P.Amalanathan, CHENNAI V. DCIT, CHENNAI

ITA 2317/CHNY/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7980 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2017
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 17-11-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 23-12-2015
• Court: TRIBUNAL
• Department Lawyers: SHIVA SRINIVAS
• Assessee Lawyers: K M MOHANDOSS
• Keywords: Capital asset; Depreciation; Revised return; Reassessment proceedings
• Section: 143(3); 54F; 2(14); 139(5); 147; 148; 54; 139

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL A BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ./ I.T.A.NO. 2317/MDS/2015 / ASSESSMENT YEAR :20 0 5 - 0 6 SHRI P. AMALANATHAN, NO. 19, VTH CROSS STREET, UNITED INDIA COLONY, KODAMBAKKAM, CHENNAI 600 024. [PAN: A AIPA2933Q ] VS. THE DEPUTY COMMISSIONER OF INCOME TA X , BUSINESS CIRCLE III, CHENNAI 600 034. ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI K.M. MOHANDOSS , C.A. / RESPONDENT BY : S HRI S HIVA SRINIVAS , J CIT / DATE OF HE ARING : 1 7 . 1 1 .201 6 / DATE OF P RONOUNCEMENT : 06 . 0 2 .201 7 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : TH I S APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMIS SIONER OF INCOME TAX (APPEALS) 14 , C HENNAI DATED 1 2 . 10 .201 5 RELEVANT TO THE ASSESSMENT YEAR 20 0 5 - 0 6 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1.1 THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 14, CHENNAI, IS CONTRARY TO THE LAW AND FACTS OF THE CASE. 1.2 THE LEA RNED COMMISSIONER OF INCOME - TAX (APPEALS) - 14, CHENNAI, ERRED IN NOT CONSIDERING THE CLAIM OF THE APPELLANT AND I.T.A. NO . 2317 / M/ 1 5 2 CONFIRMING THE OBSERVATIONS MADE BY THE ASSESSING OFFICER THAT THE REASSESSMENT UNDER SECTION 147 IS DONE ONLY TO PROTECT THE INTEREST OF REVENU E WITHOUT CONSIDERING THE FACT THAT THE CLAIM MADE BY THE APPELLANT DURING THE COURSE OF REASSESSMENT PROCEEDINGS IS NOT AGAINST THE LAW AND PREJUDICIAL TO THE INTEREST OF REVENUE. 1.3 THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 14. CHENNAI, ERRED IN HOLDING THAT CLAIM MADE IN THE REVISED STATEMENT OF TOTAL INCOME FILED DURING THE COURSE OF REASSESSMENT PROCEEDINGS CANNOT BE CONSIDERED BY MERELY STATING THAT REASSESSMENT UNDER SECTION 147 IS DONE TO PROTECT THE INTEREST OF REVENUE. 2.1 THE LEARN ED COMMISSIONER OF INCOME - TAX (APPEALS) - 14 ERRED IN NOT CONSIDERING CLAIM OF THE APPELLANT UNDER SECTION 54EC OF THE ACT IN RESPECT OF THE LONG - TERM CAPITAL GAINS EARNED ON SALE OF URBAN AGRICULTURAL LAND. 2.2 THE LEARNED COMMISSIONER OF INCOME - TAX (AP PEALS) - 14. CHENNAI ERRED IN NOT ALLOWING THE CLAIM OF THE APPELLANT UNDER SECTION 54 OF THE ACT IN RESPECT OF THE INVESTMENT IN NEW RESIDENTIAL HOUSE PROPERTY IN THE NAME OF APPELLANT'S TWO DAUGHTERS, ONE OF WHOM IS A MINOR, IN RESPECT OF THE CAPITAL GAINS EARNED ON SALE OF ANOTHER RESIDENTIAL HOUSE PROPERTY, WITHOUT CONSIDERING SUBMISSION NOS.15.1 TO 15.8 OF THE WRITTEN SUBMISSIONS OF THE APPELLANT FILED DURING THE COURSE OF APPELLATE PROCEEDINGS. 2.3 THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 14, CHENNAI ERRED IN NOT CONSIDERING THE 'DEED OF MORTGAGE BY CONDITIONAL SALE' COUPLED WITH PAYMENT OF CONSIDERATION AND TRANSFER OF POSSESSION WHICH IS CONFIRMED AT A LATER DATE BY 'DEED OF CONFIRMATION OF SALE', AS 'PURCHASE' WITHIN THE MEANING OF SECTION 54 OF THE ACT. WITHOUT CONSIDERING SUBMISSION NOS.16.1 TO 16.17 AND SUBMISSION NO.17.1 TO 17.6 OF THE WRITTEN SUBMISSIONS OF THE APPELLANT FILED DURING THE COURSE OF APPELLATE PROCEEDINGS. 2.4 THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 14, CHENN AI, ERRED IN NOT ALLOWING THE DEDUCTION UNDER SECTION 54EC OF THE ACT FOR THE REASON THAT THERE IS A MERE DELAY IN INVESTING THE CAPITAL GAINS IN THE MODES STIPULATED UNDER THE I.T.A. NO . 2317 / M/ 1 5 3 SAID SECTION WITHOUT CONSIDERING SUBMISSION NOS.18.1 TO 18.16 OF THE WRITTEN SU BMISSIONS FILED DURING THE COURSE OF APPELLATE PROCEEDINGS. 3. THE APPELLANT CRAVES LEAVE TO ADD. TO AMEND OR ALTER THE ABOVE GROUNDS OF APPEAL AS MAY BE DEEMED NECESSARY. 4. RELIEF CLAIMED IN APPEAL: THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 14, CHENNAI, IN RESPECT OF THE ABOVE MATTERS MAYBE SET - ASIDE AND PASS SUCH ORDERS AS THE HON'BLE MEMBERS OF THE BENCH, MAY DEEM TIT ON PROPER APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL CARRYING ON THE LEGAL PROFESSION HAS FILED HIS RETURN OF INCOME ADMITTING THE INCOME OF .7,55,842/ - . A NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT] WAS ISSUED TO THE ASSESSEE. THE ASSESSEE OFFERED SALE O F AGRICULTURE LAND AS TAXABLE LONG TERM CAPITAL GRAIN. HOWEVER, IN THE REVISED COMPUTATION OF STATEMENT OF INCOME CLAIMED EXEMPTION UNDER SECTION 54F AND UNDER SECTION 54EC OF THE ACT AGAINST THE SAID LONG TERM CAPITAL GAIN OF AGRICULTURE LAND. THE ASSESSI NG OFFICER DENIED THE CLAIM OF THE ASSESSEE. ON APPEAL, THE LD. CIT(A) PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. ON BEING AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3. THE FIRST ISSUE RAISED IN THE APPEAL OF THE ASSESSEE IS AS TO WHETHER A CLAIM OF A NEW DEDUCTION CAN BE ALLOWED DURING THE COURSE OF REASSESSMENT PROCEEDINGS CONSEQUENT TO THE NOTICE UNDER SECTION 148 OF THE ACT. I.T.A. NO . 2317 / M/ 1 5 4 3.1 IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE ACT, THE ASSESSEE MADE WRITTEN REPLY THAT RETURN FILED EARLIE R ON 31.08.2005 BE TREATED AS RETURN FILED IN RESPONSE TO NOTICE UNDER SECTION 148 AND CONTENDED THAT INVESTMENT MADE IN THE HOUSE PROPERTY IN THE NAME OF MINORS BE ALLOWED AS EXEMPT UNDER SECTION 54 OF THE ACT. THE ASSESSING OFFICER PROCEEDED WITH SCRUTIN Y PROCEEDINGS AND HELD THAT SALE OF AGRICULTURE LAND WAS CLAIMED EXEMPT UNDER SECTION 2(14) OF THE ACT WAS ACTUALLY TAXABLE TO INCOME TAX AS AGRICULTURE LAND IN QUESTION WAS WITHIN 8 KM MUNICIPAL LIMIT OF THE MUNICIPAL AREA. ACCORDINGLY, THE ASSESSEE ADMIT TED THE FACT AND FILED REVISED COMPUTATION OF STATEMENT OF INCOME AGAINST LONG TERM CAPITAL GAIN OF AGRICULTURE LAND CLAIMED EXEMPTION UNDER SECTION 54EC FOR .43,75,358/ - AND BALANCE CLAIM OF SECTION 54EC FOR .6,24,742/ - CLAIMED AGAINST THE HOUSE PROPERTY. MOREOVER, THE HOUSE PROPERTY WHICH WAS SOLD AND THERE AROSE A LONG TERM CAPITAL GAIN IN THE ORIGINAL RETURN, THE ASSESSEE HAS MADE CLAIM UNDER SECTION 54EC OF THE ACT. HOWEVER, THE ASSESSING OFFICER HAS OBSERVED THAT AS PER THE PROVISIONS OF SEC TION 142(2) OF THE ACT, IT IS ONLY TO EXAMINE WHETHER ANY CLAIM OR LOSS, EXEMPTION, DEDUCTION, ALLOWANCE OR RELIEF MADE IN THE RETURN IS I NADMISSIBLE AND SEC TION 143( 3) OF THE ACT STATES THAT AFTER EXAMINING SUCH CLAIM, OR CLAIMS MAKE ASSESSMENT DETERMINING THE TOTAL INCOME OR THE LOSS AS THE CASE MAY BE. THEREFORE, THE ASSESSING OFFICER HAS HELD THAT FRESH CLAIM OF EXEMPTION CANNOT BE ENTERTAINED IN A REASSESSMENT PRO CEEDINGS . THE LD. CIT(A) HAS ALSO OBSERVED THAT T HE A CT I.T.A. NO . 2317 / M/ 1 5 5 DOES NOT PROVIDE ANY SCOPE FOR GRANTING ANY ADDITIONAL RELIEF TO THE ASSESSEE AS REASSESSMENT WA S DONE ONLY TO PROTECT THE INTEREST OF THE REVENUE. THEREFORE, THE LD. CIT(A) HAS HELD THAT THE ASSESSIN G OFFICER HAS RIGHTLY NOT ENTERTAINED THE CLAIM OF THE ASSESSEE. 4. BEFORE US, BY RELYING ON THE DECISION IN THE CASE OF CIT V. SUN ENGINEERING WORKS PVT. LTD. 198 ITR 297 (SC) AND IN THE CASE OF CIT V. CAIXA ECONOMICA DE GOA 210 ITR 719 (BOM.) THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE RATIO LAID DOWN BY THE HON BLE SUPREME COURT AND THE SAME WAS FOLLOWED BY THE HON BLE BOMBAY HIGH COURT SHOULD BE FOLLOWED AND ACCORDINGLY PLEADED THAT THE ORDERS OF AUTHORITIES BELOW SHOULD BE SET ASIDE ON T HIS ISSUE. 5. PER CONTRA, THE LD. DR STRONGLY SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 6. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. VIDE WRITTEN SUBMISSION FILED BEFORE THE TRIBUNAL, IT IS AN ADMITTED FACT THAT THE RETURN OF INCOME FILED UNDER SECTION 139 OF THE ACT DECLARING TOTAL INCOME OF .7,55,842/ - WAS PROCESSED UNDER SECTION 143(1) OF THE ACT AND THE INCOME RETURNED WAS ACCEPTED. AFTER RECORDING REASONS FOR REOPENING, THE 143(1) ASSESSMENT WAS REOPENED BY ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT. THE ASSESSEE HAS I.T.A. NO . 2317 / M/ 1 5 6 NOT FILED ANY REVISED RETURN WITHIN THE TIME ALLOWED UNDER SECTION 139(5) OF THE ACT BY MAKING ANY ADDITIONAL/NEW CLAIM. ONLY WHEN THE DEPARTMENT HAS NOTI FIED THAT SALE OF AGRICULTURE LAND CLAIMED AS EXEMPT UNDER SECTION 2(14) OF THE ACT WAS ACTUALLY TAXABLE TO INCOME TAX AS AGRICULTURE LAND IN QUESTION WAS WITHIN 8 KM MUNICIPAL LIMIT OF THE MUNICIPAL ARE A, THE ASSESSEE FILED THE REVISED COMPUTATION OF STAT EMENT OF INCOME AGAINST LONG TERM CAPITAL GAIN OF AGRICULTURE LAND CLAIMED EXEMPTION UNDER SECTION 54EC FOR .43,75,358/ - AND BALANCE CLAIM OF SECTION 54EC FOR .6,24,742/ - CLAIMED AGAINST THE HOUSE PROPERTY. THE ASSESSEE HAS NOT FILED ANY REVISED RETURN I N RESPONSE TO THE NOTICE UNDER SECTION 148 OF THE ACT, BUT VIDE HIS LETTER DATED 05.04.2010 REQUESTED THE ASSESSING OFFICER TO TREAT THE ORIGINAL RETURN OF INCOME FILED ON 31.08.2005 AS RETURN OF INCOME FILED IN RESPONSE TO THE NOTICE UNDER SECTION 148 OF THE ACT. 6.1 IN THE A SSESSEE S CASE , THE RETURN HAD BEEN PROCESSED U NDER SECTION 143(1) OF THE ACT AND ACCEPTED. THE ASSESSMENT U NDER SECTION 143(3) HAD NOT BEEN TAKEN UP BY ISSUE OF NOTICE U NDER SECTION 143(2) OF THE ACT . HOWEVER, BY SERVICE OF NOTICE U NDER SECTION 148 OF THE ACT, THE ASSESSING OFFICER REOPENED THE ASSESSMENT MAINLY ON THE GROUND THAT THE ASSESSEE HAS NOT OFFERED THE GAIN ON SALE OF AGRICULTURAL LAND AS TAXABLE INCOME, AGAINST WHICH, THE ASSESSEE HAS CLAIMED EXEMPTION UNDER SECTION 54F O F THE ACT TOWARDS SALE OF THAT PARTICULAR AGRICULTURAL LAND AND MOREOVER, THE I.T.A. NO . 2317 / M/ 1 5 7 ASSESSEE HAS NOT CLAIMED ANY OTHER DEDUCTION DURING THE COURSE OF REASSESSMENT PROCEEDINGS. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE HAS NOT MADE ANY FRESH C LAIM OF DEDUCTION AND ONLY MADE THE CLAIM OF DEDUCTION OF EXEMPTION AGAINST WHICH ASSESSMENT WAS REOPENED. 6.2 AS RELIED ON BY THE ASSESSEE, IN THE CASE OF SUN ENGINEERING WORKS (P) LTD. V. CIT 198 ITR 297 , THE HON BLE SUPREME COURT HAS HELD AS UNDER: IN PROCEEDINGS UNDER SECTION 147 OF THE INCOME - TAX ACT, 1961, THE INCOME - TAX OFFICER MAY BRING TO CHARGE ITEMS OF INCOME WHICH HAD ESCAPED ASSESSMENT OTHER THAN OR IN ADDITION TO THE ITEM OR ITEMS WHICH LED TO THE ISSUANCE OF A NOTICE UNDER SECTION 148 AND W HERE REASSESSMENT IS MADE UNDER SECTION 147 IN RESPECT OF INCOME WHICH HAD ESCAPED TAX, THE INCOME - TAX OFFICER'S JURISDICTION IS CONFINED ONLY TO SUCH INCOME WHICH HAS ESCAPED TAX OR HAS BEEN UNDERASSESSED AND DOES NOT EXTEND TO REVISING, REOPENING OR RECO NSIDERING THE WHOLE ASSESSMENT OR PERMITTING THE ASSESSEE TO REAGITATE QUESTIONS WHICH HAD BEEN DECIDED IN THE ORIGINAL ASSESSMENT PROCEEDINGS. IT IS ONLY THE UNDERASSESSMENT WHICH IS SET ASIDE AND NOT TILE ENTIRE ASSESSMENT WHEN REASSESSMENT PROCEEDINGS A RE INITIATED. THE INCOME - TAX OFFICER CANNOT MAKE AN ORDER OF REASSESSMENT INCONSISTENT WITH THE ORIGINAL ORDER OF ASSESSMENT IN RESPECT OF MATTERS WHICH ARE NOT THE SUBJECT - MATTER OF PROCEEDINGS UNDER SECTION 147. AN ASSESSEE CANNOT RESIST REASSESSMENT PRO CEEDINGS VALIDLY INITIATED UNDER THIS SECTION MERELY BY SHOWING THAT OTHER INCOME WHICH HAD BEEN ASSESSED ORIGINALLY WAS AT TOO HIGH A FIGURE EXCEPT IN CASES UNDER SECTION 152(2). THE WORDS 'SUCH INCOME' IN SECTION 147 CLEARLY REFER TO THE INCOME WHICH IS CHARGEABLE TO TAX BUT HAS 'ESCAPED ASSESSMENT' AND THE INCOME - TAX OFFICER'S JURISDICTION UNDER THE SECTION IS CONFINED ONLY TO SUCH INCOME WHICH HAS ESCAPED ASSESSMENT. IT DOES NOT EXTEND TO RECONSIDERING GENERALLY THE CONCLUDED EARLIER ASSESSMENT. CLAIMS WHICH HAVE BEEN DISALLOWED IN THE ORIGINAL ASSESSMENT CANNOT BE PERMITTED TO BE REAGITATED ON THE ASSESSMENT BEING REOPENED FOR BRINGING TO TAX CERTAIN INCOME WHICH HAS ESCAPED ASSESSMENT, BECAUSE THE CONTROVERSY ON REASSESSMENT IS CONFINED TO MATTERS WHIC H ARE RELEVANT ONLY IN RESPECT OF THE INCOME WHICH HAD NOT BEEN BROUGHT TO TAX DURING THE COURSE OF THE ORIGINAL ASSESSMENT. A MATTER NOT AGITATED IN THE CONCLUDED ORIGINAL ASSESSMENT PROCEEDINGS ALSO CANNOT BE PERMITTED TO BE AGITATED IN THE REASSESSMENT I.T.A. NO . 2317 / M/ 1 5 8 PROCEEDINGS UNLESS RELATABLE TO THE ITEMS SOUGHT TO BE TAXED AS 'ESCAPE INCOME'. INDEED, IN THE REASSESSMENT PROCEEDINGS FOR BRINGING TO TAX ITEM WHICH HAD ESCAPED ASSESSMENT, IT WOULD BE OPEN TO THE ASSESSEE TO PUT FORWARD CLAIMS FOR DEDUCTION OF ANY EXPE NDITURE IN RESPECT OF THAT INCOME OR REGARDING THE NON - TAXABILITY OF THE ITEMS AT ALL. SECTION 147, BEING FOR THE BENEFIT OF THE REVENUE AND NOT THE ASSESSEE, THE ASSESSEE CANNOT BE PERMITTED TO CONVERT THE REASSESSMENT PROCEEDINGS INTO AN APPEAL OR REVISI ON IN DISGUISE, AND SEEK RELIEF IN RESPECT OF ITEMS EARLIER REJECTED OR CLAIM RELIEF IN RESPECT OF ITEMS NOT CLAIMED IN THE ORIGINAL ASSESSMENT PROCEEDINGS, UNLESS RELATABLE TO 'ESCAPED INCOME'. EVEN IN CASES WHERE THE CLAIMS OF TILE ASSESSEE DURING THE CO URSE OF REASSESSMENT PROCEEDINGS RELATING TO THE ESCAPED INCOME ARE ACCEPTED, STILL THE ALLOWANCE OF SUCH CLAIMS HAS TO BE LIMITED TO THE EXTENT TO WHICH THEY REDUCE THE INCOME TO THAT ORIGINALLY ASSESSED. THE INCOME, FOR PURPOSES OF REASSESSMENT CANNOT BE REDUCED BEYOND THE INCOME ORIGINALLY ASSESSED. FROM THE ABOVE JUDGEMENT OF THE HON BLE SUPREME COURT, IT IS CLEAR THAT A MATTER NOT AGITATED IN THE CONCLUDED ORIGINAL ASSESSMENT PROCEEDINGS ALSO CANNOT BE PERMITTED TO BE AGITATED IN THE REASSESSMENT P ROCEEDINGS UNLESS RELATABLE TO THE ITEM SOUGHT TO BE TAXED AS ESCAPED INCOME . IN THIS CASE THE ASSESSEE HAS CLAIMED DEDUCTION OF EXEMPTION UNDER SECTION 54F OF THE ACT FOR INVESTMENT MADE IN THE RESIDENTIAL HOUSE PROPERTY OUT OF SALE CONSIDERATION OF AGR ICULTURAL LAND , WHICH WAS FOUND TO BE ESCAPED ASSESSMENT, AND NO NEW CLAIM OF DEDUCTION HAS MADE DURING THE COURSE OF REASSESSMENT PROCEEDINGS. 6.3 FURTHER , IN THE CASE OF CIT V. CAIXA ECONOMICA DE GOA 210 ITR 719 , THE HON BLE BOMBAY HIGH COURT HAS HELD THAT IT IS OPEN TO THE ASSESSEE TO PUT FORWARD CLAIMS OF DEDUCTIONS FOR ANY EXPENDITURE WHICH IS RELATABLE TO THE INCOME WHICH IS SOUGHT TO BE ASSESSED AS ESCAPED INCOME IN THE I.T.A. NO . 2317 / M/ 1 5 9 REASSESSMENT PROCEEDINGS. THUS, RESPECTFULLY FOLLOWING THE ABOVE DECISION OF TH E HON BLE BOMBAY HIGH COURT AS WELL AS DECISION OF THE HON BLE SUPREME COURT, WE SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND HELD THAT THE ASSESSEE HAS RIGHTLY CLAIMED DEDUCTION OF EXEMPTION UNDER SECTION 54F OF THE ACT DURING THE COURSE OF REASSESSMENT PROCEEDINGS. 7. THE NEXT GROUND RAISED IN THE APPEAL OF THE ASSESSEE IS WITH REGARD TO (I) THE INVESTMENT IN HOUSE PROPERTY MADE IN THE NAMES OF THE ASSESSEE S MINOR DAUGHTERS QUALIFIES FOR INVESTMENT FOR THE PURPOSE O F SECTION 54F OF THE ACT OR NOT AND (II) THE INVESTMENT IN 40% UNDIVIDED SHARE IN THE HOUSE PROPERTY BY WAY OF DEED OF MORTGAGE BY CONDITIONAL SALE BE TREATED AS PURCHASE OF HOUSE PROPERTY FOR THE PURPOSE OF AVAILING BENEFIT UNDER SECTION 54F OF THE ACT. 7.1 THE CLAIM OF DEDUCTIO N OF E XEMPTIONS UNDER SECTION 54F OF THE ACT W AS REJECTED BY THE ASSESSING OFFICER BY HOLDING THAT SECTION 54F ALLOWS EXEMPTION ONLY IF A HOUSE IS PURCHASED OR CONSTRUCTED. IT DOES NOT REFER TO ACQUISITION OF A HOUSE PROPERTY IN OTHER MODE. HERE THOUGH THE ASSES SEE CLAIMED THAT THE MORTGAGOR RELINQUISHED THE RIGHT ON THE PROPERTY ON BEING DEFAULT TO PAY THE INTEREST, THE ASSESSEE HAS NOT AUTOMATICALLY BECOME A OWNER OF THAT PROPERTY AS IT IS NOT CONVEYED TO HIM FOR PURCHASE OF AN IMMOVABLE PROPERTY REGISTRATION I S NECESSARY AND IT IS NOT ALSO A CASE OF PURCHASE IN PART PERFORMANCE OF A CONTRACT. I.T.A. NO . 2317 / M/ 1 5 10 7.2 IN RESPECT OF HIS CLAIM OF EXEMPTION UNDER SECTION 54F OF THE ACT, THE ASSESSEE HAS SUBMITTED BEFORE THE ASSESSING OFFICER THAT HE HAS PURCHASED 40% OF THE UNDIVIDED SHARE OF THE PROPERTY WAS PURCHASED THROUGH A REGISTERED SALE DEED. IN RESPECT OF OWNERSHIP OF OTHER 40% IN SUCH PROPERTY WAS ACQUIRED IN THE NAME OF HIS MINOR DAUGHTER ON 19.01.2005 BY WAY OF A DEED OF MORTGAGE BY CONDITIONAL SALE FOR A CONSIDERATION OF .21 LAKHS. HE HAS STATED THAT IN RESPECT OF 40% OF HOUSE PROPERTY, HE GOT POSSESSION OF THE SAME IN PART PERFORMANCE OF AN AGREEMENT OF MORTGAGE AND SALE DEED AND THE SAME IS DEEMED TO HAVE BEEN DONE ON THE DAY WHEN THE POSSESSION WAS HANDED OVER. THERE FORE, HE CLAIMED THAT IT SHOULD BE CONSIDERED AS ACQUISITION UNDER SECTION 53 A OF TRANSFER OF PROPERTY ACT AND THE SAID HOUSE PROPERTY SHOULD BE CONSIDERED FOR ALLOWING EXEMPTION UNDER SECTION 54F OF THE INCOME TAX ACT AS PURCHASE OF THE NEW HOUSE PROPERTY DURING THE YEAR. 7.3 T HE ASSESSING OFFICER HAS OBSERVED AS PER THE DEED, ONE OF THE CHILDREN WAS ALREADY A MAJOR ON THE DATE OF AGREEMENT ON 19.09.2005 AND SO, 50% OF IT GONE TO A MAJOR DAUGHTER AND THE ASSESSEE HAS NO CLAIM ON IT. OTHER 50% BELONG TO A MINOR, BUT FOR ALL PRACTICAL PURPOSES, THE PROPERTY WERE PURCHASED BY HIS DAU G HTER ONLY AND BELONGS TO HER AND CANNOT BE TREATED AS A PROPERTY WERE PURCHASED AND OWNED BY ASSESSEE AT ANY POINT OF TIME AND THEREFORE, HELD THAT ACQUISITION OF A PROPERTY IN THE NAME OF I.T.A. NO . 2317 / M/ 1 5 11 ANOTHER PERSON ALSO NOT QUALIFY FOR EXEMPTION. MOREOVER, THE SECOND 40% OF THE HOUSE PROPERTY WAS ACQUIRED BY WAY OF DEED OF MORTGAGE BY CONDITIONAL SALE AGAINST WHICH EXEMPTION CANNOT BE CLAIMED UNDER SECTION 54F OF THE ACT SINCE THERE WAS NO PURCHASE OR CONSTRUCTION. THE ASSESSING OFFICER HAS FURTHER OBSERVED FROM THE TERMS OF AGREEMENT THAT IT IS NOT AN AGREEMENT OF PURCHASE BUT ADVANCEMENT OF A LOAN ON INTEREST AND IN CASE OF DEFAULT IN PAYMENT OF LOAN/INTEREST THE OWNER CEASES RIGHT ON IT. CESSATION OF RIGHT IS NOT EQUIVALENT TO PURCHASE OF A PROPERTY. ACCORDINGLY, THE ASSESSING OFFICER REJECTED THE CLAIM OF DEDUCTION UNDER SECTION 54F OF THE ACT TO THE ASSESSEE. ON APPEAL, THE LD. CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 7.4 A S PER THE SALE DEED DATED 31.01.2005, THE ASSESSEE HAS PURCHASED 40% OF ITS UNDIVIDED SHARE THROUGH A REGISTERED DEED HAS BEEN PURCHASED AND EXECUTED IN THE NAME OF MISS A. SARANYA, MINOR DAUGHTER OF THE ASSESSEE. THROUGH DEED OF MORTGAGE BY CONDITIONAL SA LE DATED 19.09.2005, OTHER 40% OWNERSHIP OF THE PROPERTY WAS EXECUTED IN FAVOUR OF THE DAUGHTERS MISS A. SARANYA, AGED 18 YEARS AS ON 19.05.05 AND MISS. A. SUGNYA, AGED 13 YEARS. BOTH MISS A. SARANYA & MISS A. SARANYA ARE DAUGHTERS OF THE ASSESSEE AND THEY ARE THE LEGAL HEIRS OF THE ASSESSEE. THEREFORE, THE ASSESSEE HAS ACQUIRED THE PROPERTY IN THEIR NAME S AND CONSIDERATIONS WERE MADE BY WAY OF PAY ORDER DRAWN ON INDIAN OVERSEAS BANK, RANGARAJAPURAM BRANCH IN FAVOUR OF VARIOUS VENDORS FROM ASSESSEE S I.T.A. NO . 2317 / M/ 1 5 12 BANK A CCOUNT AND THE SAME WAS NOT DISPUTED. WHEN BOTH THE DAUGHTERS OF THE ASSESSEE ARE LEGAL HEIRS AND THE ASSESSEE HAS ACQUIRED THE ABOVE PROPERTIES IN HIS DAUGHTERS NAME, THE ASSESSING OFFICER HELD THAT THE ABOVE ACQUISITION DOES NOT QUALIFY FOR EXEMPTION SI NCE THE PROPERTY WAS NOT REGISTERED IN THE NAME OF THE ASSESSEE . IT IS NOT THE CASE OF THE REVENUE THAT THE DAUGHTERS HAD INDEPENDENT INCOME TO PURCHASE THE ABOVE PROPERTY. 7. 5 IN THIS CASE, THE UTILISATION OF SALE CONSIDERATION FOR ACQUISITION OF NEW PR OPERTY WAS NOT UNDER DISPUTE. ADMITTEDLY, B OTH THE DAUGHTERS OF THE A SSESSEE WERE LEGAL HEIRS/DEPENDENTS AS ON THE DATE OF PURCHASE OF THE PROPERTY. NOW, THE QUESTION BEFORE US IS THAT I N ORDER TO CLAIM DEDUCTION UNDER SECTION 54 OF THE ACT, THE RESIDENTIA L HOUSE NEED TO BE PURCHASE BY THE ASSESSEE IN HIS OWN NAME ONLY OR NOT ? ON THIS ASPECT, VARIOUS HIGH COURTS HAVE OBSERVED AS UNDER: IN THE CASE OF CIT V. V. NATARAJAN [2006] 287 ITR 271 (MAD), THE HON BLE JURISDICTIONAL HIGH COURT HAS HELD AS UNDER: HE LD, (I) THAT THE ASSESSEE HAD PURCHASED A HOUSE IN THE NAME OF HIS WIFE AFTER SE L LING THE PROPERTY AT BANGALORE. BUT THE SAME WAS ASSESSED IN THE HANDS OF THE ASSESSEE. HENCE, AS CORRECTLY HELD BY THE COMMISSIONER (APPEALS) AS WELL AS BY THE TRIBUNAL THE A SSESSEE WAS ENTITLED TO EXEMPTION UNDER SECTION 54. FURTHER, I N THE CASE OF MIR GULAM ALI KHAN V. CIT [1987] 165 ITR 228, THE HON BLE ANDHRA PRADESH HIGH COURT HAS HELD AS UNDER: I.T.A. NO . 2317 / M/ 1 5 13 THE OBJECT OF G RANTING EXEMPTION UNDER SECTION 54 OF THE INCOME TAX ACT, 1961, IS THAT A PERSON WHO SELLS A RESIDENTIAL HOUSE FOR THE PURPOSE OF PURCHASING ANOTHER CONVENIENT HOUSE MUST BE GIVEN EXEMPTION SO FAR AS CAPITAL GAINS ARE CONCERNED. THE WORD ASSESSEE IN SECTION 54 MUST BE GIVEN A WIDE AND LIBERAL INTERPRETATION SO AS TO INCLUDE HIS LEGAL HEIRS ALSO. THERE IS NO WARRANT FOR GIVING TOO STRICT AN INTERPRETATION TO THE WORD ASSESSEE AS THAT WOULD FRUSTRATE THE OBJECT OF GRANTING THE EXEMPTION. BY FOLLOWING THE RATIO LAID DOWN IN THE CASE OF CIT V. V. NATARAJAN (SUP RA) AND IN THE CASE OF MIR GULAM ALI KHAN V. CIT (SUPRA), IN THE CASE OF CIT V. KAMAL WAHAL [2013] 351 ITR 4 (DEL), THE HON BLE DELHI HIGH COURT HAS HELD AS UNDER: 9. IT THUS APPEARS TO US THAT THE PREDOMINANT JUDICIAL VIEW, INCLUDING THAT OF THIS COURT, IS THAT FOR THE PURPOSES OF SECTION 54F , THE NEW RESIDENTIAL HOUSE NEED NOT BE PURCHASED BY THE ASSESSEE IN HIS OWN NAME NOR IS IT NECESSARY THAT IT SHOULD BE PURCHASED EXCLUSIVELY IN HIS NAME. IT IS MO REOVER TO BE NOTED THAT THE ASSESSEE IN THE PRESENT CASE HAS NOT PURCHASED THE NEW HOUSE IN THE NAME OF A STRANGER OR SOMEBODY WHO IS UNCONNECTED WITH HIM. HE HAS PURCHASED IT ONLY IN THE NAME OF HIS WIFE. THERE IS ALSO NO DISPUTE THAT THE ENTIRE INVESTMEN T HAS COME OUT OF THE SALE PROCEEDS AND THAT THERE WAS NO CONTRIBUTION FROM THE ASSESSEE'S WIFE. THE REQUIREMENT FOR CLAIMING EXEMPTION UNDER SECTION 54 AND 54F OF THE ACT IS THAT THE ASSESSEE SHOULD ACQUIRE/PURCHASE/CONSTRUCT A NEW ASSET WITHIN THE SPEC IFIED PERIOD. THERE IS NO FURTHER CONDITION THAT THE ASSESSEE SHOULD ACQUIRE/PURCHASE/CONSTRUCT THE NEW ASSET IN HIS OWN NAME , AS SUCH WORDS ARE CONSPICUOUSLY ABSENT FROM THESE PROVISIONS INDICATING THAT LEGISLATURE INTENDED TO PROVIDE SOME LATITUDE TO THE ASSESSEE AS TO THE NAME IN WHICH NEW ASSET HAS TO BE ACQUIRED. IN THE CASE OF DIT V. MRS. JENNIFER BHIDE [2012] 349 ITR 80 (KAR.), THE HON BLE KARNATAKA HIGH COURT HAS HELD THAT I.T.A. NO . 2317 / M/ 1 5 14 ONCE THE SALE CONSIDERATION IS INVESTED IN ANY OF THESE MANNER THE ASSESSEE WOULD BE ENTITLED TO THE BENEFIT CONFERRED UNDER THIS PROVISIONS. IN THE ABSENCE OF AN EXPRESS PROVISION CONTAINED IN THESE SECTIONS THAT THE INVESTMENT SHOULD BE IN THE NAME OF THE ASSESSEE ONLY ANY SUCH INTERPRETATION WERE TO BE PLACED, IT AMOUNTS TO CO URT INTRODUCING THE SAID WORD IN THE PROVISION WHICH IS NOT THERE. IT AMOUNTS COURT LEGISLATING WHEN THE PARLIAMENT HAS DELIBERATELY NOT USED THOSE WORDS IN THE SAID SECTION . 7.6 IN THE PRESENT CASE, THE NEW HOUSE PROPERTY WAS PURCHASED BY THE ASSESSEE I N THE NAME OF HIS DAUGHTERS, LEGAL HEIR & DEPENDENTS AND NOT IN THE NAME OF ANY STRANGER OR SOMEBODY, WHO IS UNCONNECTED WITH THE ASSESSEE. THEREFORE, IN VIEW OF THE ABOVE JUDGEMENTS, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE IS ELIGIBLE TO CLAIM DEDUCTION OF EXEMPTION UNDER SECTION 54 OF THE ACT. 8. WITH REGARD TO THE INVESTMENT IN 40% UNDIVIDED SHARE IN THE HOUSE PROPERTY BY WAY OF DEED OF MORTGAGE BY CONDITIONAL SALE, T HE EXPRESSION 'MORTGAGE BY CONDITIONAL SALE' AS DEFINED IN SECTION 58(C) O F THE TRANSFER OF PROPERTY ACT, 1882 WOULD MEAN: WHERE, THE MORTGAGOR OSTENSIBLY SELLS THE MORTGAGED PROPERTY - ON CONDITION THAT ON DEFAULT OF PAYMENT OF THE MORTGAGE - MONEY ON A CERTAIN DATE THE SALE SHALL BECOME ABSOLUTE, OR ON CONDITION THAT ON SUCH PAYMENT BEING MADE THE SALE SHALL BECOME VOID, OR ON CONDITION THAT ON SUCH PAYMENT BEING MADE THE BUYER SHALL TRANSFER THE PROPERTY TO THE SELLER, THE TRANSACTION IS CALLED A MORTGAGE BY CONDITIONAL SALE AND THE MORTGAGEE A MORTGAGEE BY CONDITIONAL SALE : PROVIDED THAT NO SUCH TRANSACTION SHALL BE DEEMED TO BE A MORTGAGE, UNLESS THE CONDITION IS EMBODIED IN THE DOCUMENT WHICH EFFECTS OR PURPORTS TO EFFECT THE SALE. I.T.A. NO . 2317 / M/ 1 5 15 IN VIEW OF THE ABOVE PROVISIONS OF TRANSFER OF PROPERTY ACT, WE ARE OF THE OPINION THAT T HE MORTGAGE IS A 'SA L E' IN THE FIRST PLACE , WHEREIN ; THE POSSESSION OF THE P ROPERTY GETS TRANSFERRED TO THE MORTGAGEE. THE SAL E GETS VOID WHEN THE MORTGAGE - MONEY IS REPAID BY THE MORTGAGOR. IN OTHER WORDS, THE SALE GETS CONFIRMED O N DEFAULT OF THE MORTGA GOR TO REPAY THE MORTGAGE - MONEY. IN THE PRESENT CASE, THE ASSESSEE HAS OBTAINED THE POSSESSION OF THE PROPERTY THROUGH A REGISTERED 'DEED OF CONDITIONAL SALE' THROUGH MORTGAGE DEED EXECUTED ON 19.09.2005, WHICH CAN BE UNDERSTOOD FROM THE FOLLOWING CLAUS E O F THE SAID DEED: 'THE MORTGAGOR HAS PUT THE MORTGAGEES IN POSSESSION OF THE PROPERTY FORMING THE SUBJECT MATTER OF THIS MORTGAGE DEED. THE MORTGAGOR HAS ALSO HANDED OVER ALL ORIGINAL DOCUMENTS OF TITLE PERTAINING TO THIS PROPERTY TO THE MORTGAGESS THE RE CEIPT OF WHICH THE MORTGAGEES ALSO ACKNOWLEDGES. 8.1 ON PERUSAL OF THE PAPER BOOK PAGE 36 TO 41, T HE SAID SALE THROUGH M ORTGAGE HAS BEEN CONFIRMED LATER BY A DEED OF CONFIRMATION OF SALE EXECUTED BY THE MORTGAGOR AND DULY R EGISTERED ON 26.07.2013. THE A SSESSEE , IN RESPE C T OF THE SAID 'CONDITIONAL SALE THROUGH MORTGAGE' HAS PAID A STAMP DUTY AT THE RATE OF 8% APPLICABLE FOR CONVEYANCE (SALE) OF A PROPERTY AS AGAINST A DUTY OF 4% AS PRESCRIBED UNDER THE STAMP DUTY R U LES FOR MORTGAGE WITH POSSESSION. THE AS SESSEE HAS PAID THE SAID AMOUNT OF STAMP DUTY ON THE DATE OF EXECUTION OF 'DEED OF CONDITIONAL SALE THROUGH MORTGAGE' ITSELF AND HENCE, THE SAID PROPERTY HAS BEEN TRANSFERRED TO THE A SSESSEE ON THE SAID DATE I.E., ON 19.09.2005. THEREFORE, THE ASSESSEE HAS I.T.A. NO . 2317 / M/ 1 5 16 BECOME THE OWNER OF THE ASSET ON THE DAY ON WHICH HE HAS PAID THE SUM OF .21.00, 000/ - TO THE VENDOR - MORTGAGOR AND OBTAINED THE POSSESSION OF THE PROPERTY. 8.2 AS PER SUB - CLAUSE (VI) SECTION 2(47) OF THE ACT , A TRANSFER INCLUDES ANY TRANSACTION WHICH HA S THE EFFECT OF TRANSFERRING, OR ENABLING THE ENJOYMENT OF ANY IMMOVABLE PROPERTY, (VI) ANY TRANSACTION (WHETHER BY WAY OF BECOMING A MEMBER OF, OR ACQUIRING SHARES IN, A CO - OPERATIVE SOCIETY, COMPANY OR OTHER ASSOCIATION OF PERSONS OR BY WAY OF ANY AGREE MENT OR ANY ARRANGEMENT OR IN ANY OTHER MANNER WHATSOEVER) WHICH HAS THE EFFECT OF TRANSFERRING, OR ENABLING THE ENJOYMENT OF, ANY IMMOVABLE PROPERTY. IN THE PRESENT CASE, THE ARRANGEMENT BETWEEN THE A SSESSEE (MORTGAGEE) A ND VENDOR (MORTGAGOR) TO TRANSF ER THE HOUSE PRO P ERTY THROUGH A 'DEED OF MORTGAGE BY CONDITIONAL SALE' GROSSLY FALLS WITHIN THE DEFINITION OF TRANSFER U N DER S ECTION 2(47)(VI) OF THE INCOME TAX ACT, THEREFORE THE SAID TRANSACTION IS A PURCHASE MADE BY THE ASSESSEE ON ENTERING THE 'DEED OF MORTGAGE BY CONDITIONAL SALE'. THE AGREED CONSIDERATION OF .21,00,000 / - WAS PAID BY THE ASSESSEE ON 19.09.2005, WHICH IS THE DAY ON WHICH THE 'DEED OF CONDITIONAL SALE' THROUGH MORTGAGE HAS BEEN EXECUTED AND REGISTERED. SINCE, THE ASSESSEE HAS ALSO TAKEN THE POSSESSION OF THE PROPERTY ON THE SAID DATE, THE TRANSA CTION HAS BECOME A DEEMED TRANSFER EVEN UNDER S ECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1882. I.T.A. NO . 2317 / M/ 1 5 17 8.3 FURTHER, THE OTHER OBJECTION OF THE ASSESSING OFFICER WAS THAT FOR PURCHASE OF AN IMMOVABLE PROPERTY REGISTRATION IS NECESSARY. THIS OBJECTION OF THE ASSES SING OFFICER CANNOT BE SUSTAINED IN VIEW OF THE JUDGEMENT IN THE CASE OF BALRAJ V. CIT 254 ITR 22 (DEL), WHEREIN, BY RELYING ON VARIOUS DECISIONS OF THE HON BLE SUPREME COURT, THE HON BLE DELHI HIGH COURT HAS OBSERVED AND HELD AS UNDER: 3. THE ASSESSING OFFICER, THE APPELLATE AUTHORITY AS WELL AS THE TRIBUNAL REJECTED THE CLAIM OF THE ASSESSED IN RESPECT OF THE ASSESSMENT YEAR 1975 - 76 ON THE GROUND THAT HE DID NOT BECOME THE OWNER OF THE PROPERTY, AS THE SAID TRANSACTION WAS NOT EVIDENCED BY REGISTRATION THEREOF AS PROVIDED UNDER SECTION 17 OF THE REGISTRATION ACT. FOR THE PURPOSE OF ATTRACTING THE PROVISIONS OF SECTION 54 OF THE INCOME - TAX ACT, IT IS NOT NECESSARY THAT THE ASSESSEE SHOULD BECOME THE OWNER OF THE PROPERTY. SECTION 54 OF THE SAID ACT SPEAKS OF PURCHASE. MOREOVER, THE OWNERSHIP OF THE PROPERTY MAY HAVE DIFFERENT CONNOTATION IN DIFFERE NT STATUTES. THE QUESTION WHICH ARISES FOR CONSIDERATION APPEARS TO BE SQUARELY COVERED BY A DECISION OF THE APEX COURT IN CIT V. T.N. ARAVINDA REDDY [1979] 120 ITR 46, WHERE IT HAS BEEN HELD THAT 'THE WORD 'PURCHASE' OCCURRING IN SECTION 54(1) OF THE ACT HAD TO BE GIVEN ITS COMMON MEANING, VIZ., BUY FOR A PRICE OR EQUIVALENT OF PRICE BY PAYMENT IN KIND OR ADJUSTMENT TOWARDS A DEBT OR FOR OTHER MONETA RY CONSIDERATION. EACH RELEASE IN THIS CASE WAS A TRANSFER OF THE RELEASOR'S SHARE FOR CONSIDERATION TO THE RELEASEE AND THE TRANSFEREE, THE ASSESSEE, 'PURCHASED' THE SHARE OF EACH OF HIS BROTHERS AND THE ASSESSED WAS, THEREFORE, ENTITLED TO THE RELIEF UND ER SECTION 54(1) '. THE QUESTION NOW IS NO LONGER RES INTEGRA HAVING REGARD TO THE DECISION OF THE APEX COURT IN CIT V. PODAR CEMENT PVT. LTD . [1997] 226 ITR 625. THE APEX COURT CATEGORICALLY HELD THAT SECTION 22 OF THE INCOME - TAX ACT, 1961, DOES NOT REQUIRE REGISTRATION OF SALE DEED. THE MEANING OF THE WORD 'OWNER' IN THE CONTEXT OF SECTION 22 HAS BEEN HELD TO BE A PERSON WHO IS ENTITLED TO RECEIVE INCOME IN HIS OWN RIGHT. THE APEX COURT IN MYSORE MINERALS LTD. V. CIT [1999] 239 ITR 775 AND THIS COURT IN CIT V. R. L. SOOD [2000] 245 ITR 727 HAVE HELD THAT REGISTRATION OF THE DOCUMENT IS NOT MANDATORY FOR CLAIMING DEPRECIATION ON THE PROPERTY. IN THIS VIEW OF THE MATTER, WE HAVE NO DOUBT IN OUR MIND THAT THE LEARNED TRIBUNAL WENT WRONG IN HOLDING THAT FOR THE PURPOSE OF APPLICABILITY OF SECTION 54 , REGISTRATION OF DOCUMENT IS IMPERATIVE. WE, THEREFORE, ANSWER THE I.T.A. NO . 2317 / M/ 1 5 18 QUESTION IN THE NEGATIVE, I.E. , THE ASSESSE E IS ENTITLED TO EXEMPTION IN TERMS OF SECTION 54 OF THE ACT. 8.4 IN VIEW OF THE ABOVE OBSERVATIONS, WE ARE OF THE OPINION THAT THE ASSESSEE IS LEGALLY ELIGIBLE TO CLAIM DEDUCTION UNDER SECTION 54F OF THE ACT . THUS, WE SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND DIRECT THE ASSESSING OFFICER TO ALLOW THE CLAIM OF DEDUCTION UNDER SECTION 54F OF THE ACT. 9 . THE NEXT GROUND RAISED IN THE APPEAL OF THE ASSESSEE IS WITH REGARD TO THE INVES TMENT OF .4,50,978/ - IN BONDS SPECIFIED UNDER SECTION 54EC AFTER A PERIOD OF SIX MONTHS FROM THE DATE OF TRANSFER BUT BEFORE THE DUE DATE SPECIFIED UNDER SECTION 139 OF THE ACT BE ELIGIBLE FOR DEDUCTION UNDER SECTION 54EC OF THE ACT . UNDISPUTEDLY, IN THE ORIGINAL RETURN OF INCOME FILED BY THE ASSESSEE ON 31.08.2005, THE ASSESSEE HAS CLAIMED EXEMPTION UNDER SECTION 54EC OF THE ACT. BUT, T HE ONLY OBJECTION OF THE DEPARTMENT WAS THAT AS PER SECTION 54EC OF THE ACT, THE INVESTMENT IN SPECIFIC BOND HAS TO BE MADE WITHIN SIX MONTHS FROM THE DATE OF SUCH TRANSFER. IN THIS CASE, THE AGRICULTURE LAND WAS SOLD ON 16.08.2004, WHEREAS, INVESTMENT IN NABARD BONDS WERE MADE ON 10.06.2005, WHICH IS BEYOND THE SIX MONTHS FROM SUCH TRANSFER AND THEREFORE, THE AUTHORITIES BELOW HAVE HELD THAT THE CLAIM OF THE ASSESSEE WAS NOT ENTERTAIN ABLE . 9 .1 ADMITTEDLY, THE ASSESSEE MADE INVESTMENT IN NABARD BONDS ON 10.06.2005. HOWEVER, THE SAID INVESTMENT WAS NOT MADE WITHIN A PERIOD OF SIX MONTHS AFTER THE DATE OF SUCH TRANSFER AS STIPULATED UNDER SECTION I.T.A. NO . 2317 / M/ 1 5 19 54EC(1) OF THE ACT. THE AGRICULTURE LAND WAS ORIGINALLY SOLD ON 16.08.2004, WHEREAS, INVESTMENT IN NABARD BONDS WERE MADE ON 10.06.2005, MUCH AFTER SIX MONTH AND THE ASSESSEE HAS NOT FURNISHED ANY VALID REASON EITHER BEFORE THE AUTHORITIES B ELOW OR BEFORE THE TRIBUNAL FOR THE BELATED INVESTMENT IN THE BONDS AFTER SIX MONTHS PERIOD OF SALE. 9.2 THE CASE LAW RELIED ON BY THE ASSESSEE IN THE CASE OF ALKABEN B. PATEL V. ITO 148 ITD 31 (AHD)(SB) HAS NO APPLICATION TO THE FACTS OF THE ASSESSEE S CASE BECAUSE, IN THAT CASE THE SALE DOCUMENT WAS REGISTERED ON 10.06.2008 AND THE ASSESSEE SHOULD HAVE PURCHASED THE BOND WITHIN 10.12.2008. HOWEVER, THE ASSESSEE HAS SUBMITTED THE APPLICATION FOR THE PURCHASE OF BONDS AND TENDERED THE CHEQUE ON 08.12.2008 , WHICH WAS WITHIN THE PERIOD OF SIX MONTHS FROM THE DATE OF TRANSFER OF THE LONG TERM CAPITAL ASSET. HOWEVER, SINCE THE CHEQUE ISSUED BY THE ASSESSEE FOR PURCHASE OF BOND WAS CLEARED ONLY ON 17.12.2008, THE ASSESSING OFFICER DISALLOWED THE CLAIM OF THE AS SESSEE. UNDER THIS CIRCUMSTANCES, THE SPECIAL BENCH OF THE TRIBUNAL HAS HELD THAT FOR RECKONING THE SIX MONTHS PERIOD, CALENDAR MONTH SHALL BE TAKEN INTO ACCOUNT RATHER THAN 180 DAYS IN VIEW OF THE DECISION OF THE HON BLE ALLAHABAD HIGH COURT IN THE CASE O F CIT V. MUNNALAL SHRIKISHAN 167 ITR 415, WHERE ANSWERING THE DISPUTE IN RESPECT OF LAW OF LIMITATION, THE HON BLE COURT HAS CLEARLY HELD THAT THERE IS NOTHING IN THE CONTEXT OF SECTION 256(2) TO WARRANT THE CONCLUSION THAT THE WORD MONTH I.T.A. NO . 2317 / M/ 1 5 20 IN IT REFERS TO A PERIOD OF 30 DAYS, THEREFORE, REFERS TO SIX MONTHS IN SECTION 256(2) IS TO SIX CALENDAR MONTHS AND NOT 180 DAYS IN VIEW OF THE DECISION IN THE CASE OF TAMAL LAHIRI V. KUMAR P.N. TAGORE AIR 1978 SC 1811, WHEREIN, THE HON BLE SUPREME COURT HAS HELD THAT THE EXPRESSION SIX MONTHS IN THE SAID SECTION MEANS SIX CALENDAR MONTHS AND NOT 180 DAYS. BUT IT WAS NOT THE FACT IN THE CASE OF THE ASSESSEE. IF THE ASSESSEE HAS INVESTED IN THE NABARD BONDS BY END OF FEBRUARY, 2005, THEN HE CAN VERY WELL CLAIM THE EXEMPT ION, BUT, HE HAS INVESTED IN THE BONDS ONLY ON 10.06.2005 I.E., FOURTH MONTH AFTER LAPSE OF SIX MONTHS PERIOD PROVIDED IN THE STATUTE. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE AUTHORITIES BELOW HAVE RIGHTLY REJECTED THE CLAIM OF DEDUCTION UNDER SECTION 54EC OF THE ACT. THUS, THE GROUND RAISED BY THE ASSESSEE IS DISMISSED. 10 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED . ORDER PRONOUNCED ON THE 06 TH FEBRUARY , 201 7 AT CHENNAI. SD/ - SD/ - (CHANDRA POOJARI) ACCOUNTANT MEM BER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 06 . 0 2 .201 7 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.