SHALINI ANAND MURTHY, Mumbai V. ACIT 17(3), Mumbai

ITA 2404/MUM/2019

AI Insights

The case involves Shalini Anand Murthy, the appellant, who appealed against the order of the Commissioner of Income Tax (Appeals) denying her exemption under section 54F of the Income-tax Act, 1961. The exemption was claimed on a capital gain amounting to INR 87,89,121, which was invested in a new property beyond the three-year period allowed under section 54F. The Assessing Officer and the CIT(A) both rejected the claim, leading to the appeal in the ITAT. The Tribunal upheld the lower authorities' decisions, emphasizing the strict interpretation of the statutory provisions and the absence of any exceptional circumstances that would justify a departure from the three-year limit.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 123551 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-01-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 19-12-2022
• Assessment Year: 2011-2012
• Appeal Filed On: 15-04-2019
• Other Referred Cases: T Shiva Kumar vs ITO, Satish Chandra Gupta vs AO, ACIT vs Kamlakar Moghe, Sunil Kumar Saha vs ITO, Commissioner of Customs (Import) Mumbai vs. M/s Dilip Kumar and Company and Ors
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Capital Gains
• Section: 147; 148; 143(3); 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “G” MUMBAI BEFORE SHRI ABY T VARKEY (JUDICIAL MEMBER) AND SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) ITA No. 2404/Mum/2019 Assessment Year: 2011-12 Shalini Anand Murthy 2nd Floor, Jeevan Udyog 278, Dr. D.N. Road, Fort Mumbai-400 001 Vs. Asst.Commissioner of Income-tax-17(3), Mumbai Aayakar Bhavan, M.K. Road Mumbai-400 020 PAN No. ABRPM4292N Appellant Respondent Revenue by : Shri Satyapal Kumar, Sr.AR Assessee by : Shri.Srinivas S Kota Date of Hearing : 20/12/2022 Date of pronouncement : 12/01/2023 ORDER PER OM PRAKASH KANT, AM This appeal by the assessee is directed against the order dated 15/02/2019 passed by the Ld.CIT(A)-28, Mumbai [in short, ‘the Ld.CIT(A)] for Assessment Year 2011-12, raising following grounds:- “1. On the facts and circumstances of the case and in law, the learned Assessing Officer has erred in reopening the assessment under Section 147 of the Act. 2. On the facts and circumstances of the case and in law, the Hon’ble Commissioner of Income Tax (Appeals) has erred in denying the exemption claimed by the Appellant under section 54F of the Act, amounting to 2. At the outset, we may like to mappeal was not pressed and, therefore, the same is dismissed as infructuous. 2.1 The only ground left is in respect of the deduction under section 54F of the Income₹87,89,121/-. 3. Briefly stated, facts of the case as culled out from the order of the lower authorities and submissions of the assessee are that (i) In Assessment year 2008term capital gain of deposited ₹50,00,000/1998’ and claimed e₹23,50,00,000/-. Though the said claim of exemption was disallowed by the Assessing Officer, however, the same was allowed in the order passed by the by the Assessing Officer consequent to the order of the ITAT dated 26/12/2016;(ii) The period of 3 years expired on April 2, 2010 and the assessee was supposed to pay the On the facts and circumstances of the case and in law, the Hon’ble Commissioner of Income Tax (Appeals) has erred in denying the exemption claimed by the Appellant under section 54F of the Act, amounting to ₹87,89,121/At the outset, we may like to mention that ground No.1 of the appeal was not pressed and, therefore, the same is dismissed as The only ground left is in respect of the deduction under section 54F of the Income-tax Act, 1961 (in short, ‘the Act’) of Briefly stated, facts of the case as culled out from the order of the lower authorities and submissions of the assessee are that In Assessment year 2008-09, the assessee had shown a long term capital gain of ₹5,43,70,902/- against which 50,00,000/- under ‘Capital gains Account Scheme, 1998’ and claimed exemption under section 54F amounting to Though the said claim of exemption was disallowed by the Assessing Officer, however, the same was allowed passed by the by the Assessing Officer consequent to the order of the ITAT dated 26/12/2016; 3 years deposit from the sale of original property expired on April 2, 2010 and the assessee was supposed to pay the Shalini Anand Murthy ITA 2404/Mum/2019 2 On the facts and circumstances of the case and in law, the Hon’ble Commissioner of Income Tax (Appeals) has erred in denying the exemption claimed by the Appellant 87,89,121/-“ ention that ground No.1 of the appeal was not pressed and, therefore, the same is dismissed as The only ground left is in respect of the deduction under tax Act, 1961 (in short, ‘the Act’) of Briefly stated, facts of the case as culled out from the order of the lower authorities and submissions of the assessee are that – 09, the assessee had shown a long against which the assessee under ‘Capital gains Account Scheme, xemption under section 54F amounting to Though the said claim of exemption was disallowed by the Assessing Officer, however, the same was allowed passed by the by the Assessing Officer consequent to deposit from the sale of original property expired on April 2, 2010 and the assessee was supposed to pay the capital gain tax on the unuaccount which was of (iii) For the year under consideration, the assessee filed regular return of income on 29/09₹12,83,110/-. The assessment under section 143(3) won 31/01/2014 accepting returned income. Subsequently, the assessment was reopened after recording the reasons and notice under section 148 of the Act was issued on 27/03/2017. Since the amount of ₹2,90,29,120/account of the schemeconsideration, the assessee was asked to explain as to why the same unutilized amount should not be taxed under section 54F(4) of the Act. It was submitted on behalf of the assesseeshe had paid ₹10 lakhs to M/s Umiya Holdings Company Pvt Ltd towards booking of flat in Goa. However, said transaction was cancelled and subsequently the assessee entered into an agreement dated 27/11/2009 for purchase of a residential houunder construction with M/s Prestige Estates Projects Pvt Ltd, Bangalore and pursuant to the terms of agreement, the assessee had made payment of payment of ₹87,89,121/from the date of sale of original propertyobserved that in the return of income filed in response to notice capital gain tax on the unutilized balance lying in the capital gains account which was of ₹2,90,29,120/-. For the year under consideration, the assessee filed regular return of income on 29/09/2011 declaring total income at . The assessment under section 143(3) won 31/01/2014 accepting returned income. Subsequently, the assessment was reopened after recording the reasons and notice under section 148 of the Act was issued on 27/03/2017. Since the 2,90,29,120/- which was lying unutilized inaccount of the scheme, was not offered to tax for the year under consideration, the assessee was asked to explain as to why the same unutilized amount should not be taxed under section 54F(4) of the Act. It was submitted on behalf of the assessee10 lakhs to M/s Umiya Holdings Company Pvt Ltd towards booking of flat in Goa. However, said transaction was cancelled and subsequently the assessee entered into an agreement dated 27/11/2009 for purchase of a residential houunder construction with M/s Prestige Estates Projects Pvt Ltd, Bangalore and pursuant to the terms of agreement, the assessee had made payment of ₹59,70,880/- within 3 years and further 87,89,121/- was made beyond the period of 3 yefrom the date of sale of original property. The Assessing Officer observed that in the return of income filed in response to notice Shalini Anand Murthy ITA 2404/Mum/2019 3 tilized balance lying in the capital gains For the year under consideration, the assessee filed regular /2011 declaring total income at . The assessment under section 143(3) was completed on 31/01/2014 accepting returned income. Subsequently, the assessment was reopened after recording the reasons and notice under section 148 of the Act was issued on 27/03/2017. Since the lying unutilized in capital was not offered to tax for the year under consideration, the assessee was asked to explain as to why the same unutilized amount should not be taxed under section 54F(4) of the Act. It was submitted on behalf of the assessee that initially 10 lakhs to M/s Umiya Holdings Company Pvt Ltd towards booking of flat in Goa. However, said transaction was cancelled and subsequently the assessee entered into an agreement dated 27/11/2009 for purchase of a residential house property under construction with M/s Prestige Estates Projects Pvt Ltd, Bangalore and pursuant to the terms of agreement, the assessee within 3 years and further was made beyond the period of 3 years . The Assessing Officer observed that in the return of income filed in response to notice under section 148, the assessee, though offered gains to the extent of unutilized, however, the amount of tax. The main contention of the assessee was that the delay for utilization of the amount in ‘Capital gains Account Scheme, 1998’ was beyond her control as initial investmentunavailability of the project and the payment for second project got delayed on account of the builder construction as per the time frame agreed initially. In support of the contention, the assessee relpronouncements:- 1. T Shiva Kumar vs ITO 9158 ITD 329 (Bangalore Tribunal)2. Satish Chandra Gupta vs AO (54 ITD 508) (Delhi Tribunal) 3. ACIT vs Kamlakar Moghe (378 ITR 561)(Bom.HC)4. Sunil Kumar Saha vs ITO (156 ITD 1)(Kol.T(iv) The Assessing Officer rejected the contention of the assessee and denied the claim of deduction of payment made property beyond the period of 3 years from the date of the sale of the original property. under section 148, the assessee, though offered additional capital gains to the extent of ₹2,02,39,9999/- out of the amunutilized, however, the amount of ₹81,89,121/- was not offered to tax. The main contention of the assessee was that the delay for utilization of the amount in ‘Capital gains Account Scheme, 1998’ was beyond her control as initial investment was cancelled due to unavailability of the project and the payment for second project got delayed on account of the builder who did not being complete the construction as per the time frame agreed initially. In support of the contention, the assessee relied on following judicial T Shiva Kumar vs ITO 9158 ITD 329 (Bangalore Tribunal)Satish Chandra Gupta vs AO (54 ITD 508) (Delhi vs Kamlakar Moghe (378 ITR 561)(Bom.HC)Sunil Kumar Saha vs ITO (156 ITD 1)(Kol.TThe Assessing Officer rejected the contention of the assessee and denied the claim of deduction of payment made beyond the period of 3 years from the date of the sale of property. Shalini Anand Murthy ITA 2404/Mum/2019 4 additional capital out of the amount remained was not offered to tax. The main contention of the assessee was that the delay for utilization of the amount in ‘Capital gains Account Scheme, 1998’ was cancelled due to unavailability of the project and the payment for second project got not being complete the construction as per the time frame agreed initially. In support of ied on following judicial T Shiva Kumar vs ITO 9158 ITD 329 (Bangalore Tribunal) Satish Chandra Gupta vs AO (54 ITD 508) (Delhi vs Kamlakar Moghe (378 ITR 561)(Bom.HC) Sunil Kumar Saha vs ITO (156 ITD 1)(Kol.Trib) The Assessing Officer rejected the contention of the assessee and denied the claim of deduction of payment made for purchase of beyond the period of 3 years from the date of the sale of (v) On appeal, the Assessing Officer observing as under: 5.4 After going through, the relevant facts and circumam of the considered view as to whether, based upon the factual and situational matrix of the case, the question to be answered is whetherthe successful claim unutilized amount remainperiod of 3 years? In this case, this question will have to be answered in the negative, since, it is an undisputed fact that the appellant has utilized only Rs.59.,79,880/- till April 02, 2010, thereby making it clear that the unutilized balance amount is Rs.2,90,29,120/however, that the appellant has made further payment of Rs.87,89,121/2012. Consequently, it was arguedallowed for these amounts as the circumstances were beyond the control of the appellant, 1 note that it is crystal clear that in case of thean amount of Rs.2,90,29,120/already paid, taxes, being unutilized amount in Capital Gains account as on April 03,2010 as per provisions of Section 5.5 Therefore, what is now relevant to be adjudicated as to whatof the propriety of the allowance of the exemption u/s.54F to theRs.87,89,121/--, which actually represents the payment of installment in May 2012, and which payment is in apparent violation of the limit of 3 years enshrined in the provision. 5.5 It is further of pertinent importance to54F(4) clearly enunciates that, if the amount deposited is not Utilized wholly or partially for the purchase or construction of the new asset within the period specified in sub-section charged u/s,45 as income of the previous year in which the period of 3 years from the date of transfer of the original asset expires. Hence, it is verythe legislature in its wisdom has taken care of a scenario well. Hence, the utilization of amount of Rs.87,89,121/prescribed limit of 3 years is a serious substantive violation of the provisions of Section 54F(4). One of the basic contentlimit of 3 years as discussed in detail above has been breached due to the circumstances beyond the control of the appellant as the project was delayed. the Ld.CIT(A) also upheld the finding of the Assessing Officer observing as under:- 5.4 After going through, the relevant facts and circumstances of the matter, I of the considered view as to whether, based upon the factual and situational matrix of the case, the question to be answered is whetherthe successful claim of deduction u/s,54F, has the appellant invested the unutilized amount remaining in the Capital Gain Account within the stipulated years? In this case, this question will have to be answered negative, since, it is an undisputed fact that the appellant has utilized till April 02, 2010, thereby making it clear that the amount is Rs.2,90,29,120/-. It is also relevant to note, however, that the appellant has made further payment of Rs.87,89,121/2012. Consequently, it was argued that benefit of Section 54F(2) should also be allowed for these amounts as the circumstances were beyond the control of the appellant, 1 note that it is crystal clear that in case of thean amount of Rs.2,90,29,120/- is the unutilized amount on which appellant has already paid, taxes, being unutilized amount in Capital Gains account as on April 03,2010 as per provisions of Section 54F(4) of the Act. 5.5 Therefore, what is now relevant to be adjudicated as to what of the propriety of the allowance of the exemption u/s.54F to the, which actually represents the payment of installment in May 2012, and which payment is in apparent violation of the limit of 3 years enshrined is further of pertinent importance to note that the proviso to Section 54F(4) clearly enunciates that, if the amount deposited is not Utilized wholly or partially for the purchase or construction of the new asset within the period section (1) of Section 54F, then the unutilized amount shall be charged u/s,45 as income of the previous year in which the period of 3 years from the date of transfer of the original asset expires. Hence, it is very-the legislature in its wisdom has taken care of a scenario of partial payment as Hence, the utilization of amount of Rs.87,89,121/-prescribed limit of 3 years is a serious substantive violation of the provisions (4). One of the basic contentions of the appellant is that the limit of 3 years as discussed in detail above has been breached due to the circumstances beyond the control of the appellant as the project was delayed. Shalini Anand Murthy ITA 2404/Mum/2019 5 A) also upheld the finding of the stances of the matter, I of the considered view as to whether, based upon the factual and situational matrix of the case, the question to be answered is whether or not for eduction u/s,54F, has the appellant invested the ing in the Capital Gain Account within the stipulated years? In this case, this question will have to be answered negative, since, it is an undisputed fact that the appellant has utilized till April 02, 2010, thereby making it clear that the . It is also relevant to note, however, that the appellant has made further payment of Rs.87,89,121/- in May that benefit of Section 54F(2) should also be allowed for these amounts as the circumstances were beyond the control of the appellant, 1 note that it is crystal clear that in case of the appellant, n which appellant has already paid, taxes, being unutilized amount in Capital Gains account as on shall be the fate of the propriety of the allowance of the exemption u/s.54F to the tune of , which actually represents the payment of installment in May 2012, and which payment is in apparent violation of the limit of 3 years enshrined note that the proviso to Section 54F(4) clearly enunciates that, if the amount deposited is not Utilized wholly or partially for the purchase or construction of the new asset within the period tilized amount shall be charged u/s,45 as income of the previous year in which the period of 3 years from -much clear that of partial payment as -, beyond the prescribed limit of 3 years is a serious substantive violation of the provisions ions of the appellant is that the limit of 3 years as discussed in detail above has been breached due to the circumstances beyond the control of the appellant as the project was delayed. This may indeed be so, however, that does not take away anfrom the legal position that when the legislature in its wisdom has prescribed a certain period i.e. in the instance matter, the limit of 3 years for utilizing the unutilized amount in the capital gain account, then this limit cannotat the whim of the appellant. It has to be strictly (vi) The Ld.CIT(A) further relied on the decision of the Hon’ble Supreme Court in the case of Commissioner of Customs (Import) Mumbai vs. M/s Dilip Kumar and Company and Ors 9 SCC(FB)(SC) by holding that exemption provision has to be interpreted strictly. He also relied on other decisions. The relevant part of his decision is reproduced as under:5.6 It is of paramount importance to note that recently, a Constitution Bench (Bench of Five Judges) of HonLandmark judgement Customs(Import)Mumbai Vs. M/s Dilip Kumar and has overruled the ThreeCorporation, Bombay vs Collector of Customs, Bombay SC-CX-LB] (“Sun Export case”“In case of ambiguity in a charging provision, benefit must necessarily go in favour of assessee but the same is not true for aWhen there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject / assessee and it must be interpreted in favour of the revIt shall be very clear that, the above ratio of the Hon'ble Apex Court decision squarely applies to the appellant, since, what is being interpreted here is the deduction u/s.54F. As per the above decision, all the provisions have to be strictly interpreted including the time limit of 3 years for making good the unutilized investment. In the instant case, there is breach of this limit and hence the appellant shall be rendered disentitled to the said deduction 5.7 The appellant has contended that since the making the impugned investment was beyond the control of the appellant, hence, This may indeed be so, however, that does not take away any material stipulation from the legal position that when the legislature in its wisdom has prescribed a certain period i.e. in the instance matter, the limit of 3 years for utilizing the unutilized amount in the capital gain account, then this limit cannotat the whim of the appellant. It has to be strictly followed.” further relied on the decision of the Hon’ble Supreme Court in the case of Commissioner of Customs (Import) Mumbai vs. M/s Dilip Kumar and Company and Ors 9 SCC(FB)(SC) by holding that exemption provision has to be interpreted He also relied on other decisions. The relevant part of his decision is reproduced as under:- It is of paramount importance to note that recently, a Constitution Five Judges) of Hon’ble Supreme Court of India in aLandmark judgement in the case of Commissioner of Mumbai Vs. M/s Dilip Kumar and and Company and Orsd the Three-Judge judgement in the case of Corporation, Bombay vs Collector of Customs, Bombay [2002“Sun Export case”) to firmly hold that: “In case of ambiguity in a charging provision, benefit must necessarily go in favour of assessee but the same is not true for an exemption notification. When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject / assessee and it must be interpreted in favour of the revenue.” It shall be very clear that, the above ratio of the Hon'ble Apex Court decision squarely applies to the appellant, since, what is being interpreted here is the deduction u/s.54F. As per the above decision, all the provisions have to be strictly including the time limit of 3 years for making good the unutilized investment. In the instant case, there is breach of this limit and hence the appellant shall be rendered disentitled to the said deduction. 5.7 The appellant has contended that since the breach of the three years cap in making the impugned investment was beyond the control of the appellant, hence, Shalini Anand Murthy ITA 2404/Mum/2019 6 y material stipulation from the legal position that when the legislature in its wisdom has prescribed a certain period i.e. in the instance matter, the limit of 3 years for utilizing the unutilized amount in the capital gain account, then this limit cannot be extended further relied on the decision of the Hon’ble Supreme Court in the case of Commissioner of Customs (Import) Mumbai vs. M/s Dilip Kumar and Company and Ors 9 SCC 1 (FB)(SC) by holding that exemption provision has to be interpreted He also relied on other decisions. The relevant part of his It is of paramount importance to note that recently, a Constitution ble Supreme Court of India in a Commissioner of and Company and Ors Judge judgement in the case of Sun Export [2002-TIOL-118-“In case of ambiguity in a charging provision, benefit must necessarily go in n exemption notification. When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject / It shall be very clear that, the above ratio of the Hon'ble Apex Court decision squarely applies to the appellant, since, what is being interpreted here is the deduction u/s.54F. As per the above decision, all the provisions have to be strictly including the time limit of 3 years for making good the unutilized investment. In the instant case, there is breach of this limit and hence the breach of the three years cap in making the impugned investment was beyond the control of the appellant, hence, a liberal view may be taken. Many judicial precedents were also cited. However, the Apex Court decision in case of M/s supra) makes it amply clear that to construed strictly and thatof the provisions now stands overruled. In the instant case as well, the tiof three years "will have to be strictly interpreted going by the yardstick adopted in the case of M/s Dilip Kumar arid Company and Ors. Hence, the case lawsquoted by the appellant will be of little assistance to the appellant. In anyis a trite law that each judicial decision is rendered in the veryfactual matrix of that case and therefore it is not eitherprudent to superimpose the facts of the various ease laws cited. In this sense, each case is undisputedly unique and stands on different pedestal5.8 Further, it would be pertinent to note that where the language is clear the intention of the Legislature is to be gathered, from the language used. A construction which requires, for its support, ador which results in rejection of words, has to be avoided, unless it is covered 'by the rule of exception, including that of necessity Mfg. (Wvg.) Co. Ltd, v. Custodian of Vested Forests, Palghat A/R1747; Smt, Shyam Kishori Devi SC 1678; A.M. Antuluy v. Ramdas Sriniwas Nayak the Court cannot reframof Kerala. v. Mathai VergheseNandan Aggarwal AlR 1992 SC When words used are not ambiguous, literal meaning has to be applied (Dental Council of India v. Hari Prakash question of interpretation if the words of the statute are clear. Grammatical construction has been accepted as the golden rule (Raghunandan Saran Ashok Saran SC 1682). The hon'ble Supreme CourtPresident of India MR "But there is one principle on which, there is complete unanimity of all the courts in the world and. this is that where words or the language used in a statute are clear and cloudlintelligible and pointed so support from external aids. In such cases, the statute shouldon the face of the language or itself without, adding, subtwords therefrom.. It is crystal. a liberal view may be taken. Many judicial precedents were also cited. However, ourt decision in case of M/s Dilip Kumar and Company amakes it amply clear that the provisions of any deduction section have be to construed strictly and that the earlier law relating to the liberal interpretation stands overruled. In the instant case as well, the ti"will have to be strictly interpreted going by the yardstick adopted of M/s Dilip Kumar arid Company and Ors. Hence, the case lawsquoted by the appellant will be of little assistance to the appellant. In anya trite law that each judicial decision is rendered in the veryfactual matrix of that case and therefore it is not either judicially expedient or prudent to superimpose the facts of the various ease laws cited. In this sense, undisputedly unique and stands on different pedestal5.8 Further, it would be pertinent to note that where the language is clear the intention of the Legislature is to be gathered, from the language used. A construction which requires, for its support, addition of substitution of words or which results in rejection of words, has to be avoided, unless it is covered the rule of exception, including that of necessity (see Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd, v. Custodian of Vested Forests, Palghat A/Rm Kishori Devi v. Patna Municipal Corporation AIR Antuluy v. Ramdas Sriniwas Nayak [19S4] 2 SCR 914). Indeed the Court cannot reframe the legislation as it has no power to legislate ai Verghese[1987] 1 SCR 317; Union of India v. Deoki AlR 1992 SC 96). When words used are not ambiguous, literal meaning has to be applied (Dental Council of India v. Hari Prakash [200 Ij 8 SCC 61). There is no interpretation if the words of the statute are clear. Grammatical construction has been accepted as the golden rule (Raghunandan Saran Ashok Saran v. Pearey Lal Workshop (P) Ltd. AIR SC 1682). The hon'ble Supreme Court observed as follows in President of India MR 1982 SC 149 : "But there is one principle on which, there is complete unanimity of all the courts in the world and. this is that where words or the language used in a statute are clear and cloudless, plain, simple and explicit unclouded, intelligible and pointed so as to admit no ambiguity no room for deriving support from external aids. In such cases, the statute shouldon the face of the language or itself without, adding, subtracting or omitting. words therefrom.. It is crystal. Clear in the present case, the stipulation of the Shalini Anand Murthy ITA 2404/Mum/2019 7 a liberal view may be taken. Many judicial precedents were also cited. However, Dilip Kumar and Company and Ors (cited of any deduction section have be the earlier law relating to the liberal interpretation stands overruled. In the instant case as well, the time limit "will have to be strictly interpreted going by the yardstick adopted of M/s Dilip Kumar arid Company and Ors. Hence, the case laws quoted by the appellant will be of little assistance to the appellant. In any case, it a trite law that each judicial decision is rendered in the very peculiar and judicially expedient or prudent to superimpose the facts of the various ease laws cited. In this sense, undisputedly unique and stands on different pedestal 5.8 Further, it would be pertinent to note that where the language is clear the intention of the Legislature is to be gathered, from the language used. A dition of substitution of words or which results in rejection of words, has to be avoided, unless it is covered (see Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd, v. Custodian of Vested Forests, Palghat A/R 1990 SO Patna Municipal Corporation AIR 1966 [19S4] 2 SCR 914). Indeed e the legislation as it has no power to legislate (State Union of India v. Deoki When words used are not ambiguous, literal meaning has to be applied [200 Ij 8 SCC 61). There is no interpretation if the words of the statute are clear. Grammatical construction has been accepted as the golden rule Pearey Lal Workshop (P) Ltd. AIR 1986 observed as follows in S.P. Gupta v. "But there is one principle on which, there is complete unanimity of all the courts in the world and. this is that where words or the language used in a ess, plain, simple and explicit unclouded, to admit no ambiguity no room for deriving support from external aids. In such cases, the statute should be interpreted racting or omitting. in the present case, the stipulation of the limit of three years cannotwisdom has prescribed the said limit. 5.9 Further, the following isThe first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself, The question is not what may be supposed and has been intended butbeen said. "Statutes should b“but words must be construed with some imagination of the purposes which lie behind them” (see Lenigh Valley Coal Co. v. Yensavage 218 FR 547). This view was reiterated in (Union of India v. Filip Tiago De GamGama AIR 1990 SC 981); the legislative intent. 5.10 There is only one principle of construction, namely, to ascertain what Parliament meant by using the language of the statute. construction are no more than guides assist the task of interpretation (Lord Hoffman in Macniven HLtd. [2001] 2 WLR 337 (HL); It is further of particular danger of a priori determination of the meaning of a provision based on their predetermined notions of ideological structure or scheme intoprovision to be interpreted is somewhat, fitted; legislative function under the disguise of v. Deputy Transport Comrnissionor 5.11 While interpreting a provision, the court only interprets the law andcannot legislate. If a provision of law is misused and subjected to thethe process of the law, it is for the Legislature to amend, modifydeemed necessary (see Rishab Agro Industries Lid. v, P.N.B.Capital Ltd. (2000J 101 Comp. Gas. 284: [20casus omissus cannot be supplied by judicial interpretativeinterpreting a particular provision of law to ascertain theof the legislature, the court should presumeto effectuate a particular object to meet[Easland Combines v. Collector of cannot be liberally extended, since, the legislature, in" its prescribed the said limit. 5.9 Further, the following is noted: The first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself, The question is not what may be supposed and has been intended but"Statutes should be construed not as Elucid”. Judge Hand said, “but words must be construed with some imagination of the purposes which lie behind them” (see Lenigh Valley Coal Co. v. Yensavage 218 FR 547). This view was reiterated in (Union of India v. Filip Tiago De Gama of Vedem Dee Gama AIR 1990 SC 981); Literal rule is the principle rule for determining 5.10 There is only one principle of construction, namely, to ascertain what Parliament meant by using the language of the statute. All other principles of construction are no more than guides assist the task of interpretation (Lord ven H.M. Inspector of Taxes v, Westmorland Investments 2 WLR 337 (HL); [2002] 255 ITR 612). It is further of particular importance to note that the courts must avoid the danger of a priori determination of the meaning of a provision based on their predetermined notions of ideological structure or scheme intoprovision to be interpreted is somewhat, fitted; they are not entitled to usurp under the disguise of interpretation (D.R. Venkatachalam Deputy Transport Comrnissionor 1977 SC 842); While interpreting a provision, the court only interprets the law andprovision of law is misused and subjected to thethe process of the law, it is for the Legislature to amend, modify(see Rishab Agro Industries Lid. v, P.N.B.Capital Ltd. (2000J 101 Comp. Gas. 284: [2000] 5 SCC 515); thecannot be supplied by judicial interpretativeinterpreting a particular provision of law to ascertain the meaning and intendment the court should presume that the provision was designed to effectuate a particular object to meet a particular Combines v. Collector of Central Excise [2003] 1 Shalini Anand Murthy ITA 2404/Mum/2019 8 the legislature, in" its The first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself, The question is not what may be supposed and has been intended but what has not as Elucid”. Judge Hand said, “but words must be construed with some imagination of the purposes which lie behind them” (see Lenigh Valley Coal Co. v. Yensavage 218 FR 547). This a of Vedem Dee Literal rule is the principle rule for determining 5.10 There is only one principle of construction, namely, to ascertain what All other principles of construction are no more than guides assist the task of interpretation (Lord M. Inspector of Taxes v, Westmorland Investments importance to note that the courts must avoid the danger of a priori determination of the meaning of a provision based on their predetermined notions of ideological structure or scheme into which the entitled to usurp interpretation (D.R. Venkatachalam While interpreting a provision, the court only interprets the law and provision of law is misused and subjected to the abuse of the process of the law, it is for the Legislature to amend, modify or repeal it, if (see Rishab Agro Industries Lid. v, P.N.B.Capital Ltd. 00] 5 SCC 515); the legislative cannot be supplied by judicial interpretative principle. In meaning and intendment provision was designed a particular requirement Central Excise [2003] 1 RC 29(SC)]. 5.12 In view of the above factual and legal matrix, I find that the action of theAO in making the impugned disallowance cannot be faulted and as such the disallowance u/s.54F is upheld. Consequently, the ground nos. 1 ,2 & 3 stand DISMISSED.” 4. Before us, the Ld.Counsel of the assesseedecisions which were cited before the Ld.CIT(A) and in view of the decisions, he submitted that provisions of the Act should be construed liberally due to situations beyond control of the assessee.5. The Ld.DR, on the other hand, reliedauthorities. 6. We have heard the rival submissions of the parties on this issue and perused the relevant materials on record. The issue in dispute involved is regarding the clearly states that if the amount deposited into the Account Scheme” is not utilized wholly or partially for the purchase or construction of the new asset within the period specified in sub section (1) of section 54F i.e. within 3 years from the date of transfer of the original asset, then the unutilized amount shall be charged under section 45 as income of the previous year in which the period of 3 years from the date of transfer of the original asset expires. The contention of the assessee in the instant casamount of ₹87,89,121/should be considered for deduction under section 54F of the Act, whereas the period of 3 years from the date of the transfer of the of the above factual and legal matrix, I find that the action of theAO in making the impugned disallowance cannot be faulted and as such the disallowance u/s.54F is upheld. Consequently, the ground nos. 1 ,2 & 3 stand Before us, the Ld.Counsel of the assessee has relied on the decisions which were cited before the Ld.CIT(A) and in view of the decisions, he submitted that provisions of the Act should be construed liberally due to situations beyond control of the assessee.The Ld.DR, on the other hand, relied on the orderWe have heard the rival submissions of the parties on this issue and perused the relevant materials on record. The issue in dispute involved is regarding the proviso below section 54F(4)t if the amount deposited into the is not utilized wholly or partially for the purchase or construction of the new asset within the period specified in sub section (1) of section 54F i.e. within 3 years from the date of er of the original asset, then the unutilized amount shall be charged under section 45 as income of the previous year in which the period of 3 years from the date of transfer of the original asset expires. The contention of the assessee in the instant cas87,89,121/- was paid in the month of May, 2010 should be considered for deduction under section 54F of the Act, whereas the period of 3 years from the date of the transfer of the Shalini Anand Murthy ITA 2404/Mum/2019 9 of the above factual and legal matrix, I find that the action of the AO in making the impugned disallowance cannot be faulted and as such the disallowance u/s.54F is upheld. Consequently, the ground nos. 1 ,2 & 3 stand has relied on the decisions which were cited before the Ld.CIT(A) and in view of the decisions, he submitted that provisions of the Act should be construed liberally due to situations beyond control of the assessee. on the orders of the lower We have heard the rival submissions of the parties on this issue and perused the relevant materials on record. The issue in roviso below section 54F(4) which t if the amount deposited into the “Capital gain is not utilized wholly or partially for the purchase or construction of the new asset within the period specified in sub section (1) of section 54F i.e. within 3 years from the date of er of the original asset, then the unutilized amount shall be charged under section 45 as income of the previous year in which the period of 3 years from the date of transfer of the original asset expires. The contention of the assessee in the instant case is that was paid in the month of May, 2010 should be considered for deduction under section 54F of the Act, whereas the period of 3 years from the date of the transfer of the original asset expired in April, 2010. It is submitted in investment beyond the period of 3 years was beyond control of the assessee and mainly due to the delay on account of the builder not being able to complete the construction as per the time frame agreed initially. During the course of heaassessee was asked to submit necessary documents in support of the contention that delay in investment by the assessee was due to the delay on the part of the builder in not completconstruction as per the time frame. Howere furnished before us. decisions relied upon by the Ld.Counsel of the assessee cannot be applied over the facts of the instant caseLd.CIT(A) that the provisionsinterpreted strictly, in this regard the Ld.CIT(A) has binding precedent of the Hon’ble Supreme Court. The relevant part of the order of Ld.CIT(A) 9. In view of the above facts and circumstances and the binding precedent followed by the Ld.CIT(A) on the issue in dispute, we do not find any error in the order of the Ld.CIT(A) on the issue and accordingly, we uphold the same. Ground 2 of the appeal of thassessee is accordingly dismissed. original asset expired in April, 2010. It is submitted in investment beyond the period of 3 years was beyond control of the assessee and mainly due to the delay on account of the builder not being able to complete the construction as per the time frame agreed initially. During the course of hearing, the Ld.Counsel of the assessee was asked to submit necessary documents in support of the contention that delay in investment by the assessee was due to the delay on the part of the builder in not completconstruction as per the time frame. However, no such evidences were furnished before us. In such circumstances, the ratio decisions relied upon by the Ld.Counsel of the assessee cannot be applied over the facts of the instant case. Further, as noted by the Ld.CIT(A) that the provisions claiming exemptioninterpreted strictly, in this regard the Ld.CIT(A) has binding precedent of the Hon’ble Supreme Court. The relevant part of the order of Ld.CIT(A) has already been reproducedIn view of the above facts and circumstances and the binding precedent followed by the Ld.CIT(A) on the issue in dispute, we do not find any error in the order of the Ld.CIT(A) on the issue and accordingly, we uphold the same. Ground 2 of the appeal of thassessee is accordingly dismissed. Shalini Anand Murthy ITA 2404/Mum/2019 10 original asset expired in April, 2010. It is submitted that the delay in investment beyond the period of 3 years was beyond control of the assessee and mainly due to the delay on account of the builder not being able to complete the construction as per the time frame ring, the Ld.Counsel of the assessee was asked to submit necessary documents in support of the contention that delay in investment by the assessee was due to the delay on the part of the builder in not completing the wever, no such evidences , the ratio of the decisions relied upon by the Ld.Counsel of the assessee cannot be Further, as noted by the claiming exemption has to be interpreted strictly, in this regard the Ld.CIT(A) has followed the binding precedent of the Hon’ble Supreme Court. The relevant part reproduced above:- In view of the above facts and circumstances and the binding precedent followed by the Ld.CIT(A) on the issue in dispute, we do not find any error in the order of the Ld.CIT(A) on the issue and accordingly, we uphold the same. Ground 2 of the appeal of the 10. In the result, appeal of the assessee is dismissed.Order pronounced under Rule 34(4) of the ITAT Rules, 1963 on 12/01/2023. Sd/- (ABY T VARKEYJUDICIAL MEMBERMumbai; Dated: 12/01/2023 Pavanan, Sr. P.S. Copy of the Order forwarded to1. The Appellant 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// In the result, appeal of the assessee is dismissed.Order pronounced under Rule 34(4) of the ITAT Rules, 01/2023. sd/ABY T VARKEY) (OM PRAKASH KANTJUDICIAL MEMBER ACCOUNTANT MEMBERCopy of the Order forwarded to : BY ORDER, (Sr. Private Secretary) ITAT, MumbaiShalini Anand Murthy ITA 2404/Mum/2019 11 In the result, appeal of the assessee is dismissed. Order pronounced under Rule 34(4) of the ITAT Rules, sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER BY ORDER, (Sr. Private Secretary) ITAT, Mumbai