Dy.Commissioner of Income Tax, Lucknow V. Sri Aseem Rastogi, Lucknow

ITA 363/LKW/2014

• Counselvise Citation: 36323714 RSA 2014
• Duration Of Justice: 1 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 10-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 08-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A P SINHA
• Keywords: Capital asset; Business income; Valuation report; Benefit of exemption
• Section: 143(3); 54F; 54; 139

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI A.K. GARODIA, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO.363/LKW/2014 & CO 33/LKW/2014 ASSESSMENT YEAR:2008-2009 DCIT, CIRCLE - 3, LUCKNOW VS. SRI ASEEM RASTOGI, B-3/229, VINAY KHAND, VIDHAYAPURAM, LUCKNOW SRI ASEEM RASTOGI, B-3/229, VINAY KHAND, VIDHAYAPURAM, LUCKNOW VS. DCIT, CIRCLE - 3, LUCKNOW (APPELLANT) (RESPONDENT) APPELLANT BY SMT. ALKA SINGH, D.R. RESPONDENT BY SHRI A.P. SINHA, ADVOCATE DATE OF HEARING 10 /0 8 /201 5 DATE OF PRONOUNCEMENT 2 0 / 0 8 / 2 0 1 5 O R D E R PER SUDHANSHU SRIVASTAVA , J.M. : ITA 363/LKW/2014 IS THE DEPARTMENT'S APPEAL DIRECTED AGAINST THE ORD ER OF LEARNED CIT (A) - II, LUCKNOW, DATED 31.12.2013 FOR A.Y. 2008 2009 DELETING THE ADDITION OF RS. 1,16,40,000/- ON ACCOUNT OF CAP ITAL GAINS MADE BY ACIT RANGE - III, LUCKNOW VIDE ORDER U/S 143(3) DATED 28.12.2010. CO 33/LKW/2014 HAS BEEN FILED BY THE ASSESSEE. WE ARE DISPOSING BOTH BY THI S COMMON ORDER. 2. ITA 363/LKW/2014 : THE FACTS IN BRIEF, BORNE OUT FROM THE RECORDS ARE THAT DURING AY 2008-09, ON 11TH MAY 2007, THE A SSESSEE SOLD A RESIDENTIAL PROPERTY FOR A TOTAL SALES CONSIDERATION OF RS. 2 C RORES. OUT OF THE SALES PROCEEDS, A 2 RESIDENTIAL PLOT WAS PURCHASED FOR RS. 54,40,000/- IN JULY 2007 AND RS. 63,00,000/- WERE DEPOSITED IN CAPITAL GAINS ACCOUNTS SCHEME IN JULY 2008. THUS A TOTAL AMOUNT OF RS. 1,17,40,000/- WAS INVESTED IN PRESCRIBED MOD ES TO CLAIM EXEMPTION U/S 54F OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED THE 'A CT'). IT MAY ALSO BE MENTIONED THAT DUE TO SOME COMPUTATIONAL ERROR ON THE PART OF THE ASSESSEE, THE TOTAL AMOUNT INVESTED AND CLAIMED AS EXEMPT U/S 54 OF THE ACT WA S TAKEN AT RS. 1,16,40,000/- AND THIS AMOUNT CLAIMED AS EXEMPT IS IN DISPUTE BEF ORE US. DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 2008 -09 AND WHILE EXAMINING THE VALIDITY OF CLAIM OF EXEMPTION U/S 54, THE AO CALLE D FOR THE INSPECTOR'S REPORT ON THE ISSUE OF COMPLETION OF CONSTRUCTION OF HOUSE PROPER TY. THE ITI VIDE HIS REPORT DATED 10.11.2010 SUBMITTED THAT THE CONSTRUCTION OF THE H OUSE WAS AT A PRELIMINARY STAGE ONLY AND THAT IN HIS OPINION , IT MAY TAKE A LONG T IME TO COMPLETE THE CONSTRUCTION. BASED ON THE REPORT OF THE ITI, THE AO CONCLUDED THA T THE CONSTRUCTION OF THE NEW RESIDENTIAL HOUSE WAS NOT COMPLETE EVEN ON 10.11.20 10. THE AO WAS OF THE VIEW THAT SINCE THE TRANSFER OF PROPERTY HAD TAKEN PLACE ON 11TH MAY 2007 (RELEVANT TO AY 2008-09), IN ORDER TO AVAIL THE EXEMPTION U/S 54 OF THE ACT, THE NEW RESIDENTIAL HOUSE SHOULD HAVE BEEN CONSTRUCTED WITHIN THREE YEA RS FROM THE DATE OF TRANSFER I.E. IN BETWEEN 11.05.2007 AND 10.05.2010. THE AO FURTHE R CONCLUDED THAT SINCE RS 54,40,000/- WERE SPENT ON PURCHASE OF A PLOT AND NO T TOWARDS THE CONSTRUCTION OF A RESIDENTIAL PROPERTY, THE SAME WOULD NOT QUALIFY FO R EXEMPTION U/S 54 OF THE ACT. ACCORDINGLY, THE AO DISALLOWED THE EXEMPTION CLAIM OF RS. 54,40,000/- TOWARDS THE PURCHASE OF PLOT IN AY 2008-09 ITSELF. AS REGARDS T HE SECOND PORTION OF CLAIM OF EXEMPTION OF RS 63,00,000/-, THE AO WAS OF THE VIEW THAT THE CAPITAL GAINS ACCOUNT SCHEME, 1988 REQUIRES THAT THE DEPOSIT IN THE SCHEM E SHOULD BE MADE BEFORE THE 3 DUE DATE OF FILING OF THE RETURN OF INCOME. THE AO HAS NOTED THAT ALTHOUGH THE DATE OF INITIAL DEPOSIT IN THE SAVINGS BANK ACCOUNT OF T HE CAPITAL GAINS ACCOUNT SCHEME, 1988 WAS 18.07.2008, THE SUM OF RS. 63,00,000/- WAS TRANSFERRED TO THE FIXED DEPOSIT ACCOUNT UNDER THE SAID SCHEME ON 06.08.2008 I.E. BEYOND THE DUE DATE OF FILING OF THE RETURN OF INCOME FOR AY 2008-09. THE AO CONCLUDED THAT SINCE THE AMOUNT OF RS. 63,00,000/- WAS DEPOSITED BEYOND THE STIPULATED DATE, THE CLAIM OF EXEMPTION COULD NOT BE ALLOWED. THUS, THE TOTAL CL AIM OF EXEMPTION OF RS. 1,16,40,000/- WAS DISALLOWED AND WAS ADDED BACK TO THE INCOME OF THE ASSESSEE IN AY 2008-09 ITSELF. 3. IN THE FIRST APPELLATE PROCEEDINGS, THE LEARNED CIT(A) HELD THAT SINCE THE ASSESSEE HAD INVESTED THE SALE PROCEEDS IN ACQU IRING A PLOT OF LAND AND THAT THE FACT OF INVESTMENT IN LAND WAS NOT DISPUTED AND THA T SINCE THE ASSESSEE HAD DEPOSITED THE BALANCE AMOUNT IN THE SAVINGS ACCOUNT OF THE SPECIFIED CAPITAL GAINS ACCOUNT SCHEME, 1988 WITHIN THE PRESCRIBED DUE DATE , THE ADDITION COULD NOT BE SUSTAINED AND ACCORDINGLY THE APPEAL OF THE ASSESSE E WAS ALLOWED. 4. IN THE APPEAL BEFORE US, IT IS THE DEPARTMENT'S GRIEVANCE THAT THE ADDITION HAS BEEN WRONGLY DELETED BY THE LEARNED CI T(A) ON TWO ISSUES: (I) INVESTMENT OF RS. 54,40,000/- TOWARDS PURCHASE OF PL OT OF LAND; AND (II) DEPOSIT OF RS. 63,00,000/- IN THE CAPITAL GAINS ACCOUNTS SCHEM E, 1988. 5. WE TAKE UP THE ISSUE OF PURCHASE OF LAND FIRST . IT IS SEEN THAT, IT IS NOT IN DISPUTE THAT THE LAND WAS PURCHASED BY THE ASSES SEE IN ASSESSMENT YEAR 2008-09. 4 IT IS ALSO NOT IN DISPUTE THAT THE NATURE OF THE LAN D PURCHASED IS RESIDENTIAL, AS IS EVIDENT FROM THE COPY OF PURCHASE DEED ON RECORD. T HE ONLY GROUND FOR DENYING THE EXEMPTION IS THAT THE CONSTRUCTION OF THE HOUSE WAS NOT COMPLETE WITHIN THE STIPULATED TIME. THE LEARNED AR OF THE ASSESSEE PL ACED RELIANCE ON THE JUDGMENT OF THE HON'BLE MADRAS HIGH COURT RENDERED IN THE CASE OF CIT VS SARDARMAL KOTHARI & ANOTHER 302 ITR 286 (MAD.). WHEREIN THE HON'BLE MAD RAS HIGH COURT HAS HELD THAT WHERE THE ASSESSEE HAD ADMITTEDLY PURCHASED LAND BY INVESTING THE CAPITAL GAINS AND HAD CONSTRUCTED RESIDENTIAL HOUSE, NON-COMPLETI ON OF CONSTRUCTION WITHIN THREE YEARS WAS IMMATERIAL. THE LEARNED AR FOR THE ASSESS EE ALSO DREW OUR ATTENTION TO PAGES 4 TO 10 OF THE PAPER BOOK FILED BY HIM WHICH CONTAIN A COPY OF THE VALUATION REPORT DATED 21.07.2010 IN WHICH THE ESTIMATED COST OF CONSTRUCTION HAS BEEN WORKED OUT AT RS. 51,61,000/-. 6. IT WILL ALSO BE WORTHWHILE TO REPRODUCE SECTIO N 54 OF THE ACT WHICH READS AS UNDER: 'PROFIT ON SALE OF PROPERTY USED FOR RESIDENCE. 54. [(1)] [ [SUBJECT TO THE PROVISIONS OF SUB-SE CTION (2), WHERE, IN THE CASE OF AN ASSESSEE BEING AN INDIVIDUAL OR A HINDU UNDI VIDED FAMILY], THE CAPITAL GAIN ARISES FROM THE TRANSFER OF A LONG-TERM CAPIT AL ASSET [***], BEING BUILDINGS OR LANDS APPURTENANT THERETO, AND BEING A RESIDENTIAL HOUSE, THE INCOME OF WHICH IS CHARGEABLE UNDER THE HEAD 'INCOM E FROM HOUSE PROPERTY' (HEREAFTER IN THIS SECTION REFERRED TO AS THE ORIG INAL ASSET), AND THE ASSESSEE HAS WITHIN A PERIOD OF [ONE YEAR BEFORE OR TWO YE ARS 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 GAIN BEING CHARGED TO INCOME-TAX AS INCOME OF THE PREVI OUS YEAR IN WHICH THE TRANSFER TOOK PLACE, IT SHALL BE DEALT WITH IN ACC ORDANCE WITH THE FOLLOWING PROVISIONS OF THIS SECTION, THAT IS TO SAY, (I) IF THE AMOUNT OF THE CAPITAL GAIN [IS GREATER THAN THE COST OF [THE RESIDENTIAL HOUSE] SO PURCHASED OR CONSTRUCTED (HER EAFTER IN THIS SECTION REFERRED TO AS THE NEW ASSET)], THE DIFFERENCE BETW EEN THE AMOUNT OF 5 THE CAPITAL GAIN AND THE COST OF THE NEW ASSET SHAL L BE CHARGED UNDER SECTION 45 AS THE INCOME OF THE PREVIOUS YEAR ; AND FOR THE PURPOSE OF COMPUTING IN RESPECT OF THE NEW ASSET AN Y 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 CHARGE D UNDER SECTION 45; AND FOR THE PURPOSE OF COMPUTING IN RESPECT OF THE NEW ASSET ANY CAPITAL GAIN ARISING FROM ITS TRANSFER WITHIN A PER IOD OF THREE YEARS OF ITS PURCHASE OR CONSTRUCTION, AS THE CASE MAY BE, THE C OST SHALL BE REDUCED BY THE AMOUNT OF THE CAPITAL GAIN. [***] [(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 ORIGINAL ASSET TOOK P LACE, OR WHICH IS NOT UTILISED BY HIM FOR THE PURCHASE OR CONSTRUCTION OF THE NEW ASSET BEFORE THE DATE OF FURNISHING THE RETURN OF INCOME UNDER SECTION 139, SHALL BE DEPOSITED BY HIM BEFORE FURNISHING SUCH RETURN [SUCH DEPOSIT BEING MADE IN ANY CASE NOT LATER THAN THE DUE DATE APPLICABLE IN THE CASE OF THE AS SESSEE 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, A ND UTILISED IN ACCORDANCE WITH, ANY SCHEME WHICH THE CENTRAL GOVERNMENT MAY, BY NOTIFICATION IN THE OFFICIAL GAZETTE, FRAME IN THIS BEHALF AND SUCH RE TURN SHALL BE ACCOMPANIED BY PROOF OF SUCH DEPOSIT; AND, FOR THE PURPOSES OF SU B-SECTION (1), THE AMOUNT, IF ANY, ALREADY UTILISED BY THE ASSESSEE FOR THE PURC HASE OR CONSTRUCTION OF THE NEW ASSET TOGETHER WITH THE AMOUNT SO DEPOSITED SH ALL BE DEEMED TO BE THE COST OF THE NEW ASSET : PROVIDED THAT IF THE AMOUNT DEPOSITED UNDER THIS SUB-SECTIO N IS NOT UTILISED WHOLLY OR PARTLY FOR THE PURCHASE OR CONSTRUCTION OF THE NEW ASSET WITHIN THE PERIOD SPECIFIED IN SUB-SECTION (1), THEN, (I) THE AMOUNT NOT SO UTILISED SHALL BE CHARGED UN DER SECTION 45 AS THE INCOME OF THE PREVIOUS YEAR IN WHICH THE PERIOD OF THREE YEARS FROM THE DATE OF THE TRANSFER OF THE ORIGINAL ASSET EXPIRES; AND (II) THE ASSESSEE SHALL BE ENTITLED TO WITHDRAW SU CH AMOUNT IN ACCORDANCE WITH THE SCHEME AFORESAID. EXPLANATION. [OMITTED BY THE FINANCE ACT, 1992, W .E.F. 1-4-1993.] ' 7. REFERENCE MAY ALSO BE MADE HERE TO CIRCULAR NO . 495, DATED 22ND SEPTEMBER, 1987 (168 ITR (ST.) 87) WHICH CONTAINS T HE EXPLANATORY NOTES ON THE 6 PROVISIONS RELATING TO DIRECT TAXES AS CONTAINED IN THE FINANCE ACT, 1987. PARA 26.1 AND 26.2 ARE RELEVANT TO THE ISSUE INVOLVED AND ARE REPRODUCED HERE UNDER : '26.1 UNDER THE EXISTING PROVISIONS OF SECTIONS 54, 54B, 54D AND 54F, LONG- TERM CAPITAL GAINS ARISING FROM THE TRANSFER OF AN Y IMMOVABLE PROPERTY USED FOR RESIDENCE, LAND USED FOR AGRICULTURAL PURPOSES , COMPULSORY ACQUISITION OF LANDS AND BUILDINGS AND OTHER CAPITAL ASSETS ARE E XEMPT FROM INCOME TAX IF SUCH GAINS ARE REINVESTED IN NEW ASSETS WITHIN THE TIME ALLOWED FOR THE PURPOSE. THE ORIGINAL ASSESSMENT NEEDS RECTIFICATI ON WHENEVER THE TAXPAYER FAILS TO ACQUIRE THE CORRESPONDING NEW ASSET. 26.2 WITH A VIEW TO DISPENSE WITH SUCH RECTIFICATI ONS OF ASSESSMENTS, AMENDMENTS MADE TO SECTIONS 54, 54B, 54D AND 54F P ROVIDE FOR A NEW SCHEME FOR DEPOSIT OF AMOUNTS MEANT FOR REINVESTME NT IN THE NEW ASSET. AFTER THE AFOREMENTIONED AMENDMENTS, WHERE THE AMO UNT OF CAPITAL GAINS OR THE NET CONSIDERATION, AS THE CASE MAY BE, IS NOT APPROPRIATED OR UTILISED BY THE TAX PAYER FOR ACQUISITION OF THE NEW ASSET BEF ORE THE DATE FOR FURNISHING THE RETURN OF INCOME, IT SHALL BE DEPOSITED BY HIM ON OR BEFORE THE DUE DATE OF FURNISHING THE RETURN OF INCOME, UNDER SECTION 139(1) IN AN ACCOUNT WITH A BANK OR INSTITUTION AND UTILISED IN ACCORDANCE WIT H A SCHEME FRAMED BY THE CENTRAL GOVERNMENT IN THIS REGARD. THE AMOUNT ALRE ADY UTILISED TOGETHER WITH THE AMOUNTS OF DEPOSIT SHALL BE DEEMED TO BE THE A MOUNT UTILISED FOR THE ACQUISITION OF THE NEW ASSET. IF THE AMOUNT DEPOSITED IS NOT UTILISED FULLY FOR ACQUIRING THE NEW ASSET WITHIN THE PERIO D STIPULATED, THE CAPITAL GAIN RELATABLE TO THE UNUTILISED AMOUNT SHALL BE TREATED AS CAPITAL GAIN OF THE PREVIOUS YEAR IN WHICH THE PER IOD SPECIFIED IN THESE PROVISIONS EXPIRES ....' (EMPHASIS SUPPLIED). 8. IN OUR CONSIDERED OPINION, AS PER THE SCHEME O F SECTION 54 OF THE ACT AND CIRCULAR NO 495 (SUPRA), IT IS CLEAR THAT CAPIT AL GAINS CANNOT BE CHARGED TO INCOME TAX IN THE PREVIOUS YEAR IN WHICH THE TRANSF ER OF THE ORIGINAL ASSET TAKES PLACE IF THE AMOUNT OF CAPITAL GAIN IS UTILISED BY THE ASSESSEE FOR ACQUISITION OF NEW ASSET AND THE BALANCE, IF ANY, IS DEPOSITED ON OR B EFORE THE DUE DATE FOR FILING OF RETURN OF INCOME U/S 139(1) IN THE SPECIFIED CAPITA L GAINS ACCOUNT SCHEME AND IF THE AMOUNT IS NOT UTILISED FULLY FOR ACQUIRING THE NEW ASSET WITHIN THE PRESCRIBED PERIOD, THE UNUTILISED AMOUNT CAN BE TAXED IN THE YEAR IN W HICH THE PERIOD EXPIRES. 7 9. OUR VIEW IS ALSO IN CONSONANCE WITH THE VIEWS OF THE HON'BLE MADRAS HIGH COURT IN CIT VS SARDARMAL KOTHARI AND ANOTHER 302 ITR 286 (MAD.) AND THAT OF OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF HA RSUTLAL J. RAVAL VS CIT 255 ITR 315 WHICH WE RESPECTFULLY FOLLOW. 10. ACCORDINGLY, IT IS OUR CONSIDERED OPINION THA T ON FACTS OF THE CASE, EXEMPTION U/S 54 CANNOT BE DENIED TO THE ASSESSEE IN THE YEAR IN WHICH THE TRANSFER OF ASSET TOOK PLACE AS FAR AS THE ASSESSEE HAS INVE STED RS. 54,40,000/- IN PURCHASE OF LAND ON WHICH THE HOUSE HAS BEEN CONSTRUCTED. TH E ISSUE OF DISALLOWANCE, IF ANY, WILL HAVE TO BE CONSIDERED IN THE PREVIOUS YEAR IN WHICH THE PERIOD OF THREE YEARS FROM THE DATE OF THE TRANSFER OF THE ORIGINAL ASSET EXPIRES. HENCE, THE APPEAL OF THE REVENUE IS DISMISSED ON THIS ISSUE. 11. AS FAR AS THE SECOND ISSUE OF INVESTMENT OF RS . 63,00,000/- IN THE CAPITAL GAINS ACCOUNTS SCHEME, 1988 IS CONCERNED, I T IS THE CONTENTION OF THE DEPARTMENT THAT ALTHOUGH THE INITIAL DEPOSIT IN THE CAPITAL GAINS ACCOUNT SCHEME (SAVINGS ACCOUNT) WAS MADE ON 18.07.2008 (I.E. BEFO RE THE DUE DATE OF FILING OF THE RETURN OF INCOME), A TRANSFER FROM SUCH SAVINGS ACC OUNT WAS MADE TO THE FIXED DEPOSIT ACCOUNT UNDER THE CAPITAL GAINS ACCOUNT SCH EME ON 06.08.2008 (I.E. AFTER THE DUE DATE OF FILING OF RETURN OF INCOME). THEREF ORE, SINCE THE DEPOSIT WAS MADE BEYOND THE DUE DATE, THE AO HAD RIGHTLY DENIED THE EXEMPTION U/S 54 OF THE ACT. 8 12. A REFERENCE MAY BE MADE HERE TO CLAUSE (4) OF THE CAPITAL GAINS ACCOUNT SCHEME, 1988 NOTIFIED VIDE NOTIFICATION NO. GSR 724(E), DATED 22ND JUNE, 1988 WHICH PROVIDES AS UNDER: '(1) ......... (2)........... (3).......... (4) TYPES OF DEPOSITS - (1) THERE SHALL BE TWO TYP ES OF DEPOSIT ACCOUNTS, NAMELY :- (I) DEPOSIT ACCOUNT - A AND (II) DEPOSIT ACCOUNT - B. (2) THE DEPOSIT MADE UNDER ACCOUNT A SHALL BE IN T HE FORM OF 'SAVINGS DEPOSIT' AND SUBJECT TO THE OTHER PROVISIONS OF TH IS SCHEME, WITHDRAWALS UNDER THIS ACCOUNT CAN BE MADE FROM TIME TO TIME B Y THE DEPOSITOR. (3)THE DEPOSIT MADE UNDER ACCOUNT B SHALL BE IN TH E FORM OF 'TERM DEPOSIT' WITH AN OPTION TO THE DEPOSITOR TO KEEP THE DEPOSI T AS CUMULATIVE OR NON- CUMULATIVE DEPOSIT. EXCEPT AS PROVIDED UNDER PARAG RAPH 7 AND PARAGRAPH 9, WITHDRAWALS UNDER THIS ACCOUNT CAN BE MADE ONLY AF TER THE EXPIRY OF THE PERIOD FOR WHICH THE DEPOSIT UNDER THIS ACCOUNT HA S BEEN MADE AND ACCEPTED. (4) SUCH DEPOSITS MAY BE MADE IN ONE LUMP SUM OR I N INSTALLMENTS AT ANY TIME ON OR BEFORE THE DUE DATE OF FURNISHING THE R ETURN OF INCOME UNDER SUB- SECTION (1) OF SECTION 139 OF THE ACT AS IS APPLIC ABLE IN THE CASE OF THE DEPOSITOR [OR THE ELIGIBLE ASSESSEE AS REFERRED T O IN SECTION 54GB].' 13. ON PERUSAL OF THE REMAND REPORT DATED 04.12.2 012 SUBMITTED BEFORE THE CIT(A), IT IS SEEN THAT THE AO HAS HIMSELF ADMI TTED IN THE REMAND REPORT THAT THE ASSESSEE HAD OPENED AN ACCOUNT WITH PUNJAB NATI ONAL BANK, HAZRATGANJ BRANCH, LUCKNOW UNDER CAPITAL GAINS ACCOUNT SCHEME AND THAT THE COPY OF THE ASSESSEE'S BANK ACCOUNT STATEMENT SHOWED THAT DEPOSITS TOTALIN G TO RS. 63,00,000/- WERE MADE IN HIS ACCOUNT NO 0294000110055902 - (I) ON 26 .07.2008 BY CHEQUE NO 13755 - RS. 1,00,000/-; (II) ON 30.07.2008 BY CHEQU E NO 13757 - RS. 2,00,000/-; AND (III) ON 30.07.2008 BY CHEQUE NO 13756 - RS. 60 ,00,000/-. THUS, IT IS VERY MUCH EVIDENT AND AN ADMITTED FACT THAT THE DEPOSIT OF RS . 63,00,000/- WAS MADE IN THE 9 SAVINGS ACCOUNT OR DEPOSIT ACCOUNT A BEFORE 31/07/2 008 I.E. BEFORE THE DUE DATE OF FILING OF RETURN U/S 139(1) OF THE ACT AND THUS SUC H DEPOSIT WAS WELL WITHIN THE PARAMETERS LAID DOWN IN CLAUSE 4(4)THE CAPITAL GAIN S ACCOUNT SCHEME, 1988 (SUPRA). THEREFORE, THE CONTENTION OF THE DEPARTMEN T THAT THE TRANSFER FROM THIS DEPOSIT ACCOUNT A TO ANOTHER DEPOSIT ACCOUNT B (FIX ED DEPOSIT ACCOUNT) ON 06.08.2008, I.E. AFTER THE DUE DATE OF FILING OF RE TURN OF INCOME U/S 139(1), DOES NOT CONFORM TO THE PARAMETERS LAID DOWN IN CLAUSE 4(4) OF THE CAPITAL GAINS ACCOUNT SCHEME, 1988 (SUPRA) IS BASED ON AN INCORRECT INTE RPRETATION. SINCE THE ENTIRE INITIAL DEPOSIT IN THE SAVINGS BANK (DEPOSIT A ACCOUNT) AMO UNTING TO RS 63,00,000/- WAS MADE WITHIN THE PRESCRIBED PERIOD, IT IS IMMATERIAL THAT A FURTHER TRANSFER FROM THIS ACCOUNT WAS MADE TO DEPOSIT B ACCOUNT (FIXED DEPOSI T ACCOUNT) AFTER THE PRESCRIBED DUE DATE, THE EXEMPTION ON THIS COUNT AL SO CANNOT BE DENIED TO THE ASSESSEE. EVEN IF THE TRANSFER IS NOT AS PER LAW IN THE YEAR OF WITHDRAWAL FROM DEPOSIT ACCOUNT A, IT CAN BE CONSIDERED AS AMOUNT W ITHDRAWN AND NOT UTILISED AND ADDITION CAN BE MADE AS PER LAW BUT IN THE PRESENT YEAR, THE EXEMPTION CANNOT BE DENIED. 14. WE ACCORDINGLY HOLD THAT THE ASSESSEE CANNOT BE DENIED THE BENEFIT OF EXEMPTION U/S 54 ON ACCOUNT OF RS. 63,00,000/- DEPO SITED IN THE SAVINGS ACCOUNT OF THE CAPITAL GAINS SCHEME, 1988 AND WE DISMISS THE A PPEAL OF THE REVENUE ON THIS ISSUE ALSO. 15. IN THE RESULT, THE APPEAL OF THE REVENUE IS D ISMISSED. 10 16. CO 33/LKW/2014 : NOW WE TAKE THE CROSS OBJECTIONS FILED BY THE ASSESSEE. THE CROSS OBJECTIONS ARE VAGUE AND ARE ME RELY IN SUPPORT OF THE ORDER OF THE LEARNED CIT(A) AND HENCE ARE NOT MAINTAINABLE. DISMISSED ACCORDINGLY. 17. IN THE RESULT, THE CROSS OBJECTIONS OF THE ASS ESSEE ARE DISMISSED. 18. IN THE COMBINED RESULT, THE APPEAL OF THE REVE NUE AS WELL AS THE CO OF THE ASSESSEE ARE DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/- SD/- ( A. K. GARODIA ) (SUDHANSHU SRIVASTAVA) ACCOUNTANT MEMBER JUDICIA L MEMBER DATED:20/08/2015 COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. R EGISTRAR