Income Tax Appellate Tribunal

Sri Joseph K.Zachariah vs The Assistant Commissioner Of Income Tax

MANU/IL/0531/2020

23.12.2020

Direct Taxation

To avail benefit under Section 54 of IT Act, unutilized portion of capital gains has to be deposited by assessee in capital gain account scheme before due date of filing of return of income

Present appeal filed by the assessee is directed against order of the learned Commissioner of Income Tax (Appeals) [CIT(A)]. The assessee argued that, The CIT (Appeals) was grossly in error in holding that, the Appellant was not entitled to the benefit of exemption under Section 54 of the Income Tax Act, 1961 (IT Act) in respect of the sum of Rs. 2.59 Crores that was invested in the construction of the new residential house after the due date for filing of the return of income under Section 139(1) of IT Act.

The Learned Commissioner has grossly erred in not following the ratio laid down by the High Court of Karnataka in its judgment in the case of Shri. K. Ramachandra Rao to hold that, where the intention was not to retain cash but to invest in construction of a new residential house, the Appellant cannot be denied the benefit of exemption under Section 54 of IT Act for not depositing the unutilized capital gain in the capital gains account, so long as the construction of the residential house is complete within the time permissible under Section 54(1) of the Act. In present case, the assessee has claimed exemption under Section 54 of the IT Act.

As per Section 54(2) of the IT Act, if the capital gain is not appropriated towards purchase of the new asset before one year from the date of transfer of the original asset or is not utilized for the purchase or construction of a new asset before the date of furnishing the date of return of income under Section 139 of the IT Act, such unutilized capital gain has to be deposited in a capital account scheme, before the due date of furnishing the return of income provided under Section 139(1) of the IT Act.

In the present case, the assessee filed the return of income for the assessment year 2014-15 on 13th June, 2014 before the due date of filing return under Section 139(1) of the IT Act. However, by that time, he has not utilized the amount of Rs.2,59,03,849 in construction of new residential house or deposited the same in capital gain account scheme as notified by the Central Government. In other words, unutilized capital gain should have been deposited in capital gain account before due date of filing of return under Section 139(1) of the IT Act. Now the contention that even if the assessee deposited unutilized portion of capital gain after the due date provided under Section 139(1) of the IT Act, assessee is entitled for deduction under Section 54 of the IT Act. This argument cannot be upheld. To avail benefit under Section 54 of the Act, unutilized portion of capital gains shall be deposited by assessee in capital gain account scheme before due date of filing of return of income under Section 139(1) of the IT Act as prescribed under Section 54(2) of the IT Act.

On the other hand, the assessee made an alternative argument that, the assessee made investment in purchase of house at Chicago in USA within the stipulated time under Section 139(4) of the Act. Even the investment in residential property in foreign country, he has also entitled the assessee to claim such deduction. It is made clear that, assessee shall furnish necessary evidences of construction or purchase of new residential property in Chicago, USA. It is appropriate to remit the issue to examine the claim of the assessee and decide in accordance with law. The appeal of the assessee is partly allowed.

Tags : Assessment Exemption Entitlement

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