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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI C.M.GARG & SHRI O.P.MEENA
आदेश /O R D E R
PER O.P. MEENA, ACCOUTANT MEMEBR. 1. This appeal filed by the assessee is directed against the order of learned Commissioner of Income Tax (Appeals)-Ujjain; [in short “the CIT (A)”] dated 18.07.2014. This appeal pertains to Assessment Year 2010-11. This appeal has arisen from the order passed under section 143 (3) of Income Tax Act, 1961 (in short
Shri Sushil Kumar Bafna, Ujjain v. ITO-1(1) /I.T.A. No. 637/Ind/2014/A.Y.:10-11 Page 2 of 24
‘the Act’) by the Income Tax Officer 1 (1) Ujjain dated 25.03.2013.
The assessee has taken following grounds of appeal:- 1. That the learned CIT(A) erred in holding the action of the AO of disallowing the claim of deduction made under section 54F amounting to Rs. 99,40,150/- and in making addition of the said amount to income under the head Long Term Capital Gain. That on the facts and circumstances of the case, the disallowance/addition made is wrong and bad in law and it is prayed that the said deduction may very kindly be allowed. 2.1 That the learned CIT(A) erred in not deciding the appropriate year of taxability of the Long Term Capital Gain as the construction period of three years envisaged u/s. 54F elapsed on 22.03.2013 making the Long Term Capital Gain taxable in A.Y. 20013-14 and not in A.Y. 2010-11. That on the facts and circumstances of the case, the year of taxability of Long Term Capital Gain being wrong, it is prayed that suitable directions be issued to the AO to tax the Long Term Capital Gain in A.Y. 2013-14. 2.2. That the learned CIT(A) erred in completely ignoring the fact that the appellant has suo-moto offered the impugned capital gain u/s. 45 as income of the previous year 2012-13 relevant to A.Y. 2013-14 in the return filed under section 139(1) as the prescribed time limit of three years expired in F.Y. 2012-13. The action of the Ld. CIT (A) of confirming the said addition in the year under appeal has in fact resulted in double taxation of the same income.
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Without prejudice to the above, and only as alternate, if at all the said addition is confirmed in A.Y. 2010-11, it is most humbly prayed that suitable directions be given to reduce the income of A.Y. 2013-14 and to adjust the resultant refund of A.Y. 2013-14 against the demand of A.Y. 2010-11.
Though the assessee has taken as many as 3 grounds of
appeal but in substance same relates to confirming the
addition offer 99,40,150 by denying exemption under section
54F of the Act in A.Y. 2010-11 and not taxing the long term
capital gain in A.Y. 2013-14 and if it be taxed in A.Y. 2010-
11 then corresponding deduction be directed for A.Y. 2013-
Hence, these are being considered together and being
disposed-of by common manner.
Succinctly, facts as culled out from the orders of lower
authorities are that the assessee is individual and derives income
from catering business. The assessee has filed return of income
on 28.02.2011, declaring total income of Rs. 3,92,330/-. The
assessee along with his wife and son have sold a piece of land
admeasuring 3.607 hectares situated at R.G. Survey No. 1634,
Ujjain on 22.03.2010 for a sale consideration of Rs.2,25,00,000
in which assessee`s share of consideration was at
Rs.1,12,50,000. The assessee has claimed cost of indexation at
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Rs. 9,62,1010 and after deducting the same, long term capital
gains was computed at Rs. 1,02,87,899/-. Out of this net long
term capital gains of Rs. 3,47,749/- was offered to tax and
balance of Rs. 99,40,150/- was claimed as exemption under
section 54F of the Act being purchase of three plots of land for
Rs. 87,90,150/- and Rs. 11,50,000/- were kept towards
construction on said plots of land. The investment of Rs.
87,88,135/- was made in purchase of three plots of land being
Plot No. 381 on 15.03.2010 for Rs. 28,89,910/- [PB31] Plot No.
382 on 15.023.2010 for Rs. 30,59,235/- [PB37] and Plot No. 383
on 15.03.2010 for Rs. 28,38,990/- [ PB 47]. The investment of
Rs. 11,50,000/- was claimed towards construction of residential
house on these three plots. The assessee was asked to furnish: -
a) copy of Map/plan approved by the Municipal Corporation,
Indore b) Letter of approval from Town and Country Planning,
Indore, c) complete details of expenses along with bill/vouchers
with regard to construction claimed at Rs. 11,50,000/- , d) date
of commencement of construction and name of Architect /
builder engaged to this effect. However, the assessee did not reply
to said letter and has expressed his inability to furnish details
called for. In view of these circumstances, the AO along with his
Shri Sushil Kumar Bafna, Ujjain v. ITO-1(1) /I.T.A. No. 637/Ind/2014/A.Y.:10-11 Page 5 of 24
Inspector, Shri Subhash Maheshwari , Advocate, (the ld. A.R. of
the assessee), and Shri Pawan Bafana (son of the assessee),
inspected the site at Indore on 19.11.2012 and found that no
construction was done till the date of inspection i.e. 19.11.2012.
In response to summon dtd. 19.11.2012, the assessee has
attended the office of the AO, and his statement was recorded
wherein he has stated that he has planned to construct a house
but due to some reasons the construction could not be done.
Since the conditions laid down under section 54F were not
fulfilled. The AO, therefore, issued a show cause dtd. 20.12.2012
asking the assessee to show-cause as to why deduction claimed
at Rs. 99,40,150/- should not be disallowed and added to
income. The assessee vide letter dated 05.01.2013, replied that
Town and Country Planning Department, Indore is not giving
approval for construction of one big house on three plots. Unless
and until, the Town and Country Planning, Indore, the Municipal
Corporation approve the map, Indore did not permit construction
of house. For these reasons, the construction on three plots
could not be undertaken. The AO observed that three years’ time
from sale of original assets was expired on 22.03.2013. Therefore,
the AO again along with Shri Subhash Maheshwari advocate
Shri Sushil Kumar Bafna, Ujjain v. ITO-1(1) /I.T.A. No. 637/Ind/2014/A.Y.:10-11 Page 6 of 24
(counsel of the assessee), and Shri Pawan Bafna,(son of the
assessee), inspected the site on 24.03.2013 and found that no
construction was done within three years after the date in which
transfer took place which is also evident from photograph
enclosed as annexure 1 to assessment order. Therefore, the AO
held that conditions as per provisions of section 54F were not
fulfilled by the assessee. Neither he had purchased a residential
house, within a period of one year before the date on which
transfer took place or constructed a house within a period of
three years after the date on which the transfer took place nor
deposited the amount of net sale consideration in an account in
any such bank or institution as may be specified in, and utilized
in accordance with, any scheme which the Central Government
may, by notification in the Official Gazette, frame and, for the
purposes of sub-section (1) of Section 54F. Mere purchase of plot
does not suffice the conditions laid down in the section 54F of
Income Tax Act, 1961. In the light of above facts, the AO
disallowed the long term capital gains of Rs. 99,40,150 and
added to the income of the assessee.
Being, aggrieved the assessee filed an appeal before the ld.
CIT (A). The Ld. CIT (A) observed that the assessee has sold the
Shri Sushil Kumar Bafna, Ujjain v. ITO-1(1) /I.T.A. No. 637/Ind/2014/A.Y.:10-11 Page 7 of 24
land on 22.03.2010 and as per the requirement of law; he has to
invest in the construction of house on or before 23.03.2013. The
AO along with Shri Subhash Maheshwari, Advocate (counsel for
the appellant) and Shri Pawan Bafna (son of the assessee)
inspected the site and found that no construction was done
within a period of 3 years after the date on which the transfer
took place. The appellant has also not deposited the amount of
net sale consideration in an account in any such bank or
institution as may be specified in , and utilized in accordance
with, any scheme which the Central Government may, by
notification in the Official Gazette, frame and, for the purposes of
sub-section (1) of Section 54F of the Act. The Ld. CIT (A) also
supported his view by placing reliance in the case of Usha Gupta
v. CIT [2006] 204 CTR (Raj) 399, wherein it was held that when
no document was annexed in support of claim of deduction, mere
claim of deduction under section 54F could not be allowed. It
cannot be the intention of the legislature to accept whatever
assessee says without proper evidence in support of that claim.
Accordingly, the action of the AO was confirmed.
Being, aggrieved the assessee filed this appeal before the
Tribunal. The Ld. A.R. submitted that the assessee has sold the
Shri Sushil Kumar Bafna, Ujjain v. ITO-1(1) /I.T.A. No. 637/Ind/2014/A.Y.:10-11 Page 8 of 24
plot of land on 22.03.2010 with co-owners for Rs.2,25,00,000
against which an amount of Rs. 1,46,00,000 was received by
cheque and balance Rs. 79,00,000/- was received in cash. The
assessee `s share being 50% was at Rs. 1,12,50,000/-. The
assessee has received cheque amount of Rs. 41,00,000/- i.e. [
11,00,000 on 19.8.2010+ 25,00,000 on 8.9.2010+ 5,00,000 on
17.2.2010] and Rs. 25,00,000/- on 10.4.2010 and balance
amount of Rs. 46,50,000 was received in cash. The assessee
utilized Rs. 33,00,000/- for purchase of plot, which were received
by Smt. Pukhraj Bafana, wife of assessee who had received the
same from the purchaser of land. Thus, the amount of Rs. 74
Lakhs [Rs. 41 Lakh +Rs. 33 Lakhs ] were available with the
assessee, before 17.03.2010 for the payment of purchase price of
three plot of lands and balance amount was invested out of fund
available with him. Thus, investment of Rs. 87,90,150/- was
made in purchase of new assets before the sale of original asset,
with an intention to construct a residential house and an amount
of Rs. 11.50 Lakh was claimed on account of construction of
property. It was explained that the said amount of Rs. 33 lakhs
were returned back to Smt. Pukhraj on 22.03.2010 when the
amount of Rs. 46.50 Lakh was received in cash (PB8) Therefore,
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it was claimed that the assessee has invested 87.90 Lakh before
sale of original asset. In support of the claim that investment can
be made out of borrowed money in acquisition of new asset, the
AR has relied in the case of Bombay Housing Corporation v. ACIT
(2002) 76 TTJ (Mum) 25: 81 ITD 545(Mum) wherein the AO has
held that sale consideration was not invested in specified assets
and the assessee had diverted sale consideration of Rs. 3.55
crores to various partners and investment had been made in
specified assets by borrowing an amount of Rs. 1.42 crores. The
ITAT held that what the section requires is that it is necessary for
the assessee only to invest an amount, which is arithmetically
equal to the net consideration in the specified assets. It cannot be
the intention of the section that other normal transaction or
activities of an assessee should be curtailed or that the sale price
should be immobilized. There may be various reasons like the
buyer does not discharge the sale consideration, money is
blocked somewhere else etc. Therefore, even if borrowed money is
invested in new asset, exemption shall be allowed.
The Ld. A.R. has further relied in the case of ACIT v.
Subhash Sevaram Bhavnani [2012] 23 taxmann.com 94
(Ahmedabad –Trib) where the assessee has started construction
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of residential house before the date of transfer of capital asset,
however, same was completed within prescribed time limit of
three years from the date of transfer, assessee`s claim for
deduction under section 54 was to be allowed.
The Ld. A.R. submitted that the assessee could not able to
construct the residential house within the prescribed time limit of
three years from the date of transfer. Since the assessee wanted
to join three plot of land together so that a palatable house could
be made for his family. The total area of three plots of land was
467.56 Sq. Mts. Whereas as per Gazette Notification of Madhya
Pradesh government dtd. 3.1.2012 it was notified that the merger
of plot of land having 500 Sq. Mts. could be allowed. Therefore,
the assessee has filed a merger application on 16.01.2012 (PB-
53 to 61) but the permission for merger of plot in one was denied
to vide letter dated 23.01.2012. The assessee has taken the steps
for merger of plot of land, which included the application made
on 16.01.2012 with Town and Country Planning Department
(PB61) in pursuance to Gazette Notification dtd. 03.01.2012 and
finally received a letter dtd. 07.02.2014 from Town and Country
Planning Department agreeing for merger (PB72). Until this time,
the prescribed time limit was already expired on 23.03.2103 and
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therefore, the assessee has thought it proper to pay taxes while
filing return of income for A.Y. 2013-14. Thus, under unavoidable
circumstances, the construction could not take place. The Ld.
A.R. submitted that in such circumstances long-term capital
gains in respect of Rs. 87.90 Lakh could not be disallowed. In
support of this proposition, the Ld. A.R. relied in the case of Smt.
V. A. Tharabai [2012] 19 taxmann.com 276 (Chennai) / [2012] 14
ITR (T) 15 (Chennai)/ 50 SOT 537 (Chennai) where the assessee
has earned long term capital gains from sale of property on
8.6.2008 on which net capital gains of Rs. 32,77,450/- . The
assessee has purchased land for Rs. 38.88 Lakh till September
2006. However, due to petition filed for injunction by the owners
of land, the Civil Court ordered status quo, which was prevented
the assessee for further construction of the residential house.
The matter went up to Apex Court, which was dismissed on
13.9.2011 and on 19.09.2011; all proceedings before the Civil
Court were dismissed as withdrawn. Hence, the tribunal held
that exemption u/s. 54F could not be denied where the assessee
has invested sale consideration for purchasing land.
The Ld. A.R. submitted that CBDT Circular No. 667 dtd.
18.10.1993 , quoted by the ld. CIT (A) also laid down that the
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cost of construction shall also include cost of land for
determining the quantum of deduction under section 54/54F
provided that the acquisition of plot and also the construction
thereon are completed within the period specified in these
sections. However, in the case of assessee, no construction has
taken place due to the circumstances beyond the control of the
assessee, as the approval of merger was received late.
As an alternative ground of appeal, the Ld. A.R. submitted
that if the long-term capital gain is to be taxed in the A.Y. 2010-
11, then the AO therefore, be directed to reduce the long-term
capital gains declared by the assessee in A.Y. 2013-14. The Ld.
A.R. further relying in the case of Hon’ble High Court of Kerala in
the case of Malayalam Plantation (India) Ltd. v. CIT (1990) 53
Taxman 541 (Ker) /184 ITR 505 (Ker) submitted that the
Tribunal has got power to direct the ITO to allow deduction on
accrual basis for another year even which is not the subject
matter of appeal. The Ld. A.R. submitted that the provisions of
statute should be harmoniously interpreted as in this case, the
assessee has taken various steps for construction, but merger of
plot of land was under dispute hence, could not be constructed.
In support of this proposition, the Ld. A.R. relied in the case of
Shri Sushil Kumar Bafna, Ujjain v. ITO-1(1) /I.T.A. No. 637/Ind/2014/A.Y.:10-11 Page 13 of 24
Sri Prasad Nimmagadda v. DCIT –II [2013]32 taxmann.com 5(
Hyderabad-Trib) / [2013] 27 ITR (T) 63/ 56 SOT 473(Hyd) held
where amount of capital gains claimed as exempted under
section 54F is not utilized in construction of residential house
within period of 3 years, it will be charged to capital gains in year
in which period of 3 years expires, however, exemption already
granted shall not be denied. The Ld. A.R. further submitted that
the hardship should be avoided. The Ld. A.R. has cited a decision
in the case of CIT v. Bharti C Kothari 254 ITR 22 (Cal) to contend
that if the interpretation sought by the Department is accepted,
this will lead to hardship to the assessee for no fault of the
assessee.
The Ld. A.R. has placed reliance in the case of ITO v. K. C.
Gopalan [1999] 107 Taxman 591 (Ker) where the assessee has
sold a residential house and acquired new residential house, and
claimed deduction u/s. 54. AO held that sale price was not
utilized for construction of a house, but was deposited in private
banks. The Court held that the assessee has to construct or
purchase a house property. Wordings of section 54 itself make it
clear that the law does not insist that sale consideration should
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be utilized for the purchase of property. The statutory provision is
clear and does not call for a different interpretation.
On the other hand, the Ld. D.R. submitted that the assessee
has already purchased plot of land on 15.03.2010 before the sale
of original asset on 23.03.2010, hence, it cannot be said that sale
consideration has been utilized towards purchase and
construction of residential house. Further, the assessee has not
constructed the residential house within the prescribed time limit
of 3 years from the date of transfer of original asset. The assessee
has also not utilized the balance sale consideration of Rs.
11,50,000 in construction of residential house nor has deposited
the same in capital gains scheme account as notified by the
Central Government before the expiry of due date of filing of
return of income under section 139(1) of the Act. Therefore, the
AO and CIT (A) were right in disallowing the exemption under
section 54F of the Act.
We have heard the rival submissions of both the parties and
have perused the material available on record. It is observed that
the claim of the assessee for exemption under section 54F was
disallowed by the AO on the ground that when he inspected the
property it was found that the assessee has not constructed a
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residential house on plot of land purchased for on 87.50 lakh
before the expiry of 3 years prescribed time limit from date of
transfer of original asset. The AO also noted that the assessee
has not deposited the amount of Rs. 11.50 Lakh in capital gains
account as required under section 54F (4) of the Act. In order to
appreciate the provision of section it would be relevant to
produce the provision of section 54F which reads as under:
“54F. (1) Subject to the provisions of sub-section (4), where, in the case of an assessee being an individual or a Hindu undivided family, the capital gain arises from the transfer of any long-term capital asset, not being a residential house (hereafter in this section referred to as the original asset), and the assessee has, within a period of one year before or two years after the date on which the transfer took place purchased, or has within a period of three years after that date constructed, a residential house (hereafter in this section referred to as the new asset), the capital gain shall be dealt with in accordance with the following provisions of this section…………………………………………. (4) The amount of the net consideration which is not appropriated by the assessee towards the purchase of the new asset made within one year before the date on which the transfer of the original asset took place, or which is not utilised by him for the purpose or construction of the new asset before the date of furnishing the return of income under section 139, shall be deposited by him before furnishing such
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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 Office Gazette, frame in this behalf and such return shall be accompanied by proof of such deposit.;” 13. We find that section 54F contains two eventualities claiming
for the benefit, one, is the purchase of the residential house and
the second is construction of a residential house. The provision of
section provides that it require the assessee to purchase the
property being a residential house either before one year of the
sale of the land or after three years from date of transfer of
original asset. In the case of the assessee, we find that the
assessee has purchased three plot of lands for Rs. 87.90 Lakh
before one year from the date of transfer, but he has not
constructed the residential house thereon within the specified
period of three years from date of transfer, which expired on
23.03.2013. Therefore, the conditions laid down in section 54F
(1) are not satisfied. Hence, exemption under section 54F is not
available to the assessee. We further find that an amount of Rs.
11.50 Lakh was kept to be utilized for construction of residential
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house, but the same is neither utilized nor kept deposited in
capital gains account scheme as required under the provisions of
section 54F (4) of the Act. Therefore, this amount is taxable in
A.Y. 2010-11 only. This view is fortified from decision of Hon`ble
Bombay High Court in the case of Humayun Suleman Merchant
v. CCIT [2016] 387 ITR 421) (Bom) 2016-TIOL-1949-HC-MUM- held
as under:
“Failure to deposit the amount of consideration not utilized
towards the purchase of new flat in the specified bank
account before the due date of filing return of income u/s
139(1) is fatal to the claim for exemption. The fact that the
entire amount has been paid to the developer/builder before
the last date to file the ROI is irrelevant. Therefore, the claim
of exemption u/s. 54F was prima-facie not in accordance
with law”.
In view of this matter, we are of the considered view that by
failing to deposit the amount of Rs. 11.50 in capital gains scheme
account rendered the assessee as ineligible for the claim of
exemption under section 54F of the Act. Similarly, the balance
amount has also not been utilized towards construction of
residential house; hence, the AO was right in disallowing the
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exemption of Rs. 11,50,000/- under section 54F(4) of the Act.
Thus, we find that the assessee is not entitled to exemption of Rs.
99,40,150/- on this amount of long-term capital gain u/s 54F of
the Act.
The alternative ground no. 2 of the assessee is that section
54F provides a period of three years for construction of a house
and in case if the assessee is not in a position to purchase a
house, in the first year of the transaction, or construct the
house, then the amount of capital gain can be charged to tax in
the third year, in which time limit is expired. In this case A.Y.
2013-14 in which the assessee has himself shown the long term
capital gains in the return of income filed by him. The Ld. CIT (A)
has rightly repelled this plea. We find that section 54F reads as
under :-
"54F. Capital gain on transfer of certain capital assets not to
be charged in case of investment in residential house (1)
Subject to the provisions of sub-s. (4), where, in the case of an
assessee being an individual or an HUF, the capital gain
arises from the transfer of any long-term capital asset,
not being a residential house (hereafter in this section
referred to as the original asset), and the assessee has,
Shri Sushil Kumar Bafna, Ujjain v. ITO-1(1) /I.T.A. No. 637/Ind/2014/A.Y.:10-11 Page 19 of 24
within a period of one year before or two years after the date
on which the transfer took place purchased, or has within a
period of three years after that date constructed, a residential
house (hereafter in this section referred to as the new asset),
the capital gain shall be dealt with in accordance with the
following provisions of this section,
Thus, the requirement of Section is that the assessee is
required to appropriate the amount of net consideration
towards purchase of new residential house within one year
before the date on which transfer of the original asset took place,
then the assessee was supposed to deposit that amount in
such bank or institution as the Central Government
prescribed in the official gazette. The learned Counsel relied in
the case of Sri Prasad Nimmagadda v. DCIT-II [2013]32
taxmann.com 5 ( Hyderabad-Trib) / [2013] 27 ITR (T) 63/ 56
SOT 473(Hyd) when it was held that where amount of capital
gains claimed as exempted under section 54F is not utilized in
construction of residential house within period of 3 years , it will
be charged to capital gains in the year in which period of 3 years
expires, however, exemption already granted shall not be denied.
However, in the case of the assessee, we find that the entire
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amount of capital gains has not been used towards purchase of
plot of land and construction thereon. The unutilized amount of
Rs. 11.50 lakh was not deposited in bank account before expiry
of due date under section 139(1) as required under section 54F
(4) of the Act. Further the amount of Rs. 87.90 Lakhs also used
for purchase of plot of land and not for construction of residential
house. Therefore, the assessee cannot be allowed to take
postpone of the tax liability for three years without satisfying any
of the condition laid down u/s 54F of the Act. Therefore, the
claim of long-term capital gain is to be seen as whole and in
piecemeal amount as part can be taxed in one year and balance
can be taxed in another year. Therefore, said decision is
distinguishable on facts. Further, the CBDT Circular No. 667 dtd.
18.10.1993 will come in effect only, when the assessee makes
construction on the plot of land so purchased. In this case, the
assessee has not been able to construct the residential house on
the plot of land purchased. Hence, the assessee cannot take help
of circular also.
The learned counsel has not been able to show that the
assessee had complied with the said requirement of sub-s. (4) of
s. 54F of the Act. The learned Counsel relied in the case of in the
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case of ITO v. K. C. Gopalan [1999] 107 Taxman 591 (Ker) in
which the assessee sold residential house and acquired new
residential house, and claimed deduction u/s. 54. AO held that
sale price was not utilized for construction of a house, but was
deposited in private banks. The Court held that the assessee has
to construct or purchase a house property. Wordings of section
54 itself make it clear that the law does not insist that sale
consideration should be utilized for the purchase of property. The
statutory provision is clear and does not call for a different
interpretation. However, this decision is not applicable to
present case as this decision was given in the context for A.Y.
1984-85 wherein provision of section 54F (4) were introduced
with effect from 01.04.1988, hence, said decision is not
applicable to the facts of the case. Apart from it, the learned
CIT(A) had noted that inspite of expiry of three years from the
date of transfer of original asset, the assessee has not
constructed any house over the plot in question and even today
the assessee had not been able to show us that construction
of residential house on the plot was completed. In view of this,
alternative plea of the assessee is not going to help the assessee.
We also find that the original asset was sold on 22.3.2010 but
Shri Sushil Kumar Bafna, Ujjain v. ITO-1(1) /I.T.A. No. 637/Ind/2014/A.Y.:10-11 Page 22 of 24
the assessee had not been able to construct the residential house
before 22.03.2013. The learned Counsel referred decision in the
case of ACIT v. Subhash Sevaram Bhavnani [2012] 23
taxmann.com 94 (Ahmedabad –Trib) where in the case of
assessee, construction of residential house started before the
date of transfer of capital asset, however, same was completed
within prescribed time limit of three years from the date of
transfer, assessee`s claim for deduction under section 54 was to
be allowed. However, this decision is not applicable, as the
assessee had only purchased three plot of land on which
construction was not started. Therefore, we are of the view that
the assessee was not entitled to claim of exemption u/s. 54F of
the Act, hence, we hold that the lower authorities are justified in
taxing the resultant long-term capital gain in A.Y. under appeal.
Thus, the cumulative effect of the discussion above is that mere
purchase of residential plot is not sufficient compliance of
provisions of section 54F. What was expected from the
assessee was to prove on record that the assessee had
purchased or constructed a house within the period specified
under section 54F, which the assessee had failed to prove on
record. The AO rightly rejected the claim of the assessee and
Shri Sushil Kumar Bafna, Ujjain v. ITO-1(1) /I.T.A. No. 637/Ind/2014/A.Y.:10-11 Page 23 of 24
order of learned CIT (A) is on the correct footings, which requires
no interference. Therefore, the above ground of appeal of the
assessee are rejected.
With regard to alternative ground no. 3 of appeal, wherein it
has been claimed that if long-term capital gain is taxed in A.Y.
2010-11, then direction may be given to the AO to reduce the
amount of long-term capital gains suo-motu offered to tax in A.Y.
2013-14 by the assessee. The AR has relied in the case of Hon’ble
Kerala High Court in the Malayalam Plantation (India) Ltd.
(supra) where in it was held that Tribunal could issue direction to
allow such deduction in another year to avoid double taxation.
We also aware of the facts that the assessee has offered long-term
capital gain in A.Y. 2013-14 and paid taxes thereon. This means
that the said amount of long-term capital gain is being taxed
twice, which cannot be intention of the Legislature. Therefore, we
direct the AO to verify the claim whether the assessee has
disclosed this long-term capital gain amount in A.Y. 2013-14,
and if found correct, the AO should reduce then the said amount
be reduced from taxable long-term capital gain of A.Y. 2013-14,
and resultant refund of tax if any would be adjusted against the
demand of assessment year under consideration i.e. A.Y. 2010-
Shri Sushil Kumar Bafna, Ujjain v. ITO-1(1) /I.T.A. No. 637/Ind/2014/A.Y.:10-11 Page 24 of 24
This ground of appeal is therefore, allowed from this limited
extent. 19. In the result, the appeal of the assessee is partly allowed. 20. The order pronounced in the open Court on 27.03.2017.
Sd/- Sd/-
(सी.एम.गग�) (ओ.पी.मीना) (C.M. GARG) (O.P.MEENA) �या�यक सद�य लेखा सद�य JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 29th March, 2017