Shri Uday Sood, New Delhi V. ITO, New Delhi

ITA 4834/DEL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3606 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 23-03-2017
• Assessment Year: 2013-2014
• Appeal Filed On: 09-09-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Capital asset; Principle of natural justice; Cost of acquisition
• Section: 54F; 234B; 15; 139; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , DELHI G BENCH , NEW DELHI BEFORE SHRI R.K. PANDA ACCOUNTANT MEMB E R AND SMT. BEENA A. PILLAI, JUDICIAL MEMBER ITA NO. 4834 /DEL /201 6 [ ASSESSMENT YEAR: 20 1 3 - 1 4 ] SHRI UDAY SOOD 1005, SECTOR 15 FARIDABAD, HARYANA PAN : ADZPS 5454 L VS. THE I.T. O WARD 8(2) NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI RAKESH GUPTA, ADV SHRI SOMIL AGGARWAL, A DV. R EVENUE BY: SH RI N.K. BANSAL, SR - DR DATE OF HEARING : 2 3 .0 3 .2017 DATE OF PRONOUNCEMENT : 25 .0 4 .2017 ORDER PER R.K. PANDA , ACCOUNTANT MEMBER : - THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 24 .0 8 .201 6 OF THE CIT(A) - 37 , NEW DELHI RELATING TO A.Y. 20 1 3 - 1 4 . 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A N INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 26 . 03 .201 4 DECLARING TOTAL INCOME OF RS. 14,5 7,120 / - . THE INCOME COMPRISED OF SALARY, LONG TERM CAPITAL GAIN ON SALE 2 ITA NO. 4834 /DEL/201 6 OF RESIDENTIAL HOUSE PROPERTY AND INTEREST INCOME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE A.O OBSERVED FROM THE VARIOUS DETAILS FURNISHED BY THE ASSESSEE THAT THE ASSESSEE HAS SOLD A RESIDENTIAL PROPERTY FOR A CONSIDERATION OF RS. 1,70,00,000/ - . AFTER CLAIMING INDEX ED COST OF ACQUISITION OF THE PROPERTY AT RS. 24,19,820/ - , CAPITAL GAIN OF RS. 1,45,80,180/ - WAS DECLARED. AGAINST THE LONG TERM CAPITAL GAIN, THE ASSESSEE HAS CLAIMED DEDUCTION OF RS. 1,52,14,375/ - U/S 54 OF THE ACT ON ACCOUNT OF INVESTMENT MADE IN NEW RESIDENTIAL HOUSE. FROM THE VARIOUS DETAILS FURNISHED BY THE ASSESSEE, THE A.O OBSERVED THAT THE PAYMENT OF RS. 81,72,207/ - WAS MA DE FOR ACQUIRING NEW HOUSE PROPERTY BEFORE FILING OF RETURN. HE, THEREFORE, ASKED THE ASSESSEE TO EXPLAIN AS TO WHETHER THE BALANCE CAPITAL GAIN WAS DEPOSITED IN THE CAPITAL GAIN ACCOUNT OR NOT? 3. THE ASSESSEE REPLIED THAT HE HAS SOLD THE RESIDENTIAL PRO PERTY ON 21.08.2012 AND EARNED NET CAPITAL GAIN OF RS. 1,45,80,180/ - . TO AVAIL BENEFIT OF SECTION 54F OF THE ACT, HE ENTERED INTO AN AGREEMENT TO PURCHASE A FLAT IN LOTUS BOULLWARD PROJECT OF CLOUD AND PROJECTS PVT LTD ON 27.09.2012 FOR A CONSIDERATION OF RS. 1,52,14,375/ - . PAYMENTS FOR THE SAME WERE MADE FROM TIME TO TIME AS PER TH E DEMAND FROM THE BUILDER WITHIN A PERIOD OF TWO YEARS AFTER THE DATE ON WHICH THE TRANSFER TOOK PLACE AS STIPULATED U/S 54F OF THE ACT. THE ASSESSEE HOWEVER, ADMITTED THAT HE COULD NOT UTILIZE THE WHOLE OF THE CAPITAL GAIN BEFORE FILING OF THE RETURN AS T HE DEMANDS FROM THE BUILDER WERE STAGGERED NOR COULD HE DEPOSIT THE SAME AMOUNT IN THE 3 ITA NO. 4834 /DEL/201 6 CAPITAL GAIN SCHEME WITH ANY SPECIFIED BANK. THE DECISION OF THE HON'BLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT VS. JAGTAR SINGH CHAWLA AND THE DECISION OF TH E HON'BLE HIGH COURT OF KARNATAKA IN THE CASE OF CIT VS. RAMACHANDRA RAO WERE RELIED UPON. 4. HOWEVER, THE A.O WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE. ACCORDING TO HIM, THE ASSESSEE HAS CLAIMED DEDUCTION U/S 54F OF THE ACT WHICH IS NOT ADMISSIBLE SINCE THE ASSESSEE HAD SOLD A RESIDENTIAL HOUSE PROPERTY AND DEDUCTION U/S 54F OF THE ACT IS ADMISSIBLE IN RESPECT OF CAPITAL GAIN ARISING ON CAPITAL ASSETS OTHER THAN RESIDENTIAL ONE. HE, THEREFORE, ASKED THE ASSESSEE TO EXPLAIN AS TO WHY INVESTMENT MADE AFTER THE DUE DATE OF FILING OF RETURN U/S 139(1) OF THE ACT MAY NOT BE TAXED AS PER THE PROVISIONS OF THE I.T. ACT. 5. THE ASSESSEE REPLIED THAT HE HAS PURCHASED A HOUSE PROPERTY WITHIN THE TIME ALLOWED UNDER THE LAW AND IN RESPECT OF W HICH DOCUMENTARY EVIDENCE WERE ALSO FILED. DEDUCTION U/S 54F OF THE ACT HAS BEEN CLAIMED IN THE RETURN IN ACCORDANCE WITH THE PROVISIONS OF LAW. IT WAS STATED THAT CONSTRUCTION OF FLAT IN LOTUS BOULLWARD PROJECT OF CLOUD & PROJECTS PVT LTD IS COMPLETE AN D IS NOW READY FOR POSSESSION. IT WAS FURTHER SUBMITTED THAT THERE ARE SEVERAL JUDICIAL DECISIONS WHICH PERMIT THE ASSESSEE TO AVAIL THE DEDUCTION IN IDENTICAL CIRCUMSTANCES. THEREFORE, THE ASSESSEE IS ENTITLED TO DEDUCTION AS CLAIMED IN THE RETURN. 4 ITA NO. 4834 /DEL/201 6 6. H OWEVER, THE A.O WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE. HE OBSERVED THAT THE ASSESSEE HAS NOT KEPT THE BALANCE AMOUNT OF CAPITAL GAIN IN SEPARATE CAPITAL GAIN SCHEME ACCOUNT AS PER THE PROVISIONS OF THE ACT. DISTINGUISHING THE VAR IOUS DECISIONS CITED BEFORE HIM AND FURTHER OBSERVING THAT THE ASSESSEE HAS GIVEN SALE PROCEEDS TO HIS WIFE AND HAS NO FUNDS AS ON 31.3.2013 WHICH COULD BE UTILIZED FOR INVESTMENT AND THE ASSESSEE HAS MADE INVESTMENT IN NEW ASSETS BY BORROWIN G FUNDS, T HERE FORE, THE ASSESSEE IS NOT ENTITLED TO DEDUCTION U/S 54 OF THE ENTIRE AMOUNT AND IS ENTITLED TO DEDUCTION ONLY TO PAYMENTS MADE PRIOR TO JULY 2014 I.E. RS. 81,72,207/ - . HE ACCORDINGLY ALLOWED DEDUCTION OF RS. 81,72,207/ - U/S 54 OF THE ACT AS AGAINST RS. 1, 52,14,375/ - CLAIMED BY THE ASSESSEE. 7. IN APPEAL, THE LD. CIT(A) UPHELD THE ACTION OF THE A.O FOR WHICH THE ASSESSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS: 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF THE A.O IN NOT ALLOWING THE DEDUCTION U/S 54 AMOUNTING TO RS. 64,07,973/ - AND THAT TOO WITHOUT OBSERVING THE PRINCIPLES OF NATURAL JUSTICE. 2. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, SECTIO N OF LD. CIT(A) CONFIRMING THE ACTION O F THE A.O IN NOT ALLOWING THE DEDUCTION U/S 54 AMOUNTING TO RS. 64,07,973/ - IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 5 ITA NO. 4834 /DEL/201 6 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSING THE ACTION OF THE A.O IN CHARGING OF INTEREST U/S 234A, 234B, 234C AND 234D OF THE ACT. 8. THE LD. COUNSEL FOR THE ASSESSEE STRON GLY OBJECTED TO THE ORDER OF THE A.O WHICH HAS BEEN UPHELD BY THE LD. CIT(A). HE SUBMITTED THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME ON 26.03.2014 DECLARING TOTAL INCOME OF RS. 14,57,120/ - WHEREIN CAPITAL GAIN OF RS. 1,45,80,180/ - WAS DECLARED ON A CCOUNT OF SALE OF HOUSE PROPERTY ON 21.8.2012. REFERRING PAGE 2 OF THE ASSESSMENT ORDER, HE DREW THE ATTENTION OF THE BENCH TO THE PAYMENTS MADE TOWARDS PURCHASE OF THE FLAT AMOUNTING TO RS. 1,35,16,645.00 AS PER AGREEMENT DAT E D 27.09.2012. HE SUBMITTED T HAT THE ASSESSEE HAS MADE PAYMENT OF RS. 81,72,207/ - TILL 10.07.2 - 013 I.E. PRIOR TO 31.07.2013 WHICH IS DUE DATE OF RETURN U/S 139(1) OF THE ACT WHICH THE A.O HAS ALLOWED AND NOT THE AMOUNT OF RS. 1,35,16,645/ - WHICH THE ASSESSEE HAS PAID. REFERRING TO TH E DECISION OF THE HON'BLE GAUHATI HIGH COURT IN THE CASE OF RAJESH KUMAR JALAN REPORTED IN [2006] 286 ITR 274, HE SUBMITTED THAT THE HON'BLE HIGH COURT IN THE SAID DECISION HAS HELD THAT THE ASSESSEE CAN FULFILL THE REQUIREMENT OF SECTION 54 OF DEPOSITING THE UNUTILIZED PORTION OF THE CAPITAL GAIN ON SALE OF RESIDENTIAL PROPERTY IN NOTIFIED SCHEME UPTO THE EXPIRY OF TIME LIMIT FOR FILING RETURN U/S 139(4) OF THE ACT. 6 ITA NO. 4834 /DEL/201 6 9. REFERRING TO THE DECISION OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. MS. JAGRITI AGGARWAL [2011] REPORTED IN 339 ITR 610, HE SUBMITTED THAT THE HON'BLE HIGH COURT IN THE SAID DECISION HAS HELD THAT THE SAID SUB SECTION (4) OF SECTION 139 OF THE ACT IS IN FACT A PROVISO TO SUB - SECTION (1) OF SECTION 139 AND PROVIDES E XTENSION OF PERIOD OF DUE DATE FOR FILING OF RETURN IN CERTAIN CIRCUMSTANCES AND, THEREFORE, EXEMPTION U/S 54 OF THE ACT WAS ALLOWABLE WHERE THE ASSESSEE HAS PURCHASED NEW PROPERTY BEFORE EXTENDED DUE DATE OF FILING OF RETURN AS PER SECTION 139(4) OF THE A CT AND FILING RETURN WITHIN SUCH EXTENDED TIME. 10. REFERRING TO THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF FATHIMA BAI VS. ITO [2009] 32 DTR 243 [KAR], HE SUBMITTED THAT THE HIGH COURT IN THE SAID DECISION HAS HELD THAT AS THE A SSESSEE HAVING UTILIZED THE ENTIRE CAPITAL GAINS BY PURCHASING A HOUSE PROPERTY BEFORE THE EXTENDED DUE DATE U/S 139(4) OF THE ACT, IS ELIGIBLE FOR EXEMPTION U/S 54 OF THE ACT. HE SUBMITTED THAT SIMILAR VIEW HAS BEEN TAKEN BY THE HON'BLE KARNATAKA HIGH COU RT IN THE CASE OF SMT. VRINDA P. ISAAC REPORTED IN [2011] 64 DTR 376. 11. REFERRING TO THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KULDEE P SINGH REPORTED IN 270 CTR 561, HE SUBMITTED THAT THE HON'BLE HIGH COURT IN THE SAID DECISI ON HAS HELD THAT THE WORD PURCHASE USED IN SUB - SECTION (2) OF SECTION 54 IS NOT RESTRICTED OR CONFINED TO REGISTERED SALE DEED OR EVEN POSSESSION BUT HAS WIDER CONNOTATION . T HUS, 7 ITA NO. 4834 /DEL/201 6 WHERE THE ASSESSEE HAS ENTERED INTO CONSTRUCTION LINKED PAYMENT PLAN FOR PU RCHASE OF RESIDENTIAL PROPERTY WITH A BUILDER WITHIN TWO YEARS AFTER PURCHASE OF PROPERTY, THE ASSESSEE IS ENTITLED TO CLAIM EXEMPTION U/S 54 OF THE ACT EVEN WHEN LEGAL TITLE IN THE SAID PROPERTY W AS NOT PASSED OR TRANSFERRED TO THE ASSESSEE WITHIN THE SPE CIFIED PERIOD OF TWO YEARS FROM THE DATE OF SALE OF THE FIRST PROPERTY. 12. HE, HOWEVER, SUBMITTED THAT THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF HUMAYAN SULEMAN MERCHANT VS C CIT IN ITA NO. 5 45 /MUM/20 02 ORDER DATED 18.08.2016 HAS TAKEN A CONTRARY VIEW AND HAS HELD THAT ONLY THE AMOUNT INVESTED/UTILIZED FOR THE PURPOSE OF CONSTRUCTION OF HOUSE PROPERTY BEFORE THE DUE DATE OF FILING OF THE RETURN U/S 139(1) ONLY IS ENTITLED FOR EXEMPTION . HE SUBMITTED THAT SINCE THERE IS NO ADVERSE DECISION OF THE HON'BL E JURISDICTIONAL HIGH COURT, THEREFORE, IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF VEGETABLE PRODUCT REPORTED IN 88 ITR 192, THE DECISION WHICH IS IN FAVOUR OF THE ASSESSEE SHOULD BE FOLLOWED. HE SUBMITTED THAT SINCE THE ASSESSEE HAS PAID AN AMOUNT OF RS. 1,35,16,000/ - BEFORE THE FILING OF THE RETURN U/S 139(4) OF THE ACT, THEREFORE, THE SAID AMOUNT SHOULD BE ALLOWED AS DEDUCTION U/S 54 OF THE ACT. 13. AS REGARDS THE ALLEGATION OF THE A.O THAT THE ASSESSEE HAD GIVEN THE MONEY TO HIS WIFE AS ALIMONY AND THEN BORROWED THE MONEY FROM HER TOWARDS INVESTMENT, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ONLY 8 ITA NO. 4834 /DEL/201 6 REQUIREMENT IS THAT THE ASSESSEE SHOULD INVEST THE CAPITAL GAIN TOWARDS PURCHASE OF A RESIDENTIAL PROPERTY WITHIN THE PERI OD OF ONE YEAR BEFORE OR TWO YEARS FROM THE DATE ON WHICH THE TRA NSFER TOOK PLACE OR CONSTRUCTED WITHIN A PERIOD OF THREE YEARS FROM THAT DATE THEN THE CAPITAL GAIN WILL BE EXEMPT FROM TAX. SINCE THE ASSESSEE IN THE INSTANT CASE HAS SOLD THE PROPERTY ON 2 7.08.2012 AND PURCHASED THE PROPERTY ON 27.09.2012 AND HAS MADE PAYMENT OF RS. 1,35,16,645/ - BEFORE FILING OF RETURN U/S 139(4) OF THE ACT, THEREFORE, THE ASSESSEE IS ENTITLED TO DEDUCTION U/S 54 OF THE ACT OF THE FULL AMOUNT OF RS. 1,35,16,645/ - . 14. REF ERRING TO THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF BAJAJ TEMPO LTD VS. CIT REPORTED IN 196 ITR 188 HE SUBMITTED THAT THE HON'BLE SUPREME COURT IN THE SAID DECISION HAS HELD THAT A PROVISION IN A TAXING STATUTE GRANTING INCENTIVES FOR PROMOT ING GROWTH AND DEVELOPMENT SHOULD BE CONSTRUED LIBERALLY . SINCE A PROVISION INTENDED FOR PROMOTING ECONOMIC GROWTH HAS TO BE INTERPRETED LIBERALLY, THE RESTRICTION ON IT, TOO, HAS TO BE CONSTRUED LIBERALLY SO AS TO ADVANCE THE OBJECTIVE OF THE SECTION AND NOT TO FRUSTRATE IT. HE ALSO RELIED ON VARIOUS DECISIONS AND SUBMITTED THAT THE AMOUNT PAID UPTO THE DATE OF FILING OF RETURN SHOULD BE ALLOWED AS DEDUCTION. 9 ITA NO. 4834 /DEL/201 6 15. THE LD. DR, ON THE OTHER HAND, STRONGLY RELIED ON THE ORDER OF THE LD. CIT(A). HE SUBMITTE D THAT THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IS AGAINST THE ASSESSEE AND THE ASSESSEE IS ENTITLED TO DEDUCTION U/S 54 OF THE ACT OF THE PAYMENT ACTUALLY MADE UPTO THE DUE DATE OF FILING OF RETURN U/S 139(1) OF THE ACT. FURTHER, THE ASSESSEE HAD N O MONEY SINCE HE HAD ALREADY DIVERTED THE MONEY SOMEWHERE ELSE. THE ASSESSEE HAS NOT DEPOSITED THE BALANCE AMOUNT IN THE CAPITAL GAIN SCHEME ACCOUNT. THEREFORE, THE LD. CIT(A) WAS FULLY JUSTIFIED IN UPHOLDING THE ACTION OF THE A.O IN ALLOWING DEDUCTION O F RS. 81,72,207/ - ONLY AS AGAINST 1,45,80,180/ - CLAIMED BY THE ASSESSEE. 16. THE LD. COUNSEL FOR THE ASSESSEE, IN REJOINDER, REFERRING TO THE DECISION OF THE HON'BLE KARNATA KA HIGH COURT IN THE CASE OF SMT. VRINDA P. ISAAC [SUPRA] SUBMITTED THAT INVESTME NT MADE BY THE ASSESSEE BEING WITHIN THE TIME SPECIFIED U/S 139(4) OF THE ACT IS ELIGIBLE FOR EXEMPTION U/S 54 OF THE ACT. THEREFORE, IN THE INSTANT CASE ALSO, THE PAYMENTS MADE UPTO THE DATE OF FILING OF RETURN U/S 139(4) OF THE ACT IS ELIGIBLE FOR DEDUC TION. 17. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES , P ERUSED THE ORDERS OF THE A.O AND THE LD. CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND THE ASSESSEE IN THE INSTANT CASE HAS SOLD THE HOUSE PROPERTY FOR A CONSIDERATION OF RS. 1,70,00,000/ - ON 21.08.2012. AFTER 10 ITA NO. 4834 /DEL/201 6 CLAIMING INDEX ED COST OF ACQUISITION AT RS. 24,19,820/ - THE ASSESSEE DECLARED CAPITAL GA IN OF RS. 1,45,80,180/ - . THE ASSESSEE HAS CLAIMED DEDUCTION OF RS. 1,52,14,375/ - U/S 54 OF THE ACT AS INVESTMENT MADE IN NEW RESIDENTIAL HOUSE AMOUNTING TO RS.1,52,14,375/ - . FROM THE VARIOUS DE TAILS FURNISHED BY THE ASSESSEE IN THE PAPER BOOK AS WELL AS A PERUSAL OF THE ORDER OF THE AUTHORITIES BELOW, IT IS SEEN THAT THE ASSESSEE HAS MADE PAYMENT OF RS. 81,72,207/ - UPTO 10 TH JULY 2013 [I.E. BEFORE 31 ST JULY 2013] BEING THE DUE DATE OF FILING OF RETURN. IT IS ALSO SEEN FROM VARIOUS DETAILS THAT THE ASSESSE E HAS MADE PAYMENT OF RS. 1,35,16,645/ - UPTO 2 6 .03.2014 AND HAS FILED RETURN OF INCOME ON 21.03.2014. THE RETURN FILED IS AFTER THE DUE DATE OF FILING OF RETURN U/S 139(1) OF THE ACT BUT WITHIN THE PERIOD ALLOWED U/S 139(4) OF THE ACT. 18. THE A.O IN THE BODY OF THE ASSESSMENT ORDER HAS ALLOWED DEDUCTION U/S 54 OF THE ACT AT RS. 81,72,207/ - WHICH HAS BEEN UPHELD BY THE LD. CIT(A). IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE AMOUNT PAID FOR PURCHASE OF THE FLAT AMOUNTING TO RS. 1, 35,16,645/ - WHICH IS PAID WITHIN A PERIOD OF TWO YEARS FROM THE DATE OF SALE OF THE HOUSE AND WHICH IS PAID BEFORE THE DUE DATE OF FILING OF RETURN U/S 139(4) OF THE A C T SHOULD BE ALLOWED AS DEDUCTION . WE FIND FORCE IN THE ABOVE ARGUMENT OF THE LD. COUNSE L FOR THE ASSESSEE. A PERUSAL OF THE VARIOUS DECISIONS CITED BY HIM SHOWS THAT THE ASSESSEE IS ENTITLED TO DEDUCTION U/S 54 OF THE ACT ON THE AMOUNT PAID UPTO THE DATE OF FILING OF RETURN U/S 139(4) OF THE ACT. THOSE 11 ITA NO. 4834 /DEL/201 6 DECISIONS ARE ALREADY DISCUSSED IN TH E PRECEDING PARAS AND, THEREFORE, THE SE ARE NOT BEING DISCUSSED AGAIN. IT IS THE SUBMISSION OF THE LD. DR THAT IN VIEW OF THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF HUMAYUN SULEMAN MERCHANT [SUPRA] THE AMOUNT PAID/INVESTED UPTO THE DUE DATE OF FILING OF RETURN U/S 139(1) OF THE ACT ONLY SHOU LD BE ALLOWED AS DEDUCTION U/S 54 OF THE ACT. 19. ADMITTEDLY , THERE IS NO DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT ON THIS ISSUE. IT IS THE SETTLED PROPOSITION OF LAW THAT WHEN THE RE ARE TWO VIEWS ON A PARTICULAR ISSUE AND THERE IS NO DECISION OF THE JURISDICTIONAL HIGH COURT ON THAT ISSUE, THEN THE DECISION WHICH IS IN FAVOUR OF THE ASSESSEE SHOULD BE ADOPTED. SINCE THE ASSESSEE IN THE INSTANT CASE HAS MADE PAYMENT OF RS. 1,35,16, 645/ - BEFORE THE DUE DATE OF FILING OF RETURN U/S 139(4) OF THE ACT, THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE IS ENTITLED TO DEDUCTION U/S 54 OF THE ACT TO THE EXTENT OF RS. 1,35,16,645/ - . PAYMENT OF THE ABOVE AMOUNT IS NOT DOUBTED. THEREFORE, IT IS IMMATERIAL AS TO FROM WHERE THE ASSESSEE HAS OBTAINED THE MONEY AND PAID THE AMOUNT. IN THIS VIEW OF THE MATTER, WE HOLD THAT THE ASSESSEE IS ENTITLED TO DEDUCTION U/S 54 OF THE ACT OF RS. 1,35,16,645/ - AS AGAINST RS. 81,72,207/ - ALLOWED BY THE A.O. ACCORDINGLY, GROUND OF APPEAL NOS. 1 AND 2 ARE PARTLY ALLOWED. IN OTHER WORDS, THE ASSESSEE GETS RELIEF OF RS. 53,44,438/ - AS AGAINST RS. 64,07,973/ - AS PER GROUNDS OF APPEAL NOS. 1 AND 2. THUS THE ABOVE GROUNDS ARE PARTLY ALLOWED. 12 ITA NO. 4834 /DEL/201 6 20. GROU ND NO. 3 IS IN RELATION TO LEVY OF INTEREST U/S 23 4 A, 234B AND 234C OF THE ACT. 21. AFTER HEARING BOTH THE SIDES, WE ARE OF THE OPINION THAT CHARGING OF INTEREST UNDER THE ABOVE PROVISIONS ARE MANDATORY AND CONSEQUENTIAL IN NATURE. THEREFORE, THE ABOVE G ROUND BY THE ASSESSEE IS DISMISSED. 22 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED ORDER PRONOUNCED IN THE OPEN COURT ON 2 5 .0 4 .2017. S D / - S D / - ( BEENA PILLAI ) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMB E R DATED: 2 5 . 0 4 .2017 V. LAKSHMI COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT (APPEALS) 5) DR: ITAT ASSISTANT REGISTRAR 13 ITA NO. 4834 /DEL/201 6 DATE DRAFT DICTATED ON 1 2 .0 4 .2017 DRAFT PLACED BEFORE AUTHOR 12 .0 4 .2017 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 12 .0 4 .2017 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS KEPT FOR PRONOUNCEMENT ON FILE SENT TO THE BENCH CLERK .04.2017 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.