Vinay Mishra v. Asstt. CIT - Taxpublishers.in

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The Tax Publishers2013 TaxPub(DT) 0065 (Bang-Trib) : (2013) 050 (II) ITCL 0355 : (2013) 141 ITD 0301 : (2012) 150 TTJ 0245 : (2012) 079 DTR 0001 : (2012) 020 ITR (Trib) 0129 INCOME TAX ACT, 1961 --Capital gains--Deduction under section 54F Acquisition of hose property in USA--Assessee invested long-term capital gain on sale of certain shares in the acquisition of hose property in USA and claimed exemption for the same under section 54F of the Act. assessing officer disallowed the same as the asset was purchased outside India and for claiming exemption under section 54F, investment should have been made in a house property in India. *Held:* Was not justified as there is nothing in section 54F which suggests that the new residential hose acquired should be situated in India. *Held:* Was not justified as it is nowhere mentioned in section 54F which suggests that the new residential house acquired should be situated in India. More so, introducing a word 'in India' which is not there in a section 54F amounts to legislating when Parliament has not used these words in the said section. Therefore, exemption under section 54F was allowable as all conditions laid down in this section were satisfied. Income Tax Act, 1961 Section 54F In the ITAT, Bangalore C Bench George George K J.M. & Jason P. Boaz, AM. Vinay Mishra v. Asstt. CIT ITA No. 895/Bang/2012 & StayPetn. No. 124/Bang/2012 A.Y. 2009-10 12 October, 2012 Income-tax Act, 1961, s. 54F; In favour of: Assessee Circular No. 346, dt. 30th June, 1982 Appellant by : B.P. Sachin Kumar Respondent : Etwa Munda ORDER *Jason P. Boaz, A.M.* This appeal and stay petition by the assessee are directed against the order of the Commissioner (Appeals)-III, Bangalore dated 26-6-2012 for assessment year 2009-10. 2. The facts of the case, in brief, are as under : 2.1 The assessee is a director of M/s Marketics Technologies (India) (P) Ltd., Bangalore and derives his income from salary, business, capital gains and other sources. The assessee filed his return of income for assessment year 2009-10 on 20-7-2009 declaring total income of Rs. 1,53,44,940. The return was processed under section 143(1) of the Income Tax Act, 1961 (hereinafter referred to as the Act) and subsequently taken up for scrutiny by issue of notice under section 143(2) of the Act. In the course of assessment proceedings, it was seen that in the relevant period, the assessee sold certain shares which resulted long-term capital gains. The assessee invested the entire capital gains the acquisition of a house property in USA and claimed exemption under section 54F of the Act. The assessing officer called upon the assessee to substantiate his claim for exemption under section 54F particularly in view of the fact that the asset purchased is outside India. The assessee submitted that he is eligible to claim deduction under section 54F of the Act notwithstanding the fact that the asset purchased is outside India, in the USA and relied on a decision of the Mumbai Bench of the Tribunal in the case of Mrs. Prema P. Shah/Sanjiv P. Shah v. ITO (2006) 101 TTJ (Mumbai) 849 : . The assessing officer did not agree with the contentions of the assessee on the ground that the Act is applicable only to the whole of India and therefore on a plain reading of the provisions, the purchase/construction of a residential house must necessarily be in India and not outside India and rejected the claim for exemption under section 54F of the Act. In coming to this finding the assessing officer also relied on the decision of the Ahmedabad Bench of the Tribunal in the case of Leena J. Shah v. Asstt. CIT (2006) 6 SOT 721 (Ahd) : 2006 TaxPub(DT) 917 (Ahd-Trib) . SUBSCRIBE FOR FULL CONTENT

The Tax Publishers2013 TaxPub(DT) 0065 (Bang-Trib) : (2013) 050 (II) ITCL 0355 : (2013) 141 ITD 0301 : (2012) 150 TTJ 0245 : (2012) 079 DTR 0001 : (2012) 020 ITR (Trib) 0129

INCOME TAX ACT, 1961

--Capital gains--Deduction under section 54F Acquisition of hose property in USA--Assessee invested long-term capital gain on sale of certain shares in the acquisition of hose property in USA and claimed exemption for the same under section 54F of the Act. assessing officer disallowed the same as the asset was purchased outside India and for claiming exemption under section 54F, investment should have been made in a house property in India. Held: Was not justified as there is nothing in section 54F which suggests that the new residential hose acquired should be situated in India. Held: Was not justified as it is nowhere mentioned in section 54F which suggests that the new residential house acquired should be situated in India. More so, introducing a word 'in India' which is not there in a section 54F amounts to legislating when Parliament has not used these words in the said section. Therefore, exemption under section 54F was allowable as all conditions laid down in this section were satisfied.

Income Tax Act, 1961 Section 54F

In the ITAT, Bangalore C Bench

George George K J.M. & Jason P. Boaz, AM.

Vinay Mishra v. Asstt. CIT

ITA No. 895/Bang/2012 & StayPetn. No. 124/Bang/2012

A.Y. 2009-10

12 October, 2012

Income-tax Act, 1961, s. 54F; In favour of: Assessee

Circular No. 346, dt. 30th June, 1982

Appellant by : B.P. Sachin Kumar

Respondent : Etwa Munda

ORDER

Jason P. Boaz, A.M.

This appeal and stay petition by the assessee are directed against the order of the Commissioner (Appeals)-III, Bangalore dated 26-6-2012 for assessment year 2009-10.

2. The facts of the case, in brief, are as under :

2.1 The assessee is a director of M/s Marketics Technologies (India) (P) Ltd., Bangalore and derives his income from salary, business, capital gains and other sources. The assessee filed his return of income for assessment year 2009-10 on 20-7-2009 declaring total income of Rs. 1,53,44,940. The return was processed under section 143(1) of the Income Tax Act, 1961 (hereinafter referred to as the Act) and subsequently taken up for scrutiny by issue of notice under section 143(2) of the Act. In the course of assessment proceedings, it was seen that in the relevant period, the assessee sold certain shares which resulted long-term capital gains. The assessee invested the entire capital gains the acquisition of a house property in USA and claimed exemption under section 54F of the Act. The assessing officer called upon the assessee to substantiate his claim for exemption under section 54F particularly in view of the fact that the asset purchased is outside India. The assessee submitted that he is eligible to claim deduction under section 54F of the Act notwithstanding the fact that the asset purchased is outside India, in the USA and relied on a decision of the Mumbai Bench of the Tribunal in the case of Mrs. Prema P. Shah/Sanjiv P. Shah v. ITO (2006) 101 TTJ (Mumbai) 849 : . The assessing officer did not agree with the contentions of the assessee on the ground that the Act is applicable only to the whole of India and therefore on a plain reading of the provisions, the purchase/construction of a residential house must necessarily be in India and not outside India and rejected the claim for exemption under section 54F of the Act. In coming to this finding the assessing officer also relied on the decision of the Ahmedabad Bench of the Tribunal in the case of Leena J. Shah v. Asstt. CIT (2006) 6 SOT 721 (Ahd) : 2006 TaxPub(DT) 917 (Ahd-Trib) .