ITO, CHENNAI V. Smt. Swarnambal Dayashankar, CHENNAI

ITA 1472/CHNY/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0962 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 17-01-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 19-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T N BETGIRI JT
• Keywords: Capital asset
• Section: 54F; 234B; 54; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI [BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER] I.T.A.NO.1472/MDS/2012 ASSESSMENT YEAR : 2007-08 THE INCOME TAX OFFICER BUSINESS WARD XIV(4) CHENNAI VS SMT. SWARNAMBAL DAYASHANKAR 17A BARANSON GARDEN STREET KILPAUK CHENNAI 10 [PAN BPMPS 9855P] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI T.N.BETGIRI, JT. CIT RESPONDENT BY : NONE DATE OF HEARING : 17-01-2013 DATE OF PRONOUNCEMENT : 24-01-2013 O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE REVENU E AGAINST THE ORDER OF THE CIT(A)-XII, CHENNAI, DATED 26.4.2012, BY RAISIN G FOLLOWING GROUNDS: 1. THE ORDER OF THE LEARNED CIT(A) IS CONTRARY TO LAW AND FACTS OF THE CASE 2. 1 THE LD CIT(A) ERRED IN DIRECTING THE ASSESSI NG OFFICER TO ALLOW THE CLAIM OF DEDUCTION U/S 54 EVEN THOUGH THE ASSESSEE HAD NOT INVESTED THE ENTIRE CAPITAL GAIN W ITHIN THE DUE DATE AS MENTIONED U/S 54 OR 54F AND ALSO NOT WI THIN THE DUE DATE FOR FILING OF RETURN OF INCOME U/S 139(1) OF THE IT ACT. I.T.A.NO.1472/12 :- 2 -: 2.2 THE L.D. CIT(A) FAILED TO APPRECIATE THAT THE ASSESSEE HAD MADE THE PAYMENT OF RS 40 LAKHS OUT OF THE TOTA L CAPITAL GAINS, ONLY ON 248.2007 BEYOND THE DUE DATE FOR FIL ING OF RETURN OF INCOME AS PER SEC. 139( 1) OF THE IT ACT 2.3 IT IS SUBMITTED THAT THE DUE DATE OF FILING OF RETURN OF INCOME IS SPECIFICALLY MENTIONED FOR CLAIMING DEDUC TION U/S 54 (2) AS SEC 139(1) AND NOT AS PER SEC 139(4) OF THE IT ACT. 2. THE DR SUBMITTED THAT THE ONLY ISSUE INVOLVED IN TH E PRESENT APPEAL OF THE REVENUE IS THAT THE CIT(A) ERRED IN L AW AND ON FACTS IN DIRECTING THE ASSESSING OFFICER TO ALLOW CLAIM OF D EDUCTION U/S 54 OF THE ACT EVEN THOUGH THE ASSESSEE HAD NOT INVESTED THE ENTIRE CAPITAL GAIN WITHIN THE DUE DATE OF FILING OF RETURN OF IN COME U/S 139(1) OF THE ACT AS MENTIONED IN SECTION 54 OF THE ACT. 3. THE DR SUBMITTED THAT THE ASSESSEE, IN THE RETUR N OF INCOME FILED HAD CLAIMED DEDUCTION U/S 54 OF THE ACT OF ` 86,92,810/-. THE ASSESSING OFFICER OBSERVED THAT OUT OF TOTAL INVEST MENT OF ` 86,92,810/-, ONLY AN AMOUNT OF ` 46,92,810/- WAS UTILIZED BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME AND THE BAL ANCE INVESTMENT OF ` 40 LAKHS WAS MADE AFTER THE DUE OF FILING OF RETURN AND THEREFORE, SHOULD HAVE BEEN DEPOSITED IN THE SPECIFIED SCHEMES /DEPOSITS BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME. THE AS SESSING OFFICER, THEREFORE, CONSIDERED THE PAYMENT OF ` 40 LAKHS MADE ON 24.8.2007 I.T.A.NO.1472/12 :- 3 -: WAS WITHOUT DEPOSITING IN THE SPECIFIED SCHEMES AND HENCE NOT ELIGIBLE FOR DEDUCTION U/S 54 OF THE ACT. 4. THE DR SUBMITTED THAT ON APPEAL FILED BY THE ASSE SSEE, THE CIT(A), FOLLOWING THE DECISION OF THE HON'BLE P&H H IGH COURT IN THE CASE OF CIT VS MS.JAGRITI AGGARWAL [2011] 339 ITR 6 10(P&H) AND THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF MRS. ESTHER CHRISTOPHER MASCARENHAS VS ITO [2011] (9 TAX MANN.COM 99) (MUM. ITAT I BENCH), ALLOWED THE CLAIM FOR DEDUCT ION U/S 54 OF THE BALANCE AMOUNT OF ` 40 LAKHS OBSERVING THAT THE SAID AMOUNT WAS UTILIZED FOR PURCHASE OF NEW ASSET BEFORE FILING OF THE RETURN OF INCOME U/S 139(4) OF THE ACT ON 30.11.2007. HE SUBMITTED THAT THE DUE DATE OF FILING OF RETURN OF INCOME MEANS THE DUE DATE PR ESCRIBED U/S 139(1) OF THE ACT AND THEREFORE, THE CIT(A) WAS NOT JUSTIF IED IN ALLOWING THE CLAIM FOR DEDUCTION U/S 54 FOR ` 40 LAKHS TO THE ASSESSEE OBSERVING THAT THE SAME WAS ALLOWABLE DEDUCTION AS THE AMOUNT WAS UTILIZED IN PURCHASE OF A NEW ASSET BY THE ASSESSEE ON 24.8.20 07 WHICH WAS PRIOR TO THE DATE OF FILING OF RETURN OF INCOME BY THE ASSESSEE U/S 139(4) OF THE ACT ON 30.11.2007. 5. NONE APPEARED ON BEHALF OF THE RESPONDENT- ASSESSEE INSPITE OF NOTICE SENT THROUGH RPAD BY THE REGISTRY ON 26 .10.2012 WHICH WAS RECEIVED BY THE ASSESSEE ON 6.11.2012 AS EVIDEN CED BY THE I.T.A.NO.1472/12 :- 4 -: ACKNOWLEDGEMENT CARD OF THE POST OFFICE PLACED ON R ECORD. NO ADJOURNMENT APPLICATION WAS ALSO FILED. THE BENCH WAS OF THE VIEW THAT THE APPEAL CAN BE DECIDED IN THE ABSENCE OF TH E RESPONDENT- ASSESSEE AND HENCE, THE APPEAL WAS HEARD EX-PARTE QUA THE RESPONDENT-ASSESSEE AND DISPOSED OF AFTER CONSIDERI NG THE SUBMISSIONS OF THE DR. 6. WE HAVE HEARD THE DR. THE UNDISPUTED FACTS OF THE CASE ARE THAT IN THE RETURN OF INCOME FILED THE ASSESSEE CL AIMED DEDUCTION U/S 54 OF ` 86,92,810/-. OUT OF THIS CLAIM OF DEDUCTION U/S 54, THE ASSESSING OFFICER DISALLOWED ` 40 LAKHS WHICH WAS UTILIZED BY THE ASSESSEE FOR PURCHASE OF HOUSE PROPERTY ON 24.8.200 7 AS THE AMOUNT WAS UTILIZED BY THE ASSESSEE AFTER THE DUE DATE OF FILING OF RETURN OF INCOME U/S 139(1) OF THE ACT WHICH WAS 31.7.2007. THE CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE BY FOLLOWING TH E DECISION OF THE HON'BLE P&H HIGH COURT IN THE CASE OF CIT VS MS. JA GRITI AGGARWAL (SUPRA) AND THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF MRS. ESTHER CHRISTOPHER MASCARENHAS VS ITO (SUPRA) WHERE IT HAS BEEN HELD THAT FOR UTILIZATION OF CAPITAL GAINS FOR PURCHASE OR CONSTRUCTION OF NEW HOUSE PROPERTY BEFORE THE DUE D ATE OF FURNISHING OF RETURN OF INCOME U/S 139 MEANS THE DATE AS PRES CRIBED NOT ONLY I.T.A.NO.1472/12 :- 5 -: U/S 139(1) BUT ALSO U/S 139(4) OF THE ACT. THE FI NDINGS OF THE CIT(A) READ AS UNDER: I HAVE CONSIDERED THE ABOVE SUBMISSIONS OF THE ASSESSEE AS WELL AS THE CONTENTS OF THE ASSESSMENT ORDER. THE ASSESSEE SOLD HER RESIDENTIAL PROPERTY DURING THE F.Y.2006-07 FOR A CONSIDERATION OF RS.90,00,000/-. THIS IS A RESIDENTIAL PROPERTY (REFERRED TO AS 'ORIGINAL ASSET' HEREAFTER) AND THE RE IS NO DISPUTE REGARDING THIS ISSUE. IN ORDER TO CLAIM DEDUCTION A DEDUCTION U/S .54 OF THE ACT, THE ASSESSEE SHOULD INVEST IN PURCHASE / CONSTRUCTION OF A RESIDENTIAL PROPERTY US UNDER: PURCHASED A RESIDENTIAL HOUSE WITHIN A PERIOD OF ON E YEAR BEFORE THE DATE ON WHICH THE ORIGINAL (HOUSE) IS SO LD, OR PURCHASED A RESIDENTIAL HOUSE WITHIN A PERIOD OF TW O YEARS AFTER THE DATE ON WHICH THE ORIGINAL (HOUSE) IS SOLD, OR CONSTRUCTED A RESIDENTIAL HOUSE WITHIN A PERIOD OF THREE YEARS AFTER THE DATE ON WHICH THE ORIGINAL (HOUSE) IS SOL D. THE REL EVA NT PROVISIONS OF SEC.54 ARE AS UND E R: SEC. 54. (1) SUBJECT TO THE PROVISIONS OF SUB-SECTION (2), WHERE, IN THE CASE OF AN ASSESSEE BEING AN INDIVIDU AL OR A HINDU UNDIVIDED FAMILY}, THE CAPITAL GAIN ARISES FR OM THE TRANSFER OF A LONG-TERM CAPITAL ASSET, BEING BUILDINGS OR LANDS APPURTENANT THERETO, AND BEING A RESIDENTIAL HOUSE, THE INCOME OF WHICH IS CHARGEABLE UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY' (HEREAFTER IN THIS SEC TION REFERRED TO AS THE ORIGINAL ASSET), AND THE ASSESSEE HAS WITHIN A PERIOD OF ONE YEAR BEFORE OR TWO YEARS AFTER THE DATE ON WHICH THE TRANSFER TOOK PLACE PURCHASED, OR HAS WITHIN A PERIOD OF THREE YEARS AFTER THAT DATE CONSTRUCTED, A RESIDENTIAL HOUSE, THEN}, INSTEAD OF THE CAPITAL GA IN BEING CHARGED TO INCOME-TAX AS INCOME OF THE PREVIOUS YEAR IN WHICH THE TRANSFER TOOK PLACE, IT SHALL BE DEALT WITH IN ACCORDANCE WITH THE FOLLOWING PROVISIONS OF THIS SECTION, THAT IS TO SAY,- (I) IF THE AMOUNT OF THE CAPITAL GAIN IS GREATER THAN T HE COST OF THE RESIDENTIAL HOUSE SO PURCHASED OR CONSTRUCTED (HEREAFTER IN THIS SECTION REFERRED TO AS THE NEW ASSET)}, THE DIFFERENCE BETWEEN THE AMOUNT OF THE CAPITAL GAIN AND THE COST OF THE NEW ASSET SHALL BE CHARGED UNDER SECTION 45 AS THE INCOME OF I.T.A.NO.1472/12 :- 6 -: THE PREVIOUS YEAR; AND FOR THE PURPOSE OF COMPUTING IN RESPECT OF THE NEW ASSET ANY CAPITAL GAIN ARISING FROM ITS TRANSFER WITHIN A PERIOD OF THREE YEARS OF ITS PURCHASE OR CONSTRUCTION, AS THE CASE MAY BE, THE COST SHALL BE NIL; OR (II) IF THE AMOUNT OF THE CAPITAL GAIN IS EQUAL TO OR LESS THAN THE COST OF THE NEW ASSET, THE CAPITAL GAIN SHALL NOT BE CHARGED UNDER SECTION 45; AND FOR THE PURPOSE OF COMPUTING IN RESPECT OF THE NEW ASSET ANY CAPITAL GAIN ARISING FROM ITS TRANSFER WITHIN A PERIOD OF THREE YEARS OF ITS PURCHASE OR CONSTRUCTION, AS THE CASE MAY BE, THE COST SHALL BE REDUCED BY THE AMOUNT OF THE CAPITAL GAIN. WHERE AS IN THE INSTANT CASE, THE ASSESSEE INVESTED IN THE NEW RESIDENTIAL HOUSE PROPERTY AS UNDER: INVESTMENT IN NEW RESIDENTIAL HOUSE - RS.86,92,810 PAYMENTS MADE PRIOR TO 31.07.2007 (I. E. BEFORE THE DUE DATE TO FILE R/I ) : 46,92,810 PAYMENTS MADE ON 24.08.2007 (I. E. AFTER THE DUE DATE TO FILE R/I ) : 40,00,000 TOTAL INVESTMENT IN NEW RESIDENTIAL HOUSE ` 86,92,810 THE ONLY DISPUTE HERE IS THE ELIGIBILITY OF THE PAYMENT OF INVESTMENT OF RS.40,00,000/- MADE ON 24.08.2007 I.E. AFTER THE DUE DATE TO FILE THE RETU RN OF INCOME OF 31.07.2007. AS PER THE PROVISIONS OF SEC.54(2) OF THE ACT, THE REQUIREMENT IS THAT THE AMOUNT IS TO BE INVESTED BEFORE THE DATE OF FILING THE RETURN OF INCOME U J S.139 OF THE ACT. ONLY THE AMOUNT NOT SO UTILIZED HAS TO BE DEPOSITED IN THE SPECIFIED MODES FOR THE PURPOSE OF INVESTMENTS ON THE LATER DATES AND SUCH DEPOSITS IN THE SPECIFIED MODES HAVE TO BE MADE BEFORE THE DUE DATE OF FILING THE R ETURN OF INCOME U/S .139(1) OF THE ACT. THE RELEVANT PROVISIONS OF SEC.54(2) ARE AS UNDER: SEC.54 (2) THE AMOUNT OF THE CAPITAL GAIN WHICH IS NOT APPROPRIATED BY THE ASSESSEE TOWARDS THE PURCHASE OF THE NEW ASSET MADE WITHIN ONE YEAR BEFORE THE DATE ON WHICH THE TRANSFER OF THE O RIGINAL ASSET TOOK PLACE, OR WHICH IS NOT UTILISED BY HIM FOR THE PURCHASE OR CONSTRUCTION OF THE NEW ASSET BEFORE THE DATE OF FURNISHING THE RET URN OF INCOME UNDER SECTION 139, SHALL BE DEPOSITED BY HIM BEFORE FURNI SHING SUCH RETURN SUCH DEPOSIT BEING MADE IN ANY CASE NOT LATER THAN THE DUE DATE I.T.A.NO.1472/12 :- 7 -: APPLICABLE IN THE CASE OF THE ASSESSEE FOR FURNISHING THE RETURN OF INCOME UNDER SUB-SECTION (1) OF SECTION 139 IN AN ACCOUNT IN ANY SUCH BANK OR INSTITUTION AS MAY BE SPECIFIED IN, AND UTILISED IN ACCORDANCE WITH, ANY SCHEME WHICH THE CENTRAL GOVERNMENT MAY, BY NOTIFICATION IN THE OFFICIAL GAZETTE, FRAME IN THIS BEHALF AND SUCH RETURN SHALL BE ACCOMPANIED BY PROOF OF SUCH DEPOSIT; AND, FOR THE PURPOSES OF SUB- SECTION (1), THE AMOUNT, IF ANY, ALREADY UTILISED BY THE ASSESSEE FOR THE PURCHASE OR CONSTRUCTION OF THE NEW ASSET TOGETHER WITH THE AMOUNT SO DEPOSITED SHALL BE DEEMED TO BE THE COST OF THE NEW ASSET: THUS, THERE ARE TWO DIFFERENT DATES SPECIFIED FOR T HE INVESTMENTS U/S 54(2) OF THE ACT. IN THE FIRST SITUATION WHERE THE INVESTMENTS ARE MADE BEFORE THE DATE OF F ILING THE RETURN, IT WAS MENTIONED AS 'BEFORE THE DATE OF FURNISHING THE RETURN OF INCOME UNDER SECTION 139 '. IN THE SECOND SITUATION, WHERE THE INVESTMENTS ARE NOT SO MADE AND THE AMOUNTS ARE TO BE DEPOSITED IN THE SPECIFIE D MODES IT WAS MENTIONED AS 'SUCH DEPOSIT BEING MADE IN ANY CASE NOT LATER THAN THE DUE DATE APPLICABLE IN THE CASE OF THE ASSESSEE FOR FURNISHING THE RETURN OF INCOME UNDER SUB-SECTION (1) OF SECTION 139' . THUS FROM THE ABOVE IT IS CLEAR THAT THE TIME LIMIT S FOR THE PURPOSE OF MAKING INVESTMENTS BEFORE THE DATE OF FI LING AND FOR THE PURPOSE OF MAKING DEPOSITS IN THE SPECIFIED MODES ARE TOTALLY DIFFERENT. IN THE FORMER CASE, IT WAS T HE DATE OF FILING THE RETURN U/S.139. IN THE LATER SITUATION I T WAS THE DUE DATE TO FILE THE RETURN U/S.139(1) OF THE ACT. THE DATE OF FILING THE RETURN U / S.139 OF THE ACT HAS WIDE SCOPE. THE RETURN CAN BE FILED U/S.139(1) OR U/S.13 9(4) OF THE ACT. BOTH THE RETURNS I.E. EITHER FILED U/S.139 (1) OR U/S.139(4) OF THE ACT ARE LEGALLY VALID AND ACCEPTE D RETURNS. THERE IS NO DIFFERENCE BETWEEN THESE TWO RETURNS (E XCEPT FOR CHARGING INTEREST U/S 234B AND ALLOWING CERTAIN DEDUCTIONS OR CARRYING FORWARD OF LOSSES). THEREFORE, AS MENTIONED IN THE FIRST SITUATION OF THE CONDITIONS IN SUB-SECTION (2) OF SEC.54 OF THE ACT, THE DATE OF FILING THE RETURN OF INCOME U/S.139 MEANS THE RE TURNS FILED U/S.139(1) AS WELL AS THE RETURNS FILED U/S.1 39(4) OF THE ACT. THE PROVISIONS OF SEC.54(2) DOESN'T DISCRIMINA TE THE RETURNS FILED U/S 139(1) OR U/S 139(4). BOTH ARE VALID RETURNS AND THE DATE SUCH FILING OF RETURNS IS TO BE RECKON ED FOR THE PURPOSE OF SEC.54(2) OF THE ACT IF THE INVESTMENTS ARE MADE BEFORE THE ACTUAL DATE OF FILING THE RETURN OF INCO ME. IN THE INSTANT CASE, THE ASSESSEE MADE ALL THE PAYMENTS OF INVESTMENT IN THE NEW HOUSE (THE LAST INSTALLMENT B EING ON 24.08.2007) BEFORE FILING THE RETURN OF INCOME ON I.T.A.NO.1472/12 :- 8 -: 30.11.2007 (THE DUE DATE PERMITTED U/S.139(4) IS 31.03.2008). FOR THIS PURPOSE, RELIANCE IS PLACED ON THE FOLLOWI NG JUDICIAL PRONOUNCEMENTS: 1) CIT V. MS. JAGRITI AGGARWAL (2011)(339 ITR 610) (P&H): ASSESSEE SOLD HER HOUSE PROPERTY ON 13-1-2006 WHILE FILED HER RETURN ON 28-3-2007 CLAIMING DEDUCTION. UNDER SECTION 54 ON GROUND THAT SHE HAD PURCHASED ANOTHER PROPERTY JOINTLY ON 2-1-2007 FOR HIGHER SUM - ASSESSING OFFICER DECLINED SAID CLAIM - ONE OF GROUNDS WAS THAT ASSESSEE HAD FAILED TO PURCHASE HOUSE PROPERTY BEFORE DUE DATE OF FILING RETURN OF INCOME UNDER SECTION 139(1), I.E., PRIOR TO 31-7- 2006 - ACCORDING TO ASSESSEE, DUE DATE OF FILING RETURN OF INCOME IN HER CASE WAS NOT AS SPECIFIED IN SECTION 139(1) BUT AS SPECIFIED IN SECTION 139(4) I.E., 31-7-2007- HELD- DUE DATE FOR FURNISHING RETURN OF INCOME AS PER SEC TION 139( 1) IS SUBJECT TO EXTENDED PERIOD PROVIDED UNDER SUB-SECTION (4) OF SECTION 139 AND, IF A PERSON HAD NOT FURNISHED RETURN OF PREVIOUS YEAR WITHIN TIME ALLOWED UNDER SUB-SECTION (1), ASSESSEE COULD FILE RETURN UNDER SUB-SECTION (4) BEFORE EXPIRY OF ONE YEAR FROM END OF RELEVANT ASSESSMENT YEAR THEREFORE, SECTION 54 DEDUCTION COULD NOT BE DENIED TO ASSESSEE ON THIS COUNT. 2) MRS . ESTHER CHRISTOPHER MASC A RENHAS V. ITO [2011] ( 9 TAX M A NN . CO M 99) (MUM.ITAT (I' BENCH) ~ DURING RELEVANT YEAR ASSESSEE SOLD A HOUSE PROPERTY AND CLAIMED EXEMPTION UNDER SECTION 54 - ASSESSING OFFICER REJECTED ASSESSEE'S CLAIM ON THE GROUNDS, FIRSTLY, RETURN OF INCOME WAS NOT FILED U NDER SECTION 139(1)BUT WAS FILED UNDER SECTION 139(4), SECONDLY, RETURN OF INCOME WAS NOT ACCOMPANIED BY PROOF OF DEPOSIT OF A MOUNT MADE IN CAPITAL GAINS SCHEME AND, FINALLY, PROPERTY IN RESPECT OF WHICH EXEMPTION WAS CLAIMED, WAS NOT A RESIDENTIAL HOUSE. . HELD- IT WAS NOTED THAT ASSESSEE HAD DEPOSITED AMOUNT IN QUESTION IN SPECIFIED BANK ACCOUNT BEFORE DUE DATE PRESCRIBED F OR FURNISHING RETURN OF INCOME UNDER SECTION 139(1) - MOREOVER, THERE WAS NO REQUIREMENT THAT ASSESSEE SHOULD FILE HER RETURN OF INCOME BEFORE DUE DATE PRESCRIBED UNDER SECTION 139(1) - AS REGARDS SECOND OBJECTION, IT WAS FOUND THAT REQUIREMENT OF ATTACHI NG PROOF WITH RETURN OF INCOME, IS ONLY DIRECTORY - EVEN OTHERWISE, ASSESSEE PRODUCED PROOF DURING COURSE OF ASSESSMENT PROCEEDI NGS - SO FAR AS LAST OBJECTION WAS CONCERNED, IT WAS NOTICED THA T MUNICIPAL CORPORATION LEVIED MUNICIPAL TAXES ON GROUND THAT T HIS WAS A RESIDENTIAL PROPERTY ON FACTS, ASSESSEE HAD COMPLIED WITH ALL REQUIREMEN TS OF SECTION 54 AND, THUS, ASSESSING OFFICER WAS TO BE DIRECTED TO ALLOW ASSESSEE'S CLAIM I.T.A.NO.1472/12 :- 9 -: IN VIEW OF THE ABOVE FACTS AND THE JUDICIAL PRONOUNCEMENTS, THE AMOUNT OF THE CAPITAL GAIN UTILISED FOR THE PURCHASE OR CONSTRUCTION OF THE NE W ASSET BEFORE THE DATE OF FURNISHING THE RETURN OF INCOME UNDER SECTION 139, MEANS THE DATE AS PRESCRIBED NOT ONLY U/S.139(1) BUT ALSO U/S .139(4) OF THE ACT. THUS, IN THE INSTANT CASE, AS THE ASSESSEE INVESTED (PAID) THE ENTIRE AMOUNT BEFORE FILING THE RETURN OF INCOME (WHICH MAY BE U/S 139(4) OF THE ACT), THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S .54 OF THE ACT. THEREFORE, THE ASSESSING OFFICER'S OBSERVATIONS THA T THE AMOUNTS ARE NOT DEPOSITED IN THE SPECIFIED MODE S IS NOT RELEVANT TO THE FACTS OF THE CASE. IN VIEW OF THE ABOVE DISCUSSIONS THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 54 OF THE ACT. THE TAXABLE LONG TERM CAPITAL GAINS OF THE ASSESSEE ON SALE OF THE A BOVE PROPERTY ARE AS UNDER: TOTAL SALE CONSIDERATION ` 90,00,000 LESS: INDEXED COST PURCHASE ` 4,54,576 LONG TERM CAPITAL GAINS ` 85,45,424 INVESTMENT IN NEW RESIDENTIAL HOUSE ` 6,92,810 PAYMENTS MADE PRIOR TO 31.7.2007 (I.E BEFORE THE DUE DATE TO FILE R/I) 46.92.810 PAYMENTS MADE ON 24.8.2007 9I.E AFTER THE DUE DATE TO FILE R/I) 40,00,000 TOTAL INVESTMENT IN NEW RESIDENTIAL HOUSE ` 86,92,810 DEDUCTION U/S 54 RESTRICTED TO LTCG ` 85,45,424 TAXABLE LONG TERM CAPITAL GAINS ` NIL THE ASSESSING OFFICER IS DIRECTED TO COMPUTE THE TAXABLE LONG TERM CAPITAL GAINS AT RS.NIL BY ALLOW ING DEDUCTION OF RS.86,92,810/- (BUT RESTRICTED TO THE AMOUNT OF LONG TERM CAPITAL GAINS) U/S .54 OF THE ACT . 7. NO SPECIFIC ERROR COULD BE POINTED OUT BY THE DR IN THE ORDER OF THE CIT(A). THE DR COULD NOT CITE ANY CONTRARY DECISIONS TO THE I.T.A.NO.1472/12 :- 10 -: DECISION OF THE HIGH COURT AND THE TRIBUNAL RELIED ON BY THE CIT(A) IN ALLOWING THE CLAIM FOR DEDUCTION OF ` 40 LAKHS U/S 54 OF THE ACT TO THE ASSESSEE. THEREFORE, WE DO NOT FIND ANY GOOD AND J USTIFIABLE REASON TO INTERFERE WITH THE ORDER OF THE CIT(A) WHICH IS CON FIRMED AND THE GROUNDS OF APPEAL OF THE REVENUE ARE DISMISSED. 8. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THURSDAY, THE 24 TH OF JANUARY, 2013, AT CHENNAI. SD/- SD/- (CHALLA NAGENDRA PRASAD) JUDICIAL MEMBER (N.S.SAINI) ACCOUNTANT MEMBER DATED: 24 TH JANUARY, 2013 RD COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR