No denial of sec. 54 relief just because purchase agreement specifies delivery of flat after 3 yrs


Where substantial amount of capital gain has been invested by assessee for purpose of purchasing a new house, deduction under section 54 cannot be denied for reason that construction was not completed within three years or house was not purchased within two years.

Refer full Judgement:


[2017] 82 taxmann.com 306 (Chandigarh – Trib.)
IN THE ITAT CHANDIGARH BENCH
Bhavna Cuccria
v.
Income-tax Officer, Ward 4 (1), Chandigarh*
SANJAY GARG, JUDICIAL MEMBER
AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER
IT APPEAL NO. 341 (CHD.) OF 2017
[ASSESSMENT YEAR 2013-14]
MAY  23, 2017 
Section 54 of the Income-tax Act, 1961 – Deductions – Profit on sale of property used for residence (Construction) – Assessment year 2013-14 – whether where substantial amount of capital gain has been invested by assessee for purpose of purchasing a new house, deduction under section 54 cannot be denied for reason that construction was not completed within three years of house was not purchased within two years – Held, yes [Para 11.4] [In favour of assessee]
Section 54 of the Income-tax Act, 1961 – Deductions – Profit on sale of property used for residence (Construction) – Assessment year 2013-14 – During revelant year, assessee earned long time capital gain from sale of residential house – She entered into purchase agreement with a builder in terms of which flat would be delivered to her within a period of 36 months with a grace period of six months from date of actual start of construction – Assessee Officer concluded that said flat could not be handed over to assessee by builder within prescribed period of 3 years from date of transfer of original asset – He thus rejected assessee’s claim – Whether as per section 54(2), exemption to extent of amount utilized for construction is to be granted in year of transfer of asset and condition of completion of construction is to be looked into only after window period provided by act of three years expires – Held, yes – Whether, therefore, impugned order rejecting assessee’s claim for deduction in year of filing return itself, was to be set aside – Held, yes [Para 11.5] [In favour of assessee]
FACTS
  During the relevant year the assessee had shown long-term capital gain arising from sale of a residential house. The assessee claimed deduction under section 54 on the ground that a part of said gain had been invested in a flat.
  The Assessing Officer noted that assessee entered into agreement with ‘A’ builders for purchase of flat in housing project developed by them.
  As per terms of the said agreement the flat would be delivered to the assessee within a period of 36 months with a grace period of six months from the date of actual start of construction. The Assessing Officer concluded that the said flat could not be handed over to the assessee by the builder within a period of 3 years from the date of transfer of the original asset and therefore issued a show-cause notice to the assessee to explain as to why the exemption claimed under section 54 should not be withdrawn.
  The assessee submitted that since full/substantial consideration had been paid by her, she was entitled to benefit of deduction on account of the investment in the flat under section 54. The assessee submitted that legal title was not necessary for claiming deduction. The Assessing Officer rejected the assessees submissions and held that the assessee had not purchased the flat within two years from the date of transfer of the capital asset and was fully aware that she would not get possession of the flat in three years from the date of transfer and had therefore failed to fulfil the basic conditions of section 54. Accordingly, assessee’s claim for deduction was rejected.
  The Commissioner (Appeals) upheld the order of Assessing Officer.
  On second appeal:
HELD
  The sole reason for denying deduction under section 54 to the assessee is that, she had not complied with the condition stipulated in the section of purchase/construction of new house within the stipulated period of two or three years respectively since as per the agreement for purchase of new house/flat , the construction of the said house could not have been completed within the said period. [Para 8]
  The contention of the assessee is that since the assessee had invested substantial amount for the purchase of the said flat and has been allotted a flat, she was entitled to exemption under section 54 even if the construction of the said flat was not completed or was not possible to be completed within the period of two/three years from the date on which she had earned capital gain on account of transfer of its original asset. [Para 9]
  There is merit in the contention of the assessee. It has been decided in number of cases that for the purpose of claiming exemption under section 54, investment of substantial amount in the new asset, is sufficient compliance. It has been held by various courts that in such circumstances the assessee is entitled to claim exemption despite the fact that the construction is not completed within three years. This issue was addressed by the Delhi High Court in the case of CIT v. R.L. Sood [2000] 245 ITR 727/108 Taxman 227 wherein the High Court held that the assessee having invested substantial amount in the purchase of a new asset, thus acquiring substantial domain over the new flat within the specified period, could be said to have complied with requirement of section 54 and merely because possession of the flat was not handed over to the assessee within the specified period, the said benefit could not be denied. [Para 11]
  Thus it is evident that if substantial amount of capital gain has been invested by the assessee for the purpose of purchasing a new house, deduction under section 54 cannot be denied for the reason that construction was not completed within three years or house was not purchased within two years. In the present case the capital gain earned by the assessee is Rs.74,33,137/- and the amount invested in the new house before the due date of filing of return of income for the impugned year is Rs.62,10,000/-. Undeniably the assessee has invested substantial amount for purchasing the new asset and thus she is entitled to claim deduction under section 54. [Para 11.4]
  Even otherwise 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 along with 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 fulfilment 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.
  Thus clearly, as per section 54(2), exemption to the extent of amount utilized for construction is to be granted in the year of transfer of asset and the condition of completion of construction is to be looked into only after the window period provided by the Act of three years expires. [Para 11.5]
  In view of above, it is clear that for the purpose of claiming exemption under section 54 the assessee is only required to invest the amount for the purpose of purchase or construction of a property without completing the same in the impugned year and all amount advanced for the said purpose would be treated as being utilized for the purpose of section 54. [Para 12]
  In view of the above it is held that the assessee is entitled to claim deduction for the amount invested in the purchase of a new asset amounting to Rs. 62,10,000 and the Assessing Officer is directed to grant the same. [Para 13]
  In the result, appeal of the assessee is allowed. [Para 15]
CASE REVIEW
Fibre Boards (P.) Ltd. v. CIT [2015] 62 taxmann.com 135 (SC) (para 12) followed.
CASES REFERRED TO
CIT v. Kuldeep Singh [2014] 226 Taxman 133/49 taxmann.com 167 (Delhi) (para 3), Smt. Ranjeet Sandhu v. Dy. CIT [2011] 16 taxmann.com 210/[2012] 49 SOT 7 (URO) (Chd.) (para 4), Smt. Usha Vaid v. ITO [2012] 25 taxmann.com 188/53 SOT 385 (Asr.) (para 4), CIT v. Smt. B.S. Shanthakumari [2015] 60 taxmann.com 74/233 Taxman 347 (Kar.) (para 4), Kishore H. Galaiya v. ITO [2012] 137 ITD 229/24 taxmann.com 11 (Mum.) (para 4), Fibre Boards (P.) Ltd. v. CIT [2015] 376 ITR 596/62 taxmann.com 135 (SC) (para 4), ITO v. Narayana Rao [2016] 46 ITR (Trib.) 178 (Hyd.) (para 4) and CIT v. R.L. Sood [2000] 245 ITR 727/108 Taxman 227 (Delhi) (para 11).
Tej Mohan Singh for the Appellant. S.K. Mittal for the Respondent.
ORDER
Ms. Annapurna Gupta, Accountant Member – This appeal has been filed by the assessee against the order of the ld. CIT(A)-2, Chandigarh, dt. 20/01/2017. The assessee has raised the following grounds of appeal:
1.   That the ld. Commissioner of Income Tax (Appeals) has erred in law and facts in upholding the disallowance of deduction claimed under section 54 in utter disregard of the explanation filed and various judicial precedents which is illegal, arbitrary and unjustified.
2.   That the ld. Commissioner of Income Tax (Appeals) has erred in failing to appreciate that the assessee had fulfilled all the statutory requirements for availing deduction under section 54 of the Act and as such the disallowance of deduction upheld is illegal, arbitrary and unjustified.
2. Briefly stated the facts relating to the case are that during the relevant year the assessee had shown long-term capital gains of Rs. 12,23,137/- from sale of a residential house in Shimla in her return filed on 04/08/2013. The said property was sold on 06/11/2012 and sale consideration received was Rs. 1 crore, being 20% share of the assessee in the property. After taking benefit of indexed cost of acquisition, long-term capital gains of Rs. 74,33,137/- was computed, against which exemption u/s 54 of the Act, was claimed by the assessee, on the ground that amount of Rs. 62,10,000/- had been invested in a flat. The Assessing Officer, on perusal of the agreement for the purchase of flat with M/s ATS Estates Pvt. Ltd. New Delhi dt.15-04-2013,found that the agreement had been drawn for buying apartment in the project “ATS Golf Meadows Lifestyle at village Madhavpur, Derabassi, Mohali and as per Clause 14 of the said agreement the flat would be delivered to the assessee within a period of 36 months with a grace period of six months from the date of actual start of construction of the said tower. The AO concluded that the said flat could not be handed over to the assessee by the builder within a period of 3 years from the date of transfer of the original asset i.e. 06/11/2012, and therefore issued a show-cause notice to the assessee to explain as to why the exemption claimed u/s 54 should not be withdrawn. The assessee submitted that since full/substantial consideration had been paid by her she was entitled to benefit of deduction on account of the investment in the flat u/s 54 of the Act. The assessee submitted that legal title is not necessary for claiming deduction. The AO rejected the assesses submissions and held that the assessee has not purchased the flat within two years from the date of transfer of the capital asset and was fully aware that she would not get possession of the flat in three years from the date of transfer and had therefore failed to fulfil the basic conditions of section 54, thus becoming ineligible for claiming exemption u/s 54 of the Act. The Assessing Officer therefore, disallowed exemption claimed u/s 54 of Rs. 62,10,000/-.
3. Before the ld. CIT(A) the assessee contended that she had invested capital gain earned to the extent of Rs. 62,10,000/- on 15/04/2013 i.e; before due date of filing of return of income and on payment thereof had been allotted and granted title, possession and ownership rights for the said apartment. The assessee submitted that exemption could not be denied merely because payment was made but possession not obtained and relied upon the decision of the Delhi High Court in the case of CIT v. Kuldeep Singh [2014] 226 Taxman 133/49 taxmann.com 167. The ld. CIT(A) after considering the assessee’s submission held that as per the facts of the case the assessee could not be said to have purchased a house within two years or even constructed a house within three years from the date of sale i.e; 06/11/2012 since as per the assessee’s own admission the flat would become livable only in May 2016 i.e beyond three years from the date of transfer of the original asset on 06-11-12. The ld. CIT(A) held that as a matter of fact even after three years from the date of sale of the original asset, the new house had not came into existence and therefore the assessee had not fulfilled the conditions specified under section 54 for claiming exemption under it. He therefore, upheld the order of the Assessing Officer denying claim of deduction under section 54 of the Act amounting to Rs. 62,10,000/-.
4. Before us ld. Counsel for the assessee reiterated the contention made before lower authorities and stated that in view of the fact that the substantial amount had been invested in purchase of a new flat before the due date of filing of return of income as specified under section 54 and the flat had been allotted to it also, the assessee was eligible to claim deduction under section 54 of the Act. ld. Counsel for the assessee relied upon a number of case laws in this regard, which are as under:
1.   Smt. Ranjeet Sandhu v. Dy. CIT [2011] 16 taxmann.com 210/[2012] 49 SOT 7 (URO) (Chandigarh)
2.   Smt. Usha Vaid v. ITO [2012] 25 taxmann.com 188/53 SOT 385 (Asr.)
3.   CIT v. Smt. B.S. Shanthakumari [2015] 60 taxmann.com 74/233 Taxman 347 (Karn)
4.   Kishore H. Galaiya v. ITO [2012] 137 ITD 229/24 taxmann.com 11 (Mum.)
5.   Fibre Boards (P.) Ltd. v. CIT (2015) 376 ITR 596/62 taxmann.com 135 (SC)
6.   ITO v. Narayana Rao [2016] 46 ITR (Trib) 178 (Hyd)
5. Ld. DR on the other hand relied upon the order of the ld. CIT(A) and stated that since the assessee had not complied with basic condition specified under section 54 i.e; purchase of house within two years or construction of a house within three years from the date of transfer of the original asset, the assessee had been righty denied deduction under section 54 of the Income-tax Act, 1961.
6. We have heard the rival contentions, gone through the orders of the authorities below and perused the material placed on record before us.
7. The issue before us relates to claim of deduction under section 54 of the Income-tax Act,1961. The fact that the assessee had sold a residential house on 06-11-12 and earned long-term capital gains thereon amounting to Rs.74,33,137/- is not disputed. Also not in dispute is the fact that the assessee had invested a sum of Rs.62,10,000/- on 15-04-13, i.e; before the filing of return of income on 04/08/2013 for purchase of a residential house vide agreement of the same date entered into with ATS Estates Private Limited, Delhi and had been allotted apartment No. 6154 15th Floor Tower No. 6 ATS Golf Tower, Mohali. It is also not disputed that as per clause 14 of the agreement the possession of the house/apartment was to be delivered within a period of 36 months from the date of start of actual construction, with a grace period of six months.
8. The sole reason for denying exemption u/s 54 to the assessee is that, the assessee had not complied with the condition stipulated in the section of purchase/construction of new house within the stipulated period of two and three years respectively since as per the agreement for purchase of new house/flat, the construction of the said house could not have been completed within the said period and even as a matter of fact has not been completed within the stipulated period.
9. The contention of the ld. Counsel is that since the assessee had invested substantial amount for the purchase of the said Flat and has been allotted a flat, she was entitled to exemption under section 54 even if the construction of the said Flat was not completed or was not possible to be completed within the period of two/three years from the date on which the assessee had earned capital gain on account of transfer of its original asset.
10. Ld. DR on the other hand has contended that completion of construction within three years or purchase of a Flat within two years is an essential condition for claiming deduction under section 54 which being not possible in the present case, the assessee had been rightly denied exemption u/s 54 of the Act.
11. We find merit in the contention of the ld. Counsel for the assessee. It has been decided in number of cases that for the purpose of claiming exemption under section 54, investment of substantial amount in the new asset, is sufficient compliance. It has been held by various courts that in such circumstances the assessee is entitled to claim exemption despite the fact that the construction is not completed within three years. This issue was addressed by the Delhi High Court in the case of CIT v. R.L. Sood [2000] 245 ITR 727/108 Taxman 227 wherein the Hon’ble High Court held that the assessee having invested substantial amount in the purchase of a new asset, thus acquiring substantial domain over the new flat within the specified period, the assessee could be said to have complied with requirement of section 54 and merely because possession of the Flat was not handed over to the assessee within the specified period the said benefit could not be denied. The relevant findings of the Hon’ble High Court at paras 6, 7 and 8 of the order are as under:
6. We may note that realizing the practical difficulty faced by the assessees in such situations, the Central Board of Direct Taxes issued Circular No. 471 (see [1986] 162 ITR (St.) 41), dated October 15, 1986, clarifying that when the DDA issues the allotment letter to an allottee under its self-financing scheme, on payment of the first instalment of the cost of construction, the allottee gets title to the property and such allotment should be treated as cost of construction for the purpose of capital gains. On the same analogy, the assessee having been allotted the flat ; he having paid a substantial amount towards its cost within the stipulated period of one year, he cannot be denied the benefit of the said Section because the flat purchased by him had come into his full domain within the period of one year, though the sale deed in his favour was registered subsequently.
7. In the light of the said circular and keeping in view the spirit of Section 54 of the Act, we decline the request of the Revenue to call for a reference on the proposed question.
8. Consequently, the petition is dismissed.
11.1 This proposition has been reiterated in a number of judgments referred to before us by the ld. Counsel for the assessee. In case of Smt. Ranjeet Sandhu (supra) the assessee had sold her agricultural land for Rs.1.5 crores and out of the same purchased a residential plot and started construction of a new house and claimed exemption u/s 54F.However the same was denied by the AO since he noted that the construction had not been completed. The CIT(A) confirmed the order of the AO. On second appeal to the Tribunal, it was held that completion of construction was not an essential condition for claiming exemption u/s 54, the thrust being on investment of the consideration received on sale of asset in construction of a new house. The relevant findings of the ITAT at para 11 of the order is as under:
“11. In the facts of the present case, the assessee had invested the full sale consideration received on the sale of original asset in the purchase of the plot of land at Gurgaon. Thereafter the assessee had invested Rs. 10,75,000 in the construction of the building. The construction was in progress and was not complete and in view thereof, the benefit of exemption claimed under s. 54F of the Act was rejected by the authorities below. However, following the ratio laid down by the Hon’ble Madhya Pradesh High Court in the case of Smt. Shashi Varma (supra), we find that there is no merit in the plea of the authorities in denying the exemption under s. 54F of the Act on the ground that the construction of the house has not been completed. The requirement of ss. 54 and 54F of the Act is for the assessee to have either purchased a residential house being a new asset within the stipulated period or construct a residential house within a period of three years from the date of transfer. The section does not prescribe the completion of the construction of the residential house and the thrust is on the investment of the net consideration received on sale of original asset and the start of construction of a new residential asset (sic—house). In view thereof, where the assessee had invested the consideration received on sale of original asset in the purchase of the plot of land and started construction though not completed, the assessee had complied with the provisions of s. 54F of the Act and hence was entitled to the benefit of exemption claimed. Accordingly, we set aside the order of the CIT(A) and direct the AO to allow the claim of the assessee in respect of the benefit of exemption claimed under s. 54F of the Act. The grounds of appeal raised by the assessee are thus allowed”
11.2 The Amritsar Bench of the ITAT on identical set of facts in the case of Smt. Usha Vaid (supra) reiterated the above proposition holding as under:
“We have heard the rival contentions and perused the facts of the case. There is no dispute to the fact that the assessee had purchased the property in 1987. On verification by the Inspector, the boundary wall and gate was also found, is also not under dispute. The assessee had claimed vide letter dated 02.06.2008 exemption under section 54F of the Act during the assessment proceedings before the AO is also not under dispute. The sale consideration has been invested in the construction of the house has been explained by the assessee before both the authorities below. Though house was not completed before the expiry of three years from the sale of the plot at Faridabad, but the same was completed immediately after few days of the expiry of three years. As per section 54F, if the assessee being an individual, the capital gain which arises from the transfer of any long-term capital asset, not being a residential house and the assessee had 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, referred to as the new asset, then the capital gain is exempt, if whole of the net consideration of the original asset is invested in the new asset i.e. residential house. Now the question arises in the present case whether the assessee had fulfilled the conditions under section 54F or not, has to be perused. In the present case, the assessee had invested the total sale consideration (net consideration) within three years after the transfer of the original asset. The words mentioned in section 54F are that the amount should be invested in the construction of a residential house. Therefore, once the assessee having been invested total sale consideration into construction of a residential house, then it is not necessary that the residential house should have been completed within three years of the transfer of the original asset. The residential house may be completed even after completion of three years of the transfer of the original asset. In such a situation, when a house is completed after expiry of three years from the transfer of the original asset, the assessee is entitled to exemption under section 54F of the Act. This view is supported by the decision of the Hon’ble Madras High Court in the case of CIT v. Sardar Mal Kuthari 302 ITR 286. The ld. counsel for the assessee has also placed reliance on the following decisions :
(i)   Mrs. Seetha Subramanian v. ACIT 56 TTJ 417 (Mad)
(ii)   Smt. Ranjit Sandhu v. Dy. CIT [2010] 133 TTJ (Chd)(UO) 46.
5.1. The assessee had submitted application under Rule 46A on having completed the house, after the expiry of three years from the transfer of the original asset along with electricity bill which was not accepted by the ld. CIT(A), which in fact, could not be submitted by the assessee before completion of the assessment. The same should have been accepted by the ld. CIT(A). Therefore, as held hereinabove, the assessee having sold an asset which is not a residential house being a long-term capital asset had invested the net sale consideration into the construction of a residential house and therefore, claim of the assessee u/s 54F is allowable. Accordingly, all other claims of the assessee are allowable. The addition made by the AO. is directed to be deleted and the order of the ld. CIT(A) is reversed. Thus, all the grounds of appeal of the assessee are allowed.”
11.3 In the case of Kishore H. Galaiya (supra) also, on identical facts, the ITAT, Mumbai bench held that since the assessee had made investment within the period of three years, exemption under section 54 could not be denied merely because possession had not been taken within three years. The relevant findings of the ITAT in the case of Kishore H Galaiya (supra), at paras 6.1 and 6.2 of the order are as under:
“6.1 In the present case, the assessee sold the old residential house on 7.3.2006 and the long-term capital gain arising on this account was Rs. 9,98,411/-. The assessee had booked a new residential flat with the builder jointly with is wife for a sum of Rs. 35,00,000/-. The assessee had paid booking amount of Rs. 1,00,000/- to the builder before the due date of filing of the return of income u/s 139(1) for the assessment year 2006-07 and the balance amount had been paid in instalments after the said date. The total amount paid by the assessee to the builder was Rs. 14,62,500/- till 16.2.2009. In the backdrop of this factual position, it is required to be seen whether the assessee had fulfilled the conditions of section 54 of the Act so as to make him eligible for claim of exemption u/s 54 of the Act. The first condition is that the capital gain should have been invested in the purchase of new residential house within a period of two years from the date of transfer or for construction of new residential house within a period of three years from the date of transfer. In the present case, the assessee had booked the new flat with the builder and as per agreement, the assessee was to make payment in instalments and the builder was to handover the possession of the flat after construction. It has therefore to be considered as a case of construction of new residential house and not purchase of flat. This position has been clarified by the CBDT in circular No.472 dated 16.12.1993 in which it has been made clear that the earlier circular No. 471 dated 15.10.1986 in which it was stated that acquisition of flat through allotment by DDA has to be treated as a construction of flat would apply to co-operative societies and other institutions. The builder would fall in the category of other institutions as held by Mumbai Bench of Tribunal in the case Smt. Sunder Kaur Sujan Singh Gadh (supra) and therefore booking of the flat with the builder has to be treated as construction of flat by the assessee. Thus, in the present case, the period of three years would apply for construction of new house from the date of transfer of the old flat.
6.2 The old flat had been sold on 7.3.2006 and therefore the assessee was required to construct a new residential house by 6.3.2009. The purpose of section 54 is to allow exemption to the assessee of long-term capital gain arising from sale of residential house if the capital gain is invested in construction of new residential house within a period of three years from the date of transfer and, therefore, in case, the assessee had invested the capital gains in construction of a new residential house within a period of three years, this should be treated as sufficient compliance of the provisions, of the flat It is not necessary that the possession of the flat should also be taken within the period of three years. The taking of the possession may be delayed because of many factors not under the control of the assessee due to default on the part of the builder and therefore merely because the possession had not been taken within the period of three years, the exemption cannot be denied. This aspect had also been considered by the Hon’ble High Court of Bombay in the case of Mrs. Hilla J.B. Wadia (supra) in which the Hon’ble High Court held that in case the assessee entered into an agreement with the society for purchase of flat and paid almost the entire consideration within a period of two years, the assessee would be entitled to exemption under section 54 of the Act. The Hon’ble High Court also held that the material test was the domain over the property and the investment and, therefore, in case, the assessee had made substantial investment within the prescribed period which entitled the assessee to take possession of the flat, the claim of the exemption u/s 54 had to be admitted. In the present case, within the period of three years, the assessee had invested Rs. 14,62,500/- which was more than the amount of capital gain in the construction of new residential house within the period of three years and the possession of the house had also been ultimately taken on 31/08/2009. Therefore, in our view, the claim of the exemption in this case cannot be denied on the ground that the possession of the flat had not been taken within the period of three years.”
11.4 Thus it is evident from the above that if substantial amount of capital gain has been invested by the assessee for the purpose of purchasing a new house, exemption u/s 54 cannot be denied for the reason that construction was not completed within three years or house was not purchased within two years. In the present case the capital gain earned by the assessee is Rs.74,33,137/- and the amount invested in the new house before the due date of filing of return of income for the impugned year is Rs.62,10,000/-.Thus undeniably the assessee has invested substantial amount for purchasing the new asset and following the decisions of the coordinate bench and the Hon’ble High Court, cited above, we hold that the assessee is entitled to claim deduction u/s 54 of the Income-tax Act,1961.
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 along with 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 fulfilment 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. The provisions of section 54 are reproduced hereunder for clarity:
“54. Profit on sale of property used for residence.-(1) Subject to the provisions of sub-section (2), where, in the case of an assessee being an individual or a Hindu undivided family, the capital gain arises from the transfer of a long-term capital asset , being buildings or lands appurtenant thereto, and being a residential house, the income of which is chargeable under the head “Income from house property” (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, 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 residential house so purchased or constructed (hereafter in this section referred to as the new asset), the difference between the amount of the capital gain and the cost of the new asset 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 or construction, as the case may be, 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 of the new asset any capital gain arising from its transfer within a period of three years of its purchase or construction, as the case may be, the cost shall be reduced by the amount of the capital gain.
(2) The amount of the capital gain 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 purchase 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 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 11 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 or construction 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 or construction of the new asset within the period specified in sub-section (1), then,—
(i)   the amount not so utilised shall be charged under section 45 as the income of the previous year in which the period of three 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.”
Thus clearly, as per section 54(2), exemption to the extent of amount utilized for construction is to be granted in the year of transfer of asset and the condition of completion of construction is to be looked into only after the window period provided by the Act of three years expires . The Hon’ble Supreme Court in the case of Fibre Boards (supra), has interpreted identically worded provisions of section 54G, which grants exemption on account of investment of capital gain earned from sale proceed of industrial undertaking, in another industrial undertaking, and has held that “advance” paid for the purpose of acquiring plant and machinery, land and building would amount to utilization by assessee of capital gain made by him for the purpose of purchasing or acquiring aforesaid assets. The Hon’ble Supreme Court has held that as per section 54G the assessee has been given a window of three years after the date on which transfer takes place, to purchase a new machinery or plant or acquire building. The Hon’ble Supreme Court has further held that section 54G(2) states that amount which is not “utilized” for the said purpose is to be denied exemption. The Hon’ble Supreme Court held that the assessee is entitled to avail exemption under the said section if it utilizes the amount of capital gain for purchase or acquisition of new plant and machinery and buildings and the said condition would be fulfilled when advances are paid for the purpose of purchase or acquisition of assets. The relevant findings of the apex court in the case of Fibre Boards (supra) is 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 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 section 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 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 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.’
12. In view of the interpretation given to the word “utilized” used in section 54G of the Act by the Supreme Court and considering that the condition specified in section 54G(2) are identical to that in section 54(2) it is clear that for the purpose of claiming exemption under section 54 the assessee is only required to invest the amount for the purpose of purchase or construction of a property without completing the same in the impugned year and all amount advanced for the said purpose would be treated as being utilized for the purpose of section 54.
13. In view of the above we hold that the assessee is entitled to claim deduction for the amount invested in the purchase of a new asset amounting to Rs. 62,10,000 and the AO is directed to grant the same.
14. The order of the ld. CIT(A) is therefore set aside and the appeal of the assessee is allowed in above terms.
15. In the result, appeal of the assessee is allowed.


In favour of assessee.

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One thought on “No denial of sec. 54 relief just because purchase agreement specifies delivery of flat after 3 yrs

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