Sh. Anil Kumar Jain, Amritsar. V. The Assistant Commissioner of Income Tax, Amritsar.

ITA 56/ASR/2014

• Counselvise Citation: 5620914 RSA 2014
• Duration Of Justice: 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-08-2014
• Assessment Year: 2010-2011
• Appeal Filed On: 03-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAAD KIDWAI
• Assessee Lawyers: PARVEEN JAIN
• Keywords: Capital asset; Source of fund
• Section: 54F; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. B.P. JAIN, ACCOUNTANT MEMBER I.T.A. NO. 56(ASR)/2014 ASSESSMENT YEAR: 2010-11 PAN: ABCPJ7386B ANIL KUMAR JAIN, VS. ACIT, CIRCLE-IV, 50, HUKAM SINGH ROAD, INCOME TAX OFFICE, AMRITSAR AMRITSAR (APPELLANT) (RESPONDENT) AND I.T.A. NO. 57(ASR)/2014 ASSESSMENT YEAR: 2010-11 PAN: ABCPJ7385C ARUN KUMAR JAIN, VS. ACIT, CIRCLE-IV, 50, HUKAM SINGH ROAD, INCOME TAX OFFICE, AMRITSAR AMRITSAR (APPELLANT) (RESPONDENT) APPELLANT BY: SH. PARVEEN JAIN, ADV. RESPONDENT BY: SH. SAAD KIDWAI, DR DATE OF HEARING: 28.08.2014 DATE OF PRONOUNCEMENT: 30.09.2014 ORDER PER A.D. JAIN, J.M. 1. THESE ARE ASSESSEES APPEALS FOR THE ASSESSMENT Y EAR 2010-11, AGAINST THE ORDER OF THE LEARNED CIT(A), AMRITSAR, EACH DATED 12.11.2013. THE ISSUE INVOLVED IN BOTH THE APPEALS IS ONE AND T HE SAME. THEREFORE, THE FACTS ARE BEING TAKEN FROM ITA NO. 56(ASR)/2014 , WHICH WAS THE APPEAL ARGUED BEFORE US AT LENGTH BY THE PARITIES. 2 I.T.A. NOS. 56 & 57(ASR)/2014 A.Y. 2010-11 2. IN ITA NO. 56(ASR)/2014, THE ASSESSEE HAS TAKEN FOLLOWING EFFECTIVE GROUNDS: I. THIS IS AN APPEAL UNDER SECTION 253(1)(A) AGAINST T HE ORDER UNDER SECTION 250(6) OF THE INCOME TAX ACT, 1961 PA SSED BY THE HONBLE COMMISSIONER OF INCOME TAX(APPEALS), AMRITSAR ON 27.11.2007 FOR THE ASSESSMENT YEAR 2010 -11 WHERE HE HAS CONFIRMED THE FOLLOWING ADDITION; A) THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S) IS OPPOSED TO LAW, FACTS AND CIRCUMSTANCES OF THE C ASE. B) THE COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT THE APPELLANT HAS FULFILLED ALL THE CONDITIONS FOR CLAIMING EXEMPTION UNDER SECTION 54F OF THE ACT AND HENCE THE DENIAL IS UNJUSTIFIED. C) THE COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN CONFIRMING THE DENIAL OF EXEMPTION ON THE GROUND TH AT THE APPELLANT HAS RESORTED TO BORROWINGS AND UTILIZ ING THE BORROWED AMOUNT FOR INVESTMENT IN CAPITAL ASSET. D) THE COMMISSIONER OF INCOME TAX(APPEALS) HAS FAILED TO APPRECIATE THE FACT THAT THE PROVISIONS OF U/S. 54F DO NOT REQUIRE THAT THE SAME SALE PROCEEDS TO BE UTILIZED TO CLAIM DEDUCTION U/S 54F. E) THE COMMISSIONER OF INCOME-TAX (APPEALS) IS NOT JUSTIFIED IN NOT FOLLOWING THE DECISION OF THE HON BLE BOMBAY HIGH COURT IN CASE OF THE COMMISSIONER OF INCOME TAX VS. DR. P.S. PASRICHA, ITA NO. 1835 OF 2009 VIDE ORDER DATED 07.10.2009. II. THAT THE ADDITION CONFIRMED BY THE HONBLE COMMISSI ONER OF INCOME(APPEALS) ARE ARBITRARY, ILLEGAL, ILLOGICA L AND UNWARRANTED WITHOUT CONSIDERING THE LAW, FACTS CIRCUMSTANCES OF THE CASE. 3. THE FACTS, AS AVAILABLE FROM RECORD, ARE THAT TH E ASSESSEE IS THE PROPRIETOR OF A CONCERN CARRYING ON THE BUSINESS OF MANUFACTURING OF GARMENTS UNDER THE NAME AND STYLE OF M/S RCJC, BEHR AMPUR ROAD, 3 I.T.A. NOS. 56 & 57(ASR)/2014 A.Y. 2010-11 VILLAGE KHANDASA, GURGAON AND HAVING SHARE INCOME F ROM M/S TRANSKNIT, GURGAON. THE ASSESSEE HAS FILED HIS INCO ME TAX RETURN FOR THE FINANCIAL YEAR 2009-10 RELEVANT TO ASSESSMENT YEAR 2010-11, VIDE ACKNOWLEDGEMENT NO. 171071480141010, DATED 14.10.20 10, DECLARING AN INCOME OF RS. 37,93,680/-. DURING THE YEAR UNDER CO NSIDERATION, THE ASSESSEE SOLD ONE PROPERTY SITUATED AT 703, SECTOR -15, GURGAON. THE SAID PROPERTY WAS JOINTLY OWNED BY THE ASSESSEE AND HIS BROTHER, SHRI ANIL KUMAR JAIN. THE SAID PROPERTY WAS SOLD TO SHRI VINO D AGARWAL AND SHRI PARVESH AGARWAL ON 22.06.2009, FOR A CONSIDERATION OF RS. 1,58,12,000/. THE SHARE OF THE ASSESSEE CAME TO RS. 79,06,000/-. THIS SALE CONSIDERATION WAS RECEIVED IN HIS BANK ACCOUNT WITH INDIAN OVERSEAS BANK, BEARING ACCOUNT NO. 040301000022203, ON DIFFE RENT DATES, I.E., 25,00,000/- ON 19.05.2009, RS. 19,76,500/- ON 23.06 .2009 AND RS. 34,29,000/- ON 23.06.2009. THE ASSESSEE ENTERED INT O AN AGREEMENT FOR PURCHASE OF FLAT NO. 34, THIRD FLOOR, BLOCK-C, IN THE RESIDENTIAL COLONY KNOWN AS THE PINNACLE, SITUATED AT DLF CITY, PHASE V, GURGAON, WITH M/S ADLAKHA ENTERPRISES, BY AGREEMENT TO SELL DATED 02. 06.2009. M/S ADLAKHA ENTERPRISES HAD RIGHTS IN THIS PROPERTY BY VIRTUE OF A BUILDER BUYERS AGREEMENT WITH M/S DLF UNIVERSAL LTD. THE A SSESSEE, ALONG WITH HIS BROTHER, PURCHASED THIS PROPERTY FROM M/S DLF U NIVERSAL LTD. ON 21.06.2010. ON 06.02.2013, THE ACIT ISSUED A SHOW C AUSE NOTICE, ASKING 4 I.T.A. NOS. 56 & 57(ASR)/2014 A.Y. 2010-11 FOR AN EXPLANATION AS TO WHY EXEMPTION OF RS. 69,95 ,678/-, CLAIMED UNDER SECTION 54 OF THE INCOME-TAX ACT, 1961 (IN SHORT T HE ACT) BE NOT DENIED, AS THE ASSESSEE HAD ALSO TAKEN A HOUSING LO AN OF RS. 1,40,00,000/- FROM DEUTSCHE BANK FOR THE PURCHASE OF THE DEMISED PROPERTY. AFTER GOING THROUGH THE ASSESSEES REPLIES, THE ACIT DENI ED THE ASSESSEES CLAIM OF EXEMPTION UNDER SECTION 54 OF THE ACT. THE LEARNED CIT(A) CONFIRMED THE ADDITION, BRINGING THE ASSESSEE IN FU RTHER APPEAL BEFORE US. 4. CHALLENGING THE IMPUGNED ORDER, THE LEARNED COUN SEL FOR THE ASSESSEE HAS CONTENDED THAT THE WORDING OF THE SECT ION MAKES IT CLEAR THAT THE LAW DOES NOT INSIST THAT THE SALE CONSIDERATION OBTAINED BY THE ASSESSEE ITSELF ONLY SHOULD BE UTILIZED FOR THE PURCHASE OF HOUSE PROPERTY. THE MAIN PART OF SECTION 54 OF THE ACT PROVIDES THAT TH E ASSESSEE HAS TO PURCHASE A HOUSE PROPERTY FOR THE PURPOSE OF HIS OW N RESIDENCE WITHIN A PERIOD OF ONE YEAR BEFORE, OR TWO YEARS AFTER THE D ATE ON WHICH THE TRANSFER OF HIS PROPERTY TOOK PLACE, OR HE SHOULD H AVE CONSTRUCTED A HOUSE PROPERTY WITHIN A PERIOD OF THREE YEARS AFTER THE D ATE OF THE TRANSFER. A READING OF CLAUSES (I) AND (II) OF SECTION 54 OF TH E ACT ALSO MAKES IT CLEAR THAT NO PROVISION IS MADE BY THE STATUTE THAT THE A SSESSEE SHOULD UTILIZE ONLY THE AMOUNT WHICH HE OBTAINED BY WAY OF SALE CO NSIDERATION FOR THE PURPOSE OF MEETING THE COST OF THE NEW ASSET. THE A SSESSEE HAS TO CONSTRUCT OR PURCHASE A HOUSE PROPERTY FOR HIS OWN RESIDENCE IN ORDER TO 5 I.T.A. NOS. 56 & 57(ASR)/2014 A.Y. 2010-11 GET THE BENEFIT OF SECTION 54 OF THE ACT. THE STATU TORY PROVISION IS CLEAR AND DOES NOT CALL FOR A DIFFERENT INTERPRETATION. T HERE IS NO AMBIGUITY IN UNDERSTANDING THE PROVISIONS OF SECTION 54 AND SECT ION 54F OF THE ACT. THE PURPOSE OF THESE PROVISIONS IS TO CONFER EXEMPT ION FROM TAX ON INVESTMENT IN RESIDENTIAL PREMISES. THE LEGISLATURE ITSELF HAS APPRECIATED THE FACT THAT IT WOULD NOT ALWAYS BE POSSIBLE TO IN VEST THE SALE PROCEEDS IMMEDIATELY AFTER THE SALE TRANSACTION AND THEREFOR E, TWO YEARS OR THREE YEARS TIME IS GIVEN FOR REINVESTMENT. NEITHER IS I T EXPECTED, NOR PRUDENT TO KEEP THE SALE PROCEEDS INTACT AND KEEP THE SAID PROCEEDS UNUTILIZED TILL SUCH TIME. THE FACT THAT THESE PROVISIONS PERMIT IN VESTMENT IN RESIDENTIAL PREMISES EVEN BEFORE THE DATE OF SALE, WITHIN ONE Y EAR BEFORE THE SALE, AND THAT SUCH AN INVESTMENT QUALIFIES FOR EXEMPTION, PU TS IT BEYOND DOUBT THAT THE LEGISLATURE DOES NOT INTEND TO HAVE ANY NEXUS B ETWEEN THE SALE PROCEEDS AND THE INVESTMENT THAT IS MADE FOR EXEMPT ION. FOR THE PURPOSES OF SECTION 54E OF THE ACT, EVEN THE EARNEST MONEY O R ADVANCE IS QUALIFIED FOR EXEMPTION, AS CLARIFIED BY THE CBDT CIRCULAR NO . 359, DATED 10 TH MAY, 1983. THE PROVISIONS OF SECTION 54(2) AND SECT ION 54F(4) OF THE ACT DO NOT ANYWHERE MANDATE THAT THERE SHOULD BE A DIRECT NEXUS BETWEEN THE AMOUNT REINVESTED AND THE AMOUNT OF SALE CONSID ERATION, OR A PART THEREOF, IN ANY MANNER. A BARE READING OF THESE PRO VISIONS CONFIRMS THAT THEY USE THE SAME LANGUAGE AS IS USED BY THE SUB-SE CTION (1) AND 6 I.T.A. NOS. 56 & 57(ASR)/2014 A.Y. 2010-11 THEREFORE, TO INFER A DIFFERENT MEANING FROM THE RE ADING OF THESE PROVISIONS, AS IS DONE BY THE ACIT TO OBSTRUCT THE CLAIM FOR EXEMPTION IN CASES WHERE THE REINVESTMENT WAS MADE OUT OF THE SA LE CONSIDERATION, BORROWED FUNDS OR FUNDS OTHER THAN THE SALES PROCEE DS, IS UNWARRANTED AND NOT DESIRABLE. 5. THE LEARNED COUNSEL FOR THE ASSESSEE HAS RELIED ON THE FOLLOWING CASES: I. KAPIL KUMAR AGARWAL VS. ACIT, [2013] 38 TAXMANN.COM 384 (DEL. TRIB.) II. MRS. PREMA P. SHAH VS. INCOME-TAX OFFICER, [2006] 1 00 ITD 60 (MUM.)/ [2006] 101 TTJ (MUM.) 849 III. ISHAR SINGH CHAWLA VS. DEPUTY COMMISSIONER OF INCOM E TAX, [2010] 130 TTJ 108(MUM.) (UO) IV. MUNEER KHAN VS. ITO, [2010] 41 SOT 504 (HYD.) V. J.V. KRISHNA RAO VS. DCIT, IN ITA NO. 1866/HYD/2011 , FOR A.Y. 2008-09, DATED 15.06.2012 (ITAT, HYDERABAD A BEN CH) VI. ITO VS. DINESH CHOUDHARY (HUF), IN ITA NO. 2125/MUM /2011, FOR A.Y. 2006-07, DT. 10.04.2013 (ITAT MUMBAI D B ENCH). VII. SMT. PUSHPA DEVI TIBREWALA VS. ITO, [2013] 33 TAXMA NN.COM 305 (HYDERABAD TRIB.) VIII. ITO VS. K.C. GOPALAN, [1999] 107 TAXMAN 591 (KER.) IX. ACIT VS. DR. P.S. PASRICHA, IN ITA NO. 6808/MUM/200 3, FOR A.Y. 2001-02. 6. THE LEARNED DR, ON THE OTHER HAND, HAS STRONGLY RELIED ON THE IMPUGNED ORDER. IT HAS BEEN CONTENDED THAT AS RIGHT LY HELD BY THE LEARNED CIT(A), IN THE PRESENT CASE, THE HOME LOAN TAKEN BY THE ASSESSEE REMAINED OUTSTANDING AND THE SALE PROCEEDS WERE NE VER APPROPRIATED TOWARDS RE-PAYMENT OF SUCH HOME LOAN. THUS, IT CAN BE SEEN THAT THE ISSUE 7 I.T.A. NOS. 56 & 57(ASR)/2014 A.Y. 2010-11 IS NOT OF UTILIZATION OF THE SAME FUNDS, BUT IT IS RELATED TO UTILIZATION OR APPROPRIATE OF CAPITAL GAIN TOWARDS PURCHASE OF RES IDENTIAL HOUSE. IN FACT, THE PRESENT FACTS ARE SIMILAR TO THE FACTS IN THE CASE OF MILAN SHARAD RUPAREL VS. ASSISTANT COMMISSIONER OF INCOME TAX, 121 TTJ 717 (MUM). IN THE ABOVE CASE, THE ITAT HAS CONSIDERED T HE DECISIONS OF INCOME TAX OFFICER VS. K.C. GOPALAN 107 TAXMANN 5 91 (KER.), PREMA P. SHAH VS. INCOME TAX OFFICER, 100 ITD 61 (MUM.), ASSISTANT COMMISSIONER OF INCOME TAX VS. DR. P.S. PASRICHA 2 0 SOT 468 (MUM) AND BOMBAY HOUSING CORPORATION VS. ASSISTANT COMMI SSIONER OF INCOME TAX 81 ITD 545 (MUM.), AND THESE CASES WERE DISTINGUISHED THEREIN AND IT WAS HELD THAT THE ASSESSEE HAD NOT A PPROPRIATED CAPITAL GAIN TOWARDS PURCHASE OF RESIDENTIAL PROPERTY AND IT WAS APPROPRIATED TOWARDS OTHER USE, AND HOUSING LOAN WAS USED FOR THE PURCHA SE OF PROPERTY. THE FACTS IN THE CASE OF DR. P.S. PASRICHA (SUPRA) AR E NOT MENTIONED COMPLETELY IN THE ORDER, SO MUCH SO, WHETHER THE AS SESSEE HAD REPAID THE LOAN AMOUNT TAKEN EARLIER FOR THE PURCHASE OF RESID ENTIAL PROPERTY FROM THE CAPITAL GAIN AMOUNT, IS NOT COMING OUT FROM THE FACTS STATED. IN VIEW OF THE SAME, IT CANNOT BE TAKEN THAT IN THE ABOVE C ASE, THE TRIBUNAL ALLOWED DEDUCTION U/S 54F OF THE ACT EVEN WHEN THE FUNDS WERE TAKEN ON LOAN. THIS OBSERVATION IS FURTHER REINFORCED FROM T HE OBSERVATIONS OF THE TRIBUNAL WHILE EXPLAINING THE CASE OF MILAN SHARAD RUPAREL (SUPRA), 8 I.T.A. NOS. 56 & 57(ASR)/2014 A.Y. 2010-11 WHEN THEY STATED IN PARAGRAPH 16 THAT IF THE ASSESS EE HAD OTHER SURPLUS FUNDS, THOSE CAN BE INVESTED. THUS, IT CAN BE SEEN THAT ONE HAS TO UTILIZE OR APPROPRIATE THE CAPITAL GAIN AMOUNT TOWARDS PURCHAS E OF RESIDENTIAL PROPERTY IN ORDER TO CLAIM DEDUCTION UNDER SECTIONS 54 OR 54F OF THE ACT. IN THE PRESENT CASE, THE ASSESSEE HAD BORROWED A HO ME LOAN FROM THE DEUTSCHE BANK ON 17.07.2009 FOR PURCHASING THE RESI DENTIAL PROPERTY AND HAD ALSO CLAIMED INTEREST DEDUCTION OF RS. 1,50,000 /- ON THE INTEREST PAID ON THE HOME LOAN IN THE COMPUTATION OF INCOME. THUS , IT IS VERY CLEAR THAT THE CAPITAL GAIN AMOUNT HAS NOT BEEN APPROPRIATED T OWARDS PURCHASE OF THE NEW RESIDENTIAL HOUSE AND CONDITIONS MENTIONED IN SECTION 54(2) OF THE ACT, WHICH ARE SIMILAR TO SECTION 54F(4), HAVE NOT BEEN COMPLIED WITH. 7. HAVING CONSIDERED THE RIVAL CONTENTIONS IN THE L IGHT OF THE MATERIAL PLACED ON RECORD, WE FIND THAT THE LEARNED CIT(A) HAS RELIED ON MILAN SHARA RUPAREL (SUPRA). THIS DECISION HAS, H OWEVER, BEEN CONSIDERED IN KAPIL KUMAR AGARWAL (SUPRA) AND AFT ER CONSIDERING THE SAME, IT HAS BEEN HELD THEREIN, IN FAVOUR OF THE AS SESSEE, AS UNDER: LEARNED DR HAS RELIED UPON AN ORDER OF THE ITAT MI LAN SHARAD RUPAREL (SUPRA). IN THAT CASE, THE ITAT HAS HELD TH AT IF INVESTMENT WAS MADE OUT OF LOAN AMOUNT THEN EXEMPTION UNDER SEC. 5 4F(1) WILL NOT BE AVAILABLE. IN THE OPINION OF THE ITAT, THE ASSESSEE HAS TO DEMONSTRATE SOURCE OF FUNDS, IF INVESTMENT WAS MADE BY THE ASSE SSEE FROM HIS OWN SOURCE AND NOT FROM LOAN TAKEN FROM THE BANK THEN, EXEMPTION WOULD BE AVAILABLE. IN OUR OPINION, THE SECTION DOES NOT PUT ANY SUCH RESTRICTION, 9 I.T.A. NOS. 56 & 57(ASR)/2014 A.Y. 2010-11 HONBLE KERALA HIGH COURT HAS EXPLAINED THE POSITIO N. SIMILARLY, IN A SERIES OF OTHER ORDERS, AT THE END OF ITAT, IT HAS BEEN HELD THAT THERE IS NO CONDITION THAT ASSESSEE SHOULD, UTILIZE THE SALES C ONSIDERATION ONLY FOR THE PURPOSE OF ACQUISITION OF NEW PROPERTY. IN VIEW OF THE ABOVE DISCUSSION, WE ARE OF THE VIEW THAT LEARNED REVENUE AUTHORITIES HAVE ERRED IN HOLDING THAT ASSESSEE IS NOT ENTITLED FOR EXEMPTION UNDER SEC. 54F(1) OF THE INCOME-TAX ACT, 1961 FOR A SUM OF RS. 121,32636 . THE INVESTMENT OF THE ASSESSEE IS MORE THAN THE CAPITAL GAIN EARNED B Y HIM. THEREFORE, WE ALLOW THE APPEAL OF THE ASSESSEE AND DELETE THE ADD ITION OF RS. 121,32,636 IN THE TOTAL INCOME OF THE ASSESSEE UNDER THE HEAD LONG TERM CAPITAL GAIN. 8. KAPIL KUMAR AGARWAL (SUPRA) IS A DECISION DATE D 16.07.2013. THE LEARNED CIT(A) PASSED THE IMPUGNED ORDER ON 12. 11.2013. HE THUS, OBVIOUSLY, DID NOT HAVE THE BENEFIT OF THIS DECISIO N, WHICH HAS BEEN RENDERED BY A CO-ORDINATE BENCH OF DELHI, ITAT D, AS THAT IN MILAN SHARAD RUPAREL (SUPRA) WHICH WAS RELIED ON BY THE LEARNED CIT(A). THEREFORE, KAPIL KUMAR AGARWAL (SUPRA), B EING A DECISION LATER IN POINT OF TIME THAN MILAN SHARAD RUPAREL (SUPRA) AND THE SAME HAVING SPECIFICALLY CONSIDERED MILAN SHARAD RUPAREL (SUPRA), KAPIL KUMAR AGARWAL (SUP RA) HOLDS THE FIELD AND MUST PREVAIL. 9. FURTHER, IN MR. HARMEET GANDHI VS. ITO, ITA NO . 286/MUM/2009, FOR A.Y. 2004-05, A DECISION RENDERED BY THE MUMBAI BENCH OF TRIBUNAL ON 30.04.2010, IT HAS BEEN HELD AS UNDER: 10 I.T.A. NOS. 56 & 57(ASR)/2014 A.Y. 2010-11 WE FIND THE CO-ORDINATE BENCH OF THE TRIBUNAL IN T HE CASE OF DR. P.S. PASRICHA HAS HELD THAT AS PER THE REQUIRE MENT OF SECTION 54, THE ASSESSEE SHOULD ACQUIRE A RESIDENTI AL HOUSE WITHIN A PERIOD OF ONE YEAR BEFORE OR TWO YEARS AFT ER THE DATE ON WHICH THE TRANSFER TOOK PLACE. NOWHERE IT HAS BE EN MENTIONED THAT THE SAME FUNDS MUST BE UTILIZED FOR THE PURCHASE OF ANOTHER RESIDENTIAL HOUSE. ACCORDING TO THE SAID DECISION, THE REQUIREMENT OF LAW IS THAT THE ASSESS EE SHOULD PURCHASE A RESIDENTIAL HOUSE WITHIN THE SPECIFIED P ERIOD AND SOURCE OF FUNDS IS QUITE IRRELEVANT. WE FIND THE AB OVE DECISION OF THE TRIBUNAL HAS BEEN UPHELD BY THE HONBLE BOMB AY HIGH COURT VIDE INCOME TAX APPEAL NO. 1825 OF 2009. SIMI LARLY, WE FIND THE TRIBUNAL IN THE CASH MILAN SHARAD RUPAREL (SUPRA), AS RELIED ON BY THE LEANED DR, HAS HELD THAT IT IS NOT NECESSARY THAT THE SAME FUNDS MUST BE USED FOR PURCHASE OF TH E NEW RESIDENTIAL HOUSE BUT THE FUNDS SHOULD BE AVAILABLE WITH THE ASSESSEE FOR ITS INVESTMENT IN THE RESIDENTIAL HOUS E. THE VARIOUS OTHER DECISIONS RELIED ON BY THE LEARNED CO UNSEL FOR THE ASSESSEE ALSO SUPPORT HIS CASE. IN THIS VIEW OF THE MATTER, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE IS ENTITLED TO DEDUCTION U/S 54F OF THE ACT ON ACCOUNT OF CAPIT AL GAIN ARISING ON SALE/TRANSFER OF SHARES FOR THE HOUSE PU RCHASED BY HIM ONE YEAR PRIOR TO SALE OF SUCH SHARES. 10. IT IS RELEVANT TO NOTE THAT IN THIS CASE, THE FO LLOWING DECISIONS HAD BEEN RELIED ON BY THE ASSESSEE, AS NOTED IN PAR A 7 OF THE ABOVE ORDER: I. ACIT VS. DR. P.S. PASRICHA, 20 SOT 468 (MUM.); II. ITO VS. K.C. GOPALAN, 162 CTR 566; III. BOMBAY HOUSING CORPORATION VS. ACIT, 81 ITD 545; IV. MRS. PREMA P. SHAH VS. ITO, 100 ITD 60; V. DCIT VS. GAYLORD INVESTMENT & TRG. P. LTD. 21 SOT 407 VI. AJIT VASWANIT VS. DY. CIT, 117 TAXMAN 123 11. MR. HARMEET GANDHI (SUPRA) WAS FOLLOWED BY THE ITAT, MUMBAI A BENCH IN KULJEET KAUR GANDHI VS. ITO, FOR A.Y. 2004-05, A DECISION RENDERED ON 06.08.2010. 11 I.T.A. NOS. 56 & 57(ASR)/2014 A.Y. 2010-11 12. THUS, IN THE ABOVE SAID TWO DECISIONS ALSO, MILAN SHARDA RUPAREL(SUPRA), STANDS CONSIDERED, WHILE DECIDING IN FAVOUR OF THE ASSESSEES. 13. THEN, IN DCIT VS. SHRI RADHAKANT M. TRIPATHY, A DECISION DATED 21.02.2014, RENDERED BY THE AHMEDABAD BENCH OF THE TRIBUNAL IN ITA NO. 136/AHD/2011, FOR A.Y. 2007-08, THE LEARNED CIT(A) HAD, INTER ALIA, HELD THAT THE VERY FACT THAT THE LEGISLATURE HAS ALLOWED INVESTMENT A NEW PROPERTY ONE YEAR PRIOR TO THE DATE OF TRANSFER ESTABLISHES IN NO UNCERTAIN TERMS THAT IT NEED NOT BE THE SALE CONSIDERATION OUT OF WHICH THE INVESTMENT SHOULD BE MADE FOR QUALIFYING FOR THE SAID DEDUCTION U/S 54F OF THE ACT. THE LEARNED CIT(A) HAD ALSO TAKEN SUPPORT FROM, INTER ALIA, DR . P.S. PASRICHA (SUPRA). THE FINDINGS OF THE LEARNED CIT(A) WERE UPHELD BY T HE TRIBUNAL WHILE DISMISSING THE APPEAL OF THE REVENUE. 14. IN VIEW OF THE ABOVE, WE FIND THE CLAIM OF THE A SSESSES UNDER SECTION 54F OF THE ACT TO BE IN CONSONANCE WITH; (I )KAPIL KUMAR AGARWAL(SUPRA); (II) MR. HARMEET GANDHI (SUPRA); (III) KULJEET KAUR GANDHI VS. ITO; AND (IV) DCIT VS. SHRI RADHAKANT M. TRIPATHY. THEREFORE, FINDING THAT THE ASSESSEE HAS COMPLIED WITH THE PROVISIONS CONTAINED IN SECTIONS 54F(2) AND 54F(4) OF THE ACT, THE CLAIMS OF THE ASSESSES UNDER SECTION 54 OF THE ACT ARE ALLOWED. O RDERED ACCORDINGLY. 15. FOR THE ABOVE DISCUSSION, THE GRIEVANCE OF THE ASSESSEE IS ACCEPTED. AS NOTED IN THE BEGINNING OF THIS ORDER, 12 I.T.A. NOS. 56 & 57(ASR)/2014 A.Y. 2010-11 THE FACTS IN ITA NOS. 56 & 57(ASR)/2014 ARE EXACTLY SIMILAR, MUTATIS MUTANDIS. THEREFORE, OUR ABOVE OBSERVATIONS SHALL EQUALLY APPLY TO ITA NO. 57(ASR)/2014. 16. IN THE RESULT, THE APPEALS OF BOTH THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH SEPTEMBER, 2014 SD/- SD/- (B.P. JAIN) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30 TH SEPTEMBER, 2014 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: ANIL KUMAR JAIN & ARUN KUMAR JAIN, 50 , HUKAM SINGH ROAD, ASR 2. ACIT, CIRCLE-IV, INCOME TAX OFFICE, AMRITSAR 3. THE CIT(A), 4. THE CIT, 5. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.