CA Vinay V. Kawdia

CA Vinay V. KawdiaIntroduction:

A bare reading of section 54F clearly shows that the assessee is entitled for exemption in case he/she purchase/constructs a residential house within a period of two/three years after the sale of the capital asset. However, sub-clause (4) of section 54F clearly says that the unutilized portion of the net sale consideration [not utilized before the date of furnishing the return of income under section 139] which is otherwise liable for capital gain tax shall be deposited in the capital gain account scheme within the period of due date for filing return of income under section 139(1).

The question arises for consideration are:

a)      Whether the time limit for utilization of net sale consideration [without depositing in to capital gain scheme] for the purchase or construction of the new asset is before date for filing the return under section 139(1) or the due date for filing the return of income under section 139 (4).

b)      Whether the due date mentioned in section 54F(4) for deposit of the unutilized portion of net sale consideration into the capital gain scheme is the due date for filing the return under section 139(1) or the due date for filing the return of income under section 139 (4).

Both are entirely different questions and the answers are clearly & unambiguously visible in the bare provisions of the section 54F without any need of interpretational aids.

Let’s start with the bare provisions:

Capital gain on transfer of certain capital assets not to be charged in case of investment in residential house

54F. (1)…

(2)….

(3)….

[(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 utilized 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 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 :

[Emphasis supplied in bold and underline]

The clear meaning emanating from above is explained below with the help of an example: [It is assumed that assessee wants to construct new Res. House to take benefit of exemption provisions u/s 54F]

1 Date of transfer of eligible long term capital asset 1st Jan. 2014
2 Assessment year concerned 2014-15
3 Due date of filing return of income u/s 139(1) 31st July 2014
4 Date of filing return of income u/s 139(4) 31st March 2016
5 time limit for utilization of net sale consideration for construction of the new asset [without depositing in to capital gain scheme] 31st March 2016
6 Time limit for deposit of unutilized portion of net sale consideration in capital gain scheme 31st July 2014
7 time limit for utilization of net sale consideration for the construction of the new asset [if deposited in capital gain scheme as per 6 above] 1st Jan. 2017

Thus, as per section 54F(4), assessee has to utilize the net sale consideration for construction of new asset on or before 31st March 2016 [i.e. before the date of furnishing the return of income under section 139[4] if:

–          He/she does not deposit the same in capital gain scheme upto 31st July 2014 [i.e. Due date of filing return of income u/s 139(1)]; and

–          Does not file return of income till date of utilization as above.

In other words, for enjoying the exemption u/s 54F without depositing the unutilized sale consideration in to capital gain scheme, assessee has to utilize the same up to 31.03.2016 [i.e. due date as per s. 139(4)] and keep the return pending till he utilizes the amount on or before 31.03.2016.

The rationale behind the above theory is that u/s 54F–

–          No sub-section of section 139 is mentioned as regards time limit for utilization of the funds for the purchase or construction of the new asset

–          Whereas, sub-section (1) of section 139 is specifically mentioned that too with prefix ‘in any case not later than’ as regards time limit for deposit of the funds in capital gain scheme

The above literal interpretation also finds its force from legislative intent behind enactment of section 54F which is to promote and encourage the low & middle income group for house construction. [Memorandum to the Finance Act, 1982, 134 ITR 128 (St.) and CBDT Circular No. 346, dated 30-6-1982 issued on introduction of section 54F by the Finance Act, 1982]

Judicial views on above, which appears to be fair and logical:

First of all, there is no requirement for claiming exemption under section 54,54F etc. that assessee should file his return of income before due date prescribed under section 139(1) – Mrs. Esther Christopher vs. ITO [2011] 9 taxmann.com 99 (MUM. – ITAT)

1)      ITO vs. Smt. Rosamma Korah [2014] 45 taxmann.com 153 (Cochin – Trib.)

In the above case, assessee’s claim of exemption under section 54F was denied on ground that assessee had not deposited unutilized capital gain in capital gain account scheme within due date for filing return of income under section 139(1) – Assessee claimed that due date provided under section 139(4) should be considered. ITAT applied the ration of Hon’ble Apex Court in Prakash Nath Khanna v. CIT [2004] 266 ITR 1 wherein it washeld that ‘due date’ means date for filing return under section 139(1) and not under section 139 (4) . It was further observed that had the intentions of the Legislature was to permit the assessee to deposit in to capital gain scheme up to time limit prescribed u/s 139(4) also, the use of the expression “section 139” alone would have been sufficed. The Legislature would not have said that 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. When the Legislature specifically refers to section 139(1), it cannot be stretched to permit the reference to section 139(4) also.

2)      Under section 54F(4), assessee has to utilize amount for purchase or construction of new asset before date of furnishing return of income under section 139, and in absence of any mention of any sub-section of section 139, it cannot be interpreted that section 139 should be read as section 139(1). Assessee, though not deposited the unutilized funds in specified capital gain a/c scheme before the due date u/s 139(1), having utilised the entire capital gains by purchasing a house property before the extended due date under s. 139(4), he/she is eligible for exemption under s. 54. [Fathima Bai vs. ITO (2009) 32 DTR (Kar) 243, CIT vs. Jagtar Singh Chawla [2013] 33 taxmann.com 38 (P & H), CIT vs. Jagriti Aggarwal (2011) 15 taxmann.com 146 (P & H), Nipun Mehrotra vs. ACIT (2008) 110 ITD 520 (Bangalore), RKP Elayarajan vs. DCIT [2012] 23 taxmann.com 206 (Chennai – Trib.), P.R. Kulkarni (HUF) vs. ACIT (2011) 135 TTJ (Bang.) 630, Anil Kumar Aurora vs. ITO (2013) 37 CCH 221 (Mum.)]]

[Interestingly, in none of the above cases, court had an occasion to deal with a situation that assessee deposited funds in capital gain scheme after due date specified u/s 139(1). In all the above cases the common fact was that assessee retained the unutilized funds with him & there was no deposit at all in capital gain scheme, however, funds were somehow utilized for purchase/construction of new asset before extended period allowed by s. 139(4). Accordingly, exemption u/s 54/54F was rightly allowed.

In this view of the matter, the decision in case of Smt. Rosamma Korah (supra) requires reconsideration. Though Hon’ble ITAT laid down the correct principle as regards time limit for deposit in to capital gain account scheme, the case was remanded to AO without appreciating the fact whether or not the funds were actually reinvested in new asset within extended time allowed u/s 139(4) of the Act. Further, reliance placed by Hon’ble ITAT on the decision of Kerala High court in case of CIT vs. V.R. Desai, (2011) 197 TAXMAN 52 was also misplaced. In V.R. Desai’s case, the Hon’ble Kerala High Court rejected claim u/s 54F by observing that new asset was constructed using borrowed funds & consideration for transfer of long term capital asset was actually not utilized by the assessee either for construction of new residential house or for depositing the same in any bank under the notified scheme of 54F of the Act. ]

Contrary views, though in favour of assessee, not in line with the clear provision of the law:

CIT vs. Rajesh K. Jalan (2006) 206 CTR (Gau) 361

HELD

Capital gains—Exemption under s. 54—Time-limit for making deposit under the scheme—Only s. 139 is mentioned in s. 54(2)—Sec. 139 cannot mean only s. 139(1) but means all sub-sections of s. 139—Therefore, assessee can fulfill the requirement of s. 54 of depositing the unutilised portion of the capital gain on sale of residential property in notified scheme upto the expiry of time-limit for filing return under s. 139(4).

Muthuletchumi J. vs. DCIT (2012) 34 CCH 193 (Cochin Trib.)

Where an assessee has not furnished the return of a previous year within the time allowed under s 139 (1), the same can be filed before the expiry of one year from the end of the relevant assessment year under s 139 (4). Hence, time limit for purpose of making investment in Capital Gains Account scheme may also be taken as the time limit prescribed u/s 139 (4).

With due respect to the ITAT, in author’s opinion, the extended period as per section 139(4) has to be considered only for the purpose of utilization of amount of capital gain for purchase / construction & not for the purpose of deposit of unutilized portion in to capital gain account scheme, for which the time limit is only up to due date specified u/s 139(1).

Conclusion:

As per settled principles, statutory provisions must ordinarily be construed according to their plain meaning and no words should be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute. If the language employed in any section is clear, unambiguous & prone to only one meaning, true meaning of a provision of law has to be determined on the basis of what it provides by its clear language. Further, Case laws should be used as shield & not sword. Never use any case law reference merely on the basis of gist/ head-note of the decision. The above chaos by various courts/counsels was a result of superficial references to judicial precedents.

Other Article from the Author – Section 80P and income from investments – Co-operative Credit Societies- a nightmare

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Tags : section 54 (102) Section 54F (122)

26 responses to “Section 54/54F & time limit for deposit/ reinvestment of capital gain”

  1. vijaykumar says:

    I want to purchase a house 80Lakh
    I want to sell my old flat for 30 lakh after 3 months of purchase of house.
    Can I you the capital gain of flat with the completed transaction of already purchased house

  2. Manu Pathak says:

    Hello, We soled our flat on Aug 2016 and trying to purchase flat again but the possession would be in 2020. Please let me know whether I can invest in such property. or need to invest in ready property. Currently I have opened Capital Gain account to park the amt.

  3. Anshu says:

    In icai study material…….54F shows 1 year before transfer also eligible for exemption…….. is it right.?

  4. Hardeep Chadha says:

    Hi… i have a query. I have a property with LTCG.
    1. Can i sell it in two or three parts (in same financial year) and use all the proceeds to buy one single assets to claim exemption?
    2. Can above thing also be done if seeling in parts occurs in 2 consecutive financial years?

  5. P S Krishnan says:

    This is a very useful article. I had sold a property in Feb 2014, and I invested the capital gains in an capital gains account on 31 July 2014 with the objective of buying a housing plot and constructing a house. But on account of change in property registration policy of Tamil Nadu, I was not able to purchase / register a plot. My 3 year reinvestment period ends in Feb 2017 and I have now decided not to reinvest. The queries I have are

    1. If I do not invest the capital gains that is parked in the capital gains account within 3 years, do I have to only pay 20% Long term capital gains tax on the gains, or is interest and penalty on the capital gains for 3 years also applicable (I am aware that I will have to pay capital gains on the interest accumulated in the capital gains account). This query is if there will be interest and penalty on the capital gains
    2. Assuming that there is no interest / penalty on the capital gains. Will this capital gains be treated as income for the financial year. If yes which year should I declare the income. I sold the property in Feb 2014, and the 3 year period end in Feb 2017 (FY 2016-2017); and I invested the capital gains in an capital gains accounts scheme in July 2014 and the 3 year period end in July 2017 (in FY 2017-2018). Should this be declared as income in FY 2016-2017 (3 years from sale of old property) or in FY 2017-2018 (3 years from investment in the capital gains account scheme)

    Your views will be very much appreciated

    regards

    P S Krishnan

  6. Avijit Ghosh says:

    As per my previous query reg closing of Capital Gain Account Scheme 1988 within 2/3 months after the opening of said account and investment in NHAI bond, i need your keen advise how to save capital gain tax in this situation.

  7. Avijit Ghosh says:

    Without understanding the terms and condition of CGAS1988, I opened an account on May 2016 and deposited a dd of Rs 35 Lakhs, which i acquired by selling property. Instead of buying asset by the capital gain amount, i decided to invest the same in NHAI bond by closing the above said account. My question is am i able to do this operation without paying capital gain tax. Of course I know that tax to be paid on interest acquired on CGAS 1988.

  8. Brahma Reddy says:

    i have sold one open plot in 26/06/15 and paid advance for purchase of residential house on 24/03/16 but was not registered yet. whether i can claim exemption U/s 54 for A.Y.2016-2017

  9. Nem Singh says:

    Very good work dear Mr. Vinay V. Kawdia, no doubt and it is clear from the wordings of section 54F(4) that assessee can utilize its consideration before the filing of return u/s 139 (in first part not mentioned any sub-section of provision of section 139 for due date of filing the return) for claiming exemption but purchase should be completed, one year before or two year after the date of transfer.. and this would be the good interpretation of the provisions of section 54F(4)

  10. K.K. GUPTA says:

    Query-

    Pl clarify the provision of Section 54F of Income tax Act,1961

    One of our assessee sold a land in June ,2014 for Rs. 80,00,000/-. He purchased a residential house in Noida in 2013(while already having 1 residential house property in his name) for Rs. 35,00,000/- and deposited the balance Rs. 45,00,000/- in capital gain account scheme in August,2015 i.e. as the due date for that year was 31 august,2015 for the purpose of filing the ITR.

    Now, he has to make the addition and alteration in the house purchased in Noida.

    Pl clarify the time limit for utilising the funds from capital gain account.

    Our query is whether he has to invest this amount by the end of june ,2016 or june,2017

  11. ashok kumar Balakrishnadas says:

    I think In the above explanation item number 4 should read as 31-3-2015 and not as 31-3-16 Please clarify

  12. ashok kumar Balakrishnadas says:

    Dear Mr J, you sold on 30-12-14 not 2104. You have to file return before 31-7-15. I think you simply calculate 30 Lacs received as CG and spent on 2-5-15

  13. g s naveen kumar says:

    its nice to have interaction.

  14. DINESH TIBAREWALA says:

    Query:- 

    One of my client has sold a residential flat on 27.12.12 for Rs 1.30 Cr. which was purchased by him in the year 2006 for Rs 30 Lacs. He has bought a residential flat on 15.04.2011 for Rs 1.20 Cr by entering into an agreement of sale with the builders and registered the documents by paying stamp duty and availed a housing loan against above purchase. He got the possession of the above residential flat on 28.12.2011 after paying the final payment . The sale proceeds received from sale of residential flat has been used to clear the housing loan towards purchase of new residential flat. 

    He desires to avail the  LTCG on sale of his residential flat sold on 27.12.12 as exempt U/S 54 

    My Queries are as under :-
    1. Which will be the date considered for purchased/transfer/sale in the case of above immovable property. ?
    a
    whether it will be the : Date of Registration of the Documents

    b
    whether it will be the : Date of agreement to sale entered

    c
    whether it will be the : Date of Possession

    2.The condition of purchase of 1 Year before and or 2 year after sale for availing the exemption u/s 54 is fulfilled in the above case or not ???

    3. The condition of purchase of i.e 1 year before i.e on 28.11.11 and Sale of 27.12.12 is the proper 1 year to claim exemption u/s 54 ? is also satisfied

    4. In the agreement to sale entered on 15.04.2011 the condition of handing over possession is mentioned as 31.12.2011

    5. In the case of purchase of immovable property which date is to be considered as purchase date for the purpose of availing exemption u/s 54
    Whether it is the date on which agreement is entered ? or 
    Whether it is the date on which agreement is registered and stamp duty paid ?
    or Whether it is the date of possession ?  assuming substantial payments are made towards purchase from borrowings and availing housing loan. 

    Please advice me in the above matter by citing some case laws.

  15. Kumar says:

    I have question: I have sold an old asset (residential/flat) in APR 2014 and made profit of X amount. Which is considered as capital gain. As on today 1st Sep 2015 (after due date) – I have not invested in NHAI bonds; did not deposit in capital gain scheme. I have not yet submitted the tax returns for the FY2014-15 (AY2015016) yet.

    Can I claim exemption under section 54, if I buy a new house now in a month’s time and then file returns? as I can buy new property in 2yeards from sale date?

  16. janardhan says:

    Hi,
    Could you please let me know if I sold the flat (say on 30Dec2104) and purchased the property and want to do regstration on (02 may 2015) for the amount I am entitled for the capital gain tax ( say Rs 30 L), do I need to pay the tax for the 30 L ( even I am registering the flat on 02 may 2015).

    Thx in advance
    Regards,
    Jananrdhan

  17. mkp says:

    Sirs I have a query

    1. Purchased a flat in Navi mumbai on 12/Feb/2004 for 10.5 lakhs
    2. Maintenance cost of 12000 every year since then .
    3. purchased a second flat on 10/9/2013 with Home loan. ( 64 lakhs , Homeloan 55 lakhs)
    4. sold Navi Mumbai property on 6th Feb for 48 lakhs

    Questions
    ———-
    1. Can i reinvest the gain from transfer of property to pay for second flat ?
    ( At this point I have only 1 flat ). will the limitation on 1 year before and 2 year after valid . I am asking since the previous I purchased using Homeloans .

    Pls advice how to proceed to minimize loan out go .

    Thanks,

  18. V.L.Parameshwaran says:

    Property sold on 30/03/2012. Capital gains not invested in Capital Gains Scheme. Return filed before due date without disclosing capital gains. Full capital gains invested in new property on 28/03/2013 and a revised return was filed 01/04/2013 U/s 139(5) disclosing the property sale and the capital gains invested. Can, the assessee, having utilised the entire capital gains by purchasing a house property before the extended due date under s. 139(4), is eligible for exemption under s. 54.

  19. Lakshmi Narayan says:

    I sold a land with capital gain in May 2013 ( purchased in 1993) and later sold an apartment without any capital gain during Nov 2013 ( purchased in Feb 2010). I invested the both the amount in an under construction apartment due for registration in May 2015. I want to sell that under construction apartment prior to registration and buy another apartment and register the same before 31sty March 2016.

    Pl. advise, whether this is acceptable under long term capital gain scheme as I have invested within 3 yeras of selling the property.

    • Kumar says:

      Please advise me reply if assessee sold joint property in ratio of 60 nd40% than exemption 54 will be divided in ratio or the amt received will be considered For exemption u/s 54

  20. MANOJ JAIN says:

    Dear Sir,
    I sold residential plot on 12/07/2012 & earn long term AMT RS-50 LAC.
    My planing purchase another plot against this AMT
    I invest this AMT to Capital gain A/C at PNB branch on-02/10/2012
    But till the date I cant purchase plot.
    Can I invest this AMT to NHI/REC bond now because I am not purchase plot by this AMT.

    Pls claer my query

  21. SRINIVAS says:

    purchased immovable asset in 2004 august and sold the asset in dec 2011.
    capital gains kept in term deposits under capital gains.
    can i pay tax and utilize the funds for my son education.
    if yes – what is the process?

  22. Jayesh Lalwani says:

    very nicely explained.

    • R.Chandrashekar says:

      Decision of Punjab & Haryana High Court (339 ITR)has held deposits made in capital gain account within the period specified in section 139(4)qualifies for deduction.

  23. Darshan Jain says:

    Nice article. Good presentation by way of an example. Keep it up!

  24. R.Chandrashekar says:

    Please look to recent decision of Karnataka High Court in ITA No.47/2014 wheren the Hon’ble Court has clarified with regard deposit of unutilised amount for claiming deduction u/s 54/54F of the Act

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