TARUN KUMAR RATAN SINGH RATHI,MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 32(1), MUMBAI

ITA 2695/MUM/2024

AI Insights

The case involves Tarun Kumar Ratan Singh Rathi, who appealed against the decision of the Commissioner of Income Tax (Appeals) which upheld the disallowance of his claim under Section 54 of the Income Tax Act, 1961. The assessee had sold a property and claimed exemption under Section 54 for investing the capital gains in a new property. However, the Assessing Officer (AO) and the CIT(A) disallowed the claim on grounds that the property was not registered and possession was not taken, citing a Supreme Court decision in Suraj Lamp & Industries Pvt Ltd vs State of Haryana. The Tribunal, however, found that the assessee had substantially complied with the provisions of Section 54 by making the necessary payments and that the legal impediments preventing registration and possession were beyond his control.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 470856 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2015-2016
• Other Referred Cases: CIT v/s Shri Girish L. Raga, CIT v/s Mrs. Shakuntala Devi and others, Sanjeev Lal v/s CIT, Fibre Board (P) Ltd v/s CIT, Shri Hasmukh N. Gala v/s ITO, Bhavana Cuccria v/s ITO
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HEMANSHU JOSHI
• Assessee Lawyers: AJAY SINGH AW AKSHAY
• Keywords: Set aside; Capital asset; Corroborative evidences; Cost of acquisition; Capital Gains
• Section: 143(3); 250; 143(1); 54; 139(1); 22; 54F; 133(6); 13; 20

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL “E” BENCH MUMBAI BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER & SHRI PRABHASH SHANKAR, ACCOUNTANT MEMBER ITA No. 2695/Mum/2024 (Assessment Year: 2015-16) Tarun Kumar Ratan Singh Rathi 503, Badrinath Tower, Sanjeev Enclave, Seven Bunglow, Andheri (W) Mumbai – 400 053. Vs. NFAC, Delhi PAN/GIR No. ADHPR3169F (Applicant) (Respondent) Assessee by Shri Ajay Singh a/w Shri Akshay Pwar Revenue by Shri Hemanshu Joshi, CIT(DR) सुनवाई क\u0002 तारीख/Date of Hearing 28.11.2024 घोषणा क\u0002 तारीख/Date of Pronouncement 01.01.2025 आदेश / ORDER PER SANDEEP GOSAIN, JM: The present appeal has been filed by the assessee challenging the impugned order dated 24.04.2024, passed u/s 250 of the Income Tax Act, 1961 (‘the Act’), by the Learned Commissioner of Income Tax (Appeals) / National Faceless Appeal Centre, Delhi (‘Ld. CIT(A)’), for the assessment year 2015-16. The assessee has raised the following grounds of appeal: 2 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai 1 On the facts and in the circumstances of the case and in law the Ld. CIT(A) has grossly erred in upholding the decision of the Ld.AO of disallowing the amount to the tune Rs. 3,26,44,994/- under section 54 of the act of the assessee without considering the submissions of the AR and ignoring the relevant facts of the case and the legal position in this regard. 2 On the facts and in the circumstances of the case and in law the Ld. CIT(A) has grossly erred in upholding the decision of the Ld.AO of disallowing the commission expenses and cost of improvement cumulatively amounting to Rs. 19,70,132/- from the long-term capital gain earned by the assessee during the year and whereas such expenses being directly related thereto.. 2. The brief facts of the case are that The assessee has filed return of income for the relevant AY on 03.11.2015 declaring total income at Rs. 9,53,760/- after claiming deduction under Chapter VI-A. Subsequently, the return was processed u/s. 143(1) of the income tax act (the Act) determining total income at Rs. 9,53,760/-. Subsequently the case was selected for scrutiny and assessment was completed and order was passed u/s. 143(3) of the Act vide order dated 08.12.2015 assessing the total income at Rs. 3,55,68,840/-. Thereby denying the claim of the assessee u/s 54 of the Act. 3. Aggrieved by the order of the assessment the assessee filed appeal but the same was also dismissed by the CIT(A). Against this order, the assessee has now preferred present appeal before us and the grounds mentioned hereinabove. 4. Ground No. 1 & 2 raised by the assessee are interrelated and interconnected and it relates to challenging the order of 3 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai Ld.CIT(A) in upholding the denial of claim of the assessee u/s 54 of the Act and for upholding the decision of Ld.AO of disallowing the commission expenses and cost of improvement. Therefore, we have decided to adjudicate these grounds through the present common order. 5. The Ld. AR appearing on behalf of the assessee reiterated the same arguments as were raised by him before the revenue authorities and has also relied upon his written submissions, which are reproduced herein below: May it be submitted before your Honor, With reference to the above subject and under instructions and authority of our above referred client and on the basis of the submission made by our above-referred appellant to us we have to state as under. 1. The appellant is an individual who had during the year sold certain premises on which he earned long term capital gain of Rs. 3,26,44,994/-. The appellant invested the proceeds towards purchases of a timber chalet on portion of land admeasuring 646 Sq. meters or 0646 hectors in Gut No. 127, situated at village Kumbheri, Taluka: Mulshi, District: Pune through an agreement of sale dated 31st July 2017 from Mr. Manish Udhavdas Rupchandani and Mr. Vicky Udhavdas Rupchandani. 2. The appellant paid a sum of Rs. 3,41,37,000/- to the said Mr. Manish Udhavdas Rupchandani and Mr. Vicky Udhavdas Rupchandani in flowing matter. Date of Payment Payment mode Amount paid Paid to owner Name 08.12.2014 Bank 30,00,000/- Vicky 20.07.2015 Bank 89,91,000/- Vicky 20.07.2015 Bank 50,77,500/- Vicky 20.07.2015 Bank 89,91,000/- Manish 20.07.2015 Bank 80,77,500/- Manish Total 3,41,37,000/- 4 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai The appellant filed its return of income declaring a total income of Rs. 9,53,760/- after claiming an exemption u/s 54 on account of purchase of the new property. 3. The appellant's case was chosen for scrutiny u/s 143(3) of the Act. During the course of scrutiny, the Ld.AO sought the disallowance of the claim u/s 54 of the Act on the account that the appellant had not taken the possession of the said property nor the said property was registered with the registration authority as per Transfer of Property Act, 1882. The Ld.AO was of the opinion that since the appellant had not acquired the lawful ownership of any asset hence the deduction u/s 54 of the Act could not be availed by the appellant. Further on enquiry u/s 133(6) of the Act, from the vendor of the said premises they have stated by that they have not offered the same amount as capital gain as the transfer was not complete for want of transfer permission from Aamby Valley. To furtherance the claim of disallowance of deduction u/s 54 of the Act, the Ld. AO relied upon the decision of the Hon'ble Supreme court in the case of Suraj Lamp and Industries Private Limited vs State of Haryana wherein the Hon'ble Supreme Court held that as per section 54 of the Transfer Of Property Act 1882 it is clear that a contract of sale i.e an agreement of sale does not itself create in a charge of such property, it is thus clear that a transfer of immovable property by way of sale can only be by deed of conveyance. The Ld.AO thus while finalizing the assessment disallowed the appellant's claim of deduction u/s 54 of the Act of Rs. 3,26,44,944/-. 4. Being aggrieved by the order of the Ld.AO the appellant filed an appeal before the Ld.CIT(A). The appellant stated that the sale deed could not be registered due to the delay in obtaining the permission from the Aamby Valley authority. It was also brought to the notice of the Ld.CIT(A) the facts that the appellant had brought a constructed property. Hence the contention of the Ld.AO that construction is not completed is factually incorrect. Thus, Relying on several case laws as has been mentioned on Pg. 41 of the CIT(A) order, the Appellant submitted that as per section 54 of the Act, the requirement was only for investing the amount of capital gain towards the purchase of the property, the fact that the said property was not registered or the possession was not 5 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai obtained was irrelevant for the purpose of section 54 of the Act. The CIT(A) however confirmed the order of the AO mainly on the ground that the registration of the property was not done and the appellant did not have the possession of the said property. 5. Being aggrieved, by the order of CIT(A), the appellant has filed an appeal before the Hon'ble Tribunal. 6. The appellant states that before filing its return of income u/s 139(1) that is on 31-07-2015, the appellant has entered into an agreement for sale for the purchase of the above stated property for a total consideration of Rs. 3,95,00,000/- and has made a substantial payment on or before 20-07-2015 of Rs. 3,41,37,000/- to the said seller. 7. The Appellant submits the possession of the said property and the registration could not be done since the legal impediment created by the Hon'ble Supreme Court by attaching the said Aamby Valley pursuant of which the Aamby Valley could not give permission to the sellers for the transfer of the said property to the appellant. The relevant orders passed by the Hon'ble Supreme Court are attached in the paper book from Pg.182 to 240. 8. The appellant submits that as per section 54 of the Act it is not necessary that Appellant should become the owner of the property purchased. The word purchase occurring in section 54(1) has to be given its common meaning that is buy for a price or equivalent of price by payment in kind or adjustment towards a debt or for other monetary consideration. Therefore, for the purpose of applicability of section 54, registration of document is not imperative. 9. The appellant submits that for the purpose of section 54 of the Act what has to be seen is whether the appellant has invested the capital gains toward the purchase of property which in case of the appellant has been fulfilled. The appellant submits that section 54 of the Act is a beneficial provision and substantial compliances have been made by the appellant. The AO and CIT (A) were not justified in disallowing the appellant's claim u/s 54 of the Act. 10. The appellant relies on the decision of Hon'ble Bombay High Court at Goa, Tax Appeal no 66 of 2015 in case of CIT v/s Shri Girish L. Raga (Copy of which was submitted during the course of hearing). The facts in the present case are similar to those in the 6 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai case referred above. The possession was not delivered by the developer nor was the deed of conveyance executed due to litigation. However, the Hon'ble High Court came to the conclusion that \"the purchase would be completed when the consideration is duly paid by the assessee for the purpose of purchasing the premises and the construction had already commenced by the builder which remained to be completed on account of litigation.\" The Hon'ble High Court dismissed the appeal of the revenue and allowed the deduction u/s 54 of the Act on such facts of the cases. 11. The appellant also relies upon the decision of the Hon'ble Karnataka High Court in the case of CIT v/s Mrs. Shakuntala Devi and others (2016, 389 ITR, 366 KAR) copy of which was already submitted during the course of hearing. 12. In the said case also, the appellant has reinvested the capital gain for the purchase of other property by paying an advance to claim exemption u/s 54 of the Act, inspite of the fact that there was no registration of sale deed & the balance consideration amount was yet to be paid. The Hon'ble High Court, was of the view that if the consideration received on the said property has been invested in purchasing a residential house, then an assessee would be entitled to the benefit having from section 54 of the Act. Irrespective of the fact that the transaction is not being completed in all respects & thus allowed the claim u/s 54 of the Act 13. The appellant further relies upon the decision of Hon'ble Supreme Court in the case of Sanjeev Lal v/s CIT (2014) 365 ITR 389 (SC). In the said case the claim of section 54 was disallowed by the Hon'ble High Court on the ground that date of agreement to sell cannot be treated as date of transfer of immovable property. Even in terms of section 54 of the Transfer Of Property Act, 1882, an agreement to sell does not create an interest in the immovable property. With the execution of the agreement, it cannot be said that the appellant transferred a right in favour of the purchasee. The Hon'ble Supreme Court after considering that held – In addition to the fact that the term \"transfer\" has been defined under Section 2(47) of the Act, even if looked at the provisions of Section 54 of the Act which gives relief to a person who has transferred his one residential house and is purchasing another residential house either before one year of the transfer or even 7 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai two years after the transfer, the intention of the Legislature is to give him relief in the matter of payment of tax on the long term capital gain. If a person, who gets some excess amount upon transfer of his old residential premises and thereafter purchases or constructs a new premises within the time stipulated under Section 54 of the Act, the Legislature does not want him to be burdened with tax on the long term capital gain and therefore, relief has been given to him in respect of paying income tax on the long term capital gain. The intention of the Legislature or the purpose with which the said provision has been incorporated in the Act, is also very clear that the assessee should be given some relief. Though it has been very often said that common sense is a stranger and an incompatible partner to the Income Tax Act and it is also said that equity and tax are strangers to each other, still this Court has often observed that purposive interpretation should be given to the provisions of the Act In the case of Oxford University Press v. Commissioner of Income Tax [(2001) 3 SCC 359] this Court has observed that a purposive interpretation of the provisions of the Act should be given while considering a claim for exemption from tax. It has also been said that harmonious construction of the provisions which subserve the object and purpose should also be made while construing any of the provisions of the Act and more particularly when one is concerned with exemption from payment of tax, Considering the aforestated observations and the principles with regard to the interpretation of Statute pertaining to the tax laws, one can very well interpret the provisions of Section 54 read with Section 2(47) of the Act, i.e. definition of \"transfer\", which would enable the appellants to get the benefit under Section 54 of the Act. Consequences of execution of the agreement to sell are also very clear and they are to the effect that the appellants could not have sold the property to someone else. In practical life. there are events when a person, even after executing an agreement to sell an immoveable property in favour of one person, tries to sell the property to another. In our opinion, such an act would not be in accordance with law because once an agreement to sell is executed in favour of one person, the said person gets a right to get the property transferred in his favour by filing a suit for specific performance and therefore, without hesitation we can say that some right, in respect of the said property, belonging to the 8 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai appellants had been extinguished and some right had been created in favour of the vendee/transferee, when the agreement to sell had been executed.. 14. The appellant also relies upon the decision of Hon'ble Supreme Court Fibre Board (p) Ltd v/s 97 (2015) 376 77R 596 (SC) wherein the Supreme Court interpreted the word \"Purchased\" for the purpose of section 54G of the Act the language of which is similar to section 54 of the Act, wherein it is stated that - \"36. A reading of Section 54G makes it clear that the assessee is given a window of three years after the date on which transfer has taken place to \"purchase\" new machinery or plant or \"acquire\" building or land. We find that the High Court has completely missed the window of three years given to the assessee to purchase or acquire machinery and building or land. This is why the expression used in 54G(2) is \"which is not utilized by him for all or any of the purposes aforesaid....\". It is clear that for the assessment year in question all that is required for the assessee to avail of the exemption contained in the Section is to \"utilize\" the amount of capital gains for purchase and acquisition of new machinery or plant and building or land. It is undisputed that the entire amount claimed in the assessment year in question has been so \"utilized\" for purchase and/or acquisition of new machinery or plant and land or building 37. The High Court is not correct when it states:- \"31. The word 'purchase' is not defined under the Act and therefore, has to be construed in the commercial sense. In many dictionaries, the word 'purchase' means the acquisition of property by party's own act as distinguished from acquisition by act of law. In the context in which the expression issued by the Legislature requires first to be understood and interpretation that suits the context requires to be adopted. Exemption of capital gains under Section 54G of the Act can be claimed on transfer of assets in cases of shifting of industrial undertaking from urban area to any other non-urban area. This exemption may be claimed if the capital gains arising on transfer of any of assets of existing industrial unit is utilized within one year or three years after the date on which the transfer took place for purchase of new machinery or plant for the purposes of the business of the industrial undertaking in the area to which the said undertaking 9 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai is shifted. The Legislature consciously has not used the expression 'towards the purchase of plant and machinery as in Section 54(4) of the Act in contrast to Section 54(2) of the Act wherein the words 'towards is used before the word 'purchase'. The expression 'purchased' used in sub-clause (a) of section 54G of the Act requires to be understood as the domain and control given to the assessee. In the present case, it is not in dispute that the assessee has paid advance amount for acquisition of land, plant, building and machinery, etc., within the time stipulated in the Section, but it is not the case of the assessee that after such payment of advance amount, it has taken possession of land and building, plant and machinery. In our view, if the argument of the learned Senior Counsel for the assessee is accepted, it would defeat the very purpose and object of the Section itself. By merely paying some amount by way of advance towards the cost of acquisition of land for shifting its industrial unit from urban area to non-urban area, an assessee cannot claim exemption from payment of tax on capital gains. This cannot be the intention of the Legislature and an interpretation, which would defeat the very purpose, and the object of the Act requires to be avoided.\" (at para 31 of the impugned judgment) 38. We are of the view that the aforesaid construction of Section 54G would render nugatory a vital part of the said Section so far as the assessee is concerned. Under sub-section (1), the assessee is given a period of three years after the date on which the transfer takes place to purchase new machinery or plant and acquire building or land or construct building for the purpose of his business in the said area. If the High Court is right, the assessee has to purchase and/or acquire machinery, plant, land and building within the same assessment year in which the transfer takes place. Further, the High Court has missed the key words \"not utilized\" in sub-section (2) which would show that it is enough that the capital gain made by the assessee should only be \"utilized\" by him in the assessment year in question for all or any of the purposes aforesaid, that is towards purchase and acquisition of plant and machinery, and land and building. Advances paid for the purpose of purchase and/or acquisition of the aforesaid assets would certainly amount to utilization by the assessee of the capital gains made by him for the purpose of purchasing and/or acquiring the aforesaid 10 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai assets. We find therefore that on this ground also, the assessee is liable to succeed. The appeals are, accordingly, allowed and the judgment of the High Court is set aside..\" 15. Without prejudice to the above, the appellant submits that as per section 54 (2) exemption to the extent to the amount utilized for construction or purchase is to be granted in the year of transfer of assets & the consideration of completion of construction is to be looked into only after the window period provided by the Act of 2/3 years expires. The appellant submits that the Ld.AO was not justified in disallowing the claim u/s 54 of the Act in the current Assessment Year. 16. The appellant relies upon the decision of the Hon'ble ITAT Mumbai in the case of Shri Hasmukh N. Gala v/s ITO (ITA No 7512/Mum/2013) AY 2010-11. Copy enclosed. Wherein, the Hon'ble ITAT has observed in para 7.3 as under: \"7.3 The plea of the Revenue is that no purchase deed was executed by the builder and that there was only an allotment letter issued. As per the Revenue the advance could be returned at any time and, therefore, the assessee may lose the exemption under section 54 of the Act. In our considered opinion, the aforesaid does not militate against assessee's claim for exemption in the instant assessment year, as there is no evidence that the advance has been returned. In case, if it is found that the advance has been returned, it would certainly call for forfeiture of the assessee's claim under section 54 of the Act. In such a situation, the proviso below section 54(2) of the Act would apply whereby it is prescribed that such amount 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. The aforesaid provisions also does not justify the action of the Assessing Officer in denying the claim of exemption under section 54 in the instant assessment year.\" 17. The appellant also relies upon the decision of the Hon'ble ITAT Chandigarh in the case of Bhavana Cuccria v/s ITO (ITA no.341/Chd/2017). Copy enclosed. Wherein, the Hon'ble ITAT has observed in para 11.5 as under: 11 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai \"11.5 Even otherwise we find that section 54 gives a window period of three years, from the date of transfer of original asset, for the construction of a new house and two years for purchasing a new house. Further as per the section the amount utilized for the said purpose alongwith the amount deposited in a specified bank account for the purpose, before the date of filing of return of income, is treated as cost of construction of the new asset and exemption granted thereof. The fulfillment of the condition of completion of construction or purchase of house is to be looked into only in the year in which the window period ends and if it is then found that the assessee has not constructed/purchased the house, to the extent the amount deposited in specified bank account is not utilized for the said purpose, it is treated as capital gains of the previous year in which the period of three years expires.\" 18. Now coming to the decision of the Hon'ble Supreme Court in the case of Suraj Lamp & Industries Pvt Ltd v/s State of Haryanaas relied upon the Ld.AO &Ld.CIT(A), is not relevant in the present case as the same deals with section 54 & 55 of The Transfer of Property Act & not with the exemption provision u/s 54 of the Act. In the subsequent decision as discussed above the Hon'ble Supreme Court has taken a view that for section 54 of Income Tax Act, the word purchase has to be interpreted in a wider sense. 19. In view of the above submission the appellant submits that since it has invested the entire capital gains towards the purchase of a constructed timber chalet at Aamby Valley. However, due to circumstances beyond the control of the appellant the registration for the purchase nor the possession of the property could not be taken. The Ld.AO &Ld.CIT(A) were not justified in disallowing the claim of the appellant u/s 54 of the Act. 6. On the contrary, the Ld. DR relied upon the orders passed by the revenue authorities. 7. We have heard the counsels of both the parties, perused the material placed on record, judgments cited before us and also the orders passed by the revenue authorities. From the 12 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai records, we noticed that during the year under consideration the assessee had sold his flat at Mumbai and earned a Long- Term Capital Gain of Rs. 3,26,44,994/- which was claimed as exempt u/s 54 of the act on account of investment into a new residential unit by way of purchase of a residential house property located at Amby Valley City, Taluka Mulshi, District- Pune, Maharashtra and admittedly submitted the following corroborative evidences: a. Copy of \"Residential Property Sale Deed Agreement\" executed on 31st July 2015 between the Vendor and the assessee. b. Details of utilization of entire capital gain amount of Rs.3,26,44,994/- by way of payment to the Vendors for purchase of such residential property by way of admission by the vendor of receipt of such amount (Rs.3,41,37,000/-) within the period specified under section 54 of \"the act\", in the sale deed itself. c. Details of Tax at Source deducted by the assessee of Rs.3,44,818/- and paid on behalf of the vendors under sec 194-IA of \"the act\" at the rate of one percent of the consideration along with challans and certificate issued. However, the Ld. AO disallowed the claim of the assessee u/s. 54 of \"the act\" considering the following grounds: 13 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai a. The new House property admittedly purchased by the assessee was not registered with the sub-registrar till 25 11.2017 and hence said property was not legally transferred to the assessee, without appreciating the legal position u/s. 54 of \"the act\" as held by the various courts that what is important is \"Purchase\" of and \"utilization\" of capital gain for payment of purchase price u/s. 54 of \"the act\" to claim exemption and registration of the property is not relevant/is a pre-condition.by way of duly executed sale deed and substantial payment thereof held that registration of the new residential unit was not done within the prescribed time limit as per section 54 of the act and disallowed the exemption to the assessee. b. On an enquiry u/s. 133(6) of \"the act\", the vendors of the property Mr. Manish Udhavdas Rupchandani and Mr. Vicky Udhavdas Rupchandani disclosed that \"the deal is in dispute and incomplete for want of transfer permission from Ambey Valley. Therefore they have not offered to income tax capital gains for sale of aforesaid property as the deal has not fully materialized.\", without appreciating the legal position u/s. 54 of \"the act\" as held by the various courts that what is important is \"Purchase\" of and \"utilization\" of capital gain for payment of purchase price u/s. 54 of \"the act\" to claim exemption and the exemption to the assessee is not based on a condition whether the seller of the property has offered the sale consideration for tax by way of capital gains or not. c. The Ld.AO in his assessment order relied on the decision of Honorable Supreme Court in the case of Suraj Lamp and Industries Pvt Ltd vs. State of Haryana under civil jurisdiction dealing with the provisions of \"Transfer of Property Act\". However, such decision is not relevant in the present case as the same as not been dealt with the exemption provisions u/s. 54 and 54F of \"the act\". Further, the Ld AO has also disallowed the expenditure amounting to Rs 19,70,132/- on account of expenses in relation to earning of long-term capital gains for want of nature of expenses. 14 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai 8. After having gone through the facts of the case, we noticed that the claim of the assessee u/s 54 of the Act was disallowed on account of the fact that the assessee had not taken possession of the said property neither the said property was registered with the registration authority as per the Transfer of Property Act, 1882 and according to the revenue, since the assessee had not acquired the lawful ownership of any asset, hence deduction u/s 54 of the Act was not found to be available to the assessee and in this regard AO relied upon the decision of Hon’ble Supreme Court in the case of Suraj Lamp and Industries Pvt Ltd Vs. State of Haryana. 9. Whereas on the contrary the assessee’s claim is that as per Sec. 54 of the Act, the requirement was only for investing the amount of capital gain towards the purchase of the property, the fact that the said property was not registered or the possession was not obtained was irrelevant for the purpose of section 54 of the Act. 10. It was further pointed out by the assessee that before filing its return of income u/s 139(1) i.e. on 31-07-2015, the assessee has entered into an agreement for the purchase of the above stated property for a total consideration of Rs. 3,95,00,000/- and has made a substantial payment on or before 20-07-2015 of Rs. 3,41,37,000/- to the said seller, the possession of the said property and the registration could not 15 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai be done since the legal impediment created by the Hon'ble Supreme Court by attaching the said Aamby Valley pursuant of which the Aamby Valley could not give permission to the sellers for the transfer of the said property to the appellant. The relevant orders passed by the Hon'ble Supreme Court are attached in the paper book from Pg.182 to 240. The appellant submits that as per section 54 of the Act it is not necessary that Appellant should become the owner of the property purchased. The word purchase occurring in section 54(1) has to be given its common meaning that is buy for a price or equivalent of price by payment in kind or adjustment towards a debt or for other monetary consideration. Therefore, for the purpose of applicability of section 54, registration of document is not imperative. The assessee submits that for the purpose of section 54 of the Act what has to be seen is whether the assessee has invested the capital gains toward the purchase of property which in case of the assessee has been fulfilled. The assessee submits that section 54 of the Act is a beneficial provision and substantial compliances have been made by the assessee. The AO and CIT (A) were not justified in disallowing the assessee's claim u/s 54 of the Act. 11. The assessee has also relied upon the following judicial decisions: 1. CIT Vs. Shri Girish L. Raga, No. 66 of 2015. 16 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai 2. CIT Vs. Mrs. Shakuntala Devi and Ors, [2016] 389 ITR, 366 3. Sanjeev Lal Vs. CIT, [2014] 365 ITR 389 (SC) 2. Fibre Board (P) Ltd Vs. CIT, 2015 AIR SCW 4722 3. Shri Hasmukh N. Gala Vs. ITO (ITO No. 7512/Mum/2013) 4. Bhavan Cuccria Vs. ITO (ITO No. 341/Chd/2017) 12. We have gone through the decision of Hon’ble Bombay High Court at Goa in Tax Appeal No. 66 of 2015 in the case of CIT Vs. Shri Girish L. Raga, wherein it was held as under: Tax Appeal no 66 of 2015 in case of CIT v/s Shri Girish L. Raga (Copy of which was submitted during the course of hearing). The facts in the present case are similar to those in the case referred above. The possession was not delivered by the developer nor was the deed of conveyance executed due to litigation. However, the Hon'ble High Court came to the conclusion that \"the purchase would be completed when the consideration is duly paid by the assessee for the purpose of purchasing the premises and the construction had already commenced by the builder which remained to be completed on account of litigation.\" The Hon'ble High Court dismissed the appeal of the revenue and allowed the deduction u/s 54 of the Act on such facts of the cases. 13. We have gone through the decision of the Hon'ble Karnataka High Court in the case of CIT v/s Mrs. Shakuntala Devi and others (2016, 389 ITR, 366 KAR). Wherein it was held that when the appellant has reinvested the capital gain for the purchase of other property by paying an advance to claim exemption u/s 54 of the Act, inspite of the fact that there was no registration of sale deed & the balance consideration amount was yet to be paid. The Hon'ble High Court, was of the view that if the 17 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai consideration received on the said property has been invested in purchasing a residential house, then an assessee would be entitled to the benefit having from section 54 of the Act. Irrespective of the fact that the transaction is not being completed in all respects & thus allowed the claim u/s 54 of the Act 14. We have also gone through the decision of Hon’ble Supreme Court in the case of Sanjeev Lal Vs. CIT, [2014] 365 ITR 389 (SC), In the said case the claim of section 54 was disallowed by the Hon'ble High Court on the ground that date of agreement to sell cannot be treated as date of transfer of immovable property. Even in terms of section 54 of the Transfer Of Property Act, 1882, an agreement to sell does not create an interest in the immovable property. With the execution of the agreement, it cannot be said that the appellant transferred a right in favour of the purchasee. The Hon'ble Supreme Court after considering that held In addition to the fact that the term \"transfer\" has been defined under Section 2(47) of the Act, even if looked at the provisions of Section 54 of the Act which gives relief to a person who has transferred his one residential house and is purchasing another residential house either before one year of the transfer or even two years after the transfer, the intention of the Legislature is to give him relief in the matter of payment of tax on the long term capital gain. If a person, who gets some excess amount upon transfer of his old residential premises and thereafter purchases or constructs a new premises within the time stipulated under Section 54 of the Act, the Legislature does not want him to be burdened with tax on the long term capital gain and therefore, relief has been given to him in respect of paying income tax on the long term capital gain. The intention of the Legislature or the purpose with which the said provision has been incorporated in the Act, is also very clear that the assessee should be given some relief. Though it has been very often said that common sense is a 18 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai stranger and an incompatible partner to the Income Tax Act and it is also said that equity and tax are strangers to each other, still this Court has often observed that purposive interpretation should be given to the provisions of the Act In the case of Oxford University Press v. Commissioner of Income Tax [(2001) 3 SCC 359] this Court has observed that a purposive interpretation of the provisions of the Act should be given while considering a claim for exemption from tax. It has also been said that harmonious construction of the provisions which subserve the object and purpose should also be made while construing any of the provisions of the Act and more particularly when one is concerned with exemption from payment of tax, Considering the aforestated observations and the principles with regard to the interpretation of Statute pertaining to the tax laws, one can very well interpret the provisions of Section 54 read with Section 2(47) of the Act, i.e. definition of \"transfer\", which would enable the appellants to get the benefit under Section 54 of the Act. Consequences of execution of the agreement to sell are also very clear and they are to the effect that the appellants could not have sold the property to someone else. In practical life. there are events when a person, even after executing an agreement to sell an immoveable property in favour of one person, tries to sell the property to another. In our opinion, such an act would not be in accordance with law because once an agreement to sell is executed in favour of one person, the said person gets a right to get the property transferred in his favour by filing a suit for specific performance and therefore, without hesitation we can say that some right, in respect of the said property, belonging to the appellants had been extinguished and some right had been created in favour of the vendee/transferee, when the agreement to sell had been executed.. We have also gone through the decision of Hon’ble Supreme Court in the case of Fibre Board (P) Ltd Vs. 97 (2015) 379 77R 596 (SC), wherein it was held as under: \"36. A reading of Section 54G makes it clear that the assessee is given a window of three years after the date on which transfer 19 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai has taken place to \"purchase\" new machinery or plant or \"acquire\" building or land. We find that the High Court has completely missed the window of three years given to the assessee to purchase or acquire machinery and building or land. This is why the expression used in 54G(2) is \"which is not utilized by him for all or any of the purposes aforesaid....\". It is clear that for the assessment year in question all that is required for the assessee to avail of the exemption contained in the Section is to \"utilize\" the amount of capital gains for purchase and acquisition of new machinery or plant and building or land. It is undisputed that the entire amount claimed in the assessment year in question has been so \"utilized\" for purchase and/or acquisition of new machinery or plant and land or building 37. The High Court is not correct when it states:- \"31. The word 'purchase' is not defined under the Act and therefore, has to be construed in the commercial sense. In many dictionaries, the word 'purchase' means the acquisition of property by party's own act as distinguished from acquisition by act of law. In the context in which the expression issued by the Legislature requires first to be understood and interpretation that suits the context requires to be adopted. Exemption of capital gains under Section 54G of the Act can be claimed on transfer of assets in cases of shifting of industrial undertaking from urban area to any other non-urban area. This exemption may be claimed if the capital gains arising on transfer of any of assets of existing industrial unit is utilized within one year or three years after the date on which the transfer took place for purchase of new machinery or plant for the purposes of the business of the industrial undertaking in the area to which the said undertaking is shifted. The Legislature consciously has not used the expression 'towards the purchase of plant and machinery as in Section 54(4) of the Act in contrast to Section 54(2) of the Act wherein the words 'towards is used before the word 'purchase'. The expression 'purchased' used in sub-clause (a) of section 54G of the Act requires to be understood as the domain and control given to the assessee. In the present case, it is not in dispute that the assessee has paid advance amount for acquisition of land, plant, building and machinery, etc., within the time stipulated in the Section, but it is not the case of the assessee that after such 20 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai payment of advance amount, it has taken possession of land and building, plant and machinery. In our view, if the argument of the learned Senior Counsel for the assessee is accepted, it would defeat the very purpose and object of the Section itself. By merely paying some amount by way of advance towards the cost of acquisition of land for shifting its industrial unit from urban area to non-urban area, an assessee cannot claim exemption from payment of tax on capital gains. This cannot be the intention of the Legislature and an interpretation, which would defeat the very purpose, and the object of the Act requires to be avoided.\" (at para 31 of the impugned judgment) 38. We are of the view that the aforesaid construction of Section 54G would render nugatory a vital part of the said Section so far as the assessee is concerned. Under sub-section (1), the assessee is given a period of three years after the date on which the transfer takes place to purchase new machinery or plant and acquire building or land or construct building for the purpose of his business in the said area. If the High Court is right, the assessee has to purchase and/or acquire machinery, plant, land and building within the same assessment year in which the transfer takes place. Further, the High Court has missed the key words \"not utilized\" in sub-section (2) which would show that it is enough that the capital gain made by the assessee should only be \"utilized\" by him in the assessment year in question for all or any of the purposes aforesaid, that is towards purchase and acquisition of plant and machinery, and land and building. Advances paid for the purpose of purchase and/or acquisition of the aforesaid assets would certainly amount to utilization by the assessee of the capital gains made by him for the purpose of purchasing and/or acquiring the aforesaid We have also gone through the decision of Coordinate Bench of this Tribunal in the case of Shri Hasmukh N. Gala Vs. ITO (ITA No. 7512/Mum/2013), wherein it was held as under: \"7.3 The plea of the Revenue is that no purchase deed was executed by the builder and that there was only an allotment 21 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai letter issued. As per the Revenue the advance could be returned at any time and, therefore, the assessee may lose the exemption under section 54 of the Act. In our considered opinion, the aforesaid does not militate against assessee's claim for exemption in the instant assessment year, as there is no evidence that the advance has been returned. In case, if it is found that the advance has been returned, it would certainly call for forfeiture of the assessee's claim under section 54 of the Act. In such a situation, the proviso below section 54(2) of the Act would apply whereby it is prescribed that such amount 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. The aforesaid provisions also does not justify the action of the Assessing Officer in denying the claim of exemption under section 54 in the instant assessment year.\" We have also gone through the decision of Hon’ble ITAT Chandigarh in the case Bhavana Cuccria Vs. ITO, in ITA No. 341/Chd/2017, wherein it was held as under: \"11.5 Even otherwise we find that section 54 gives a window period of three years, from the date of transfer of original asset, for the construction of a new house and two years for purchasing a new house. Further as per the section the amount utilized for the said purpose alongwith the amount deposited in a specified bank account for the purpose, before the date of filing of return of income, is treated as cost of construction of the new asset and exemption granted thereof. The fulfillment of the condition of completion of construction or purchase of house is to be looked into only in the year in which the window period ends and if it is then found that the assessee has not constructed/purchased the house, to the extent the amount deposited in specified bank account is not utilized for the said purpose, it is treated as capital gains of the previous year in which the period of three years expires.\" 22 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai 15. In the present case admittedly the assessee has already made payment to its vendor through cheques and thus assessee gets a right in the property to get it transferred. However, conveyance deed could not be executed because of litigation pending before the Hon’ble Supreme court. Thus, in our view, the intention of the legislature is not to burden with the tax on long term capital gain. Therefore, we have to give purposive interpretation of the provisions of Sec. 54 of the Act while considering the claim for exemption from tax as it has already been held by the Higher Courts that hormones interpretation of the provisions which sub serve the object and purpose should also be made while construing any of the provision of the act and more particularly when one is concerned with exemption from payment of tax. Therefore, considering the afore stated observation and the principles laid down by Higher Courts with regard to the interpretation of statue pertaining to tax laws, we can very well interpret the provisions of Sec. 54 r.w.s 2(47) of the Act i.e definition of ‘transfer’ which would enable the assessee to get the benefit u/s 54 of the Act. Since, the assessee has already before filing its return of income u/s 139(1) i.e on 31-07- 2015, has entered into an agreement for purchase of the above stated property for a total consideration of Rs. 3,95,00,000/- and has made a substantial payment on or before 20-07-2015 of Rs. 3,41,37,000/- to the said seller, but the possession of the said property and the registration could 23 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai not be done because of the legal impediment created by the Hon'ble Supreme Court by attaching the said Aamby Valley pursuant of which the Aamby Valley could not give permission to the sellers for the transfer of the said property to the assessee and these circumstance were beyond the control of the assessee, therefore neither the registration nor the possession of the property could take place. Therefore in our view, the revenue authorities were not justified in disallowing the claim of the assessee u/s 54 of the Act. When the consideration received by the assessee was invested in purchasing the property, hence the deal was materialized and the ‘purchase’ stood completed. 16. Now, coming to the decision of the Hon'ble Supreme Court in the case of Suraj Lamp & Industries Pvt Ltd v/s State of Haryanaas relied upon the Ld.AO &Ld.CIT(A), in our view the same is not relevant in the present case as the same deals with section 54 & 55 of The Transfer of Property Act & not with the exemption provision u/s 54 of the Income- tax Act. In the subsequent decision in the case of Fibre Board (P) Ltd (supra) as discussed above, wehrein the Hon'ble Supreme Court has taken a view that for section 54 of Income Tax Act, the word purchase has to be interpreted in a wider sense. 17. Therefore considering the facts of the present case, we are of the view that the ratio of the decisions relied upon by 24 ITA No. 2695/Mum/2024 Tarun Kumar Ratan Singh Rathi, Mumbai the assessee are fully applicable to the present case also. Therefore in our view the assessee is entitled for claiming benefit u/s 54 of the Act and thus we allow the claim of the assessee u/s 54 of the Act and order accordingly. Hence, ground No. 1 & 2 raised by the assessee are consequently allowed. 18. In the net result the appeal filed by the assessee is allowed with no orders as to cost. Order pronounced in the open court on 01.01.2025. Sd/- Sd/- (PRABHASH SHANKAR) (SANDEEP GOSAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated 01/01/2024 KRK, PS आदेश की \bितिलिप अ\u000eेिषत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. \u000eथ / The Respondent. 3. संबंिधत आयकर आयु\u0019 / The CIT(A) 4. आयकर आयु\u0019(अपील) / Concerned CIT 5. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, मु\u0003बई / DR, ITAT, Mumbai 6. गाड फाईल / Guard file. आदेशानुसार/ BY ORDER, स\u000eािपत ित //True Copy// 1. उप/सहायक पंजीकार ( Asst. Registrar) आयकर अपीलीय अिधकरण, मु\u0003बई मु\u0003बई मु\u0003बई मु\u0003बई / ITAT, Mumbai "