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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI KUL BHARAT & SHRI MANISH BORAD
आदेश / O R D E R
PER KUL BHARAT, J.M: This appeal by the assessee is directed against order of the CIT(A)-1, Indore dated 28.10.2016 pertaining to the
[ Kailash Bhagwan Choudhary, Indore] assessment year 2011-12. The assessee has raised following grounds of appeal:
[ Kailash Bhagwan Choudhary, Indore]
Facts in brief are that case of the assessee was reopened for assessment on the basis that the assessee had sold property having 50% share. The A.O. therefore assessed long term capital gain at Rs.1,10,11,614/-. The A.O. rejected the claim of exemption u/s 54F of the Income Tax Act, 1961 (hereinafter called as ‘the Act’), however allowed the exemption u/s 54F of the Act of Rs.38,71,935/-. Thus total taxable long term capital gain as per the A.O. is Rs.71,39,679/-. Against this, the assessee has preferred an appeal before Ld. CIT(A), who after considering submissions partly allowed the appeal.
The Ld. CIT(A) in respect of computation of capital gain affirmed the view of the A.O. in respect of rejection of claim of deduction u/s 54B of the Act and also sustained the exemption u/s 54F of the Act. Against this, the assessee is in the present appeal. No one appeared on behalf of the assessee. However, written synopsis of arguments is on [ Kailash Bhagwan Choudhary, Indore] record. No request is made for adjournment of the appeal.
Therefore, we have taken up the appeal in the absence of the assessee. The synopsis of arguments of the assessee are reproduced as under:
[ Kailash Bhagwan Choudhary, Indore] [ Kailash Bhagwan Choudhary, Indore] [ Kailash Bhagwan Choudhary, Indore]
Ld. D.R. opposed these submissions and relied on the orders of the authorities below.
[ Kailash Bhagwan Choudhary, Indore]
We have heard the Ld. D.R., perused the synopsis of arguments of the assessee and the material placed before us. At the outset, it is contended on behalf of the assessee that he does not wish to press ground Nos.1, 2 & 5.
Therefore, ground Nos.1,2 & 5 are dismissed as withdrawn.
Now grounds left to be adjudicated are Ground Nos.3 & 4.
Apropos to ground No.3, it is stated that it is related to the disallowance of deduction u/s 54B of the Act in respect of investment of Rs.12,02,424/- made in the improvement of agricultural land so purchased. It is contended that the expenditure was incurred for enabling the new asset to be used for agricultural purposes. Therefore, it is prayed that deduction u/s 54B of the Act may be allowed.
Ld. D.R. opposed these submissions and submitted that this deduction is not allowable under the law. He submitted that a bare reading of section 54B of the Act would make it clear that the assessee is not entitled for [ Kailash Bhagwan Choudhary, Indore] deduction u/s 54B of the Act. He submitted that law does not provide such deduction.
We have heard the rival submissions, perused the materials available on record and gone through the orders of the authorities below. The contention of the assessee is that the whole purpose of using the new asset would be defeated if it is not made usable for agricultural purposes.
Therefore, it is prayed that considering the facts of the present case, deduction u/s 54B of the Act be allowed. We have given our thoughtful consideration to this submission of the assessee. The investment as envisaged u/s 54B of the Act investment should be made for purchase of any other land for being used for agriculture purpose. We do not find any fault with the finding of the authorities below as the expenses were incurred by the assessee are post purchase of new asset. Law does not postulate such condition for the purpose of granting deduction u/s 54B of [ Kailash Bhagwan Choudhary, Indore] the Act. The A.O. has therefore rightly observed that this expenditure can be claimed as cost of improvement, if sold subsequently. Hence, no interference is called for. The ground of the assessee’s appeal is dismissed.
8. Ground No.4 is against not allowing deduction amounting to Rs.21,79,700/- in respect of the land purchased in the name of son of the assessee. Ld. Counsel for the assessee reiterated the submissions as made in the written submissions.
9. The Ld. D.R. opposed these submissions and submitted that law is very clear. There is no ambiguity under the law. The investment as required for deduction u/s 54B of the Act should be made the property purchased in the name of the assessee.
We have heard the rival submissions, perused the materials available on record and gone through the orders
[ Kailash Bhagwan Choudhary, Indore] of the authorities below. The A.O. while declining claim of deduction observed as under:
[ Kailash Bhagwan Choudhary, Indore]
The Ld. CIT(A) confirmed this view in para 5.3 of his order by observing as under:
“5.3 the third count on which the claim has been restricted is that part of the sale consideration of original asset has been utilized in purchase of agricultural land in the name of son and after the due date of filing of return. There is a plethora of judgements wherein it has been held that investment in the name of son, wife etc. is also eligible for claim of exemption u/s 54B of the Act provided the investment is out of sale consideration received on sale of original asset notably the decisions in the case of CIT Vs. Gurnam Singh (P&H) 327 ITR 278 (2010), CIT Vs. Ravinder Kumar Arora 342 ITR 38 (Delhi) (2012) & DIT Vs. Mrs. Jennifer Bhide 15 Taxmann.com 82 (Kar)(2011). It is also argued by the appellant that if two views of possible the view favourable to the appellant is to be adopted. However, it is seen that AO has noted that the investment in purchase of new asset has been made beyond the time prescribed in section 54B of the Act and in violation of the stipulation that unutilized amount should be deposited in the capital gains account scheme. In view of the above the action of the AO is confirmed in appeal. These grounds of the appellant are therefore partly allowed.”
The Ld. CIT(A) confirmed the view of A.O. on the basis that the investment was made beyond the time prescribed for filing of return u/s 139(1) of the Act. However, the contention of the assessee is that the investment was made in the new asset within the time prescribed u/s 139(4) of the Act. It is further contended that since law does not specify the time as prescribed u/s 139(1) of the Act for [ Kailash Bhagwan Choudhary, Indore] filing of the income tax return, it merely states u/s 139 of the Act that would include the return filed u/s 139(4) of the Act as well. Now two issues arises for our consideration. Firstly, whether investment made by the assessee in the name of his son would be eligible for deduction u/s 54B of the Act and secondly what time limit should be reckoned for the purpose of investment in the new asset as provided u/s 139(1) or 139(4) of the Act. For the sake of clarity, section 54B(2) of the Act is reproduced as under:
Section 54B(2): The amount of the capital gain which is not utilised by the assessee for the purchase of the new asset before the 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 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 the 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 for the purchase 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-section is not utilised wholly or partly for the purchase of the new asset within the period specified in sub-section (1), then,-- 13
[ Kailash Bhagwan Choudhary, Indore] i. The amount not so utilised shall be charged under section 45 as the income of the previous year in which the period of two years from the date of the transfer of the original asset expires; and ii. The assessee shall be entitled to withdraw such amount in accordance with the scheme aforesaid.
In respect of the first proposition i.e. whether the investment made in the name of son out of sale consideration of the capital asset belonging to the assessee, the assessee has placed reliance on the following judicial pronouncements:
ACIT Vs. Deepak Kumar Dhawan (2014)23 TTJ 600 (Ind) 2. CIT Vs. Gurnam Singh (P&H) (2010) 327 ITR 278 3. CIT Vs. Ravinder Kumar Arora (2012) 342 ITR 38 (Delhi) 4. DIT Vs. Jennifer Bhide (2011) 15 Taxmann.com 82 (Kar.) 5. Rajaram Patidar Vs. ITO 1(2) Bhopal in dated 28.9.2018.
The reliance is placed on the decision of this Tribunal rendered in in the case of Shri Raja Ram Patidar Vs. ITO dated 28.9.2018 this Tribunal after considering various case laws has decided the issue in para Nos.25 to 28 as under: 14
[ Kailash Bhagwan Choudhary, Indore]
25. We find that there is no dispute to the fact that the amount utilized for purchasing the agriculture land in the name of Mr. Umesh Patidar and Ms. Seema Patidar has its nexus to the sale consideration received by the assessee. Now whether the benefit is available to the assessee for investment made in the name of his children needs to be examined in view of the judicial pronouncements. There are judgments both in the favour of assessee and revenue but as held by Hon'ble Apex Court in the case of Vegetable Products Ltd 88 ITR 192, that “if two reasonable construction of a taxing provision are possible, then construction which favours the assessee must be adopted. This is will accepted rule of construction recognized by the Hon'ble court in several of its decisions . Keeping the above discussions and judgments in mind we observe that the Hon'ble High Court in the case of CIT V/s Ravinder Kumar Arora order dated 27.9.2011 held that “for the purpose of giving exemption under section 54F the word assessee must be given wide and liberal interpretation so as to include his legal heirs also Hon'ble Court further held that there is no warrant for strict interpretation to the word assessee as that would frustrate the object of granting exemption”. Holding so, the Hon'ble Court observed as under;
“9. On the aforesaid facts, we are of the view that the conditions stipulated in Section 54F stand fulfilled. It would be treated as the property purchased by the assessee in his name and merely because he- has included the name of his wife and the property purchased in the joint names would not make any difference. Such a conduct has to be, rather, encouraged which gives empowerment to women. There are various schemes floated by the Government itself permitting joint ownership with wife. If the. view of the Assessing Officer (AO) or the contention of the Revenue is accepted, it would-be a derogatory step.
10. Even when we look into the matter from another angle, facts remain that the assessee is the actual and constructive owner of the house. In CIT Vs. Podar Cements (P) Ltd. & Ors., (1997) 226 ITR 625 (SC), the Supreme Court has also accepted the theory of constructive ownership. Moreover, Section 54F mandates that the house should be purchased by the assessee and it does not stipulate that the house should be purchased in the name of the assessee only. Here is a case where the house was purchased by the assessee and that too in his name and wife’s name was also included additionally. Such inclusion of the name of the wife for the above-stated peculiar. factual reason should not stand in the way of the deduction legitimately accruing to the assessee. Objective of Section 54F and the like provision such as Section 54 is to provide impetus to the house construction and so long as the purpose of house construction is achieved, such hyper technicality should not impede the way of deduction which the legislature has allowed. Purposive construction is to be preferred as [ Kailash Bhagwan Choudhary, Indore]
against the literal construction, more so when even literal construction also does not say that the house should be purchased in the name of the assessee only. Section 54F of the Act is the beneficial provision which should be interpreted liberally in favour of the exemption/deduction to the taxpayer and deduction should not be denied on hyper technical ground. Andhra Pradesh High Court in the. case of Late Mir Gulam Ali Khan Vs. CIT, (1987) 165 ITR 228 (AP) has held that the object of granting exemption under Section 54 of the Act is that an assessee who sells a residential house -for purchasing another house must be given exemption so far as capital gains are concerned. The word "assessee"- must be given wide and liberal interpretation so as to include his legal heirs also. There is no warrant for giving too strict an interpretation to the word "assessee" as that would frustrate the object of granting exemption.
I1. We also find judgments of other. High Courts giving benefit of Section 54F(l) of the Act when the house of the assessee is purchased jointly with his wife. In the case of CIT V~. Natrajan, (2007) 287 ITR 271 (Mad), though this case was decided in relation to Section 54 of the Act, the said Section is pari materia of Section 54F(l) of the Act. Likewise, the Punjab & Haryana High Court in the case of Cl'I' Vs, Gurnam Singh, (2010) 327 ITR 278 took the same view while discussing the provisions of Section 54 of the Act which is again pari materia of Section 54F(1) of the Act.
26. Hon'ble Delhi High Court in the case of CIT V/s Shri Kamal Wahal, dated 11.1.2013, while adjudicating the issue relating to exemption under section 54F of the Act, held in favour of the assessee that the benefit could be given for deduction u/s 54F of the Act if the investment is made in the name of assessee’s wife. The Hon'ble Court held as under;
“7. We have no hesitation in agreeing with the view taken by the Tribunal. Apart from the fact that the judgments of the Madras and Karnataka High Courts (supra) are in favour of the assessee, the revenue fairly brought to our notice a similar view of this Court in CIT Vs. Ravinder Kumar Arora: (2012)342 ITR 38 (Del.). That was also a case which arose under Section 54F of the Act. The new residential property was acquired in the joint names of the assessee and his wife. The income tax authorities restricted the deduction under Section .54F to 50% on the footing that the deduction was not available on the portion of the investment which stands in the name of the assessee's wife. This view was disapproved by this Court. It noted that the entire purchase consideration was paid only by the assessee and not a single penny was contributed by the. assessee's wife. It also noted that a purposive construction is to be preferred as against a literal construction, more so when even applying the literal construction, there is nothing in the section to show that the house should be in the [ Kailash Bhagwan Choudhary, Indore] name of the assessee only. As a matter of fact, Section 54F in terms does not require the new residential property shall be purchased in the name of the assessee; it merely says that the assessee should have purchased/constructed "a residential house".
This court in the decision cited alone also noticed the judgment of the Madras High Court (supra) and agreed with the same, observing that though the Madras case was decided in relation to Section 54 of the Act, that Section was in pari materia with Section 54F. The judgment of the Punjab and Haryana High Court in the case of CIT V s. Gurnam Singh , (2014) 327 ITI{ 278 in which the same view was taken with reference to Section 54F was also noticed by this Court.
It thus appears to us that the predominant judicial view, including that of this, Court. is that for the purposes of Section 54F, the new residential house need not be purchased by the assessee in his own name nor is it necessary that it should be purchased exclusively in his name. It is moreover to be noted that the assessee in the present case has not purchased the new house in the name of a stranger or somebody who is unconnected with him. He has purchased it only in the name of his wife. There is also no dispute that the entire investment has come out of the sale proceeds, and that there was no contribution from the assessee's wife.
10. Having regard to the rule of purposive construction and the object which Section 54F seeks to achieve and respectfully agreeing with the judgment of this Court, we answer the substantial question of law framed by us in the affirmative, in favour of the assessee and against the revenue.”
From going through the above judgments as well as the facts of the instant appeal we find that the assessee has claimed exemption u/s 54B of the Act. If we apply the finding of Hon'ble courts on the issue before us we conclude that the provisions of Section 54B of the Act is mainly focused on providing the benefit to such assessee who sells their agriculture land and invest the sale consideration so received for purchasing another piece of agriculture land. The main weightage is for applying the consideration for purchase of agriculture land and it is not specifically mentioned as to whether it has to be purchased in the name of the assessee. For better perusal we mention below the provisions of Section 54B;
S.54B:73 [Capital gain on transfer of land used for agricultural purposes not to be charged in certain cases. 54B. [Subject to the provisions of sub-section (2), where the capital gain arises] from the transfer of a capital asset being land which, in the two
[ Kailash Bhagwan Choudhary, Indore] years immediately preceding the date on which the transfer took place, was being used by [the assessee being an individual or his parent, or a Hindu undivided family] for agricultural purposes (hereinafter referred to as the original asset),, and the assessee has, within a period of two years after that date, purchased any other land for being used for agricultural purposes, then, instead of the capital gain being charged to income-tax as income of the previous year in which the transfer took place, it shall be dealt with in accordance with the following provisions of this section, that is to say,-
(i) if the amount of the capital gain is greater than the cost of the land so purchased (hereinafter referred to as the new asset), the difference between the amount of the capital gain and the shall be charged under section 45 as the income of the previous year, and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase, the cost shall be nil; or (ii) if the amount of the capital gain is equal to or less than the cost of the new asset, the capital gain shall not be charged under section 45; and for the purpose of computing in respect any capital gain arising from its transfer within a period of three years of its purchase, the cost shall be reduced, by the amount of the capital gain]
(2) The amount of the capital gain which is not utilised by the assessee for the purchase of the new asset before the 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 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 the 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 purpose of sub-section (1), the amount, if any, already utilised by the assessee for the purchase 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-section is not utilised wholly or partly for the purchase of the new asset within the period specified in sub-section (1), then – the amount not so utilised shall be charged under section 45 as the income of the previous year in which the period of two years from the date of the [ Kailash Bhagwan Choudhary, Indore] transfer of the original asset expires; and the assessee shall be entitled to withdraw such amount in accordance with the scheme aforesaid”.
The above provision contemplates that the benefit/exemption is available if an agriculture land is purchased out of the sale consideration of sale of agriculture land. In the instant appeal also the assessee received the sale consideration from sale of agriculture land and applied the same to purchase another piece of agriculture land in the name of self and others in the name of wife and children. The revenue authorities have also accepted the claim and allowed by Ld.CIT(A) made by the assessee for purchase of agriculture land in the name of the assessee as well as his wife. The other two remaining persons are assessee’s son and daughter. We do not find any reason that why the benefit should not be given for purchase of agriculture land in the name of his son and daughter who are not someone not connected or strangers to the assessee and as held by the Hon'ble High Court that the assessee includes his legal heirs also so as to give the vide and legal interpretation. We therefore are of the view that the Ld.CIT(A) erred in denying the exemptions u/s 54B of the Act to the assessee for investment of sale consideration for purchasing agriculture land in name of his son and daughter at Rs.49,86,085/- and Rs. 12,50,175/- respectively. We accordingly set aside the findings of both the lower authorities and direct the Ld. Assessing Officer to give the benefit of exemption u/s 54B of the Act to the assessee at Rs.62,36,260/- which is over and above the benefit of Rs.91,18,190/- already allowed by Ld.CIT(A) u/s 54B of the Act. In the result the issue No.3 raised by the assessee under Ground No.2 of the appeal is allowed. “
The reliance is also placed on the judgement of the Hon'ble Punjab & Haryana High Court rendered in the case of CIT Vs. Gurnam Singh (2010) 327 ITR 278. The deduction u/s 54B of the Act was allowed by the Hon'ble High Court in respect of the investment made in the name of son of the assessee. Similarly, the Hon'ble Delhi High
[ Kailash Bhagwan Choudhary, Indore] Court in the case of CIT Vs. Ravinder Kumar Arora (2012)
342 ITR 38 has allowed deduction in respect of the investment made out of the sale consideration of the capital asset in respect of the investment made in the name of the wife of the assessee for purchasing the new asset.
However, the revenue has placed reliance on the judgement of the Hon'ble High Court of Andhra Pradesh rendered in the case of Ganta Vijaya Lakshmi Vs. ITO in of 2014 dated 24.4.2014 reported in 229 Taxman 594 in which the Hon'ble High Court held as under:
“We are unable to accept the contentions as the language of the aforesaid Sections is very clear that it relates to unmarried daughters. Here the undisputed fact is that the property is purchased in the name of married daughters. When the legislature thought it fit to specify the words ‘unmarried daughters’, the Court cannot substitute the words. Therefore, we do not find any illegality or infirmity in the impugned judgement and order in any manner.”
Hence, there are conflicting judgements of Hon'ble High Courts on this issue. Following the judgements of Hon'ble Delhi High Court rendered in the case of CIT Vs.
[ Kailash Bhagwan Choudhary, Indore] Ravinder Kumar Arora (supra) and the judgement of Hon'ble Punjab & Haryana in the case of CIT Vs. Gurnam Singh (supra), this Tribunal in the case of Shri Raja Ram Patidar Vs. ITO (supra) had allowed the deduction in respect of the investment made in the name of son of the assessee. The revenue has not brought to our notice any contrary judgement by the Hon'ble jurisdictional High Court, therefore, taking a consistent view, we hold that the assessee would be eligible for deduction u/s 54B of the Act under the facts and circumstances of the present case subject to other conditions are fulfilled. Another aspect that whether the investment was made within the time as prescribed by law, contention of the assessee is that as per section 54B(2) of the Act, the un-utilized portion of the sale consideration is required to be deposited in capital gain before issue of furnishing the return of income. As per the assessee, due date of furnishing of income would also [ Kailash Bhagwan Choudhary, Indore] include the date of furnishing of income u/s 139(4) of the Act. For this proposition, the assessee relied upon judgement of the Hon'ble Karnataka High Court rendered in the case of CIT Vs. K. Rama Chandra Rao 277 CTR 522 and judgement of the Hon'ble Punjab & Haryana High Court in the case of CIT Vs. Jagtar Singh Chawla 259 CTR
The reliance is also placed on the judgement of Hon'ble Guwahati High Court rendered in the case of CIT Vs. Rajesh Kumar Jalan 286 ITR 274.
On the contrary, Ld. D.R. supported the orders of the authorities below and submitted that law is clear. The due date of furnishing of return is the date, which is related to section 139(1) of the Act. He has relied on the provisions of section 54B of the Act.
We have heard the rival submissions, perused the materials available on record and gone through the orders of the authorities below. There is no quarrel so far the [ Kailash Bhagwan Choudhary, Indore] proposition that the unutilized amount to be used for making investment within the time as prescribed beyond the furnishing of return of income. The contention of the assessee is that furnishing of return of income would include the period prescribed for furnishing of return of income u/s 139(4) of the Act. In support of this, the reliance is made on various judicial pronouncements, which are reproduced as under:
(i) CIT Vs. Shri K. Ramachandra Rao (2015) 277 CTR 0522 (Kar.) (ii) CIT Vs. Shri Jagtar Singh Chawla (2013) 259 CTR 0388 (P&H) (iii) CIT Vs. Rajesh Kumar Jalan (2006) 286 ITR 274 (Guh)
The Hon'ble High Court of Punjab & Haryana in the case of CIT Vs. Jagtar Singh Chawla (supra) has held as under:
[ Kailash Bhagwan Choudhary, Indore]
[ Kailash Bhagwan Choudhary, Indore]
The revenue has not brought to our notice any other binding precedent. Therefore, respectfully following the judgement of the Hon'ble Punjab & Haryana High Court in the case of CIT Vs. Jagtar Singh Chawla (supra), we therefore, hold that the amount was invested before due date of filing of return as prescribed under the law. The A.O. is hereby directed to allow deduction claimed by the assessee. This ground of the assessee’s appeal is allowed.
Now Ground No.5 of the assessee’s appeal reads as under:
[ Kailash Bhagwan Choudhary, Indore]
“5. That on the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in confirming the action of the Ld. A.O. for allowing deduction u/s 54F at Rs.38,44,049/- as against Rs.38,71,935/- claimed by the assessee.”
Ld. Counsel for the assessee submitted that the Ld. CIT(A) was not justified in sustaining the addition.
Per contra, Ld. D.R. submitted that Ld. CIT(A) has given finding that assessee himself has claimed deduction at Rs.38,44,049/-.
We have heard the rival submissions, perused the materials available on record and gone through the orders of the authorities below. The Ld. CIT(A) has given finding of fact in para 6.1 of his order as under:
“6.1 Applicant has contended that A.O. has allowed the claim u/s 54F of the Act on total net consideration and total LTCG whereas the same should have been done LTCG wise. From the material on record it is seen that the applicant itself in the return in the computation of LTCG had claimed exemption u/s 54F of the Act of Rs.3844049/- and A.O. has allowed the claim to the extent of Rs.3871935/- which is more than what was claimed by the appellant. No working has been given by the appellant and no detail of investment which was eligible for exemption over and above that provided by the A.O. has been given. In view of the above this ground of the appellant is dismissed.”
[ Kailash Bhagwan Choudhary, Indore]
This finding of fact was not rebutted by the assessee by bringing any contrary material on record. Therefore, this ground of the assessee’s appeal is dismissed.
In the result, the appeal filed by the assessee is partly allowed.
Order was pronounced in the open court on 30 .05.2019.