DCIT, Cir.-1, Nashik V. Shri Ashok Deokishan Bhutada, Nashik

ITA 966/PUN/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2011 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 29-10-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 21-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Cost of acquisition; Revised return
• Section: 54B; 54F; 54; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE: SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.966/PN/2011 ASSESSMENT YEAR :2008-09 DCIT, CIR-1, NASHIK VS. ASHOK DEOKISHAN BHUTADA, 1011/13 CHANDWARKAR LANE, MAIN ROAD, NASHIK (APPELLANT) (RESPONDENT) PAN NO. ABRPB9730G APPELLANT BY: SHRI NIKHIL PATHAK RESPONDENT BY: SMT. SHAILJA RAI DATE OF HEARING : 21-01-2013 DATE OF PRONOUNCEMENT : 18-03-2013 ORDER PER R.S. PADVEKAR, JM:- THIS APPEAL IS FILED BY THE REVENUE CHALLENGING THE IMPUGNE D ORDER OF THE LD.CIT(A)-I, NASHIK DATED 03-05-2011 FOR THE A.Y. 2008-09. THE REVENUE HAS TAKEN THE FOLLOWING EFFECTIVE GROUNDS IN THE APPEAL: 1. WHETHER O THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A)-I, NASHIK WAS JUSTIFIED IN DELETING THE ADDITIO N OF RS.53,83,335/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DISALLOWANCE OF DEDUCTION CLAIMED U/S. 54B IN THE RETURN OF INC OME. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD.CIT(A)-I, NASHIK WAS JUSTIFIED IN ALLOWING THE DEDUCTIO N U/S. 54F AS IT HAS NEVER BEEN CLAIMED THE ASSESSING OFFICER. 3. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN THE LAW THE LD.CIT(A)-I, NASHIK WAS JUSTIFIED IN ALLOWING TH E DEDUCTION U/S. 54F EVEN THOUGH THE STIPULATED CONDITIONS WERE NOT SAT ISFIED. 2. THE FACTS REVEALED FROM THE RECORD ARE AS UNDER. TH E ASSESSEE IS AN INDIVIDUAL AND DURING THE YEAR UNDER CONSIDERATION SOLD PLOT OF HIS LAND BEARING SURVEY NO. 700/2 AT NASHIK FOR SALE CONSIDER ATION OF RS.60 LAKHS. 3. WHILE FILING THE RETURN OF INCOME THE ASSESSEE CLAIMED DED UCTION U/S.54B ON PREMISES THAT THE ASSESSEE HAS PROPOSED T O MAKE 2 ITA NO.966/PN/2011, ASHOK DEOKISHAN BHUTADA, NASHIK INVESTMENT IN THE AGRICULTURE LAND. THE AO REJECTED THE CLAIM OF THE ASSESSEE THAT THE ENTIRE CAPITAL GAIN WAS EXEMPTED AND BROUGHT TO TAX THE NET LONG TERM CAPITAL GAIN AT RS.57,76,379/-. THE AS SESSEE HAS CHALLENGED THE ADDITION BEFORE THE LD.CIT(A) BY TAKING CONT ENTION THAT INSTEAD OF CLAIMING DEDUCTION U/S.54F, THE ASSISTANT OF HIS TA X CONSULTANT WRONGLY CLAIMED THE DEDUCTION U/S.54B WHILE FILING THE RETURN OF INCOME INADVERTENTLY. THE ASSESSEE PLEADED BE FORE THE LD.CIT(A) THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S.54 F OF THE INCOME-TAX ACT TO THE EXTENT OF RS.53,83,335/-, AS THE ASSESSEE HAS NEVER SOLD ANY AGRICULTURAL LAND NOR PROPOSED TO INVEST IN ANY AGRICULTURAL LAND AS STATED HEREINABOVE. 4. THE ASSESSEE SOLD HIS PLOT FOR CONSIDERATION OF RS.60,0 0,000/- AND AFTER DEDUCTING INDEXED COST OF ACQUISITION OF RS.2,23,621/- AND WORKED OUT NET LONG TERM CAPITAL GAIN AT RS.57,76,379/-. THE AS SESSEE FURTHER PLEADED THAT THE ASSESSEE MADE THE INVESTMENT IN THE P LOT OF LAND BY ENTERING INTO AGREEMENT WITH ONE SHRI S.B. SATHE BEARING SURVEY NO. 41/2A/1 HAVING AREA OF 836 SQ. MTRS. FOR PROPOSED CONSTR UCTION OF HIS BUNGALOW. THE ASSESSEE ALSO MADE THE PAYMENT TO THE E XTENT OF RS.39,00,000/- TO SHRI S.B. SATHE UP TO 03-12-2007 AND TH E DETAILS OF THE PAYMENT ARE GIVEN ON PAGE NO. 2 OF THE ORDER OF TH E LD.CIT(A). THE ASSESSEE PROPOSED TO CONSTRUCT THE RESIDENTIAL BUNGALO W HAVING AN AREA OF ABOUT 2,500 SQ. FEET AND WITH ESTIMATED COST OF RS.21,0 0,000/- ON THE SAID PLOT OF LAND AND AGREEMENT WAS ENTERED INTO ON 24-1 2-2007 WITH SHRI MAHESH AGRAWAL. HE FURTHER PLEADED THAT DUE TO LITIG ATION, THE CONSTRUCTION OF THE BUNGALOW COULD NOT BE MADE ON THE S AID PLOT AND THE ASSESSEE HAS PURCHASED FLAT. THE ASSESSEE ALSO PLEADED THAT THE ASSESSEE ENTERED INTO THE REGISTERED AGREEMENT WITH TH E BUILDER DATED 30-12-2009 FOR THE CONSIDERATION OF RS.49,98,000/- AND ALSO PAID STAMP DUTY REGISTRATION CHARGES AND PAYMENT OF AMENITIES. THE SAID PAYMENT WAS REFLECTED IN THE AUDITED BALANCE SHEET OF THE ASSESSE E AS ON 31-03- 3 ITA NO.966/PN/2011, ASHOK DEOKISHAN BHUTADA, NASHIK 2010 WHICH WAS TO THE EXTENT OF RS.55,91,740/- AND THE D ETAILS ARE GIVEN ON PAGE NO. 3 IN THE IMPUGNED ORDER. 5. IT WAS ALSO CONTENDED BY THE ASSESSEE THAT IN THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE ASSESSEE CLAIMED THE DEDUCT ION U/S.54F BUT THE SAME WAS NOT CONSIDERED AT ALL AND AFTER RECEIVIN G THE ASSESSMENT ORDER THE ASSESSEE WAS SURPRISED TO SEE T HAT IN SPITE OF MAKING THE CLAIM U/S.54F DURING THE COURSE ASSESSMENT PR OCEEDINGS, THE ASSESSING OFFICER NOT EVEN MADE A WHISPER IN THE ASSE SSMENT ORDER AND THE ASSESSING OFFICER ONLY CONSIDERED THE CLAIM U/S.54B , WHICH WAS MADE INADVERTENTLY BY THE ASSISTANCE OF THE ITP. THE CIT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE THAT HIS CLAIM U/S.54F HAS TO BE CONSIDERED IN PLACE OF 54B AS NO SALE OF AGRICULTURAL LAND WAS INVOLVED . THE LD.CIT(A) ALSO REFERRED TO THE DECISION OF THE HON'BLE SUPR EME COURT IN THE CASE OF GOETZ INDIA LTD. VS. CIT284 ITR 323 AND AD MITTED THE SAID CLAIM. THE LD.CIT(A) WAS ALSO EXAMINED WHETHER THE ASSESSE E IS ENTITLED FOR CLAIMING THE DEDUCTION U/S.54F. AFTER EXAMINING THE SCHE ME OF U/S.54F AND DECISIONS RELIED ON BY THE ASSESSEE, THE LD.CI T(A) ACCEPTED THE PLEA OF THE ASSESSEE AND ALLOWED THE CLAIM U/S.54F. T HE REASONING AND FINDING OF THE LD.CIT(A) ARE AS UNDER: 8. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CAS E, THE ASSESSMENT ORDER OF THE A.O. AND THE RIVAL SUBMISSI ONS. ON PERUSAL OF THE SAME, IT HAS BEEN NOTICED THAT THE A .O. HAS IGNORED THE CLAIM OF THE APPELLANT RAISED BEFORE HIM DURING THE CO URSE OF ASSESSMENT PROCEEDINGS THAT THE APPELLANT IS ENTITL ED TO DEDUCTION U/S. 54F OF THE ACT. THE A.O. HAS ALSO IGNORED THE CLAIM OF THE APPELLANT THAT IN THE RETURN OF INCOME THE ASSISTANT OF INCOME-TAX PRACTITIONER HAS INCORRECTLY CLAIMED DEDUCTION U/S. 54 B INSTEAD OF DEDUCTION U/S. 54F OF THE ACT. THESE FACTS ARE ALSO MENTIONED BY THE APPELLANT IN THE STATEMENT OF FACTS AND GROUNDS OF APPEAL FILED WITH THE APPEAL MEMO, COPY OF WHICH HAS BEEN F ORWARDED TO THE A.O. THE APPELLANT HAS CLAIMED THAT HE HAS NEVE R CLAIMED BEFORE THE A.O. DURING THE ASSESSMENT PROCEEDINGS T HAT HE IS LIABLE FOR DEDUCTION U/S.54B BUT HAS CLAIMED THAT THE D EDUCTION U/S. 54F IS TO BE ALLOWED. THE ISSUE TO BE DECIDED IN THIS APPEAL IS WHETHER ON THE FACTS AND IN LAW THE APPELLANT IS ENTITLED TO DEDUCTION U/S.54F OF THE ACT ? 8.1. IT IS UNDISPUTED FACT THAT THE APPELLANT HAS CLAIMED DEDUCTION U/S. 54B IN THE RETURN OF INCOME WHEREAS DURING THE ASSESSMENT 4 ITA NO.966/PN/2011, ASHOK DEOKISHAN BHUTADA, NASHIK PROCEEDINGS THE APPELLANT HAS CLAIMED THAT HE 'IS ENT ITLED TO DEDUCTION U/S.54F. IT HAS BEEN LAID DOWN IN THE CAS E OF GOETZE (INDIA) LTD. VS. CIT (2006) 284 ITR 323 (SC) THAT THE A.O. HAS NO POWER TO ENTERTAIN A CLAIM MADE BY THE ASSESSEE OTHERWISE TH AN BY WAY OF REVISED RETURN. THE CIT(A) AND TRIBUNAL HAS POWER T O ENTERTAIN SUCH CLAIMS OF THE APPELLANT OTHERWISE THAN BY REVISED R ETURN. THE HON'BLE ITAT, JAIPUR 'A' BENCH HAS DECIDED THE SIMILAR ISSU E AND HELD IN PARA 7.5 OF THE APPELLATE ORDER AS UNDER: 'WE ARE AWARE THAT HON'BLE APEX COURT IN THE CASE O F GOETZE (INDIA) LTD. VS. CIT(2006) 204 CTR (SC) 182: (2006) 284 ITR 323 (SC) HAS HELD THAT THE A.O. HAS NO POWER IN ENT ERTAIN A CLAIM MADE OTHERWISE THAN BY WAY OF REVISED RETURN. IT WAS MADE CLEAR THAT THE DECISION IS RESTRICTED TO T HE POWER OF THE A.O. TO ENTERTAIN THE CLAIM FOR DEDUCT ION OTHERWISE THAN BY REVISED RETURN AND DID NOT IMPINGE ON THE POWER OF THE TRIBUNAL UNDER S.254 OF THE ACT. REFERENCE HAS BEEN MADE TO THE DECISION OF NATIONAL THERMAL POWER CO. LTD. VS. CIT (1999) 157 CTR(SC) 2 49: (1998) 229 ITR 383 (SC). IN THE INSTANT CASE, THE A SSESSEE HAS CLAIMED THE DEDUCTION UNDER S.54F BEFORE THE LEARNED CIT(A) AND THE LEARNED CIT(A) HAS ENTERTAIN ED SUCH CLAIM. THEREFORE, THE ISSUE OF CLAIM CAN BE CONSIDE RED. HENCE WE HOLD THAT THE ASSESSEE IS ENTITLED FOR DED UCTION UNDER S.54F OF THE ACT.' THE ABOVE PROPOSITION OF LAW IS ALSO FORTIFIED BY THE DECISION IN THE CASE OF ASIAN PAINTS LTD. VS. ADDL. CIR DATED 2 3/3/2009 (2010) TIOL 377 ITAT,(MUM), THEREFORE, THE CLAIM OF THE APPELLANT THAT HE IS ENTITLED TO DEDUCTION U/S.54F IS TO BE C ONSIDERED WHILE DECIDING THIS APPEAL. 8.2. SECTION 54F LAYS DOWN THAT IN ORDER TO CLAIM DEDUCTION THE FOLLOWING CONDITIONS ARE TO BE FULFILLED:- I) THE ASSESSEE IS AN INDIVIDUAL OR HINDU UNDIVIDE D FAMILY. II) THE ASSET TRANSFERRED IS ANY LONG TERM CAPITAL A SSET OTHER THAN A RESIDENTIAL HOUSE. III). THE ASSESSEE HAS PURCHASED WITHIN ONE YEAR BE FORE THE DATE OF TRANSFER OR TWO YEARS AFTER THE DATE OF THE TRANSFE R OR CONSTRUCTED WITHIN 3 YEARS AFTER THE DATE OF THE TR ANSFER A RESIDENTIAL HOUSE. IV) THE AMOUNT NOT UTILIZED FOR THE PURCHASE OR CON STRUCTION OF RESIDENTIAL HOUSE UPTO THE DUE DATE OF RETURN SPECIF IED U/S. 139 IS TO BE DEPOSITED IN NOTIFIED CAPITAL GAIN ACCOU NT SCHEME TO BE UTILIZED FOR PURCHASE OR CONSTRUCTION OF HOUSE PROPERTY WITHIN PRESCRIBED TIME LIMIT. V) THE ASSESSEE SHOULD NOT OWN MORE THAN ONE RESIDE NTIAL HOUSE ON THE DATE OF TRANSFER OF THE ORIGINAL ASSET. VI) THE ASSESSEE SHOULD NOT TRANSFER NEW HOUSE WITHIN 3 YEARS OF ITS PURCHASE OR CONSTRUCTION. IN THE CASE UNDER APPEAL THE ASSESSEE IS AN INDIVIDU AL AND HAS TRANSFERRED LONG TERM CAPITAL ASSET WHICH IS A N.A. PLOT AND HENCE FIRST 2 CONDITIONS MENTIONED ABOVE ARE UNDISPUTEDLY SAT ISFIED. 5 ITA NO.966/PN/2011, ASHOK DEOKISHAN BHUTADA, NASHIK THE THIRD CONDITION LAY DOWN THAT THE ASSESSEE HAS TO PURCHASE RESIDENTIAL HOUSE WITHIN 2 YEARS OR CONSTRUC T RESIDENTIAL HOUSE WITHIN THE PERIOD OF 3 YEARS. IN THE CASE UNDER APPEAL THE APPELLANT HAS ENTERED INTO PURCHASE AGREEMENT OF FLAT WHICH WAS UNDER CONSTRUCTION AS PER REGISTERED AGREEMENT DATE D 30/12/2009 AND HAS PAID FULL PAYMENT OF RS. 55,91,740/- AS APPEARING IN THE AUDITED BALANCE SHEET AS ON 31/3/2010. IN THE CASE OF THE APPELLANT THE ORIGINAL ASSET WAS TRANSFERRED AS PER R EGISTERED SALE DEED DATED 28/11/2007 AND THE ASSESSEE HAS PURCHASE D FLAT UNDER CONSTRUCTION VIDE REGISTERED AGREEMENT DATED 30/12/2009 AND HAS MADE FULL PAYMENT BEFORE 31/3/2010, THEREFORE, UNDISPUTEDLY THE APPELLANT HAS PURCHASED FLAT WITHIN A PERIOD OF 3 YEARS BUT AFTER THE PERIOD OF 2 YEARS FROM THE DATE OF TRANSFER OF ORIGINAL ASSET. THE CLAIM OF THE APPELLANT THAT ON THE FACT OF HIS CASE THE TIME ALLOWED FOR ACQUIRING RESIDENTIAL HOUSE IS 3 Y EARS IS ACCEPTED IN VIEW OF THE RATIO LAID DOWN IN THE FOLLOWING DECISIONS:- I) ACIT VS. SMT. SUNDER KAUR SUJAN SINGH GADH (2005) 3 SOT 206 (MUM) IN THIS CASE IT HAS BEEN LAID DOWN THAT ASSESSEE HAV ING BEEN ALLOTTED AND GIVEN POSSESSION RESIDENTIAL FLAT BY THE B UILDER WITHIN 3 YEARS OF THE SALE OF ORIGINAL ASSET HE IS EN TITLED TO EXEMPTION U/S. 54. II) MUKESH G. DESAI (HUF) VS. ITO (2009)18 DTR 71, 24 SOT 312 (MUM) IN THIS CASE IT HAS BEEN LAID DOWN THAT ASSESSING HA VING INVESTED LONG TERM CAPITAL GAINS FOR PURCHASE OF RES IDENTIAL HOUSE UNDER CONSTRUCTION AFTER CANCELING THE EARLIER DEAL FOR PURCHASE OF A ROW HOUSE, THE SAME WAS FOR CONSTRUCTI ON OF A HOUSE AND NOT FOR PURCHASE AND HENCE APPLICABLE TIME LIMIT FOR INVESTMENT WAS 3 YEARS AND NOT 2 YEARS. III) P.K. DATTA VS. ITO (2006) 100 TTJ 133 (PUNE) IN THIS CASE IT HAS BEEN LAID DOWN THAT AGREEMENT EN TERED INTO BY THE ASSESSEE WITH A BUILDER/DEVELOPER TO ACQUIRE A ROW HOUSE IN THE BLOCKS TO BE BUILT BY THE LATTER WAS AN AGREEMENT FOR CONSTRUCTION AND SALE OF ONE HOUSE. IN THIS CASE THE ASSESSEE HAS SOLD ORIGINAL ASSET ON 26/6/1990 AND HAS PAID SUBSTANTIAL AMOUNT FIR PURCHASE OF NEW HOUSE THOUGH T HE POSSESSION WAS HANDED OVER TO THE APPELLANT OF THE H OUSE IN FEBRUARY, 1993 I.E. AFTER 2 YEARS, IT HAS BEEN HELD THAT THE DEDUCTION U/S. 54 IS TO BE ALLOWED. IV) CIT VS. SARDARMAL KOTHARI (2008) 302 ITR 286, 217 C TR 414 (MAD) IN THIS CASE THE APPELLANT HAS INVESTED NET CAPITAL G AIN IN PURCHASE OF PLOT AND HAS CONSTRUCTED RESIDENTIAL HO USE WITHIN THE PERIOD OF 3 YEARS ( AND NOT 2 YEARS ) AND THE C OURT HAS ALLOWED THE DEDUCTION U/S. 54 OF THE ACT. V) CIT VS. DR. LAXMICHAND NAGPAL NAGADA 211 ITR 804 (BOM) IN THIS CASE IT HAS BEEN LAID DOWN THAT THE WORD 'P URCHASE' IS NOT DEFINED UNDER THE I.T. ACT AND THEREFORE RESORT T O IS ORDINARY MEANING AS UNDERSTOOD BY LAY MAN WILL HAVE TO BE MADE. IN VIEW OF THE ABOVE FACTS AND RATIO LAID DOWN BY T HE ABOVE DECISIONS, I AM OF HE CONSIDERED VIEW THAT THE APPE LLANT HAS FULFILLED THE THIRD CONDITION FOR CLAIMING DED UCTION U/S.54F OF THE ACT. 6 ITA NO.966/PN/2011, ASHOK DEOKISHAN BHUTADA, NASHIK THE FOURTH CONDITION TO BE FULFILLED IS THE APPELLANT H AS TO DEPOSIT THE UNUTILIZED PORTION OF SALE PROCEEDS OF O RIGINAL ASSET IN NOTIFIED SCHEME UPTO THE TIME LIMIT FOR FILING RETUR N U/S. 139 OF THE ACT. THE APPELLANT HAS CLAIMED THAT THE TIME LIM IT ALLOWED U/S. 139(4) OF THE ACT IS TO BE CONSIDERED. IN T HE CASE OF THE APPELLANT THE TIME LIMIT FOR FILING RETURN OF IN COME U/S. 139(4) IS 31/3/2010 AND THE APPELLANT HAS INVESTED AN AMOUNT OF RS.55,91,740/- FOR ACQUIRING FLAT BEFORE 31-0 3-2010. THE PROPOSITION OF LAW IS SUPPORTED BY FOLLOWING DECISIONS : I) CITVS. RAJESHKUMARJALAN286ITR274(GAU) II) NIPUN MEHEROTRA VS. DCIT (2008) 113 TTJ 223 (BANGLORE) IN THESE CASES IT HAS BEEN LAID DOWN THAT FOR CLAIM ING DEDUCTION U/S.54/54F THE AMOUNT OF SALE PROCEEDS OF ME ORIGINAL ASSET TRANSFERRED IS TO BE DEPOSITED IN NOTIFIED CA PITAL GAIN ACCOUNT SCHEME UPTO THE DATE OF FILING RETURN U/S. 139(4) O F THE ACT IF THE AMOUNT IS NOT UTILIZED FOR ACQUISITION OF RESIDENTI AL HOUSE PROPERTY. IN VIEW OF THE RATIO LAID DOWN IN THE ABOVE STATED DECISIONS, I AM OF THE CONSIDERED VIEW THAT THE FOURTH CONDITION STATE D ABOVE IS ALSO FULFILLED. THE A.O. HAS NOT BROUGHT ON RECORD THAT THE ASSESSE E HAS OWNED MORE THAN ONE RESIDENTIAL HOUSE ON THE DATE O F TRANSFER OF THE ORIGINAL ASSET OR THE ASSESSEE HAS TRANSFERRED NEW HOUSE WITHIN 3 YEARS OF ITS PURCHASE. THE ASSESSEE HAS ST ATED DURING THE APPELLATE PROCEEDINGS THAT BOTH THE ABOVE (COND ITIONS ARE SATISFIED IN HIS CASE, THEREFORE, FIFTH AND SIXTH C ONDITION STATED ABOVE ARE ALSO SATISFIED. 8.3. IT HAS BEEN FURTHER NOTICED THAT THE FACTS OF THE CASE OF THE APPELLANT AND THE FACTS OF THE CASE OF MUKESH G. DES AI (HUF) VS. ITO, REPORTED IN 18 ITR 71(2009) ARE MORE OR LESS S IMILAR. THE HON'BLE MUMBAI ITAT HAS DECIDED THE SIMILAR ISSUES INVOLVED IN THE SAID CASE IN FAVOUR OF THE ASSESSEE. IN VIEW OF THE ABOV E FACTS AND DISCUSSION AND RESPECTFULLY FOLLOWING THE RATIO LAID DOWN IN THE ABOVE REFERRED DECISIONS, I AM OF THE CONSIDERED VIEW THAT THE APP ELLANT IS ENTITLED TO DEDUCTION U/S.54F OF THE I.T. ACT TO THE EXTENT OF RS. 53,83,335/- AS AGAINST CLAIMED BY THE APPELLANT AT RS. 57,76,379/- AS THE APPELLANT HAS INVESTED RS.55,91,740/- FOR ACQUIRING NEW RESIDENTIAL HOUSE AS AGAINST SALE PROCEEDS OF ORIGI NAL ASSETS AMOUNTING TO RS.60,00,000/-THE ADDITION IS, THEREFO RE, CONFIRMED TO THE EXTENT OF RS. 3,93,044/- AND DELETED TO THE EXT ENT OF RS. 53,83,335/-. ' BEING AGGRIEVED THE REVENUE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES. TH E ASSESSEE HAS FILED PAPER BOOK IN WHICH THE COPY OF THE SUBMISSIONS T O THE LD.CIT(A)-I, NASHIK AND COPY OF SALE DEED AS WELL AS COPY O F COMPUTATION OF INCOME ARE FILED. THERE IS NO DISPUTE IN RESPECT OF THE F ACT THAT THE ASSESSEE MADE A CLAIM U/S.54B AS PER COMPUTATION STAT EMENT FILED IN THE COMPILATION I.E. PAGE NOS. 7 TO 9. WE FIND THAT THE ASSE SSEE SOLD HIS 7 ITA NO.966/PN/2011, ASHOK DEOKISHAN BHUTADA, NASHIK PLOT FOR THE SALE CONSIDERATION OF RS.60,00,000/-. THE ASSE SSEE MADE THE INVESTMENT IN THE ANOTHER PLOT, THEREAFTER, IMMEDIATELY AND PROPOSED TO CONSTRUCT RESIDENTIAL BUNGALOW. DUE TO LITIGATION THE ASS ESSEE COULD NOT GO WITH HIS PROJECT OF RESIDENTIAL BUNGALOW AND HE ENTERED INTO AGREEMENT WITH THE BUILDER FOR PURCHASE OF THE FLAT. THE LD.CIT(A) HAS RECORDED THE CONDITIONS OF SECTION 54F IN PARA 8.2 OF HIS O RDER. AS PER THE PROVISIONS OF SECTION 54F THE ASSESSEE CAN PURCHAS E RESIDENTIAL HOUSE WITHIN 2 YEARS OR CONSTRUCT RESIDENTIAL HOUSE WITHIN THE PERIOD OF THE 3 YEARS. 7. IN THE PRESENT CASE, THE ASSESSEE ENTERED INTO PU RCHASE AGREEMENT OF THE FLAT WITH THE BUILDER ON 30-12-2009 AND AVAILED THE LOAN FROM THE HDFC BANK TO THE EXTENT OF RS.50,00,000/- AND BANK PAID RS.47,00,000/- DIRECTLY TO THE BUILDER IN THE MONTH OF M ARCH, 2010 ON 31-03-2010. THE ASSESSEE HAS MADE THE TOTAL PAYMENT TO THE BUILDER TO THE EXTENT OF RS. 55,91,740/-, THEREFORE, THE ISSUE BEFORE T HE LD.CIT(A) WAS WHETHER THE ASSESSEE HAS FULFILLED THE CONDITION OF THE TIME LIMIT. ADMITTEDLY, THE ASSESSEE MADE THE PAYMENT BEYOND THE PERIOD OF 2 YEARS FROM THE DATE OF SALE OF ORIGINAL ASSET I.E. 25-11-2007 BUT WITHIN 3 YEARS HE HAS MADE THE INVESTMENT BY AVAILING THE LOAN FROM THE HDFC BANK TO THE EXTENT OF RS. 47,00,000/-. WE FIND THAT THE ASSESSEE S CASE IS IDENTICAL TO THAT OF MUKESH G. DESAI (HUF) VS. ITO, (2009) 18 DTR 71 (MUM). ANOTHER ASPECT TO BE CONSIDERED HERE IS IN RESPEC T OF ONE OF THE CONDITIONS THAT UNUTILIZED PORTION OF THE SALE PROCEEDS OF O RIGINAL ASSET IS TO BE DEPOSITED IN THE NOTIFIED SCHEME UP TO THE TIME LIMIT FOR FILING OF THE RETURN OF INCOME U/S.139 OF THE ACT. THE ASSESSEE CONT ENDED THAT THE TIME LIMIT UP TO WHICH THE RETURN CAN BE FILED U/S.139(4) IS T O BE CONSIDERED AS IT IS NO WHERE MENTIONED THAT IN THE SAID S CHEME THAT AMOUNT IS TO BE DEPOSITED WITHIN THE TIME LIMIT PRESCRIBED IN SUB-SEC.(1) OF SECTION 139. THE LD. CIT(A) ACCEPTED THE SAID PLEA OF T HE ASSESSEE AND HELD THAT THE ASSESSEE HAS FULFILLED THE CONDITION AS IN THE CASE OF 8 ITA NO.966/PN/2011, ASHOK DEOKISHAN BHUTADA, NASHIK THE ASSESSEES TIME LIMIT FOR FILING THE BELATED RETURN U/S.1 39(4) WAS UP TO 31-03-2010 AND BEFORE THAT PERIOD THE ASSESSEE HAS INVESTED AMOUNT OF RS.55,91,740/- FOR ACQUIRING THE FLAT AND HENCE, THERE IS N O NEED TO DEPOSIT THE AMOUNT IN ANY NOTIFIED SCHEME AS TO THAT EXT ENT SALE PROCEEDS OF THE ORIGINAL ASSET ARE UTILIZED. WE FIND THAT TH E SAID CONTENTION OF THE ASSESSEE IS WELL SUPPORTED BY THE FOLLOWING DECISIONS : A. CIT VS. RAJESH KUMAR JALAN [286ITR 274 (GAU)] B. FATHIMA BAI VS. ITO [32 DTR 243(KAR)] C. CIT VS. MS. JAGRITI AGGARWAL [339 ITR 610 (P&H)] D. ITO VS. SAPNA DIMRI [50 SOT 96 (DEL)] E. KISHORE H. GALAIYA [137 ITD 229 (MUMBAI)] F. P. THIRUMOORTHY VS. ITO [7 ITR 10 ( CHENNAI)] G. NIPUN MEHROTRA VS. ACIT [110 ITD 520 (BANG)] IN OUR OPINION, THE LD. CIT(A) IS RIGHTLY APPLIED THE LAW TO T HE FACTS OF THE ASSESSEES CASE AND NO INTERFERENCE IS CALLED FOR IS IN ORD ER. ACCORDINGLY, THE SAME IS CONFIRMED. 8. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 18.03.2013 SD/- SD/- (G.S. PANNU) (R.S. PADVEKAR) ACCOUNTANT MEMBER JUDICIAL MEMBER RK/PS PUNE, DATED: 18 TH MARCH, 2013 COPY TO 1 DEPARTMENT 2 ASSESSEE 3 THE CIT(A) - I, NASHIK , 4 THE CIT (A) , NASHIK 5 THE DR, ITAT, B BENCH, PUNE . 6 GUARD FILE. // TRUE COPY // BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE