAND GANESHWADE & OTHERS VS. INCOME TAX OFFICER CASE REPORTED ON (2012) 147 TTJ 488, ITAT PUNA IN THIS CASE THE HON'BLE ITAT PUNA BENCH HELD AS UNDER :- DCIT VS. ANIL JHALANI ITA NO.246/IND/2015 & CO36/IND/2015 7 CAPITAL GAIN EXEMPTION U/S 54EC ASSESSEE CLAIMED EXEMPTION UNDER S. 54EC FOR HAVING MADE INVESTMENT WITHIN 6 MONTHS FROM THE DATE OF RECEIPT OF SALE CONSIDERATION A.O. & CIT(A) ALLOWED EXEMPTIO N ONLYNIRO RS.25,00,000/- BUT DENIED IN RESPECT OF RS.12,50,000/- AND RS.37,50,000/- MADE ON 3.8.2007 AND 27.10.2007 ON THE GROUND THAT THE INVESTMENT IN ELIGIBLE BONDS WAS NOT MADE BY THE ASSESSEE WITHIN THE STIPULATED PERIOD OF 6 MONTHS FROM THE DATE OF TRANSFER OF LAND HELD, CBDT IN CONSULTATION WITH THE MINISTRY OF LAW DECIDED THAT PERIOD OF SIX MONTHS FOR MAKING INVESTMENT IN SPECIFIED ASSERTS FORT THE PURPOSE OF SS.54EA, 54EB AND 54EC SHOULD BE TAKEN FROM THE DATE WHEN STOCK IN TRADE IS SOLD OR OTHERWISE TRANSFERRED IN TERMS OF S. 45(2) THOUGH THE TAXABILITY OF CAPITAL GAIN WAS ON THE BASIS OF TRANSFER AS UNDERSTOOD IN S. 45(2) HAVIN G REGARD TO THE IMPOSSIBILITY OF PERFORMANCE TO INVES T THE AMOUNT IN SPECIFIED ASSETS WITHIN SIX MONTHS FR OM THE DATE OF TRANSFER I.E. THE DATE OF CONVERSION OF DCIT VS. ANIL JHALANI ITA NO.246/IND/2015 & CO36/IND/2015 8 CAPITAL ASSET INTO STOCK IN TRADE, THE PERIOD OF SI X MONTHS FOR MAKING INVESTMENT IN SPECIFIED ASSETS HA S TO BE RECKONED FROM THE DATE OF THE SALE OF SUCH ST OCK IN TRADE WHEN THE RIGHT TO COLLECT SALE CONSIDERATI ON IN SUCH CASES AROSE. APPEAL OF THE ASSESSEE ON THIS ISSUE IS ALLOWED. IV. THE BOARD ISSUED THE CIRCULAR NO. 791 DATED 02.06.2000 WHEREIN IT HAS BEEN HELD THAT APPELLANT CAN MAKE THE INVESTMENT IN THE SPECIFIED ASSETS FOR THE PURPOSE OF SECTION 54EA, 54EB AND 54EC WITH IN SIX MONTH FROM DATE OF CONSIDERATION RECEIVED. V. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT V S. SMT. BEENA K. JQAIN (1994) 75 TAXMANN 145 HELD THAT SECTION 54F OF THE INCOME TAX ACT, 1961 CAPI TAL GAINS EXEMPTION IN CASE OF INVESTMENT IN RESIDENT IAL HOUSE ASSESSEE SOLD OFFICE PREMISES ON 23.7.1987 WHICH RESULTED IN LONG TERM CAPITAL GAIN OFRS.24,05,050/- - PRIOR TO THIS ASSESSEE HAD ENTER ED INTO AN AGREEMENT DATED 4.9.1985 FOR PURCHASE OF A RESIDENTIAL FLAT FOR A TOTAL CONSIDERATION OF DCIT VS. ANIL JHALANI ITA NO.246/IND/2015 & CO36/IND/2015 9 RS.12,26,751 WHICH AGREEMENT OF SALE WAS REGISTERED ON 27.10.1985 ASSESSEE PAID CONSIDERATION AMOUNT ON 29.7.1988 AND WAS PUT IN POSSESSION OF SALD FLAT ON 30.7.1988 ASSESSEE CLAIMED BENEFIT OF EXEMPTIO N UNDER SECTION 54F WHETHER NEW RESIDENTIAL HOUSE WAS PURCHASED BY THE ASSESSEE WITHIN TWO YEARS AFTER THE SALE OF THE CAPITAL ASSET WHICH RESULTED IN LONG TERM CAPITAL GAINS HELD, YES WHETHER A QUESTION OF LAW AROSE FROM THE TRIBUNALS ORDER ALLOWING EXEMPTION OF RS. 11,04,423/- UNDER SECTION 54F CONSIDERING DATE OF POSSESSION NOF NEW RESIDENTIAL PREMISES INSTEAD OF DATE OF SALE AGREEM ENT AND DATE OF REGISTRATION HELD, NO. 4.1.2 FOLLOWING THE ABOVE DECISIONS IT IS CONCLUDED THAT THE DATE OF RECKONING OF THE INVESTMENT START FROM THE RECEIPT OF THE CONSIDERATION IN THE HANDS OF THE APPELLANT. IN THE PRESENT CASE THE APPELLANT HAS UTILISED THE SALE CONSIDERATION WITHIN A STIPULATED TIME IN SCHEME OF CENTRAL GOVERNMENT MADE IN THAT BEHALF . THEREFORE, APPELLANT IS ELIGIBLE FOR EXEMPTION U/S 54F DCIT VS. ANIL JHALANI ITA NO.246/IND/2015 & CO36/IND/2015 10 OF THE IT ACT. THEREFORE, THE A.O. IS DIRECTED TO A LLOW EXEMPTION U/S 54F OF THE IT ACT ON THE AMOUNT DEPOSITED BY THE APPELLANT IN THE CAPITAL GAIN ACCO UNT AMOUNTING TO RS.67,00,000/-. THEREFORE, THE APPEAL ON THIS GROUND IS PARTLY ALLOWED. 4. WE HAVE HEARD ARGUMENTS OF BOTH THE SIDES AND CA REFULLY PERUSED THE RELEVANT MATERIAL PLACED ON RECORD OF T HE TRIBUNAL, INTER-ALIA, ASSESSMENT ORDER, IMPUGNED FIRST APPELL ATE ORDER AND OTHER RELEVANT DOCUMENTS. THE LEARNED DEPARTMENTAL REPRESENTATIVE (DR) SUPPORTING THE ACTION OF THE AS SESSING OFFICER, CONTENDED THAT THE ASSESSEE HAS NOT SHOWN LONG TERM CAPITAL GAIN AMOUNTING TO RS.75,55,894/- AND SHORT TERM CAPITAL GAIN OF RS.8,72,925/- IN THE ORIGINAL RETURN OF INCOME OR I N THE RETURN FILED IN RESPONSE TO NOTICE U/S 148 OF THE INCOME TAX ACT , 1961 (IN SHORT THE ACT). THE LEARNED DR DREW OUR ATTENTION TOWA RDS PARAGRAPH 9 OF THE ASSESSMENT ORDER AND SUBMITTED THAT ON THE B ASIS OF ENTIRE DOCUMENTS PLACED ON RECORD OF THE ASSESSING OFFICER , IT WAS CLEAR THAT THE ASSESSEE SHRI ANIL JHALANI WAS THE SOLE OWNER OF THE PROPERTY ON THE DATE OF EXECUTION OF THE SALE DEED AND ACCORDINGLY DCIT VS. ANIL JHALANI ITA NO.246/IND/2015 & CO36/IND/2015 11 THE ENTIRE SALE CONSIDERATION WAS ASSESSED IN THE H ANDS OF THE ASSESSEE. THE LEARNED DR VEHEMENTLY CONTENDED THAT THE ASSESSING OFFICER CLEARLY NOTICED THAT THE ASSESSEE NEVER MAD E THE CLAIM OF DEDUCTION U/S 54F OF THE ACT IN THE ORIGINAL RETURN OF INCOME OR IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/ S 148 OF THE ACT. ACCORDINGLY, THE ASSESSING OFFICER WAS QUITE CORREC T IN NOT ALLOWING THE DEDUCTION U/S 54F OF THE ACT. LASTLY, THE LEAR NED DR SUBMITTED THAT SINCE THE LEARNED CIT(A) HAS GRANTED RELIEF TO THE ASSESSEE WITHOUT ANY JUSTIFICATION AND BASIS, THE IMPUGNED O RDER MAY KINDLY BE SET ASIDE BY RESTORING THAT OF THE ASSESSING OFF ICER. 5. REPLYING TO THE ABOVE, THE LEARNED COUNSEL FOR T HE ASSESSEE SUPPORTING THE ORDER OF THE LEARNED CIT(A) TOOK US THROUGH THE OPERATIVE PART I.E. PARA 4.1 OF THE FIRST APPELLATE ORDER AND SUBMITTED THAT THE ASSESSEE HAS MADE DEPOSIT IN THE CAPITAL GAIN ACCOUNT WITH CANARA BANK IN ORDER TO CLAIM DEDUCTIO N U/S 54F ON 20.11.2009 AND THE ASSESSEE RECEIVED THE ENTIRE CON SIDERATION ON 6.7.2009. THE LEARNED COUNSEL FOR THE ASSESSEE FUR THER SUBMITTED THAT IN VIEW OF THE ABOVE, THE ASSESSEE HAS MADE IN VESTMENT IN CAPITAL GAINS ACCOUNT IMMEDIATELY AFTER THE RECEIPT OF THE MONEY AS PER SALE DEED AND, THEREFORE, THE ASSESSEE IS ENTIT LED TO EXEMPTION DCIT VS. ANIL JHALANI ITA NO.246/IND/2015 & CO36/IND/2015 12 U/S 54F OF THE ACT. THE LEARNED COUNSEL FOR THE ASS ESSEE CONTENDED THAT MERELY BECAUSE THE ASSESSEE HAS NOT CLAIMED EX EMPTION U/S 54F OF THE ACT IN THE ORIGINAL RETURN, HE CANNOT BE DENIED BENEFIT OF EXEMPTION FOR WHICH HE IS ENTITLED U/S 54F OF THE A CT. EXPLAINING THE CAUSE OF NON-CLAIMING THE DEDUCTION IN THE ORIG INAL RETURN OF INCOME, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMIT TED THAT THE ASSESSEE HAS NOT OFFERED THE CAPITAL GAIN DURING TH E YEAR UNDER CONSIDERATION ON THE ASSUMPTION THAT IT IS NOT TAXA BLE IN THE YEAR UNDER CONSIDERATION UNDER THE BONAFIDE BELIEF. THER EFORE, THE ASSESSEE CANNOT BE DENIED THE BENEFIT OF EXEMPTION FOR WHICH HE IS ENTITLED UNDER THE PROVISIONS OF THE ACT, DUE TO BO NAFIDE OMISSION IN CLAIMING THE SAME IN THE ORIGINAL RETURN OF INCOME. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER DREW OUR ATTENTION TOWARDS BOARD CIRCULAR NO. 791 DATED 2.6.200 AND SUBMITTED THAT T HE ASSESSEE CAN MAKE INVESTMENT IN THE SPECIFIED ASSETS FOR THE PURPOSE OF CLAIMING DEDUCTION WITHIN SIX MONTHS FROM THE DATE OF THE CONSIDERATION RECEIVED. THEREFORE, THE ASSESSEE CAN NOT BE DENIED EXEMPTION U/S 54F OF THE ACT AND, THEREFORE, THE CO NCLUSION DRAWN BY THE LEARNED CIT(A) IS SUSTAINABLE AND THUS THE S AME MAY KINDLY BE UPHELD. DCIT VS. ANIL JHALANI ITA NO.246/IND/2015 & CO36/IND/2015 13 6. ON CAREFUL CONSIDERATION OF THE ABOVE RIVAL SUBM ISSIONS, FROM THE RELEVANT OPERATIVE PART OF THE ASSESSMENT ORDER I.E. PARAS 9 TO 12, WE OBSERVE THAT THE MAIN ALLEGATION OF THE ASSE SSING OFFICER IS THAT THE ASSESSEE NEITHER CLAIMED DEDUCTION IN THE ORIGINAL RETURN OF INCOME NOR CLAIMED THE SAME IN THE RETURN FILED IN RESPONSE TO NOTICE U/S 148 OF THE ACT. HOWEVER, THE LEARNED ASS ESSING OFFICER NOTED IN THE END OF PARA 9 THAT THE ASSESSEE, SHRI ANIL JHALANI, WAS THE SOLE OWNER OF THE PROPERTY SOLD ON THE DATE OF EXECUTION OF THE SALE DEED AND ACCORDINGLY THE ENTIRE SALE CONSIDERA TION IS ASSESSED IN THE HANDS OF THE ASSESSEE. 7. FROM THE RELEVANT OPERATIVE PART OF THE FIRST AP PELLATE ORDER WE FIND THAT THE LEARNED CIT(A), AFTER ELABORATELY DIS CUSSING THE ISSUE IN PARAS 4.1, 4.1.1 AND 4.1.2 (SUPRA) HAS GRANTED RELI EF TO THE ASSESSEE WITH THE DIRECTION TO THE ASSESSING OFFICER TO ALLO W EXEMPTION U/S 54F OF THE ACT ON THE AMOUNT DEPOSITED BY THE APPEL LANT IN THE CAPITAL GAIN ACCOUNT AMOUNTING TO RS.67,00,000/-. 8. IN VIEW OF THE ABOVE, AT THE VERY OUTSET, WE MAY POINT OUT THAT THE ASSESSING OFFICER HIMSELF HAS ACCEPTED THE FACT THAT ON THE DATE OF EXECUTION OF SALE DEED, THE ASSESSEE, SHRI ANIL JHALANI, WAS THE SOLE OWNER OF THE PROPERTY. WHEN WE LOGICALLY ANALY SE THE DCIT VS. ANIL JHALANI ITA NO.246/IND/2015 & CO36/IND/2015 14 OBSERVATIONS RECORDED BY THE LEARNED CIT(A) THEN WE OBSERVE THAT FOR GRANTING RELIEF TO THE ASSESSEE, THE LEARNED CI T(A) HAS NOTED A VERY RELEVANT FACT THAT THE ASSESSEE HAS MADE INVES TMENT OF ENTIRE SALE CONSIDERATION IN THE CAPITAL GAINS ACCOUNT IMM EDIATELY AFTER RECEIVING THE MONEY AS PER THE SALE DEED. THEREFORE , THE ASSESSEE IS ENTITLED TO EXEMPTION U/S 54F OF THE ACT. ON THE TO TALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE IN AGREEMENT WITH THE CONCLUSION DRAWN BY THE LEARNED CIT(A) THAT MERELY BECAUSE THE ASSESSEE HAS NOT CLAIMED EXEMPTION U/S 54F OF THE A CT IN THE ORIGINAL RETURN OF INCOME AND SUBSEQUENT RETURN FIL ED IN RESPONSE TO NOTICE U/S 148 OF THE ACT, THE ASSESSEE CANNOT BE D ENIED THE BENEFIT OF EXEMPTION. WE MAY ALSO POINT OUT THAT WHEN THE A SSESSEE HAS DEPOSITED THE ENTIRE SALE CONSIDERATION IN THE CAPI TAL GAINS ACCOUNT WITHIN THE PRESCRIBED TIME I.E. WITHIN SIX MONTHS A FTER RECEIPT OF THE SALE CONSIDERATION AS PER SALE DEED THEN THE ASSESS EE IS ENTITLED TO EXEMPTION U/S 54F OF THE ACT. 8. IN VIEW OF THE ABOVE, WE ARE UNABLE TO SEE ANY A MBIGUITY, PERVERSITY OR ANY OTHER VALID REASON TO INTERFERE W ITH THE IMPUGNED FIRST APPELLATE ORDER AND, HENCE, WE UPHOLD THE SAM E. DCIT VS. ANIL JHALANI ITA NO.246/IND/2015 & CO36/IND/2015 15 9. BEFORE WE PART WITH THE ORDER, WE MAY POINT OUT THAT THE REVENUE DEPARTMENT IN THE SECOND PART OF THE GROUND RAISED BEFORE THE TRIBUNAL HAS CHALLENGED THE CONCLUSION OF THE L EARNED CIT(A) BY ALLEGING THAT THE LEARNED CIT(A) WAS NOT CORRECT IN ALLOWING THE DEDUCTION U/S 54F OF THE ACT AS THE ASSESSEE ALREAD Y OWN TWO HOUSES AND AS SUCH THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION/EXEMPTION AS PER PROVISO (A)(I) OF SECTIO N 54F(1) OF THE ACT. FROM A CAREFUL READING OF THE ASSESSMENT ORDER WE ARE UNABLE TO SEE ANY SUCH ALLEGATION AGAINST THE ASSESSEE THA T HE IS NOT ENTITLED FOR DEDUCTION U/S 54F OF THE ACT AS HE HAS ALREADY OWNED MORE THAN ONE RESIDENTIAL HOUSE OTHER THAN THE NEW ASSET ON THE DATE OF TRANSFER OF THE ORIGINAL ASSET. THIS PROVIS O APPLIES TO THE CASES WHEREIN THE ASSESSEE CLAIMS DEDUCTION U/S 54F OF THE ACT ON ACCOUNT OF PURCHASE OF NEW RESIDENTIAL HOUSE FROM T HE SALE CONSIDERATION RECEIVED WHICH BRINGS LONG TERM CAPIT AL GAIN TO THE ASSESSEE. SINCE IN THE PRESENT CASE AS WE HAVE ALRE ADY CONCLUDED THAT THE ASSESSEE DID NOT CLAIM DEDUCTION U/S 54F O F THE ACT ON ACCOUNT OF PURCHASE OF NEW RESIDENTIAL HOUSE AND TH E CLAIM OF THE ASSESSEE U/S 54F OF THE ACT HAS BEEN BASED ON THE P REMISE THAT THE ASSESSEE DEPOSITED SALE CONSIDERATION WITHIN THE PR ESCRIBED TIME DCIT VS. ANIL JHALANI ITA NO.246/IND/2015 & CO36/IND/2015 16 LIMIT IN THE CAPITAL GAINS ACCOUNT WITH CANARA BANK , THEREFORE, SECOND PART OF THE GROUND RAISED BY THE REVENUE IS IRRELEVANT AND, HENCE, WE DISMISS THE SAME. 10. DURING THE COURSE OF ARGUMENTS, THE LEARNED COU NSEL FOR THE ASSESSEE FAIRLY SUBMITTED THAT THE CROSS OBJECTION OF THE ASSESSEE HAS BEEN FILED MERELY WITH AN OBJECT TO SUPPORT THE CONCLUSION OF THE LEARNED CIT(A) IN FAVOUR OF THE ASSESSEE. SINCE BY THE EARLIER PART OF THIS ORDER WE HAVE DISMISSED THE APPEAL OF THE REVENUE, THEREFORE, THE CROSS OBJECTION OF THE ASSESSEE BECO MES ACADEMIC AND THUS THE SAME IS DISMISSED AS HAVING BECOME INFRUCT UOUS. 11. IN THE RESULT, THE APPEAL OF THE REVENUE AS WEL L AS THE CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. THE ORDER HAS BEEN PRONOUNCED IN OPEN COURT ON MARC H 30, 2017. SD/- SD/- ' (O.P.MEENA) (C.M. GARG) ACCOUNTANT MEMBER J UDICIAL MEMBER MARCH 30 TH 2017. DN/ DCIT VS. ANIL JHALANI ITA NO.246/IND/2015 & CO36/IND/2015 17