BASARIBANU MOHD RAFIQ LATIWALA, MUMBAI V. ITO 12(3)(3), MUMBAI

ITA 5420/MUM/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7682 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 02-03-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 06-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Keywords: Capital asset; Salary income; Non compliance; Benefit of exemption
• Section: 143(3); 54F; 54; 15; 139

Judgement Text

H IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ./ I.T.A. NO. 5420/ MUM/2016 ( / ASSESSMENT YEAR : 2011-12) SMT. BASARIBANU MOHD. RAFIQ LATIWALA, 701/702 NEELAM, RIZVI COMPLEX, CARTER ROAD, BANDRA (WEST), MUMBAI 400 050. / V. INCOME TAX OFFICER 12(3)(3), AAYAKAR BHAVAN, MUMBAI. ./ PAN : ABGPL0686G ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI DEEPAK TRALSHAWALA, AR REVENUE BY : SHRI B.S. BIST, DR / DATE OF HEARING : 06-03-2017 / DATE OF PRONOUNCEMENT : 30-03-2017 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS APPEAL, FILED BY THE ASSESSEE, BEING ITA NO. 5420/MUM/2016, IS DIRECTED AGAINST APPELLATE ORDER DATED 9 TH JUNE, 2016 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)- 28, MUMBAI (H EREINAFTER CALLED THE CIT(A)), FOR ASSESSMENT YEAR 2011-12, THE APPELLAT E PROCEEDINGS BEFORE THE LEARNED CIT(A) ARISING FROM THE ASSESSMENT ORDER DA TED 23-01-2014 PASSED BY LEARNED ASSESSING OFFICER (HEREINAFTER CALLED THE AO) U/S 143(3) OF THE INCOME-TAX ACT,1961 (HEREINAFTER CALLED THE ACT). ITA 5420/MUM/2016 2 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN MEMO OF APPEAL FILED WITH THE INCOME-TAX APPELLATE TRIBUNAL, MUMBAI (HER EINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- THE LEARNED COMMISSIONER OF INCOME TAX (A) 28, M UMBAI ERRED IN RESTRICTING DEDUCTION U/S 54F TO RS. 52,47,251/- AS A GAINST ASSESSEES CLAIM OF DEDUCTION U/S 54 OF THE ACT AT RS. 91,86,156 /-. THE LEARNED COMMISSIONER OF INCOME TAX (A) 28, M UMBAI FAILED TO APPRECIATE THAT IT WAS A GENUINE MISTAKE OF THE ASSESSE ES HUSBAND TO ISSUE CHEQUE FOR A SUM OF RS. 40,45,975/- ON 12.8.2 011 IN THE NAME OF THE BUILDER OF THE PROPERTY PURCHASED BY THE ASSESSEE. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S AN INDIVIDUAL EARNING INCOME FROM SALARY, HOUSE PROPERTY, INTEREST AND CA PITAL GAIN. DURING COURSE OF ASSESSMENT PROCEEDINGS U/S 143(3) R.W.S. 143(2) OF 1961 ACT, THE ASSESSEE WAS ASKED TO FURNISH DETAILS OF LONG TERM CAPITAL G AIN AND EXEMPTION CLAIMED U/S 54F OF THE ACT. THE ASSESSEE SUBMITTED COPIES OF PURCHASE DEED OF NEW RESIDENTIAL PROPERTY IN RESPECT OF WHICH ASSESSEE H AD CLAIMED EXEMPTION U/S 54F OF 1961 ACT. FROM THE REPLY FURNISHED BY THE AS SESSEE, THE A.O. OBSERVED THAT ASSESSEE HAS EARNED LONG TERM CAPITAL GAIN OF RS. 92,66,395/- ARISING FROM SALE OF 837 SHARES OF BOMBINO VIDEO PRIVATE LI MITED, AGAINST WHICH ASSESSEE CLAIMED THAT SHE HAS INVESTED IN A NEW RES IDENTIAL PROPERTY VALUED AT RS. 91,86,156/- WHICH WAS CLAIMED AS EXEMPT U/S 54F OF 1961 ACT. THE ASSESSEE CLAIMED THAT SHE PURCHASED A PROPERTY AT P ANCHGINI (MAHABALESHWAR) WHICH WAS UNDER CONSTRUCTION FOR A CONSIDERATION OF RS. 98,00,786/- AGAINST WHICH PAYMENTS WERE MADE IN IN STALLMENTS AND ASSESSEE HAD PAID TOTAL SUM OF RS. 50,34,991/- IN A DDITION TO STAMP DUTY AND REGISTRATION CHARGES OF RS. 2,21,260/-. THE ASSESS EE SUBMITTED THAT AS PER SECTION 54F OF THE ACT, THE SALE PROCEEDS CAN BE IN VESTED IN AN UNDER ITA 5420/MUM/2016 3 CONSTRUCTION HOUSE PROPERTY WITHIN A PERIOD OF THRE E YEARS AND HENCE THE ASSESSEE WAS ENTITLED FOR FULL DEDUCTION OF RS. 92. 66 LAKHS. THE A.O. DID NOT ACCEPTED CONTENTIONS OF THE ASSESS EE. THE A.O. OBSERVED THAT THE ASSESSEE HAS GOT TRANSFER OF LEASE IN PERP ETUITY FOR A PERIOD OF 999 YEARS FOR PLOT NO. 119 ADMEASURING 562 SQ. MTRS EQU IVALENT TO 6049.4 SQ.FT., BEARING SURVEY NO. 31 SITUATED AT VILLAGE BHOSE, MA HABALESHWAR IN SATARA DISTRICT WHICH WAS REGISTERED ON 17 TH JANUARY, 2011 FOR A TOTAL CONSIDERATION OF RS. 89,91,055/- AND IN ADDITION TO THIS THE ASSE SSEE HAD INCURRED REGISTRATION CHARGES AND STAMP DUTY OF RS. 2,21,260 /- AND , THUS THE TOTAL COST OF THE ASSET WAS RS. 92,12,315/-. THE AO OBSE RVED THAT THE ASSESSEE HAD CLAIMED EXEMPTION U/S 54F OF 1961 ACT OF RS. 91 .86,156/-. THE A.O. OBSERVED THAT THE ASSESSEE HAS NOT INVESTED NET CON SIDERATION RECEIVED ON SALE OF SHARES FOR PURCHASING NEW UNDER-CONSTRUCTION RES IDENTIAL PROPERTY WHEREIN PAYMENT OF ONLY RS. 51,66,340/- WAS MADE BY THE AS SESSEE , AND ALSO THE AO OBSERVED THAT THE ASSESSEE DID NOT DEPOSITED THE B ALANCE AMOUNT IN CAPITAL GAIN ACCOUNT WITH A BANK OR AS SPECIFIED BY THE CEN TRAL GOVERNMENT FOR WHICH NO EVIDENCE HAD BEEN PRODUCED BY THE ASSESSEE, HENC E, THE BALANCE AMOUNT OF RS. 42,08,060/- WAS HELD BY AO TO BE TAXABLE UND ER THE HEAD LONG TERM CAPITAL GAIN FOR THE IMPUGNED ASSESSMENT YEAR WHICH WAS BROUGHT TO TAX BY A.O. , VIDE ASSESSMENT ORDER DATED 23.01.2014 PASS ED BY AO U/S 143(3) OF 1961 ACT. 4. AGGRIEVED BY ASSESSMENT ORDER DATED 23-01-2014 PASSED BY A.O. U/S. 143(3) OF 1961 ACT, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD. CIT(A). 5. THE LD. CIT(A) AFTER CONSIDERING SUBMISSION OF T HE ASSESSEE OBSERVED THAT ASSESSEE HAS ONLY INVESTED RS. 52,47,251/- IN A NEW UNDER CONSTRUCTION RESIDENTIAL PROPERTY BEFORE FILING OF RETURN OF INC OME U/S 139(1) OF 1961 ACT WITH THE REVENUE AND HENCE ASSESSEE IS ENTITLED TO A EXEMPTION OF RS. ITA 5420/MUM/2016 4 52,47,251/- U/S 54F OF 1961 ACT ONLY , OUT OF NET S ALE CONSIDERATION OF SHARES OF RS. 93,74,400/- RECEIVED BY THE ASSESSEE. THE AS SESSEE ALSO CONTENDED BEFORE LEARNED CIT(A) THAT ASSESSEE HAD ISSUED A CH EQUE DATED 12/08/2011 OF RS 40,45,975/- WHICH WAS RETURNED BACK TO THE ASSES SEE BY THE BUILDER KUMAR BUILDERS A MONTH LATER WITH THE COMMENTS 'C HEQUE SENT BACK AS FAVORING IS WRONG AND DATE IS ALSO REWRITTEN' AND T HE ASSESSEE SHOULD NOT BE PENALIZED FOR THE ACT OF THE BUILDER IN RETURNING T HE CHEQUE AND THIS SHOULD NOT BE A REASON TO DENY EXEMPTION U/S 54F OF 1961 A CT. THE LD. CIT(A) OBSERVED THAT CHEQUE WAS ISSUED IN THE NAME OF 'KU MAR BUILDERS' ON 12-08- 2011 WHICH DATE WAS BEYOND THE DATE STIPULATED FOR FILING RETURN OF INCOME U/S 139(1) OF 1961 ACT, WHILE DUE DATE OF FILING RE TURN OF INCOME U/S 139(1) OF 1961 ACT IN THE CASE OF THE ASSESSEE WAS 31-07-2011 . IT WAS ALSO OBSERVED BY LEARNED CIT(A) THAT ALL OTHER CHEQUES PRIOR TO ISSU E OF THIS CHEQUE OF RS. 40,45,975/- WERE ALL CORRECTLY ISSUED BY THE ASSESS EE IN THE NAME OF WINDSOR PARK COLLECTION ACCOUNT AND AGREEMENT DATED 17 TH JANUARY, 2011 ON PAGE 7 CLEARLY STIPULATES THAT PAYMENTS WERE ALL TO BE DRA WN IN FAVOR OF WINDSOR PARK COLLECTION ACCOUNT. THUS, THE ASSESSMENT ORDE R DATED 23-01-2014 PASSED BY A.O. U/S 143(3) OF 1961 ACT WAS UPHELD BY THE LD. CIT(A) VIDE APPELLATE ORDER DATED 09-06-2016. HOWEVER, LD. CIT (A) OBSERVED THAT ASSESSEE IS ENTITLED TO A EXEMPTION OF RS 52,47,251/- U/S 54 F OF 1961 ACT WHICH WAS INVESTED BY THE ASSESSEE IN NEW RESIDENTIAL HOUSE P ROPERTY BEFORE 31-07-2011 WHICH WAS THE DUE DATE OF FILING OF RETURN OF INCOM E U/S 139(1) OF 1961 ACT AS THE ASSESSEE DID NOT DEPOSITED THE BALANCE UN-UTILI ZED PORTION OF NET SALE CONSIDERATION ON SALE OF SHARES OF BOMBINO VIDEO PR IVATE LIMITED ON WHICH LONG TERM CAPITAL GAIN AROSE WITH THE CAPITAL GAIN ACCOUNT WITH BANK OR AS SPECIFIED BY CENTRAL GOVERNMENT. THUS, THE LEARNED CIT(A) HELD THAT UNUTILIZED PORTION OF SALE CONSIDERATION ON SALE OF SHARES IS RS 41,27,149/- (RS 93,74,400 - RS 52,47,251) AND THE ASSESSEE IS N OT ENTITLED FOR AN EXEMPTION U/S 54F OF 1961 ACT ON UNUTILIZED PORTION OF NET SALE CONSIDERATION OF RS. 41,27,149/- WHILE THE AO HAD DENIED EXEMPTIO N OF RS 42,08,060 U/S ITA 5420/MUM/2016 5 54F OF 1961 ACT, VIDE APPELLATE ORDER DATED 09-06- 2016 PASSED BY LEARNED CIT(A). 6, AGGRIEVED BY APPELLATE ORDER DATED 09.06.2016 PA SSED BY LD. CIT(A), THE ASSESSEE FILED APPEAL BEFORE TRIBUNAL. 7. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEFOR E TRIBUNAL THAT ASSESSEE HAS EARNED LONG TERM CAPITAL GAINS OF RS. 92,66,395/- ON TRANSFER OF 837 SHARES OF BOMBINO VIDEO PRIVATE LIMITED , AGAIN ST WHICH ASSESSEE CLAIMED THAT SHE HAD INVESTED IN A NEW UNDER CONSTR UCTION RESIDENTIAL PROPERTY VALUED AT RS. 91,86,156/- FOR WHICH CLAIM WAS MADE IN RETURN OF INCOME FILED WITH REVENUE FOR GRANT OF EXEMPTION U/ S 54F OF 1961 ACT. IT IS SUBMITTED BY LEARNED COUNSEL FOR THE ASSESSEE THAT ASSESSEE HAD PURCHASED A NEW UNDER CONSTRUCTION RESIDENTIAL PROPERTY AT PANC HGINI (MAHABALESHWAR) WHICH WAS UNDER CONSTRUCTION FOR A CONSIDERATION OF RS. 98,00,786/- AND PAID A SUM OF RS. 50,34,991/- IN INSTALLMENTS FOR P URCHASE OF UNDER CONSTRUCTION RESIDENTIAL PROPERTY IN ADDITION TO TH E STAMP DUTY AND REGISTRATION CHARGES OF RS. 2,12,260/-, PRIOR TO TH E DUE DATE OF FILING OF RETURN OF INCOME U/S 139(1) OF 1961 ACT , WHICH WAS IN THE CASE OF ASSESSEE WAS ON 31-07-2011 . THE DETAILS OF PAYMENTS MADE FOR PURCH ASE OF NEW RESIDENTIAL PROPERTY WHICH WAS UNDER CONSTRUCTION IS PLACED IN PAPER BOOK/PAGE 38 BY WAY OF CHART. IT WAS SUBMITTED THAT THE EXEMPTION TO THE TUNE OF RS. 91,86,156/- WAS CLAIMED U/S 54F OF 1961 ACT. THE RE TURN OF INCOME WAS FILED BELATEDLY ON 18.8.2011 , ALTHOUGH DUE DATE OF FILIN G OF RETURN OF INCOME U/S 139(1) OF 1961 ACT WAS 31 ST JULY, 2011. IT WAS SUBMITTED THAT THE AUTHORITIES BELOW ALLOWED DEDUCTION TO THE TUNE OF AMOUNT ACTUA LLY PAID TILL THE DUE DATE OF FILING OF RETURN U/S 139(1) OF 1961 ACT I.E. 31- 07-2011 AND REST OF THE AMOUNT PAID WAS DISALLOWED AS THE ASSESSEE DID NOT DEPOSIT THE BALANCE UNUTILIZED NET CONSIDERATION RECEIVED ON SALE OF SH ARES IN CAPITAL GAINS ACCOUNT WITH BANK OR AS SPECIFIED BY CENTRAL GOVERN MENT , AS MANDATED BY ITA 5420/MUM/2016 6 DECTION 54F(1) OF 1961 ACT. IT IS SUBMITTED AND CLA IMED THAT AS PER SECTION 54F OF 1961 ACT, THE NET SALE PROCEEDS CAN BE INVES TED IN AN UNDER CONSTRUCTION RESIDENTIAL PROPERTY WITHIN A PERIOD O F THREE YEARS FROM THE DATE OF TRANSFER OF ORIGINAL ASSET AND HENCE THE ASSESSE E WAS ENTITLED FOR FULL DEDUCTION OF RS. 92,66,395/- OF LONG TERM CAPITAL G AINS EARNED BY THE ASSESSEE U/S 54F(1) OF 1961 ACT AS THE ASSESSEE DUL Y INVESTED THE NET CONSIDERATION ON SALE OF 837 SHARES OF BOMBINO VIDE O PRIVATE LIMITED WITHIN THREE YEARS FROM THE DATE OF TRANSFER OF SHARES TOW ARDS PURCHASE OF NEW RESIDENTIAL PROPERTY WHEREIN SOME OF THE AMOUNT WAS EVEN INVESTED BEYOND THE PERIOD STIPULATED U/S 139(4) OF 1961 ACT DESPIT E ALSO THAT THE ASSESSEE HAVING NOT COMPLIED WITH PROVISIONS OF SECTION 54F( 4) OF 1961 ACT AS THE UNUTILIZED NET SALE CONSIDERATION ON SALE OF SHARES WAS NOT DEPOSITED WITH CAPITAL GAIN ACCOUNT MAINTAINED WITH BANK OR AS SP ECIFIED BY CENTRAL GOVERNMENT BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME U/S 139(1) OF 1961 ACT WHICH HAPPENED TO BE 31-07-2011. IT WAS AR GUED THAT SECTION 54F OF 1961 ACT IS A BENEFICIAL PROVISION AND THE ASSESSEE CANNOT BE DENIED EXEMPTION U/S 54F OF THE ACT AS THE ASSESSEE HAD CO MPLIED WITH PROVISIONS OF SECTION 54F(1) OF 1961 ACT BY INVESTING RS. 92,93,2 26 WITHIN THREE YEAR IN AN UNDER CONSTRUCTION NEW RESIDENTIAL PROPERTY WHILE T HERE WAS NON COMPLIANCE OF PROVISIONS OF SECTION 54F(4) OF 1961 ACT AS THE ASSESSEE DID NOT DEPOSITED THE BALANCE UN-UTILIZED PORTION OF NET CONSIDERATIO N IN CAPITAL GAIN ACCOUNT MAINTAINED WITH BANK OR AS SPECIFIED BY CENTRAL GOV ERNMENT. IT WAS SUBMITTED THAT ASSESSEE DID INVESTED NET SALE CONSI DERATION TO THE TUNE OF RS. 92,93,226/- TOWARDS UNDER CONSTRUCTION NEW RESIDENT IAL PROPERTY WITHIN 3 YEARS FROM TRANSFER OF SHARES ON 15-03-2011 THUS CO MPLYING WITH PROVISIONS OF SECTION 54F(1) OF 1961 ACT, WHICH EXEMPTION SHOU LD BE ALLOWED U/S 54F OF 1961 ACT KEEPING IN VIEW THAT THE ASSESSEE INVESTED RS. 92,93,226/- IN NEW RESIDENTIAL ASSET WITHIN THREE YEARS FROM THE DATE OF TRANSFER OF ORIGINAL ASSET. THUS, IT WAS SUBMITTED THAT THE ASSESSEE MADE INVE STMENT FOR PURCHASE OF NEW UNDER CONSTRUCTION RESIDENTIAL PROPERTY BEYOND THE DATE OF FILING OF ITA 5420/MUM/2016 7 RETURN U/S 139(1) OF 1961 ACT BUT WITHIN THREE YEAR S FROM THE DATE OF TRANSFER OF SHARES ON 15-03-2011 ON WHICH LONG TERM CAPITAL GAIN AROSE. IT WAS SUBMITTED THAT OUT OF RS. 92,93,226/- OF THE TOTAL INVESTMENT MADE BY THE ASSESSEE WITH UNDER CONSTRUCTION NEW RESIDENTIAL PR OPERTY WITHIN THREE YEARS FROM THE DATE OF TRANSFER OF SHARES ON 15-03-2011, THE ASSESSEE INVESTED RS. 74,95,014/- PRIOR TO THE DATE STIPULATED U/S 139(4) OF 1961 ACT FOR FILING OF BELATED RETURN. IT WAS SUBMITTED THAT THERE WAS COM PLIANCE OF SUBSTANTIVE PROVISIONS AS STIPULATED U/S 54F(1) OF 1961 ACT AND NON COMPLIANCE WITH SECTION 54F(4) OF 1961 ACT CANNOT TAKE AWAY THE BEN EFIT AS PROVIDED BY 1961 ACT VIDE SECTION 54F(1) OF 1961 ACT, AS SECTION 54F (4) OF 1961 ACT DOES NOT CONTROL SECTION 54F(1) OF 1961 ACT. HE INVITED OUR ATTENTION TO THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF HUMAYUN SU LEMAN MERCHANT V. THE CHIEF COMMISSIONER OF INCOME TAX, IT APPEAL NO. 545 OF 2002 DATED 18 TH AUGUST, 2016 (2016) 387 ITR 421(BOMBAY) AND SUBMITT ED THAT HONBLE BOMBAY HIGH COURT HAS ALLOWED DEDUCTION U/S 54F OF 1961 ACT MADE TILL THE FILING OF RETURN BY THE TAX-PAYER ALTHOUGH FILED BE YOND THE TIME STIPULATED U/S 139(1) OF 1961 ACT BUT PRIOR TO THE DATE STIPULATED FOR FILING OF BELATED RETURN U/S 139(4) OF 1961 ACT . IT WAS SUBMITTED THAT SECT ION 54F OF THE ACT IS A BENEFICIAL PROVISION WHICH HAS BEEN BROUGHT INTO TH E ACT WITH THE OBJECT OF ENCOURAGING INVESTMENT IN HOUSING SECTOR, HENCE, A LIBERAL AND BENEFICIAL INTERPRETATION/CONSTRUCTION BE GIVEN TO SECTION 54F OF THE ACT AND SINCE THE ASSESSEE COMPLIED WITH REQUIREMENT OF SECTION 54F(1 ) OF THE ACT AND MERELY NON COMPLIANCE WITH PROVISIONS OF SECTION 54F(4) CA NNOT DISENTITLE THE ASSESSEE FROM CLAIMING EXEMPTION U/S 54F OF THE AC T AND SECTION 54F(1) IS NOT SUBJECT TO SECTION 54F(4) OF 1961 ACT. IT IS SU BMITTED THAT IF IT IS HELD THAT SECTION 54F(1) OF THE ACT IS SUBJECT TO SECTION 54F (4) OF 1961 ACT, THEN THE WHOLE PURPOSE OF SECTION 54 OF THE ACT BEING BENEFI CIAL PROVISION FOR ENCOURAGING INVESTMENT IN HOUSING SECTOR WILL BE DE FEATED. THE LD. COUNSEL FOR THE ASSESSEE ALSO RELIED UPON THE DECISION OF HON BLE SUPREME COURT IN THE CASE OF SANJEEV LAL AND SMT. SHAIL MOTI LAL V. CIT [2014] 365 ITR 389 (SC), ITA 5420/MUM/2016 8 AND DECISION OF HONBLE SUPREME COURT IN THE CASE OF OXFORD UNIVERSITY PRESS V. CIT (2001) 247 ITR 658(SC) , DECISION OF H ONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT V. SAMBANDAM UDAYKUMAR REP ORTED IN (2012) 345 ITR 389 (KAR. HC) , DECISION OF ITAT, CHENNAI IN TH E CASE OF SMT. V A THARABAI V. DCIT REPORTED IN (2012) 149 TTJ (CHENNA I) (UO) 41, DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. SURE SH NANDA (2015) 375 ITR 172(DEL HC) AND ALSO DECISION OF ITAT, CHENNAI BENC H IN THE CASE OF ACIT V. UMAYAL ANNAMALAI (2016) 46 CCH 0524 (CHENNAI TRIB.) AND SUBMITTED THAT FULL BENEFIT SHOULD BE GRANTED TO THE ASSESSEE TO T HE EXTENT OF AMOUNT INVESTED IN NEW UNDER CONSTRUCTION RESIDENTIAL PROPERTY WITH IN THREE YEARS FROM THE DATE OF TRANSFER OF SHARES, AS SECTION 54F OF 1961 ACT BEING BENEFICIAL PROVISION THE SAME SHOULD BE LIBERALLY CONSTRUED. I T WAS SUBMITTED THAT PERIOD FOR MAKING INVESTMENT SHOULD BE SO CONSTRUED TO INCLUDE PERIOD ALLOWED BY 1961 ACT FOR FILING BELATED RETURN AS ST IPULATED U/S 139(4) OF 1961 ACT RATHER THAN DUE DATE AS STIPULATED U/S 139(1) O F 1961 ACT. THE LD. COUNSEL ALSO TOOK US THROUGH PAGE 39/PAPER BOOK WHE REIN COPY OF CHEQUE ISSUED IN FAVOUR OF KUMAR BUILDERS FOR RS. 40,45, 975/- WHICH WAS RETURNED BACK BY THE BUILDER AS THERE WAS A MISTAKE IN THE N AME OF THE PAYEE IS PLACED AND IT WAS ALSO CONTENDED THAT THE CHEQUE WAS DULY ISSUED BUT SINCE IT WAS ISSUED IN FAVOUR OF WRONG NAME , IT WAS RETURNED BY BUILDER AS ALSO THERE WERE CUTTINGS IN THE SAID CHEQUE. THE STATEMENT SHOWIN G DETAILS OF PAYMENTS MADE FOR PURCHASE OF THE PROPERTY PANCHGINI(MAHABA LESHWAR) IS PLACED AT PAPER BOOK PAGE 38 BY WAY OF CHART AND IT WAS SUBMI TTED THAT THE ASSESSEE COULD NOT BE FAULTED AS EVEN THE PAYMENTS OF RS. 74 ,95,014 OUT OF RS.92,93,225/- WERE MADE PRIOR TO THE DATE PRESCRIB ED FOR FILING BELATED RETURN OF INCOME U/S 139(4) OF 1961 ACT AND THE ENT IRE PAYMENT OF RS. 92,93,225/- WAS MADE WITHIN THREE YEARS FROM THE DA TE OF TRANSFER OF SHARES ON 15-03-2011 AND THE SAME SHOULD BE ALLOWED AS EXE MPTION U/S 54F OF 1961 ACT. ITA 5420/MUM/2016 9 8. THE LD. D.R. SUBMITTED THAT HONBLE BOMBAY HIGH COURT IN THE CASE OF HUMAYUN SULEMAN MERCHANT(SUPRA) HAS DECIDED THAT IN VESTMENT MADE IN NEW RESIDENTIAL PROPERTY TILL THE DATE OF FILING OF RETURN OF INCOME WHICH IN THE INSTANT CASE IS 18-08-2011 SHALL BE CONSIDERED FOR ALLOWING EXEMPTION U/S 54F OF 1961 ACT, IN CASES WHERE THE ASSESSEE DID NOT DEPOSIT THE UNUTILIZED AMOUNT OF NET CONSIDERATION IN CAPITAL GAIN ACCOUNT WITH BANK OR AS SPECIFIED BY CENTRAL GOVERNMENT, THE SAME SHALL NOT BE ALLOWE D. IT IS SUBMITTED THAT THE HONBLE JURISDICTIONAL HIGH COURT DECISION IN H UMAYUN SULEMAN MERCHANT ( SUPRA) IS BINDING ON THE TRIBUNAL.IT IS ALSO SUBMITTED THAT SECTION 54F(4) OF 1961 ACT STIPULATES MANDATORY CONDITION O F DEPOSITING THE UNUTILIZED AMOUNT IN CAPITAL GAIN ACCOUNT WITH BANK OR AS SPEC IFIED BY CENTRAL GOVERNMENT. 9. WE HAVE CONSIDERED RIVAL CONTENTIONS AND ALSO PE RUSED THE MATERIAL AVAILABLE ON RECORD INCLUDING CASE LAWS RELIED UPON . WE HAVE OBSERVED THAT ASSESSEE TRANSFERRED 837 SHARES OF BOMBINO VIDEO PR IVATE LIMITED FOR A TOTAL CONSIDERATION OF RS. 93,74,400/- DURING PREVIOUS YE AR RELEVANT TO IMPUGNED ASSESSMENT YEAR ON WHICH LONG TERM CAPITAL GAIN TO THE TUNE OF RS. 92,66,395/- WAS EARNED BY THE ASSESSEE. THE ASSESS EE PURCHASED UNDER CONSTRUCTION RESIDENTIAL PROPERTY AT PANCHGINI (MAH ABALESHWAR) BY WAY OF TRANSFER OF LEASE IN PERPETUITY FOR 999 YEARS ON PL OT NO. 119 ADMEASURING 562 SQ. MTRS EQUIVALENT TO 6049.4 SQ.FT. BEARING SURVEY NO. 31 SITUATED AT VILLAGE BHOSE, MAHABALESHWAR IN SATARA DISTRICT WHICH WAS R EGISTERED ON 17 TH JANUARY, 2011 IN FAVOUR OF ASSESSEE FOR A TOTAL CON SIDERATION OF RS. 92,93,226/- ( INCLUSIVE OF STAMP DUTY, REGISTRATION CHARGES AND VAT ) (PB/1- 38).. THE ASSESSEE HAD PAID RS. 52,47,251/- TOWARDS ACQUISITION OF AFORESAID NEW RESIDENTIAL HOUSE BEFORE THE DUE DATE OF FILI NG OF RETURN OF INCOME U/S 139(1) OF 1961 ACT ON 31-07-2011. THE ASSESSEE DID NOT DEPOSIT THE BALANCE NET CONSIDERATION ON SALE OF SHARES OF RS. 41,27,14 5/- WITH CAPITAL GAIN ACCOUNT MAINTAINED WITH BANK AS STIPULATED U/S 54F( 4) OF 1961 ACT, BEFORE ITA 5420/MUM/2016 10 31-07-2011 I.E. DUE DATE OF FILING OF RETURN OF INC OME U/S 139(1) OF 1961 ACT. THE CIT(A) ALLOWED BENEFIT OF SECTION 54F OF 1961 ACT OF THE AMOUNT WHICH WAS ACTUALLY PAID TOWARDS ACQUISITION OF THE NEW R ESIDENTIAL HOUSE PROPERTY OF RS. 52,47,251/- WHICH WAS PAID BEFORE THE DUE D ATE OF FILING OF RETURN OF INCOME U/S 139(1) OF 1961 ACT I.E. 31-07-2011 AND T HE BENEFIT U/S 54F OF 1961 ACT TOWARDS REST OF THE AMOUNT OF COST OF ACQU ISITION/ CONSTRUCTION OF NEW RESIDENTIAL PROPERTY TO THE TUNE OF RS. 41,27,1 49/- WAS DISALLOWED ON THE GROUND THAT THE ASSESSEE HAS NOT DEPOSITED THE SAID AMOUNT OF RS. 41,27,149/- IN THE CAPITAL GAIN ACCOUNT MAINTAINED WITH THE BANK AS STIPULATED U/S 54F(4) OF 1961 ACT . WE HAVE ALSO O BSERVED THAT SECTION 54F OF 1961 ACT IS A BENEFICIAL PROVISION WHICH GRANTS EXE MPTION FROM PAYMENT OF TAX ON LONG TERM CAPITAL GAINS IF THE AMOUNT IS INV ESTED IN ACQUISITION/ CONSTRUCTION OF NEW RESIDENTIAL PROPERTY AND IS MEA NT TO ENCOURAGE INVESTMENT IN HOUSING SECTOR. SECTION 54F(4) OF 196 1 ACT CLEARLY PROVIDES THAT THE AMOUNTS OF NET CONSIDERATION RECEIVED BY THE AS SESSEE WHICH HAS NOT BEEN INVESTED EITHER IN PURCHASE OR CONSTRUCTION OF HOUS E HAVE TO BE DEPOSITED IN THE SPECIFIED CAPITAL GAIN ACCOUNTS MAINTAINED WITH BANK BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME U/S 139(1) OF THE ACT . . SECTION 54F(4) OF 1961 ACT CLEARLY STIPULATES THAT THE EXEMPTION SHALL BE PROV IDED U/S 54F OF 1961 ACT FOR INVESTING NET CONSIDERATION RECEIVED ON TRANSFE R OF ORIGINAL ASSET IN ACQUISITION OR CONSTRUCTION OF NEW RESIDENTIAL HOUS E PROPERTY BEFORE THE DATE OF FURNISHING OF RETURN OF INCOME WITHIN TIME STIPU LATED U/S 139 OF 1961 ACT. WE HAVE ALSO OBSERVED THAT SECTION 54F(1) OF 1961 A CT IS SPECIFICALLY MADE SUBJECT TO SECTION 54F(4) OF 1961 ACT BY AN AMENDME NT BROUGHT IN BY FINANCE ACT, 1987 W.E.F. 01.04.1988. THE LANGUAGE O F SECTION 54F OF THE ACT IS CLEAR AND UNAMBIGUOUS AND IT IS FUNDAMENTAL PRINCIP LE OF INTERPRETATION OF STATUTE THAT WHERE THE LANGUAGE OF STATUTE IS PLAIN , CLEAR AND UNAMBIGUOUS , THE COURTS ARE DUTY BOUND TO FOLLOW THE SAME AND TH ERE IS NO NEED FOR COURTS TO RESORT TO OTHER PRINCIPLES OF INTERPRETATION OF STATUTE SUCH AS EQUITY, PURPOSIVE OR HARMONIOUS CONSTRUCTION ETC. . IT IS A LSO WELL ACCEPTED ITA 5420/MUM/2016 11 PROPOSITION THAT THERE IS NO EQUITY IN TAXATION AND PROVISIONS ARE TO BE STRICTLY CONSTRUED . IF THE SUBJECTS FALLS WITHIN TAXING PRO VISIONS OF THE STATUTE AS PER CLEAR, PLAIN AND UNAMBIGUOUS LANGUAGE USED IN THE STATUTE, HE/SHE MUST BE BROUGHT WITHIN THE AMBIT OF TAX AS PER PROVISION OF THE STATUTE. SECTION 54F(1) OF THE ACT CLEARLY STIPULATES THAT IT IS SUBJECT TO SECTION 54F(4) OF 1961 ACT AND REQUIREMENT TO DEPOSIT OF UNUTILIZED NET CONSIDERAT ION OF THE ASSET SOLD IN CAPITAL GAIN BANK ACCOUNT OR AS SPECIFIED BY CENTRA L GOVERNMENT AS MANADATED BY SECTION 54F(4) OF 1961 ACT BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME AS STIPULATED U/S 139(1) OF THE AC T IS AN ESSENTIAL REQUIREMENT TO AVAIL EXEMPTION U/S 54F OF 1961 ACT OR ELSE THE AMOUNT IS INVESTED IN NEW RESIDENTIAL PROPERTY BEFORE THE DAT E OF FURNISHING OF RETURN OF INCOME U/S 139 OF 1961 ACT . THE ASSESSEE WHILE CL AIMING BENEFIT UNDER EXEMPTION PROVISION HAS TO PROVE ITS ENTITLEMENT ST RICTLY IN ACCORDANCE WITH THE PROVISION OF STATUTE GRANTING EXEMPTION AND ONC E THE ASSESSEE PROVES ITS ENTITLEMENT TO EXEMPTION IN ACCORDANCE WITH PROVISI ON OF STATUTE, THEN THE SAID PROVISION IS TO BE LIBERALLY CONSTRUED TO GIVE FULL EFFECT TO PROVISION GRANTING EXEMPTION TO ACHIEVE THE DESIRED OBJECT OF GRANTING EXEMPTION. THE ASSESSEE IN THE INSTANT CASE DID NOT DEPOSITED THE ENTIRE NET CONSIDERATION RECEIVED ON TRANSFER OF ORIGINAL ASSET ON WHICH LON G TERM CAPITAL GAIN AROSE EITHER IN NEW RESIDENTIAL PROPERTY NOR DEPOSITED TH E UNUTILIZED PORTION OF NET CONSIDERATION ON TRANSFER OF ORIGINAL ASSET WITH CA PITAL GAIN ACCOUNT WITH BANK OR AS STIPULATED BY CENTRAL GOVERNMENT. SECTION 54F OF 1961 ACT AS WAS IN FORCE DURING RELEVANT PERIOD IS REPRODUCED HEREUNDE R: [ CAPITAL GAIN ON TRANSFER OF CERTAIN CAPITAL ASSETS NOT TO BE CHARGED IN CASE OF INVESTMENT IN RESIDENTIAL HOUSE. 54F. (1) [SUBJECT TO THE PROVISIONS OF SUB-SECTION (4) , WHERE, IN THE CASE OF AN ASSESSEE BEING AN INDIVIDUAL OR A HINDU UNDIVIDED F AMILY], THE CAPITAL GAIN ARISES FROM THE TRANSFER OF ANY LONG-TERM CAPITAL ASSET, NOT BE ING A RESIDENTIAL HOUSE (HEREAFTER IN THIS SECTION REFERRED TO AS THE ORIGINAL ASSET), AN D THE ASSESSEE HAS, WITHIN A PERIOD OF ONE YEAR BEFORE OR [TWO YEARS] AFTER THE DATE ON W HICH THE TRANSFER TOOK PLACE PURCHASED, OR HAS WITHIN A PERIOD OF THREE YEARS AFT ER THAT DATE CONSTRUCTED, A RESIDENTIAL HOUSE (HEREAFTER IN THIS SECTION REFERR ED TO AS THE NEW ASSET), THE CAPITAL ITA 5420/MUM/2016 12 GAIN SHALL BE DEALT WITH IN ACCORDANCE WITH THE FOLL OWING PROVISIONS OF THIS SECTION, THAT IS TO SAY, ( A ) IF THE COST OF THE NEW ASSET IS NOT LESS THAN T HE NET CONSIDERATION IN RESPECT OF THE ORIGINAL ASSET, THE WHOLE OF SUCH CA PITAL GAIN SHALL NOT BE CHARGED UNDER SECTION 45 ; ( B ) IF THE COST OF THE NEW ASSET IS LESS THAN THE NE T CONSIDERATION IN RESPECT OF THE ORIGINAL ASSET, SO MUCH OF THE CAPITAL GAIN AS BEARS TO THE WHOLE OF THE CAPITAL GAIN THE SAME PROPORTION AS THE COST OF THE NEW ASSET BEARS TO THE NET CONSIDERATION, SHALL NOT BE CHARGED UNDER SECTION 45 : [ PROVIDED THAT NOTHING CONTAINED IN THIS SUB-SECTION SHALL A PPLY WHERE ( A ) THE ASSESSEE, ( I ) OWNS MORE THAN ONE RESIDENTIAL HOUSE, OTHER THAN THE NEW ASSET, ON THE DATE OF TRANSFER OF THE ORIGINAL ASSET; OR ( II ) PURCHASES ANY RESIDENTIAL HOUSE, OTHER THAN THE NEW ASSET, WITHIN A PERIOD OF ONE YEAR AFTER THE DATE OF TRANSFER OF THE ORIGI NAL ASSET; OR ( III ) CONSTRUCTS ANY RESIDENTIAL HOUSE, OTHER THAN THE NEW ASSET, WITHIN A PERIOD OF THREE YEARS AFTER THE DATE OF TRANSFER OF THE ORIGINAL ASSET; AND ( B ) THE INCOME FROM SUCH RESIDENTIAL HOUSE, OTHER T HAN THE ONE RESIDENTIAL HOUSE OWNED ON THE DATE OF TRANSFER OF THE ORIGINAL ASSET , IS CHARGEABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY.] EXPLANATION. FOR THE PURPOSES OF THIS SECTION, [***] [***] NET CONSIDERATION, IN RELATION TO THE TRAN SFER OF A CAPITAL ASSET, MEANS THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESU LT OF THE TRANSFER OF THE CAPITAL ASSET AS REDUCED BY ANY EXPENDITURE INCURRED WHOLLY AND EXCLU SIVELY IN CONNECTION WITH SUCH TRANSFER. (2) WHERE THE ASSESSEE PURCHASES, WITHIN THE PERIOD OF [TWO YEARS] AFTER THE DATE OF THE TRANSFER OF THE ORIGINAL ASSET, OR CONSTRUCTS, WITHIN THE PERIOD OF THREE YEARS AFTER SUCH DATE, ANY RESIDENTIAL HOUSE, THE INCOME FROM W HICH IS CHARGEABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY, OTHER THAN THE NEW ASS ET, THE AMOUNT OF CAPITAL GAIN ARISING FROM THE TRANSFER OF THE ORIGINAL ASSET NOT CHARGED UNDER SECTION 45 ON THE BASIS OF THE COST OF SUCH NEW ASSET AS PROVIDED IN C LAUSE ( A ), OR, AS THE CASE MAY BE, CLAUSE ( B ), OF SUB-SECTION (1), SHALL BE DEEMED TO BE INCOME CHARGEABLE UNDER THE HEAD CAPITAL GAINS RELATING TO LONG-TERM CAPITAL ASSET S OF THE PREVIOUS YEAR IN WHICH SUCH RESIDENTIAL HOUSE IS PURCHASED OR CONSTRUCTED. (3) WHERE THE NEW ASSET IS TRANSFERRED WITHIN A PERIO D OF THREE YEARS FROM THE DATE OF ITS PURCHASE OR, AS THE CASE MAY BE, ITS CONSTRUCTI ON, THE AMOUNT OF CAPITAL GAIN ARISING FROM THE TRANSFER OF THE ORIGINAL ASSET NOT CHARGED UNDER SECTION 45 ON THE BASIS OF THE COST OF SUCH NEW ASSET AS PROVIDED IN C LAUSE ( A ) OR, AS THE CASE MAY BE, CLAUSE ( B ), OF SUB-SECTION (1) SHALL BE DEEMED TO BE INCOME CHARGEABLE UNDER THE HEAD CAPITAL GAINS RELATING TO LONG-TERM CAPITAL ASSET S OF THE PREVIOUS YEAR IN WHICH SUCH NEW ASSET IS TRANSFERRED.] [(4) THE AMOUNT OF THE NET CONSIDERATION 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 PLACE, OR WH ICH IS NOT UTILISED BY HIM FOR THE PURCHASE OR CONSTRUCTION OF THE NEW ASSET BEFORE TH E 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 ITA 5420/MUM/2016 13 CASE OF THE ASSESSEE FOR FURNISHING THE RETURN OF I NCOME UNDER SUB-SECTION (1) OF SECTION 139 ] IN AN ACCOUNT IN ANY SUCH BANK OR INSTITUTION AS MAY BE SPECIFIED IN, AND UTILISED IN ACCORDANCE WITH, ANY SCHEME WHICH TH E CENTRAL GOVERNMENT MAY, BY NOTIFICATION IN THE OFFICIAL GAZETTE, FRAME IN THIS BEHALF AND SUCH RETURN SHALL BE ACCOMPANIED BY PROOF OF SUCH DEPOSIT ; AND, FOR THE PURPOSES OF SUB-SECTION (1), THE AMOUNT, IF ANY, ALREADY UTILISED BY THE ASSESSEE FO R THE PURCHASE OR CONSTRUCTION OF THE NEW ASSET TOGETHER WITH THE AMOUNT SO DEPOSITED SHALL 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 N EW ASSET WITHIN THE PERIOD SPECIFIED IN SUB-SECTION (1), THEN, ( I ) THE AMOUNT BY WHICH ( A ) THE AMOUNT OF CAPITAL GAIN ARISING FROM THE TRAN SFER OF THE ORIGINAL ASSET NOT CHARGED UNDER SECTION 45 ON THE BASIS OF THE COST OF THE NEW ASSET AS PROVIDED IN CLAUSE ( A ) OR, AS THE CASE MAY BE, CLAUSE ( B ) OF SUB- SECTION (1), EXCEEDS ( B ) THE AMOUNT THAT WOULD NOT HAVE BEEN SO CHARGED HA D THE AMOUNT ACTUALLY UTILISED BY THE ASSESSEE FOR THE PURCHASE OR CONSTR UCTION OF THE NEW ASSET WITHIN THE PERIOD SPECIFIED IN SUB-SECTION (1) BEEN THE COST OF THE NEW ASSET, SHALL BE CHARGED UNDER SECTION 45 AS 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 THE UN UTILISED AMOUNT IN ACCORDANCE WITH THE SCHEME AFORESAID. EXPLANATION. [ OMITTED BY THE FINANCE ACT, 1992, W.E.F. 1-4-1993. ]] THE PROVISIONS OF SECTION 54F OF THE ACT HAS BEEN CONSIDERED BY THE HONBLE BOMBAY HIGH COURT IN DETAIL IN THE CASE OF HUMAYUN SULEMAN MERCHANT (SUPRA) WHEREIN SIMILAR ISSUE AROSE BEFORE HONBLE BOMBAY HIGH COURT AND DECISION OF JURISDICTIONAL HIGH COURT IS BINDING ON US , WHEREIN HONBLE COURT HAS DISCUSSED THE ISSUE OF SECTION 54F(4) AND 54F(1 ) OF 1961 ACT IN DETAILS AND HELD THAT THE BENEFIT OF SECTION 54F OF 1961 AC T WILL BE AVAILABLE FOR THE AMOUNT INVESTED IN ACQUIRING NEW RESIDENTIAL HOUSE PROPERTY TILL THE DATE OF ACTUAL FILING OF RETURN OF INCOME EVEN THOUGH BELAT EDLY FILED WITHIN PERIOD STIPULATED U/S 139(4) OF 1961 ACT, IN CASE THE ASSE SSEE DID NOT COMPLY WITH DEPOSIT OF UNUTILIZED NET CONSIDERATION WITH CAPITA L GAIN ACCOUNT WITH BANK AS STIPULATED U/S 54F(4) OF 1961.THE HONBLE BOMBAY HI GH COURT ALSO HELD THAT SECTION 54F(1) OF 1961 ACT IS SUBJECT TO SECTION 54 F(4) OF 1961 ACT AFTER AMENDMENT BROUGHT IN BY FINANCE ACT, 1987 W.E.F. 01 -04-1988 AND IT IS ITA 5420/MUM/2016 14 ESSENTIAL FOR THE TAX-PAYER TO COMPLY WITH PROVISIO NS OF SECTION 54F(4) OF 1961 ACT. THE DECISION OF HONBLE BOMBAY HIGH COURT IN H UMAYUN SULEMAN MERCHANT(SUPRA) IS REPRODUCED HEREUNDER: ( D ) FOR A PROPER APPRECIATION OF THE RIVAL SUBMISSIONS, IT IS NECESSARY TO REPRODUCE THE RELEVANT PORTION OF SECTION 54F OF THE ACT WHICH ARI SES FOR OUR CONSIDERATION : '54F(1)[SUBJECT TO THE PROVISIONS OF SUB-SECTION (4 ), WHERE, IN THE CASE OF AN ASSESSEE BEING AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY] TH E CAPITAL GAIN ARISES FROM THE TRANSFER OF ANY LONG-TERM CAPITAL ASSET, NOT BEING A RESIDE NTIAL HOUSE (HEREAFTER IN THIS SECTION REFERRED TO AS THE ORIGINAL ASSET), AND THE ASSESSEE HAS, WITHIN A PERIOD OF ONE YEAR BEFORE OR [TWO YEARS] AFTER THE DATE ON WHICH T HE TRANSFER TOOK PLACE PURCHASED OR HAS WITHIN A PERIOD OF THREE YEARS AFTER THAT DATE C ONSTRUCTED, A RESI DENTIAL HOUSE (HEREAFTER IN THIS SECTION REFERRED TO AS THE NEW ASSET), THE C APITAL GAIN SHALL BE DEALT WITH IN ACCORDANCE WITH THE FOLLOWING PROVISIONS OF THIS SECT ION, THAT IS TO SAY - ( A ) IF THE COST OF THE NEW ASSET IS NOT LESS THAN THE NE T CONSIDERATION IN RESPECT OF THE ORIGINAL ASSET, THE WHOLE OF SUCH CAPITAL GAIN SHAL L NOT BE CHARGED UNDER SECTION 45; ( B ) IF THE COST OF THE NEW ASSET IS LESS THAN THE NET CO NSIDERATION IN RESPECT OF THE ORIGINAL ASSET, SO MUCH OF THE CAPITAL GAIN AS BE ARS TO THE WHOLE OF THE CAPITAL GAIN THE SAME PROPORTION AS THE COST OF THE NEW ASSET BE ARS TO THE NET CONSIDERATION, SHALL NOT BE CHARGED UNDER SECTION 45: PROVIDED THAT NOTHING CONTAINED IN THIS SUB- SECTION SHALL APPLY WHERE THE ASSESSEE OWNS ON THE DATE OF THE TRANSFER OF THE ORIGINAL ASSET, OR PURC HASES, WITHIN THE PERIOD OF ONE YEAR AFTER SUCH DATE, OR CO NSTRUCTS, WITHIN THE PERIOD OF THREE YEARS AFTER SUCH DATE, ANY RESIDENTIAL HOUSE, THE INCOME FROM WHICH IS CHARGEABLE UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY', OTHER THAN THE NEW ASSET. (2) & (3)** ** ** (4) THE AMOUNT OF THE NET CONSIDERATION WHICH IS NO T APPROPRIATED BY THE ASSESSEE TOWARDS THE PURCHASE OF THE NEW ASSET MADE WITHIN ON E YEAR BEFORE THE DATE ON WHICH THE TRANSFER OF THE ORIGINAL ASSET TOOK PLACE, OR WH ICH IS NOT UTILIZED BY HIM FOR THE PURCHASE OR CONSTRUCTION OF THE NEW ASSET BEFORE TH E 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 ASSESSEE FOR FURNISHING THE RETURN OF INCOME UN DER SUB-SECTION (1) OF SECTION 139] IN AN ACCOUNT IN ANY SUCH BANK OR INSTITUTION AS MAY B E SPECIFIED IN, AND UTILIZED IN ACCORDANCE WITH, ANY SCHEME WHICH THE CENTRAL GOVER NMENT MAY, BY NOTIFICATION IN THE OFFICIAL GAZETTE, FRAME IN THIS BEHALF AND SUCH RETURN SHALL BE ACCOMPANIED BY PROOF OF SUCH DEPOSIT; AND FOR THE PURPOSES OF SUB-SECTIO N (1), THE AMOUNT, IF ANY, ALREADY UTILIZED BY THE ASSESSEE FOR THE PURCHASE OR CONSTR UCTION OF THE NEW ASSET TOGETHER WITH THE AMOUNT SO DEPOSITED SHALL BE DEEMED TO BE THE C OST OF THE NEW ASSET : PROVIDED THAT IF THE AMOUNT DEPOSITED UNDER THIS SUB-SECTIO N IS NOT UTILIZED WHOLLY OR PARTLY FOR THE PURCHASE OR CONSTRUCTION OF THE NEW ASSET WITHIN THE PERIOD SPECIFIED IN ITA 5420/MUM/2016 15 SUB-SECTION (1), THEN - ( I ) THE AMOUNT BY WHICH - ( A ) THE AMOUNT OF CAPITAL GAIN ARISING FROM THE TRANSFE R OF THE ORIGINAL ASSET NOT CHARGED UNDER SECTION 45 ON THE BASIS OF THE COST OF THE NEW ASSET AS PROVIDED IN CLAUSE (A) OR, AS THE CASE MAY BE, CLAU SE (B) OF SUB- SECTION (1), EXCEEDS ( B ) THE AMOUNT THAT WOULD NOT HAVE BEEN SO CHARGED HAD THE AMOUNT ACTUALLY UTILIZED BY THE ASSESSEE FOR THE PURCHASE OR CONSTRUCTION OF THE NEW ASSET WITHIN THE PERIOD SPECIFIED IN SUB- SECTION (1) BEEN THE COST OF THE NEW ASSET, SHALL BE CHARGED UNDER SECTION 45 AS INCOME OF THE PREVIOUS YEAR IN WHICH THE PERIOD OF THREE YEARS FR OM THE DATE OF THE TRANSFER OF THE ORIGINAL ASSET EXPIRES; AND ( II ) THE ASSESSEE SHALL BE ENTITLED TO WITHDRAW THE UNUTI LIZED AMOUNT IN ACCORDANCE WITH THE SCHEME AFORESAID.' ( E ) WE SHALL FIRST EXAMINE THE SCHEME OF SECTION 54F OF THE ACT. SECTION 54F IS PART OF CHAPTER IV OF THE ACT WHICH INTER ALIA PROVIDES FOR COMPUTA TION OF TOTAL INCOME AND FOR THAT PURPOSE, SETS OUT THE VARIOUS HEADS OF INCOME. PART E OF CHAPTER VI DEALS WITH THE HEAD OF INCOME VIZ. CAPITAL GAINS. IT PROVIDES FOR COMPUTAT ION OF CAPITAL GAINS AND ALSO FOR EXEMPTION AVAILABLE THEREUNDER. SECTION 54F OF THE ACT INTRODUCED INTO THE ACT WITH EFFECT FROM 1ST APRIL, 1983 BY THE FINANCE ACT, 1982 PROVI DES EXEMPTION FRO M CAPITAL GAIN ON TRANSFER OF ANY LONG TERM CAPITAL ASSET IN CASE THE SAME IS INVESTED IN A RESIDENTIAL HOUSE. HOWEVER, THE SECTION WHEN INTRODUCED PROVIDED THAT A NY CAPITAL GAIN ARISING FROM TRANSFER OF LONG-TERM CAPITAL ASSET WOULD NOT BE CHARGEABLE T O C APITAL GAINS TAX, IF THE SAME WERE UTILIZED FOR PURCHASE OF AN HOUSING ACCOMMODATION WI THIN A YEAR BEFORE OR AFTER THE DATE ON WHICH THE TRANSFER OF AN CAPITAL ASSET TOOK PLAC E OR WAS USED FOR CONSTRUCTION OF A RESIDENTIAL HOUSE WITHIN A PERIOD OF THREE YE ARS FROM THE DATE OF TRANSFER OF THE CAPITAL ASSET. ( F ) THUS, SECTION 54F OF THE ACT AS INCORPORATED MADE A VAILABLE THE BENEFIT OF EXEMPTION TO PURCHASE A HOUSE WITHIN ONE YEAR (AMENDED TO TWO YEAR S) OR CONSTRUCT A RESIDENTIAL HOUSE WITHIN A PERIOD OF 3 YEARS FROM THE DATE ON WHICH CA PITAL ASSET HAS BEEN SOLD. HOWEVER, WHILE IMPLEMENTING SECTION 54F OF THE ACT, IT WAS NOT ICED THAT AT TIMES ASSESSMENTS WERE COMPLETED PRIOR TO THE EXPIRY OF ABOVE PERIOD OF TWO /THREE YEARS FROM THE DATE OF SALE OF THE CAPITAL ASSET AND THE ASSESSEE HAD NOT UTILIZED THE AMOUNT WITHI N THE PRESCRIBED PERIOD PROVIDED IN SECTION 54F OF THE ACT. THIS WOULD LEAD TO ASSESSMENT ORDERS BEING RECTIFIED BY APPROPRIATE ORDERS, TO DETERMINE THE AVAILABILITY O F BENEFIT OF EXEMPTION UNDER SECTION 54F OF THE ACT. ( G ) THIS LED TO THE INTRODUCTION OF SUB- SECTION (4) TO SECTION 54F OF THE ACT BY THE FINANC E ACT, 1987 WITH EFFECT FROM 1ST APRIL, 1988. BESIDES INTRO DUCING SUB- SECTION (4) TO SECTION 54F THE FINANCE ACT, 1978, ALSO AMENDED SUB- SECTION (1) OF SECTION 54F OF THE ACT TO MAKE IT SUBJECT TO PROVISION OF SUB-SECTION (4) THEREOF. ( H ) AS WE ARE CONCERNED WITH ASSESSMENT YEAR 1996- 97, IT IS THE AMENDED PROVISION WHICH APPLIES. THEREFORE, NOW SECTION 54F(1) OF THE ACT WH ICH GRANTS EXEMPTION FROM CAPITAL GAIN TAX WHERE A FLAT IS PURCHASED EITHER WITHIN ONE YEAR PRIOR TO THE SALE OF CAPITAL ASSET O R WITHIN 2 YEARS AFTER THE DATE OF SALE OF THE CAPITAL ASSET OR WHERE A RESIDENTIAL HOUSE IS CONSTRUCTED WITHIN 3 YEARS FROM THE DATE OF SALE OF THE CAPITAL ASSET, IS NOW SUBJECT TO THE ITA 5420/MUM/2016 16 PROVISIONS OF SECT ION 54F(4) OF THE ACT. THUS, WHERE THE CONSIDERATIO N RECEIVED ON SALE OF CAPITAL ASSET IS NOT APPROPRIATED (WHERE PURCHASE W AS EARLIER THAN SALE) OR UTILIZED (WHERE PURCHASE IS AFTER THE SALE) THEN THE SAME WOULD BE S UBJECT TO THE CHARGE OF CAPITAL GAIN TA X, UNLESS THE UNUTILIZED AMOUNTS ARE DEPOSITED IN SPEC IFIED BANK ACCOUNT AS NOTIFIED IN TERMS OF SECTION 54F(4) OF THE ACT. THE EXEMPTION WOULD B E AVAILABLE TO THE UNUTILIZED AMOUNTS ONLY IF THE MANDATE OF SUB-SECTION (4) OF SECTION 5 4F OF THE ACT IS COMPL IED WITH. FURTHER THE PROVISO TO SUB- SECTION (4) OF SECTION 54F OF THE ACT, SAFEGUARDS T HE REVENUE WHERE THE ASSESSEE HAD NOT INVESTED THE AMOUNTS CHARGEABLE TO CAPITAL GAINS WITHIN THE TIME PRESCRIBED UNDER SUB-SECTION (1) OF SECTION 54F OF THE ACT. THIS BY PROVIDING THAT IN SUCH CASES, CAPITAL GAIN UNDER SECTION 45 OF THE ACT WOUL D BE CHARGED ON THE UNUTILIZED AMOUNT AS INCOME OF THE PREVIOUS YEAR IN WHICH THE PERIOD OF THREE YEARS FROM THE DATE OF TRANSFER OF THE CAPITAL ASSET EXPIRES. ( I ) ON THE BASIS OF THE ABOVE BROAD ANALYSIS, WE SHALL NOW EXAMINE THE FACTS OF THE PRESENT CASE. THE SALE OF CAPITAL ASSET TOOK PLACE ON 29TH APRIL, 1995 FOR A CONSIDERATION OF RS. 85.33 LAKHS. THE AGREEMENT FOR PURCHASE OF CONSTRUC TION OF FLAT FOR CONSIDERAT ION OF RS. 69.90 LAKHS WAS ENTERED INTO BY THE APPELLANT ON 16 TH JULY, 1996. AN AMOUNT OF RS. 35 LAKHS WERE UTILIZED BY THE APPELLANT IN PURCHASE OF FLAT BEFORE THE RETURN OF INCOME WAS FILED ON 4TH NOVEMBER, 1996 UNDER SECTION 139 OF TH E ACT. HOWEVER, THE MANDATE UNDER SUB- SECTION (4) OF SECTION 54F OF THE ACT IS THAT THE A MOUNT NOT UTILIZED TOWARDS THE PURCHASE OF THE FLAT HAS TO BE DEPOSITED BEFORE THE DUE DATE OF FILING RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT IN THE SPECIFIED BANK ACC OUNT. IN T HIS CASE ADMITTEDLY THE ENTIRE AMOUNT OF CAPITAL GAINS ON SALE OF ASSET WHICH IS N OT UTILIZED HAS NOT BEEN DEPOSITED IN A SPECIFIED BANK ACCOUNT BEFORE DUE DATE OF FILING OF RETURN UNDER SECTION 139(1) OF THE ACT. THEREFORE WHERE THE AMOUNTS OF CAPITAL GAI NS IS UTILIZED BEFORE FILING OF THE RETURN OF INCOM E IN PURCHASE/CONSTRUCTION OF A RESIDENTIAL HOUSE, TH EN THE BENEFIT OF EXEMPTION UNDER SECTION 54F OF THE ACT IS AVAILABLE. BEFORE US IT I S AN UNDISPUTED POSITION THAT EXCEPT RS. 35 LAKHS, THE BALANCE OF T HE AMOUNTS SUBJECT TO CAPITAL GAINS TAX HAS NOT BEE N UTILIZED BEFORE DATE OF FURNISHING OF RETURN OF INCOME I.E. 4TH NOVEMBER, 1996 UNDER SECTION 139 OF THE ACT. THEREFORE, ON PLAIN INTERPRETATION OF SECT ION 54F OF THE ACT, IT APPEARS THAT THE IMPUGNED ORDER OF THE TRIBUNAL CANNOT BE FAULTED. ( J ) HOWEVER, THE AFORESAID VIEW WOULD BE SUBJECT TO THE RE SULT OF OUR EXAMINATION OF THE SUBMISSIONS AND CASE LAWS RELIED UPON BY MR. CHATTER JI IN SUPPORT OF THE APPEAL TO URGE A VIEW CONTRARY TO THE PLAIN MEANING OF SECTION 54F OF THE ACT. ( K ) RELIANCE PLACED BY THE APPELLANT UPON THE DECISION OF THIS COURT IN MRS. HILLA J. B. WADIA'S CASE ( SUPRA ) TO CONTEND THAT THE ISSUE STANDS CONCLUDED IN FAV OUR OF THE APPELLANT- ASSESSEE IS NOT ACCEPTABLE. THIS FOR THE REASON THAT THE ONLY ISSUE FOR CONSIDERATION BEFORE THE COURT IN THE ABOVE CASE WAS THE INTERPRETATION OF SECTION 54 OF THE ACT. IN THE ABOVE CASE THE ASSESSEE HAD SOLD HER RESIDENTIAL PROPERTY AND INVESTED A SUBSTANTIAL AMOUNT IN A SOCIETY FOR CONSTRUCTION OF A RESIDENTIAL FLAT IN THE BUILDING TO BE CONSTRUCTED. THE ASSESSEE THEREIN HAD PAID SUBSTANTIAL AMOUNTS TO THE SOCIETY AND ALSO ACQUIRED DOMAIN OVER THE FLAT WITHIN A PERIOD OF 2 YEARS FROM THE DATE OF THE SALE OF HER HOUSE. AT THAT POINT OF TIME I.E. FOR THE ASSESSMENT YEAR 1973- 74 THERE WAS NO REQUIREMENT OF DEPOSITING ANY UNUTIL IZED AMOUNT IN A SPECIFIED BANK ACCOUNT AS NOW PROVIDED UNDER SECTION 54(2) OF THE ACT (SIMILAR TO SECTION 54F(4) OF THE ACT). THEREFORE T HE COURT HAD NO OCCASION TO CONSIDER THE P ROVISIONS OF SECTION 54(2) OF THE ACT WHICH IS SIMI LAR TO SECTION 54F(4) OF THE ACT, WITH WHICH WE ARE CONCERNED. ( L ) MR. CHATTERJI, THEN PLACED RELIANCE ON THE OBSERVAT ION OF THIS COURT IN MRS. HILLA J.B. WADIA'S CASE ( SUPRA ) THAT THE CIRCULAR ISSUED B Y THE CENTRAL BOARD OF DIRECT TAXES DATED 15TH OCTOBER, 1986 IN RELATION TO CONSTRUCTION OF A HOME BY DELHI DEVELOPMENT AUTHORITY ITA 5420/MUM/2016 17 SHOULD ALSO BE EXTENDED TO CITIES LIKE MUMBAI, AS T HERE IS NO CONTROL OVER THE TIME TAKEN BY THE DEVELOPER/BUILDER TO CONSTRUC T THE HOUSE AND GIVE POSSESSION OF THE SAME TO THE ASSESSEE. THE CENTRAL BOARD OF DIRECT TAXES CIRCULA R DATED 15TH OCTOBER, 1986 WAS ISSUED ONLY IN THE CONTEXT OF SECTION 54 AND 54(F) OF THE ACT TO CLARIFY THAT AN INVESTMENT IN A FLAT UNDER THE SELF-FINANC E SCHEME OF DELHI DEVELOPMENT AUTHORITY WOULD BE TRE ATED AS CONSTRUCTION FOR THE PURPOSE OF CAPITAL GAIN, WHERE AN ALLOTMENT LETTER HAS BEEN ISSUED BY THE AUTHORITY AND FACILITY OF PAYMENT IN INSTALMENT IS PROVIDED FOR THE PURCHASE OF FLAT. IT DID NOT EVEN REMOTELY CONCERN ITSELF WITH THE PROVISION OF SECTIO N 54(2) AND/OR 54F(4) OF THE ACT WITH WHICH WE ARE CONCERNED. THE CIRCULAR ONLY E XTENDED THE MEANING OF CONSTRUCTING A RESIDENTIAL HOUSE WITHIN A PERIOD OF THREE YEARS F ROM THE SALE OF THE CAPITAL ASSET. THE SUBSEQUENT CIRCULAR ISSUED IN 16TH DECEMBER, 1993 B Y THE CENTRAL BOARD OF DIRECT TAXES RELIED UPON BY THE APPELLANT, ONLY EXTENDED THE MEA NING OF 'CONSTRUCTED WITHIN A PERIOD OF THREE YEARS' TO ALLOTMENT LETTERS ISSUED BY THE CO- OPERATIVE HOUSING SOCI ETY OR OTHER SIMILAR INSTITUTION FOR THE PURPOSE OF SECTION 54F OF THE ACT. THEREFORE, IT DOES NOT IN ANY MANNER DO AWAY WITH AND/OR RELAX THE STATUTORY MANDA TE OF DEPOSITING THE UNUTILIZED AMOUNT IN THE SPECIFIED BANK ACCOUNT AS REQUIRED BY SUB-SECTION (4 ) OF SECTION 54F OF THE ACT. THEREFORE, NEITHER THE DECISION OF THIS COURT IN MRS. HILLA J. B. WADIA'S CASE ( SUPRA ) NOR THE CENTRAL BOARD OF DIRECT TAXES CIRCULARS DATED 1 5TH OCTOBER, 1986 AND 16TH DECEMBER, 1993 WOULD GOVERN THE ISSUE SO AS TO CONCLUDE THE IS SUE IN FAVOUR OF THE APPELLANT. ( M ) THE RELIANCE UPON THE DECISION OF THE M.P. HIGH COU RT IN SMT. SHASHI VARMA'S CASE ( SUPRA ), ALSO DOES NOT ADVANCE THE CASE OF THE APPELLANT. WE FIND THAT THE FACTS IN THE ABOVE CASE ARE SIMILAR TO THE ONE IN MRS. HILLA J.B. WADIA'S CASE ( SUPRA ) AND FOR THE SAME REASONS, WILL NOT GOVERN THE PRESENT DISPUTE. IN FACT, THE ISSUE STOOD COVERED BY THE CIRCULAR DATED 15TH OCTOBER, 1986 AS THE PROPERTY PURCHASED THEREIN WAS OF THE DELHI DEVELOPMENT AUTHORITY. THUS, THE ABOVE DECISION HAS NO APPLICATION TO THE PRESENT FACTS. ( N ) MR. CHATTERJI, LEARNED SENIOR COUNSEL APPEARING FOR THE APPELLANT ASSESSEE THEN CONTENDED ON THE BASIS OF THE TWO CIRCULARS DATED 15TH OCTOBE R, 1986 AND 16TH DECEMBER, 1993 OF THE CENTRAL BOARD OF DIRECT TAXES THAT ONCE AN ALLOTMENT LETTER HAS BEEN ISSUED TO THE ASSESSEE, THEN IT FOLLOWS THAT THE TITLE OF THE CON STRUCTED HOUSE HAS PASSED ON TO THE ASSESSEE. THEREFORE THE PAYMENT MADE SUBSEQUENT TO ALLOTMENT LETTER IN INSTALMENTS WOULD NOT IN ANY MA NNER AFFECT THE ASSESSEE HAVING SATISFIED SECTION 5 4F(1) OF THE ACT. THIS SUBMISSION IGNORES THE FACT THAT SUB- SECTION (1) OF SECTION 54F HAS BEEN MADE SUBJECT TO SUB- SECTION (4) OF THE ACT. THE REQUIREMENT UNDER SECTI ON 54F(4) OF THE ACT IS THE DEPOSIT OF THE UNUTILIZED AMOUNT IN THE SPECIFIED BANK ACCOUNT TILL IT IS UTILIZED. THIS REQUIREMENT HAS NOT BEEN DONE AWAY WITH IN EITHER OF THE ABOVE TWO CIRCULARS DATED 15TH OCTOBER, 1986 AND 16TH DECEMBER, 1993 RELIED UPON BY THE APPELLAN T-ASSESSEE. ( O ) MR. C HATTERJI, LEARNED SENIOR COUNSEL NEXT SUBMITTED THA T IN ANY CASE THE ISSUE NOW STANDS CONCLUDED IN FAVOUR OF THE APPELLANT BY THE DECISION OF THE KARNATAKA HIGH COURT IN K. RAMACHANDRA RAO'S CASE ( SUPRA ) WHEREIN AN IDENTICAL QUESTION CAME UP FOR CONSIDERAT ION AND IT WAS HELD THAT EVEN WHERE THE ASSESSEE HAD NOT DEPOSITED THE UNUTILIZED CAPITAL GAIN IN AN ACCOUNT WHICH WAS DULY NOTIFIED BY THE CENTRAL GOVERNMENT IN TERMS OF SECTION 54F(4) OF THE ACT, THE BENEFIT OF SECTION 54F(1) OF THE ACT WOULD STILL BE AV AILABLE. THE COURT HELD THAT IF THE INTENTION WAS NO T TO RETAIN THE CAPITAL GAINS BUT WAS TO INVEST IT IN CONSTRUCTION OF PROPERTY WITHIN THE PER IOD STIPULATED IN SUB- SECTION (1) OF SECTION 54(F) OF THE ACT THEN SECTION 54F(4) OF THE ACT IS NOT AT ALL ATTR ACTED. WE ARE WITH RESPECT UNABLE TO ACCEPT THE REASONING ADOPTED BY K ARNATAKA HIGH COURT IN K. RAMACHANDRA RAO'S CASE ( SUPRA ). THE MANDATE OF SECTION 54F(4) OF THE ACT IS CLEA R THAT AMOUNT WHICH HAS NOT BEEN UTILIZED IN CONSTRUCTION AND/OR PURCHASE OF PRO PERTY BEFORE FILING THE RETURN OF INCOME, MUST NECESSARILY BE DE POSITED IN AN ACCOUNT DULY NOTIFIED BY THE CENTRAL GOVERNMENT, SO AS TO BE EXEMPTED. ITA 5420/MUM/2016 18 ( P ) FURTHER, SECTION 54F(4) OF THE ACT SPECIFICALLY PRO VIDES THAT THE AMOUNTS WHICH HAVE NOT BEEN INVESTED EITHER IN PURCHASE/CONSTRUCTION OF HOUSE H AVE TO BE DEPOSITED IN THE SPECIFIED ACCOUNTS BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT. THE AFORESAID ASPECT IT APPEARS WAS NOT NOT ICED BY THE KARNATAKA HIGH COURT. IN ANY CASE, THE ENTIRE BASIS OF THE DECISION OF THE K ARNATAKA HIGH COURT IN K. RAMACHANDRA RAO'S CASE ( SUPRA ) IS THE INTENT OF THE PARTIES. IN INTERPRETING A F ISCAL STATUTE ONE MUST HAVE REGARD TO THE STRICT LETTER OF LAW AND INTENT CAN NE VER OVERRIDE THE PLAIN AND UNAMBIGUOUS LETTER OF THE LAW. IT IS TRUE THAT NORMALLY WHILE CO NSTRUING AN ALL INDIA STATUTE LIKE THE INCOME TAX ACT, WE WOULD NOT EASILY DEPART FROM A VI EW TAKEN BY ANOTHER HIGH COURT ON AN ISSUE ARISING FOR OUR CONSIDERATION. THIS ON CONSID ERATION OF CERTAINTY AND CONSISTENCY IN LAW. HOWEVER, THE VIEW OF THE OTHER HIGH COURTS ARE N OT BINDING UPON US UNLIKE A DECISION OF THE APEX COURT OR OF LARGER OR A CO- ORDINATE BENCH OF THIS COURT. THUS IF ON AN EXAMINATION OF THE DECISIONS OF THE OTHER HIGH COUR T WE ARE UNABLE TO ACCEPT THE SAME, WE ARE NOT BOUND TO FOLLOW/ACCEPT THE INTERPRETATION O F THE OTHER H IGH COURTS LEADING TO A PARTICULAR CONCLUSION. IN THIS CASE WE FIND THAT THE DECISION OF THE KARNATAKA HIGH COURT IN K. RAMACHANDRA RAO'S CASE ( SUPRA ) WAS RENDERED SUB- SILENTIO I.E. NO ARGUMENT WAS MADE WITH REGARD TO THE REQUIREMENT OF DEPOSIT IN NO TIFIED BANK ACCOUNT IN TERMS OF SECTION 54F(4) OF THE ACT BEFORE THE DUE DATE AS PR OVIDED IN SECTION 139(1) OF THE ACT. AS OBSERVED IN SALMOND'S JURISPRUDENCE 12TH EDITION : 'THE RULE THAT A PRECEDENT SUB SILENTIO IS NOT AUTH ORITATIVE GOES BACK AT LEAST TO 1661(M) WHEN COUNSEL SAID : 'AN HUNDRED PRECEDENTS SUB- SILENTIO ARE NOT MATERIAL'; AND TWISDEN J AGREED : 'PRECEDENTS SUB- SILENTIO AND WITHOUT ARGUMENT ARE OF NO MOMENT'. THIS RULE HAS EVER SINCE BEEN FO LLOWED.' ( Q ) IN FACT THIS COURT IN CIT V. THANA ELECTRICITY SUPPLY LTD . [1994] 206 ITR 727 (BOM.) HAS OBSERVED THAT A DECISION OF ONE HIGH COURT IS NOT B INDING AS A PRECEDENT ON ANOTHER HIGH COURT UNLIKE A DECISION OF THE APEX COURT. IN SUPPORT, RELIANCE WAS PLACED IN T HE ABOVE ORDER UPON THE DECISION OF THE APEX COURT IN VALLIAMMA CHAMPAKA PILLAI V. SIVATHANU PILLAI AIR 1979 SC 1937 TO HOLD THAT IT IS WELL SETTLED THA T DECISION OF ONE HIGH COURT IS NOT A BINDING PRECEDENT UPON ANOTHER HIGH COURT AND AT BEST CAN O NLY HAVE PERSUASIVE VALUE. HOWEVER, AT THE COST OF REPETITION WE MUST EMPHASIZE THAT THE DECISION OF ANOTHER HIGH COURT RENDERED IN THE CONTEXT OF AN ALL INDIA ACT WO ULD HAVE PERSUASIVE VALUE AND NORMALLY TO MAINTAIN UNIFORMITY AND CERTAINTY WE WOULD ADOPT THE VIEW OF THE OTHER HIGH COURT. HOWEVER, WITH THE GREATEST RESPECT, WE FIND THAT THE DECISION OF KARNATAKA HIGH COURT IN K. RAMACHANDRA RAO'S CASE ( SUPRA ) HAS BEEN RENDERED SUB-SILENTIO. THEREFORE, WE C ANNOT PLACE ANY RELIANCE UPON IT TO CONCLUDE THE ISSUE ON THE BASIS OF THAT DECISION. ( R ) IT WAS NEXT CONTENTED BY MR. CHATTERJI, THAT LIBERAL/BENEFICIAL CONSTRUCTION SHOULD BE GIVEN TO THE PROVISION OF SECTION 54F OF THE ACT AS ITS O BJECT WAS TO ENCOURAGE THE HOUSING SECTOR WHICH WOULD RESULT IN THE BENEFIT BEING EXTENDED TO THE APPELLANT ASSESSEE. IN SUPPORT, RELIANCE WAS PLACED UPON THE DECISION OF DELHI HIGH COURT IN RAVINDER KUMAR ARORA'S CASE ( SUPRA ). WE FIND THAT OBSERVATION OF THE DELHI HIGH COURT IN RAVINDER KUMAR ARORA'S CASE ( SUPRA ) THAT SECTION 54F OF THE ACT SHOULD BE LIBERALLY C ONSTRUED WAS IN THE CONTEXT OF THE BENEFIT BEIN G DENIED AS THE NAME OF THE WIFE WAS ADDED TO PURCHAS E MADE BY THE ASSESSEE OF A NEW FLAT. THIS DENIAL WAS EVEN THOUGH ALL THE REQUIREMENTS OF SECTION 54F OF THE ACT STOOD SATISFIED. THEREFORE THE OBSERVATION OF THE D ELHI HIGH COURT WOULD HAVE NO APPLICATION TO THE PRESENT FACTS. ( S ) IT IS A SETTLED POSITION IN LAW THAT NO OCCASION TO GIVE A BENEFICIAL CONSTRUCTION TO A STATUTE CAN ARISE WHEN THERE IS NO AMBIGUITY IN THE PROVISI ON OF LAW WHICH IS SUBJECT TO INTERPRETATION. THUS IN THE FACE OF THE CLEAR W ORDS OF THE STATUTE THE INTENT OF PARTIES AND/OR BENEFICIAL CONSTRUCTION IS IRRELEVANT. IN FA CT, THE APEX COURT IN SALES TAX ITA 5420/MUM/2016 19 COMMISSIONER V. MODI SUGAR MILLS [1961] 12 STC 182 REITERATED THE WELL SETTLED PRINCI PLE OF INTERPRETATION IN THE FOLLOWING WORDS: 'IN INTERPRETING A TAXING STATUTE, EQUITABLE CONSID ERATIONS ARE ENTIRELY OUT OF PLACE. NOR CAN TAXING STATUTE BE INTERPRETED ON ANY PRESUM PTION OR ASSUMPTIONS....IT MUST INTERPRET A TAXING STATUTE IN THE LIGHT OF WHA T IS CLEARLY EXPRESSED . . .' RECENTLY, THE SUPREME COURT IN MATHURAM AGRAWAL V. STATE OF MADHYA PRADESH [1999] 8 SCC 667 HAS OBSERVED AS UNDER : 'THE INTENTION OF THE LEGISLATURE IN A TAXATION STA TUTE IS TO BE GATHERED FROM THE LANGUAGE OF THE PROVISIONS PARTICULARLY WHERE THE LANGUAGE IS PLAIN AND UNAMBIGUOUS. IN A TAXING ACT IT IS NOT POSSIBLE TO ASSUME ANY INTENTION OR GOVERNING PURPOSE OF THE STATUTE MORE THAN WHAT IS STATED IN THE PLAIN LANGUAGE. IT IS NOT THE ECONOMIC RESULTS SOUGHT TO BE OBTAINED B Y MAKING THE PROVISION W HICH IS RELEVANT IN INTERPRETING A FISCAL STATUTE. EQUAL LY IMPERMISSIBLE IS AN INTERPRETATION WHICH DOES NOT FOLLOW FROM THE PLAIN, UNAMBIGUOUS LANGUAGE OF THE STATUTE. WORDS CANNOT BE ADDED TO OR SUBSTITUTED SO AS TO GIVE A MEANING TO THE STATUTE WHICH WI LL SERVE THE SPIRIT AND INTENTION OF THE LEGISLATUR E . . . ' (EMPHASIS SUPPLIED) SIMILARLY THIS COURT IN THANA ELECTRICITY SUPPLY LTD'S CASE ( SUPRA ) HAD OBSERVED AS UNDER : 'IF THE PROVISION OF A TAXING STATUTE CAN BE REASON ABLY INTERPRETED IN TWO WAYS, THAT INTERPRETATION WHICH IS FAVOURABLE TO THE ASSESSEE HAS GOT TO BE ACCEPTED. THIS IS A WELL- ACCEPTED VIEW OF LAW. IT IS THE SATISFACTION OF THE COURT INTERPRETING THE LAW T HAT THE LANGUAGE OF THE TAXING STATUTE IS AMBIGUOUS OR REASONABLY CAPABLE OF MORE MEANINGS THAN ONE, WHICH IS MATERIAL. IF THE C OURT DOES NOT THINK SO, THE FACT THAT TWO DIFFERENT VIEWS HAVE BEEN ADVANCED BY THE PA RTIES AND ARGUED FORCEFULLY OR THAT ONE SU CH VIEW WHICH IS FAVOURABLE TO THE ASSESSEE HAS BEE N ACCEPTED BY SOME TRIBUNAL OR HIGH COURT, BY ITSELF WILL NOT BE SUFFICIENT TO ATTRACT THE PRINCIPLE OF BENEFICIAL INTERPRETATION' IN THE PRESENT FACTS THE PROVISION OF SECTION 54F(4 ) OF THE ACT ARE VERY CLEAR. THERE IS NO AMBIGUITY. THUS, THERE IS NO OCCASION TO APPLY LIBE RAL/BENEFICIAL CONSTRUCTION WHILE INTERPRETING THE SECTION AS CONTENDED BY THE APPELL ANT. ( T ) IT WAS NEXT CONTENDED BY MR. CHATTERJI, LEARNED SEN IOR COUNSEL FOR THE APPELLANT THAT THE WORD 'APPROPRIATION' USED IN SECTION 54F(4) OF THE ACT WOULD ALSO APPLY I N THE PRESENT CASE WHERE THE CAPITAL ASSET HAS BEEN SOLD AND SALE PROCE EDS ARE EARMARKED TO BE INVESTED IN CONSTRUCTION OF HOUSE. A PLAIN READING OF SECTION 5 4F(4) OF THE ACT MILITATES AGAINST IT. AS POINTED OUT BY MR. MALHOTRA, LEARNED COUNSEL APPEAR ING FOR THE REVENUE, SECTION 54F(4) OF THE ACT DEALS WITH TWO CLASSES OF CASES, ONE WHERE P URCHASE OF NEW RESIDENTIAL HOUSE IS WITHIN A PERIOD OF ONE YEAR BEFORE THE DATE ON WHICH CAPITAL ASSET IS SOLD BY ASSESSEE AND SECOND CLASS OF CASES WHERE THE AMOUNT SUBJECTED TO CAPITAL GAINS ARE UTILIZED FOR PURCHASE/CONSTRUCTING A FLAT, POST THE SALE OF THE CAPITAL ASSET. IN THE PRESENT FACTS WE ARE CONCERNED WITH THE SECOND CLASS I.E. PURCHASE POST T HE SALE OF THE CAPITAL ASSET. ( U ) THE PARLIAMENT HAS USED THE WORD 'APPROPRIATED' IN THE FIRST CLASS OF CASES I.E. WHERE PROPERTY HAS ALREADY BEEN PURCHASED PRIOR TO THE SA LE OF CAPITAL ASSET AND THE AMOUNT RECEIVED ON SALE OF CAPITAL ASSET IS APPROPRIATED TOWARDS CONSIDERATION WHICH HAS BEEN PAID FOR PURCHASE OF THE FLAT. IN THIS CASE WE ARE CONCER NED WITH THE PURCHASE/CONSTRUCTION OF ITA 5420/MUM/2016 20 RESIDENTIAL HOUSING, AFTER THE SALE OF CAPITAL ASSE T. THIS REQUIRES THE AMOUNT WHICH IS TO BE SUBJECTED TO C APITAL GAIN HAS TO BE UTILIZED BEFORE THE DATE OF F ILING OF RETURN OF INCOME UNDER SECTION 139 OF THE ACT BY THE ASSESSEE. SECTI ON 54F(4) OF THE ACT ITSELF CLEARLY STATES THAT THE AMOUNT NOT UTILIZED IN PURCHASE/CONSTRUCTI ON OF FLAT/HOUSE SHOULD BE DEPOSIT ED IN THE SPECIFIED BANK NOTIFIED BY THE GOVERNMENT. T HUS THE PLAIN LANGUAGE EMPLOYED IN SECTION 54F(4) OF THE ACT MAKES A CLEAR DISTINCTION BETWEEN CASES OF APPROPRIATION (PURCHASE PRIOR TO SALE OF CAPITAL ASSET) AND UTILI ZATION (PURCHASE/CONSTRUCTION AFT ER THE SALE OF CAPITAL ASSET). THEREFORE THE WORD ' APPROPRIATED ' WOULD HAVE NO APPLICATION IN CASES OF PURCHASE/CONSTRUCTION OF A HOUSE AFTER THE SALE OF CAPITAL ASSET WITH WHICH WE ARE CONCERNED. ( V ) LASTLY AND IN THE ALTERNATIVE, IT IS SUBMITTED BY M R . CHATTERJI, THAT AS THE ENTIRE AMOUNT HAS BEEN PAID TO THE DEVELOPER/BUILDER BEFORE THE L AST DATE TO FILE THE RETURN OF INCOME UNDER SECTION 139 OF THE ACT, THE EXEMPTION IS AVAI LABLE TO THE APPELLANT UNDER SECTION 54F(4) OF THE ACT. IN SUPPORT, THE DECISION OF GAUH ATI HIGH COURT IN RAJESH KUMAR JALAN'S CASE ( SUPRA ) IS RELIED UPON. THE GAUHATI HIGH COURT IN THE ABO VE CASE WAS CONCERNED WITH THE INTERPRETATION OF SECTION 54 OF T HE ACT. IT CONSTRUED THE PROVISION OF SUB-SECTION (2) OF SECTION 54 OF THE ACT WHICH IS I DENTICALLY WORDED TO SUB- SECTION (4) OF SECTION 54F OF THE ACT THE COURT IN THE AFORESAID D ECISION HELD THAT THE REQUIREMENT OF DEPOSITING BEFORE THE DATE OF FURNISHING OF RETURN OF INCOME UNDER SECTION 139 OF THE ACT HAS NOT TO BE RESTRICTED ONLY TO THE DATE SPECIFIED IN SECTION 139(1) OF THE ACT BUT WOULD INCLUDE ALL SUB-SECTION OF SECTION 139 INCLUDING SU B- SECTION (4) OF THE ACT. ON THE ABOVE BASIS IT CONCLUDED THAT IF THE AMOUNT IS UTILIZED B EFORE THE LAST DATE OF FILING OF THE RETURN UNDER SEC TION 139 OF THE ACT THEN THE PROVISION OF SECTION 5 4(2) OF THE ACT WOULD NOT HIT THE ASSESSEE BEFORE IT. IT IS NOT VERY CLEAR IN THE ABOVE CASE WHETHER THE AMOUNTS WERE UTILIZED BEFORE THE ASSESSEE FILED ITS RETURN OF IN COME OR NOT. ( W ) HOWEVER, THE FACTUAL SITUATION ARISING IN THE PRESEN T CASE IS DIFFERENT. THE RETURN OF INCOME IS ADMITTEDLY FILED ON 4TH NOVEMBER, 1996. IN TERMS OF SECTION 54F(4) OF THE ACT AS INTERPRETED BY THE GAUHATI HIGH COURT IN RAJESH KUMAR JALAN'S CASE ( SUPRA ) THE AMOUNTS SUBJECT TO CAPITAL GAIN ON SALE OF THE CAPITAL ASSE T FOR PURPOSE OF EXEMPTION, HAS TO BE UTILIZED BEFORE THE DATE OF FILING OF RETURN OF INC OME. IN THIS CASE 4TH NOVEMBER, 1996 IS THE DATE OF FILING THE RETURN OF INCOME. IT IS NOT DISP UTED THAT ON 4TH NOVEMBER, 1996 WHEN THE RETURN OF INCOME WAS FILED, THE ENTIRE AMOUNT WHICH WAS SUBJECT TO CAPITAL GAIN TAX HAD NOT BEEN UTILIZED FOR THE PURPOSE OF CONSTRUCTION OF NE W HOUSE NOR WERE THE UNUTILIZED AMOUNTS DEPOSITED IN THE NOTIFIED BANK ACCOUNTS IN T ERMS OF SECTION 54F(4) OF THE ACT BEFORE FILING THE RETURN OF INCOME. IT IS ALSO TO B E NOTED THAT IN LINE WITH THE INTERPRETATION OF GAUHATI HIGH COURT ON SECTION 54F(4) OF THE ACT, THE ASSESSING OFFICER HAD TAKEN INTO ACCOUNT ALL AMOUNTS UTILIZED FOR CONS TRUCTION OF A HOUSE BEFORE FILING THE RETURN OF INC OME ON 4TH NOVEMBER, 1996 FOR EXTENDING THE BENEFIT OF EXEMPTION UNDER SECTION 54F OF THE ACT. THEREFORE, IN THE PRESENT FACTS, THE DECISION OF THE GAUHATI HIGH COURT IN RAJESH KUMAR JALAN'S CASE ( SUPRA ) W OULD NOT APPLY SO AS TO HOLD THAT THE APPELLANT HAD COMPLIED WITH THE SECTION 54F(4) OF THE ACT. ( X ) IN THE ABOVE VIEW QUESTION NO. 2 IS ALSO ANSWERED IN THE AFFIRMATIVE I.E. IN FAVOUR OF THE REVENUE AND AGAINST THE APPELLANT-ASSESSEE. IN OUR CONSIDERED VIEW, THE ASSESSEE CANNOT GET T HE BENEFIT OF SECTION 54F OF THE UNUTILIZED AMOUNT TO THE TUNE OF RS. 41,27,149/ - AS THE SAID AMOUNT HAS NOT BEEN INVESTED BY THE ASSESSEE IN THE PURCHASE/C ONSTRUCTION OF NEW ITA 5420/MUM/2016 21 RESIDENTIAL HOUSE PROPERTY AT MAHABALESHWAR TILL TH E DATE OF FILING OF RETURN ON 18-08-2011 NOR THE SAME HAS BEEN DEPOSITED BY THE A SSESSEE IN CAPITAL GAIN ACCOUNT WITH BANK AS STIPULATED U/S 54F(4) OF 1961 ACT. THE ASSESSEE HAD CLAIMED THAT SHE ISSUED CHEQUE TO THE BUILDER TO TH E TUNE OF RS. 40,45,975/- DATED 12 TH AUGUST, 2011 WHICH WAS RETURNED BACK TO THE ASSESS EE BY THE SAID BUILDER NAMELY KUMAR BUILDERS A MONTH LATER ON 12 -09-2011 WITH THE COMMENTS 'CHEQUE SENT BACK AS FAVORING IS WRONG AND DATE IS ALSO REWRITTEN'. THE ASSESSEE HAS PRAYED THAT BENEFIT OF SAID CHEQUE AMOUNT OF RS. 40,45,975/- SHOULD BE GRANTED TO ASSESSEE U/S 54F O F 1961 ACT AS IT SHOWS THAT THE ASSESSEE MADE THE PAYMENT ON 12-08-2011 BU T DUE TO SOME TECHNICAL ERRORS , CHEQUE WAS RETURNED BY BUILDER A FTER ONE MONTH . AS PER AGREEMENT DATED 17-01-2011 , THE ASSESSEE WAS REQUI RED TO ISSUE THE CHEQUES IN FAVOUR OF WINDSOR PARK COLLECTION ACCOUNT. ALL OTHER CHEQUE WERE ISSUED BY THE ASSESSEE IN FAVOUR OF WINDSOR PARK COLLECT ION ACCOUNT EXCEPT THIS CHEQUE WHICH WAS STATED TO BE RETURNED BY BUILDER A FTER ONE MONTH DUE TO TECHNICAL REASONS. THE AFORE-SAID CONTENTIONS OF TH E ASSESSEE CANNOT BE ACCEPTED DUE TO FOLLOWING REASONS : 1. THE ASSESSEE COULD NOT EXPLAIN WHY SHE ISSUED THIS CHEQUE OF RS. 40,45,975/- DATED 12-08-2011 FAVOURING KUMAR BUILD ERS WHILE ALL OTHER CHEQUES WERE ISSUED IN FAVOUR OF WINDSOR PAR K COLLECTION ACCOUNT , AND MORE-SO WINDSOR PARK COLLECTION AC COUNT WAS THE CORRECT PAYEE FOR ISSUANCE OF CHEQUE INSTEAD OF KU MAR BUILDERS AS PER AGREEMENT DATED 17-01-2011. 2. THE ASSESSEE DID NOT BROUGHT ON RECORD THAT THE ASS ESSEE BANK WAS SUFFICIENTLY FUNDED DURING THE PERIOD 12-08-2011 TI LL IT WAS RETURNED A MONTH LATER BY KUMAR BUILDER . IT WAS INCUMBENT O N THE ASSESSEE TO HAVE BROUGHT ON RECORD THE SAID EVIDENCE TO PROV E ITS BONAFIDE AND NO SUCH EVIDENCE IS BROUGHT ON RECORD . ITA 5420/MUM/2016 22 3. THE ASSESSEE DID NOT PRODUCE RECEIPT FROM KUMAR BU ILDERS AS TO HAVING RECEIVED THE CHEQUE FROM ASSESSEE ON 12-08-2 011 CARRYING SO CALLED TECHNICAL DEFECTS. 4. THE ASSESSEE DID NOT BROUGHT ON RECORD EVIDENCE AS TO WHY KUMAR BUILDERS ACCEPTED CHEQUE FAVOURING THEM CARRYING T ECHNICAL DEFECTS, WHEN THE CHEQUES ARE REQUIRED TO BE ISSUED IN FAVOU R OF WINDSOR PARK COLLECTION ACCOUNT. EVEN IF IT ASSUMED THAT T HE ASSESSEE MADE A MISTAKE IN ISSUING CHEQUE FAVOURING KUMAR BUILDE R , BUT THERE IS NO REASONS FOR KUMAR BUILDER TO ACCEPT WRONG CHEQ UE AND HOLD IT FOR A MONTH TO BE RETURNED SUBSEQUENTLY. 5. THE ASSESSEE DID NOT CORRECTED ITS OWN WRONG EVEN A FTER COMING TO KNOW OF THE TECHNICAL ERROR AFTER RECEIPT BACK OF C HEQUE FROM KUMAR BUILDER AFTER ONE MONTH OF HOLDING BY SAID KUMAR BUILDERS, AS THE ASSESSEE DID NOT ISSUE FRESH CHEQUES IN FAVOUR OF WINDSOR PARK COLLECTION ACCOUNT IMMEDIATELY ON RECEIPT BACK OF THIS DEFECTIVE CHEQUE FROM KUMAR BUILDER AND IN-FACT NEXT PAYMEN T WAS MADE ONLY AFTER 10 MONTHS ON 18-07-2012. 6. THE ASSESSEE DID NOT BRING FORTH THIS THEORY OF RET URNED CHEQUE BEFORE THE AO AS NO SUCH FACTS ARE EMANATING FROM A O ORDER OR CONTENTIONS OF THE ASSESSEE BEFORE THE AO AS RECORD ED BY AO IN ASSESSMENT ORDER. SUCH ALLEGED FACT IS NOT EVEN COM ING FROM GROUNDS OF APPEAL AND STATEMENT OF FACT FILED BEFOR E LEARNED CIT(A) IN FIRST APPEAL FILED BY THE ASSESSEE BEFORE LEARNED C IT(A). THUS, THIS CONTENTION OF THE ASSESSEE OF HAVING PAI D DEFECTIVE CHEQUE OF RS. 40,45,975/- TO THE BUILDER NAMELY KUMAR BUILDER W HICH WAS NOT ENCASHED BY THE SAID BUILDER DUE TO TECHNICAL DEFECTS IN CHE QUE DOES NOT INSPIRE ITA 5420/MUM/2016 23 CONFIDENCE AND CANNOT BE ACCEPTED TO THE EXTENT OF GRANTING EXEMPTION U/S 54F OF 1961 ACT DUE TO REASONS CITED ABOVE. THUS, B ASED ON OUR ABOVE DETAILED DISCUSSIONS AND REASONING AND KEEPING IN V IEW FACTUAL MATRIX OF THE CASE, THE ASSESSEE WILL BE ENTITLED TO BENEFIT U/S 54F OF 1961 ACT OF THE AMOUNT WHICH WAS INVESTED BY THE ASSESSEE IN ACQUIR ING THE AFORESAID NEW UNDER CONSTRUCTION RESIDENTIAL PROPERTY TILL THE DA TE OF FILING OF RETURN OF INCOME ON 18-08-2011 FOR WHICH THE AO IS DIRECTED T O GRANT EXEMPTION U/S 54F OF 1961 ACT AFTER VERIFICATION OF RECORDS . THE OTHER CASE LAWS CITED BY ASSESSEE ARE CONSIDERED BY US BUT BEING A DIRECT AN D DETAILED JUDGMENT OF HONBLE BOMBAY HIGH COURT IN THE CASE OF HUMAYUN SU LEMAN MERCHANT(SUPRA) FOR ALLOWABILITY OF EXEMPTION U/S 5 4F OF 1961 ACT WHICH IS BINDING ON US WHEREIN THE ISSUE UNDER THIS INSTANT APPEAL ALSO AROSE BEFORE HONBLE BOMBAY HIGH COURT WHICH WAS DECIDED BY HON BLE COURT AFTER DETAILED DISCUSSIONS IN HUMAYUN SULEMAN MERCHANT(SU PRA) AND THE ASSESSEE NOT ABLE TO BRING ANY OTHER DIRECT JUDGMENT OF COUR T HIGHER IN HIERARCHY IN SUPPORT OF ITS CONTENTIONS, WE ARE BOUND TO FOLLOW THE BINDING RATIO OF LAW LAID DOWN BY HONBLE BOMBAY HIGH COURT IN THE CASE OF HU MAYUN SULEMAN MERCHANT(SUPRA) . WE ORDER ACCORDINGLY. 10. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IN ITA NO. 5420/MUM/2016 FOR ASSESSMENT YEAR 2011-12 IS DISMISSED IN TERMS I NDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH MARCH, 2017. # $% &' 30-03-2017 ( ) SD/- SD/- (C.N. PRASAD) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 30-03-2017 ITA 5420/MUM/2016 24 .9../ R.K. R.K. R.K. R.K. , EX. SR. PS !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. : ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. : / CIT- CONCERNED, MUMBAI 5. =>( 99?@ , ?@ , $ / DR, ITAT, MUMBAI H BENCH 6. (BC D / GUARD FILE. / BY ORDER, = 9 //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI