Lalit Mohan Gupta, Delhi V. ITO, New Delhi

ITA 3678/DEL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7512 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 3
• Next Hearing Date: 11-07-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 20-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A SREENIVASA RAO
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Principle of natural justice
• Section: 143(3); 54B; 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-3, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 3678 /DEL/201 4 A.Y. : 20 0 9 - 1 0 LALIT MOHAN GUPTA D-125, MAHENDRU ENCLAVE, DELHI 110009 (PAN: AHTPG3030A) VS. ITO, WARD 20(4) , NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. RS SINGHVI, CA & SH. SATYAJEET GOEL, CA DEPARTMENT BY : SH. A. SREENIVASA RAO, SR.DR ORDER PER H.S. SIDHU, JM ASSESSEE HAS FILED THIS APPEAL AGAINST THE ORDER D ATED 28.2.2014 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-XXII, NEW DELHI PERTAINING TO ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS:- 1. AS PER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LD CIT-(APPEALS) HAS ERRED IN NOT HOLDING THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE INCOME TA X ITA NO. 3678/DEL/2014 A.Y. 2009-10 2 ACT 1961 AS NULL AND VOID EVEN WHEN THE DUE PROCESS ING OF THE CASE U/S 143(1) AND SERVING THE INTIMATION T O THE APPELLANT HAS NOT BEEN DONE IN CASE OF REFUND AS PE R THE LAW PREVAILING AT THE TIME OF PASSING THE ORDER. 2. AS PER ON THE FACTS AND CIRCUMSTANCES OF THE CAS E THE CIT-(APPEALS) HAS ERRED IN CONFIRMING THE ADDITION OF RS2716388/-UNDER THE HEAD CAPITAL GAINS MADE BY THE ASSESSING OFFICER ON THE BASIS OF DEEMING PROVISION S U/S 50C OF THE INCOME TAX ACT 1961, AND HAS NOT CONSIDE RED THE CIRCLE RATE PREVAILING AT THE TIME OF AGREEMENT TO SELL ENTERED BY THE APPELLANT ON 4-8-2007. 3 AS PER ON THE FACTS AND CIRCUMSTANCES OF THE CASE OF THE ASSESSING OFFICER HAS ERRED TO PASS THE ORDER O N 29.12.2011 WITHOUT AFFORDING ANY OPPORTUNITY TO TH E APPELLANT ABOUT THE ADDITION OF THE AMOUNT OF RS 2716388/-UNDER THE HEAD CAPITAL GAINS. THE CASE IN FACT HAS BEEN ADJOURNED TO 1.12.2011 FOR WANT OF CONFIRMATION OF THE CASH CREDITORS, THE APPELLANT A TTENDED THE OFFICE OF THE ASSESSING OFFICER ON THAT DATE AN D THEREAFTER, BUT WAS TOLD THAT THE ASSESSMENT FILE I S WITH THE ADDITIONAL COMMISSIONER OF INCOME TAX AND THUS NO ITA NO. 3678/DEL/2014 A.Y. 2009-10 3 OPPORTUNITY HAS BEEN GIVEN TO THE APPELLANT FOR RE BUTTAL IS AGAINST THE PRINCIPAL OF NATURAL JUSTICE. 4. AS PER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE THE CIT-(APPEALS) HAS ERRED IN NOT ALLOWING THE FULL AM OUNT OF EXEMPTION OF RS(8105300/+2552800/)= RS. 10658100/- ON ACCOUNT OF INVESTMENT IN AGRICULTURE LAND U/S 54B OF THE INCOME TAX ACT 1961. 5 AS PER ON THE FACTS AND CIRCUMSTANCE OF THE CASE THE CIT-(APPEALS) HAS ERRED IN WITHDRAWING THE DEDUCTIO N U/S 54B OF THE INCOME TAX ACT 1961, AMOUNTING TO RS 7500300/- OUT OF THE DEDUCTION AMOUNTING TO RS 8105300 ALREADY ALLOWED BY THE ASSESSING OFFICER. T HUS THE CIT (APPEALS) HAS MADE AN ENHANCEMENT OF INCOME BY RS 7500300/-PURELY ON MERE CONJECTURE SURMISES. 6 AS PER ON THE FACTS AND CIRCUMSTANCE OF THE CASE THE CIT-(APPEALS) HAS FURTHER ERRED IN NOT CONSIDERING THE CORRECT AMOUNT OF 'ADVANCE RECEIVED FROM THE DATE O F AGREEMENT TO SELL TO THE DATE OF SALE DEED WHICH HA S BEEN UTILIZED FOR THE PURCHASE OF THE OTHER AGRICUL TURE LAND. ITA NO. 3678/DEL/2014 A.Y. 2009-10 4 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED ITS RETURN OF INCOME ON 31.8.2009 FOR THE ASSESSMENT Y EAR 2009-10, DECLARING TOTAL INCOME OF RS. 6,91,490/-. THE RETUR N WAS PROCESSED U/S. 143(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTE R REFERRED TO AS ACT). THE CASE WAS SELECTED FOR SCRUTINY THROUGH C ASS. ACCORDINGLY, NOTICE U/S. 143(2) OF THE ACT, WAS ISS UED ON 26.8.2010 WHICH WAS DULY SERVED UPON THE ASSESSEE. IN RESPONS E TO THE SAME AND SUBSEQUENT NOTICES, ASSESSEES AUTHORIZED REPRE SENTATIVE ATTENDED THE HEARING FROM TIME TO TIME AND FILED RE QUISITE INFORMATION AND DOCUMENTS. DURING THE ASSESSMENT PR OCEEDINGS THE AO OBSERVED THAT THE ASSESSEE HAS UNDERVALUED THE S ALE CONSIDERATION AND THEREFORE FOR THE PURPOSE OF SECT ION 50C OF THE I.T. ACT, THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY SHALL BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RE CEIVED AS A RESULT OF SUCH TRANSFER HE ACCEPTED THE CLAIM OF DEDUCTION U/S. 54B BUT MADE THE ADDITION OF RS. 27,16,668/- ON ACCOUNT OF CAPITAL GAIN BY APPLYING PROVISIONS OF SECTION 50C OF THE ACT ON TH E BASIS OF CIRCLE RATE AT THE TIME OF EXECUTION OF SALE DEED. ACCORD INGLY, HE COMPLETED THE ASSESSMENT AT AN INCOME OF RS. 34,07, 860/- AFTER MAKING OTHER ADDITIONS VIDE HIS ORDER DATED 29.12. 2011 PASSED U/S. 143(3) OF THE I.T. ACT, 1961. ITA NO. 3678/DEL/2014 A.Y. 2009-10 5 3. AGAINST THE ORDER OF THE LD. AO, ASSESSEE APPEA LED BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED ORDER DATED 28.2.201 4 HAS DISMISSED THE APPEAL OF THE ASSESSEE BY CONFIRMING THE ADDITION MADE BY THE AO AND ENHANCED THE INCOME BY DISALLOWI NG THE DEDUCTION U/S. 54B AMOUNTING TO RS. 75,00,300/-. 4. AGGRIEVED WITH THE ORDER OF THE LD. CIT(A), AS SESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. DURING THE COURSE OF HEARING LD. COUNSEL OF THE ASSESSEE STATED THAT AO ACCEPTED THE CLAIM OF DEDUCTION U/S. 54B BUT MADE THE ADDITION OF RS. 27,16,668/- ON ACCOUNT OF CAPIT AL GAIN BY APPLYING PROVISIONS OF SECTION 50C OF THE ACT ON T HE BASIS OF CIRCLE RATE AT THE TIME OF EXECUTION OF SALE DEED. HE FUR THER STATED THAT AO WAS OF THE VIEW THAT THE CIRCLE RATE PREVAILING AT THE TIME OF SALE DEED SHALL BE TAKEN INTO CONSIDERATION WHILE COMPUT ING CAPITAL AND NOT AT THE TIME OF AGREEMENT TO SELL. HE FURTHER S TATED THAT THE OWNERSHIP RIGHTS IN THE PROPERTY WERE VESTED IN PUR CHASER VIDE AGREEMENT TO SELL AND EXECUTION OF SALE DEED WAS ME RELY A FORMALITY AND AS SUCH THE CIRCLE RATE AT THE TIME OF AGREEMEN T TO SELL IS RELEVANT AND APPLICABLE TO THE FACTS OF THE CASE. TO SUPPORT THIS CONTENTION, HE CITED THE FOLLOWING CASES LAWS:- - ITO VS. MODIPON LTD. (2015) 57 TAXMANN.COM 360 (DELHI). ITA NO. 3678/DEL/2014 A.Y. 2009-10 6 - DCIT VS. S. VENKAT REDDY (2013) 32 TAXMANN.COM 32 4 (HYD.) IN VIEW OF THE ABOVE, HE STATED THAT THE ASSESSEE S CASE IS SQUARELY COVERED BY THE AFORESAID CASES OF THE TRIB UNAL INCLUDING THE DECISION OF THE DELHI BENCH, AS PER WHICH THE CIRC LE RATE PREVAILING AT THE TIME OF AGREEMENT TO SELL HAS TO BE CONSIDER ED FOR APPLYING PROVISIONS OF SECTION 50C. THEREFORE, HE REQUESTED THAT THE ADDITION OF RS. 27,16,368/- MAY BE DELETED. 5.1 WITH REGARD TO NEXT GROUND I.E. RELATING TO ENH ANCEMENT OF ADDITION BY THE LD. CIT(A) BY RESTRICTING THE CLAIM OF DEDUCTION U/S. 54B TO THE EXTENT OF RS. 6,05,000/- AS AGAINST CLAI M ALLOWED BY AO AT RS. 81,05,300/-, HE STATED THAT LD. CIT(A) WRON GLY MADE THE ENHANCEMENT TO THE EXTENT OF RS. 75,00,300/-AND HAS NOT PROPERLY CONSIDERED THE FACTS OF THE CASE AND THIS DISALLOWA NCE IS BASED ON WRONG APPRECIATION OF FACTS AND LEGAL PRINCIPLES. IT WAS STATED THAT THE ONLY GROUND ON THE BASIS OF WHICH CLAIM WAS RES TRICTED IS THAT PAYMENT FOR PURCHASE OF AGRICULTURE LANDS WAS NOT M ADE OUT OF PROCEEDS FROM SALE OF AGRICULTURE LAND THEREFORE TH E DEDUCTION U/S. 54B SHOULD BE RESTRICTED TO THE AMOUNT ACTUALLY INV ESTED OUT OF SALE PROCEEDS. IN THIS REGARD, HE SUBMITTED THAT THE LAN DS HAVE NOT BEEN PURCHASED OUT OF SALE PROCEEDS IS ERRONEOUS AND FAC TUALLY INCORRECT AS THE ENTIRE PAYMENT FOR PURCHASE OF AGRICULTURE LANDS WAS MADE ITA NO. 3678/DEL/2014 A.Y. 2009-10 7 OUT OF SALE PROCEEDS WHICH IS CORROBORATED FROM THE BANK STATEMENT ENCLOSED WITH THE PAPER BOOK PAGE NO. 2 AND SUCH TH ERE IS NO VALID BASIS FOR ANY DISALLOWANCE. IT WAS THE FURTHER CON TENTION THAT THE LD. CIT(A) HAS MISTAKENLY CONSIDERED DATE OF ISS UANCE OF CHEQUES FOR PURCHASE OF PROPERTY INSTEAD OF DATE OF ACTUAL DEBIT IN THE BANK STATEMENT IN REACHING TO THE CONCLUSION THAT PAYMEN T FOR PURCHASE OF PROPERTY HAS NOT BEEN MADE OUT OF SALE PROCEEDS. TO SUPPORT HIS CONTENTION, HE RELIED UPON THE FOLLOWING CASE LAWS: - - CIT VS. R. SRINIVASAN (2010) 45 DTR 208 (MAD.) - CIT VS. DR. PS PASRICHA (BOMBAY HIGH COURT) ITA NO. 1825 OF 2009 - ITO VS. KC GOPALAN (2000) 162 CTR 566 (KER). IN VIEW OF THE ABOVE SUBMISSIONS, THE ASSESSEES C OUNSEL HAS STATED THAT THE INVESTMENT IN AGRICULTURE LAND HAS TO BE MADE OUT OF SALE PROCEEDS AND AS SUCH THE ASSESSEE IS ELIGIB LE TO CLAIM DEDUCTION U/S. 54B FOR PURCHASE OF LANDS EVEN PRESU MING THAT PAYMENT FOR PURCHASE OF LAND WAS NOT MADE OUT OF RE CEIPT OF SALE PROCEEDS ON SALE OF ASSET AND STATED THAT ENTIRE IN VESTMENT BEING OUT OF SALE CONSIDERATION OF PROPERTY IN ACCORDANCE WITH PROVISIONS OF SECTION 54B, THERE IS NO JUSTIFICATION FOR RESTR ICTING CLAIM OF EXEMPTION U/S. 54B OF THE ACT. ITA NO. 3678/DEL/2014 A.Y. 2009-10 8 6. ON THE OTHER HAND LD. DR RELIED UPON THE ORDER O F THE LD. CIT(A) AUTHORITIES BELOW. HE SUBMITTED THAT ADDITIO N OF RS. 27,16,368/- WAS MADE ON THE BASIS OF STAMP DUTY VAL UATION. HE FURTHER STATED THAT AO HAS ALLOWED EXCESS DEDUCTION WHICH HAS BEEN RIGHTLY RESTRICTED TO ONLY RS. 6,05,000/- BY THE LD . CIT(A), HENCE, HE REQUESTED THAT THE ORDER OF THE LD. CIT(A) MAY BE U PHELD. 7. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS ESPECIALLY THE ORDERS OF THE REVENUE AUTHORITIES. W ITH REGARD TO ADDITION OF RS. 27,16,668/- IS CONCERNED, I FIND T HAT THE ASSESSEE HAS PURCHASED AGRICULTURE LAND OUT OF THE SALE CONS IDERATION AND CLAIMED THE BENEFIT OF STATUTORY DEDUCTION U/S. 54B AS PER WHICH THE RESULTANT CAPITAL GAIN WAS CLAIMED AS EXEMPT. THE AO ACCEPTED THE CLAIM OF DEDUCTION U/S. 54B BUT MADE THE ADDITION O F RS. 27,16,668/- ON ACCOUNT OF CAPITAL GAIN BY APPLYING PROVISIONS OF SECTION 50C OF THE ACT ON THE BASIS OF CIRCLE RATE AT THE TIME OF EXECUTION OF SALE DEED. HOWEVER, THE OWNERSHIP RI GHTS IN THE PROPERTY WERE VESTED IN PURCHASER VIDE AGREEMENT TO SELL AND EXECUTION OF SALE DEED WAS MERELY A FORMALITY AND A S SUCH THE CIRCLE RATE AT THE TIME OF AGREEMENT TO SELL IS RELEVANT A ND APPLICABLE TO THE FACTS OF THE CASE. I ALSO FIND CONSIDERABLE COG ENCY IN THE CONTENTION OF THE LD. COUNSEL OF THE ASSESSEE THAT SIMILAR AND ITA NO. 3678/DEL/2014 A.Y. 2009-10 9 IDENTICAL SITUATION HAS BEEN DEALT BY THE TRIBUNAL IN THE FOLLOWING CASES:- - ITO VS. MODIPON LTD. (2015) 57 TAXMANN.COM 360 (DELHI). SECTION 50C OF THE INCOME-TAX ACT, 1961 - CAPITAL GAINS - SPECIAL PROVISION FOR COMPUTATION OF FULL VALUE OF CONSIDERATION (CIRCLE RATE) - ASSESSMENT YEAR 2005- 06 - ASSESSEE-COMPANY ENTERED INTO AN AGREEMENT TO SELL CERTAIN LAND - SAID AGREEMENT WAS REGISTERED ON 27- 5- 2004 - PURSUANT THERETO, SALE DEED WAS EXECUTED ON 16- 9-2004 - CIRCLE RATE ON DATE OF AGREEMENT WAS RS. L 3,000 PER SQ. MTR., BUT CIRCLE RATE ON DATE OF EXECUTION OF SALE DEED WAS RS. 20,000 PER SQ. MTR. - ASSESSING OFFICE R APPLIED CIRCLE RATE ON EXECUTION OF SALE DEED FOR COMPUTING CAPITAL GAIN - WHETHER IN VIEW OF FACTS T HAT ENHANCEMENT OF CIRCLE RATE WAS BEYOND CONTROL OF ASSESSEE AND BUYER HAD NOT PAID ANYTHING ABOVE AMOU NT THAT HAD BEEN AGREED BETWEEN PARTIES, ADDITION MADE BY ASSESSING OFFICER WAS TO BE DELETED - HELD, YES [PA RAS 13 AND 16] [IN FAVOUR OF ASSESSEE] ITA NO. 3678/DEL/2014 A.Y. 2009-10 10 B. DCIT V. S. VENKAT REDDY[2013] 32 TAXMANN.COM 324 (HYD) SECTION 5OC, READ WITH SECTION 2(47), OF THE INCOME -TAX ACT, 1961 - CAPITAL GAINS - SPECIAL PROVISIONS FOR FULL VALUE OF CONSIDERATION IN CERTAIN CASES [DATE OF TR ANSFER] - ASSESSMENT YEAR 2006-07 - ASSESSEE SOLD PROPERTY AND TRANSFERRED POSSESSION VIDE SALE AGREEMENT ON 13-6- 2005, BUT SALE DEED WAS REGISTERED ONLY ON 25-11-20 05 - ASSESSING OFFICER TOOK STAMP DUTY VALUE ON DATE OF REGISTRATION AS FULL VALUE OF CONSIDERATION UNDER S ECTION 5OC FOR COMPUTING CAPITAL GAINS - WHETHER, WHERE TRANSFER WAS COMPLETED IN TERMS OF SECTION 2(47) BY GIVING POSSESSION OF PROPERTY ON DATE OF SALE AGREE MENT, BUT REGISTRATION WAS DELAYED ON BONA FIDE REASONS A ND EXECUTION OF SALE DEED WAS ONLY A LEGAL FORMALITY, STAMP DUTY VALUE ON DATE OF SALE AGREEMENT AND NOT ON DAT E OF REGISTRATION WAS REQUIRED TO BE ADOPTED FOR COMPUTI NG CAPITAL GAINS - HELD, YES [PARA 19] [IN FAVOUR OF ASSESSEE] AFTER PERUSING THE AFORESAID FINDINGS OF THE TRIBUN AL, I AM OF THE CONSIDERED VIEW THAT THE ISSUE IN DISPUTE IS SQ UARELY COVERED BY THE AFORESAID DECISION OF THE TRIBUNAL, AS PER WHIC H CIRCLE RATE ITA NO. 3678/DEL/2014 A.Y. 2009-10 11 PREVAILING AT THE TIME OF AGREEMENT TO SELL HAS TO BE CONSIDERED FOR APPLYING THE PROVISIONS OF SECTION 50C. RESPECTF ULLY FOLLOWING THE PRECEDENT AS AFORESAID, THE ADDITION OF RS. 27,16, 368/- BY MISCONSTRUING THE PROVISIONS OF SECTION 50C IS DE LETED. 7.1 WITH REGARD TO GROUND RELATING TO ENHANCEMENT O F ADDITION BY LD. CIT(A) BY RESTRICTING THE CLAIM OF DEDUCTION U /S. 54B TO THE EXTENT OF RS. 6,05,000/- AS AGAINST CLAIM ALLOWED B Y THE AO AT RS. 81,05,300/- IS CONCERNED, I FIND THAT THE ONLY GROU ND ON THE BASIS OF WHICH CLAIM WAS RESTRICTED IS THAT PAYMENT FOR PURC HASE OF AGRICULTURE LANDS WAS NOT MADE OUT OF PROCEEDS FROM SALE OF AGRICULTURE LAND THEREFORE THE DEDUCTION U/S. 54B S HOULD BE RESTRICTED TO THE AMOUNT ACTUALLY INVESTED OUT OF S ALE PROCEEDS. IN THIS REGARD, FROM THE RECORDS, IT REVEALS THAT THE ENTIRE PAYMENT FOR PURCHASE OF AGRICULTURE LANDS WAS MADE OUT OF SALE PROCEEDS WHICH IS CORROBORATED FROM THE BANK STATEMENT ENCLOSED WI TH THE PAPER BOOK PAGE NO. 2 AND SUCH THERE IS NO VALID BASIS FO R ANY DISALLOWANCE. HOWEVER, LD. CIT(A) HAS CONSIDERED THE DATE OF ISSUANCE OF CHEQUES FOR PURCHASE OF PROPERTY INSTE AD OF DATE OF ACTUAL DEBIT IN THE BANK STATEMENT IN REACHING TO THE CONCLUSION THAT PAYMENT FOR PURCHASE OF PROPERTY HAS NOT BEEN MADE OUT OF SALE PROCEEDS. EVEN OTHERWISE, SECTION 54B NOWHERE MANDATES THAT THE PURCHASE OF AGRICULTURE LAND HAS TO BE MADE OUT OF SALE ITA NO. 3678/DEL/2014 A.Y. 2009-10 12 PROCEEDS ARISING FROM SALE OF AGRICULTURE LAND. F OR THE SAKE OF CLARITY, SECTION 54B IS REPRODUCED HEREUNDER:- CAPITAL GAIN ON TRANSFER OF LAND USED FOR AGRICULTU RAL PURPOSES NOT TO BE CHARGED IN CERTAIN CASES. 54B. (1) SUBJECT TO THE PROVISIONS OF SUB-SECTION (2), W HERE THE CAPITAL GAIN ARISES FROM THE TRANSFER OF A CAPITAL ASSET BEING LAND WHI CH, IN THE TWO YEARS IMMEDIATELY PRECEDING THE DATE ON WHICH THE TRANSFER TOOK PLACE , WAS BEING USED BY THE ASSESSEE BEING AN INDIVIDUAL OR HIS PARENT, OR A HI NDU UNDIVIDED FAMILY FOR AGRICULTURAL PURPOSES (HEREINAFTER REFERRED TO AS T HE ORIGINAL ASSET), AND THE ASSESSEE HAS, WITHIN A PERIOD OF TWO YEARS AFTER TH AT DATE, PURCHASED ANY OTHER LAND FOR BEING USED FOR AGRICULTURAL PURPOSES, THEN , INSTEAD OF THE CAPITAL GAIN BEING CHARGED TO INCOME-TAX AS INCOME OF THE PREVIO US YEAR IN WHICH THE TRANSFER TOOK PLACE, IT SHALL BE DEALT WITH IN ACCORDANCE WI TH THE FOLLOWING PROVISIONS OF THIS SECTION, THAT IS TO SAY, (I) IF THE AMOUNT OF THE CAPITAL GAIN IS GREATER TH AN THE COST OF THE LAND SO PURCHASED (HEREINAFTER REFERRED TO AS THE NEW ASSET ), THE DIFFERENCE BETWEEN THE AMOUNT OF THE CAPITAL GAIN AND THE COST OF THE NEW ASSET SHALL BE CHARGED UNDER SECTION 45 AS THE INCOME OF THE PREVIOUS YEAR ; AND FOR THE PURPOSE OF COMPUTING IN RESPECT OF THE NEW ASSET ANY CAPITAL G AIN ARISING FROM ITS TRANSFER WITHIN A PERIOD OF THREE YEARS OF ITS PURCHASE, THE COST SHALL BE NIL; OR (II) IF THE AMOUNT OF THE CAPITAL GAIN IS EQUAL TO OR LESS THAN THE COST OF THE NEW ASSET, THE CAPITAL GAIN SHALL NOT BE CHARGED UNDER SECTION 45; AND FOR THE PURPOSE OF COMPUTING IN RESPECT OF THE NEW ASSET ANY CAPITA L GAIN ARISING FROM ITS TRANSFER WITHIN A PERIOD OF THREE YEARS OF ITS PURCHASE, THE COST SHALL BE REDUCED, BY THE AMOUNT OF THE CAPITAL GAIN. IN VIEW OF THE ABOVE, IT IS CRYSTAL CLEAR THAT THE RE IS NO REQUIREMENT THAT THE INVESTMENT IN AGRICULTURE LAND HAS TO BE MADE OUT OF SALE PROCEEDS AND AS SUCH THE ASSESSEE IS EL IGIBLE TO CLAIM DEDUCTION U/S. 54B FOR PURCHASE OF LANDS EVEN PRES UMING THAT PAYMENT FOR PURCHASE OF LAND WAS NOT MADE OUT OF RE CEIPT OF SALE PROCEEDS ON SALE OF ASSET. THEREFORE, THERE IS NO J USTIFICATION FOR ITA NO. 3678/DEL/2014 A.Y. 2009-10 13 RESTRICTING CLAIM OF EXEMPTION U/S. 54B OF THE ACT, THUS WE REVERSE THE FINDING OF THE LD. CIT(A) ON THIS ISSUE AND ALL OW THE DEDUCTION AS ACCEPTED BY THE AO AT RS. 81,05,300/-, AS A RESU LT THE GROUND RAISED BY THE ASSESSEE IS ALLOWED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STAND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 02/08/2016. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 02/08/2016 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES