Sh. Devender Kumar Aggarwal, New Delhi v. CIT, New Delhi

ITA 3104/DEL/2014 | 2009-2010
Pronouncement Date: 25-10-2016 | Result: Allowed

Appeal Details

RSA Number 310420114 RSA 2014
Assessee PAN AAAPA1974F
Bench Delhi
Appeal Number ITA 3104/DEL/2014
Duration Of Justice 2 year(s) 5 month(s) 5 day(s)
Appellant Sh. Devender Kumar Aggarwal, New Delhi
Respondent CIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 25-10-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 25-10-2016
Date Of Final Hearing 22-08-2016
Next Hearing Date 22-08-2016
Assessment Year 2009-2010
Appeal Filed On 20-05-2014
Judgment Text
INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B : NEW DELHI BEFORE SHRI C.M.GARG JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI ACCOUNTANT MEMBER ITA NO. 3104/DEL/2014 (ASSESSMENT YEAR: 2009 - 10 ) DEVENDER KUMAR AGGARWAL 1533 RANU BAGH NEW DELHI PAN:AAAPA1974F VS. CIT DELHI - IX NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. SATISH KHOSLA ADV REVENUE BY: MS. MITALI MADHUSMITA CIT DR DATE OF HEARING 22/08/ 2016 DATE OF PRONOUNCEMENT 25 / 10 /2016 O R D E R PER PRASHANT MAHARISHI A. M. 1. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - IX NEW DELHI DATED 11.03.2014 FOR THE ASSESSMENT YEAR 2009 - 10. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORDER U/S 263 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX IS BAD IN LAW. 2. THE LD COMMISSIONER OF INCOME TAX HAS ERRED IN LAW AND ON FACTS OF THE CASE BY DENYING TO ALLOW THE DEDUCTION U/S 54EC OF THE I NCOME TAX ACT 1961 AMOUNTING TO RS. 4368767/ - AND PASSING AN ORDER U/S 263 OF THE INCOME TAX ACT 1961. 3. BRIEF FACTS OF THE CASES THAT ASSESSEE IS AN INDIVIDUAL WHO FILED HIS RETURN OF INCOME ON 28/08/2009 DECLARING INCOME OF RS. 157380/ . THE ASSESSEE W AS OWNER OF 50% OF SHARE IN INDUSTRIAL PL OT BEARING NO. 67 IN SECTOR A I N NEW DELHI 110040. THIS PROPERTY WAS SOLD FOR A CONSIDERATION OF RS. 48 LAKHS AS PER THE COPY OF SALE DEED DATED 02/04/2009 AND THE PAYMENT RECEIVED BY THE ASSESSEE HAVE BEEN DULY CR EDITED TO HIS ACCOUNT A S PER THE DETAILS IN THE SALE DEED. DURING THE YEAR THE ASSESSEE HAS INVESTED A SUM OF RS. 45 LACS IN NATIONAL HIGHWAY AUTHORITY OF INDIA BONDS FOR CLAIMING DEDUCTION UNDER SECTION 54EC OF THE INCOME TAX ACT FROM THE CAPITAL GAIN ON PAGE 2 OF 11 ON SALE OF THE PLOT. THE ASSESSMENT WAS MADE UNDER SECTION 143 ( 3 ) OF THE INCOME TAX ACT WHEREIN THE LD. ASSESSING OFFICER HAS NOTED THE FACT THAT ASSESSEE HAS CLAIMED EXEMPTION UNDER SECTION 54 EC ON SALE OF THE PROPERTY AND HE HAS OBTAINED THE COPIES OF T HE SAME FOR THE PURPOSE OF VERIFICATION. CONSEQUENTLY THE ASSESSMENT UNDER SECTION 143 (3) OF THE INCOME TAX ACT 1961 WAS PASSED ON 29/09/2011. SUBSEQUENTLY THE COMMISSIONER OF INCOME TAX PASSED AN ORDER UNDER SECTION 263 OF THE INCOME TAX ACT WHEREIN I T WAS HELD THAT THE CLAIM OF THE DEDUCTION UNDER SECTION 54EC AMOUNTING TO RS. 4368767/ WAS ERRONEOUSLY ALLOWED AND THEREFORE THE ORDER IS PREJUDICIAL TO THE INTEREST OF REVENUE. THE MAIN REASON GIVEN BY THE COMMISSIONER WAS THAT THAT THE ASSESSEE HAS REC EIVED THE PAYMENT WHICH WAS CREDITED IN HIS ACCOUNT ON 17 FEBRUARY 2009 AND THE SALE DEED WAS TENDERED FOR REGISTRATION ON 02/04/2009 WHEREAS THE AMOUNT OF INVESTMENT MADE BY THE ASSESSEE ON 31 ST OF MARCH 2009. THEREFORE IT WAS THE CONTENTION OF THE COMM ISSIONER THAT EVEN BEFORE THE AGREEMENT TO SELL ENTERED INTO BY THE PROPERTY FOR THE SALE OF PROPERTY THE ASSESSEE HAS MADE INVESTMENT IN THE BOND AND CLAIMED THE EXEMPTION. ACCORDING TO HIM FOR CLAIMING THE EXEMPTION THE INVESTMENT HAS TO BE MADE AFTER THE DATE OF TRANSFER OF THE PROPERTY. THEREFORE ACCORDING TO HIM. IN THIS CASE THE ASSESSEE HAS MADE INVESTMENT PRIOR TO THE DATE OF THE TRANSFER AND THEREFORE THE CLAIM UNDER SECTION 54 EC MADE B Y THE ASSESSEE IS NOT TENABLE AND ERRONEOUS. 4. THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED BEFORE US THAT THE POSSESSION LETTER OF THE PROPERTY WAS GIVEN TO THE BUYER ON 28 TH OF MARCH 2009 ALL THE PAYMENTS HAVE BEEN RECEIVED BY THE ASSESSEE BEFORE 28 TH OF M ARCH 2009. MERELY THE DATE OF REGISTRATION OF THE PROPERTY IS 2 ND OF APRIL 2009. HE FURTHER SUBMITTED THAT CIRCULAR NO. 359 DATED 10 TO MAY 1983 COVERS THE ISSUE SQUARELY IN FAVOUR OF THE ASSESSEE WHEREIN IT HAS BEEN HELD THAT IF THE ASSESSEE INVEST THE EA RNEST MONEY OR THE ADVANCE RECEIVED IN SPECIFIED ASSETS BEFORE THE DATE OF TRANSFER OF ASSET THE AMOUNT SO INVESTED WILL QUALIFY FOR EXEMPTION UNDER SECTION 54E OF THE INCOME TAX ACT. HE SUBMITTED THAT THE PROVISIONS OF SECTION 54E AND SECTION 54 EC ARE PA RI MATERIA THE SAME PROVISIONS. HE FURTHER RELIED ON THE DECISION OF THE NAGPUR BENCH OF THE TRIBUNAL WHEREIN 126 TTJ 545 WHEREIN ON THE IDENTICAL FACTS AND CIRCUMSTANCES OF THE CASE THIS CIRCULAR AS WELL AS THE IDENTICAL ISSUE WAS PAGE 3 OF 11 CONSIDERED BY THE COORD INATE BENCH AND CLAIM WAS ALLOWED. THEREFORE HE SUBMITTED THAT EVEN IF THE BOND INVESTMENT IS FALLING PRIOR TO THE DATE OF THE SALE DEED THE PROVISIONS OF SECTION 5 4EC ALLOW THE DEDUCTION TO THE ASSESSEE OF INVESTMENT MADE IN SPECIFIED BONDS. 5. LD. DEPARTME NTAL REPRESENTATIVE RELIED UPON THE PROVISIONS OF SECTION 54EC OF THE INCOME TAX ACT AND SUBMITTED THAT IF THE INVESTMENT IS MADE AFTER THE DATE OF TRANSFER OF THE PROPERTY THEN ONLY THE CLAIM OF EXEMPTION CAN BE ALLOWED TO THE ASSESSEE. HE THEREFORE STRON GLY SUBMITTED THAT ORDER PASSED BY THE LD. ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AND THEREFORE THE PROVISIONS OF SECTION 263 OF THE INCOME TAX ACT HAS BEEN CORRECTLY INVOKED BY THE COMMISSIONER OF INCOME TAX. HE STR ONGLY RELIED ON THE PROVISIONS OF THE SECTION 54EC WHEREIN IT IS STATED THAT IF THE INVESTMENT IS MADE AFTER THE DATE OF SUCH TRANSFER THEN ONLY THE DEDUCTION IS ALLOWABLE . IN THE PRESENT CASE IT IS MADE BEFORE THE TRANSFER OF THE SAID ASSET AND THEREFO RE NO DEDUCTION SHOULD BE ALLOWED TO THE ASSESSEE . 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. THE BRIEF FACTS NOTED ABOVE S HOWS HAT THE ASSESSEE HAS ENTERED INTO THE SALE DEED ON 2 ND OF APRIL 2009 WHEREAS THE AMOUNT WHICH IS INVESTED IN THE BON D ON 31 ST MARCH 2009 WAS RECEIVED BY THE ASSESSEE PRIOR TO THE DATE OF DEPOSIT IN THESE BONDS. THIS IS CLEAR FROM THE POSSESSION LETTER WHEREIN IT HAS BEEN STATED THAT THE TOTAL SALE CONSIDERATION OF RS. 96 LACS THE PAYMENTS HAVE BEEN MADE TO THE ASSESSE E ON 16. FEBRUARY 2009 AND 28 TH OF MARCH 2009 COMPLETELY. FROM THE ABOVE FACTS IT IS APPARENT THAT THE ASSESSEE HAS RECEIVED THE MONEY TOWARDS THE SALE OF THE PROPERTY ON OR BEFORE 28 TH OF MARCH 2009. THE INVESTMENT MADE BY THE ASSESSEE WAS ON 31 ST OF MAR CH 2009. THE CIRCULAR SUBMITTED BY THE APPELLANT BEFORE US IS WITH RESPECT TO THE PROVISIONS OF SECTION 5 4 E OF THE INCOME TAX ACT. HOWEVER WE COULD ALSO NOTE THAT THE PROVISIONS OF SECTION 54 E AND SECTION 5 4EC HAVE THE SIMILAR PROVISIONS OF MAKING INVESTMENT IN SPECIFIED SECURITIES AFTER THE DATE OF THE TRANSFER. THE CBDT HAS ISSUED THE CIRCULAR NO. 35 9 DATED 10/05/1983 WHEREIN IT IS STATED THAT IF THE ADVANCE HAS BEEN RECEIVED ON ACCOUNT OF SALE OF THE ASSETS AND IF SUCH AMOUNT IS ALSO INVESTED T HAT WILL QUALIFY FOR EXEMPTION UNDER SECTION 5 4E OF THE INCOME TAX ACT. THE CBDT HAS FURTHER STATED THAT THE ABOVE INTERPRETATION IS CONSIDERING THE PURPOSE AND SPIRIT OF THE SECTIONS. AND THE SPECIFIC ISSUE THAT HAS BEEN CONSIDERED BY THE CBDT. PAGE 4 OF 11 WHILE ISSU ING THE ABOVE CIRCULAR THAT IF THE PART OF THE CONSIDERATION IS INVESTED PRIOR TO THE DATE OF EXECUTION OF THE SALE DEED AS THE INVESTMENT WHETHER THE DEDUCTION ON EXEMPTION CAN BE GRANTED TO THE ASSESSEE OR NOT. IN THE PRESENT CASE THE ASSESSMENT HAS BEE N MADE UNDER SECTION 143 (3) OF THE INCOME TAX ACT AND WHEREIN THE ASSESSEE HAS SUBMITTED THE COPY OF THE BONDS THAT SHOWS THAT ON THE DATE ON WHICH THE AMOUNT OF INVESTMENT HAS BEEN MADE. THE ISSUE OF CAPITAL GAIN WAS ALSO BEFORE THE ASSESSING OFFICER. TH E APPLICATION OF THE CIRCULAR NO. 359 HAS BEEN CONSIDERED BY THE HONBLE BOMBAY HIGH COURT IN CASE OF PRAVEEN P BHARUCHA VERSUS DCIT IN 348 ITR 325 ALBEIT WITH REFERENCE TO THE PROVISIONS OF SECTION 148 OF THE INCOME TAX ACT WHEREIN IT HAS BEEN HELD AS U NDER: - 5. IT IS A WELL SETTLED POSITION IN LAW THAT THE POWER TO REOPEN A COMPLETED ASSESSMENT WITHIN THE PERIOD OF 4 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR IS VERY WIDE. NEVERTHELESS THIS POWER TO REOPEN AN ASSESSMENT WITHIN A PERIOD OF 4 YE ARS DOES NOT PERMIT REVIEW OF AN ASSESSMENT ORDER. THIS IS SETTLED BY THE SUPREME COURT IN THE MATTER OF CIT V. KELVINATOR OF INDIA LTD. [2010] 320 ITR 561 / 187 TAXMAN 312 WHEREIN IT HAS BEEN HELD AS UNDER: 'HOWEVER ONE NEEDS TO GIVE A SCHEMATIC INTERPRETATION TO THE WORDS 'REASON TO BELIEVE' FAILING WHICH WE ARE AFRAID SECTION 147 WOULD G IVE ARBITRARY POWERS TO THE ASSESSING OFFICER TO REOPEN ASSESSMENT ON THE BASIS OF 'MERE CHANGE OF OPINION' WHICH CANNOT BE PER SE REASON TO REOPEN. WE MUST ALSO KEEP IN MIND THE CONCEPTUAL DIFFERENCE BETWEEN POWER TO REVIEW AND POWER TO REASSESS. THE ASS ESSING OFFICER HAS NO POWER TO REVIEW; HE HAS THE POWER TO REASSESS. BUT ASSESSMENT HAS TO BE BASED ON FULFILLMENT OF CERTAIN PRECONDITIONS AND IF THE CONCEPT OF 'CHANGE OF OPINION' IS REMOVED AS CONTENDED ON BEHALF OF THE DEPARTMENT THEN IN THE GARB O F REOPENING THE ASSESSMENT REVIEW WOULD TAKE PLACE.' THE SUPREME COURT FURTHER HELD THAT THERE MUST BE TANGIBLE MATERIAL TO COME TO THE CONCLUSION THAT THERE HAS BEEN AN ESCAPEMENT OF INCOME. THE APEX COURT IN FACT UPHELD THE FULL BENCH DECISION OF THE DE LHI HIGH COURT IN MATTER OF CIT V. KELVINATOR OF INDIA LTD. [2002] 256 ITR 1 / 123 TAXMAN 433 WHEREIN IT HAS BEEN HELD THAT THE POWER TO REOPEN AN ASSESSMENT CANNOT EMPOWER AN OFFICER OF THE DEPARTMENT TO REOPEN THE PROCEEDING ON THE GROUND THAT AN EARLIER ORDER WAS PASSED WITHOUT APPLICATION OF MIND. AN EXERCISE OF POWER IN SUCH A MANNE R WOULD AMOUNT TO A REVIEW OF AN ORDER WHICH IS NOT PERMISSIBLE UNDER THE LAW. CONSEQUENTLY WHEN JURISDICTION IS EXERCISED TO REOPEN THE ASSESSMENT EVEN IN RESPECT OF PERIOD OF LESS THEN 4 YEARS THE AUTHORITIES UNDER THE ACT HAVE TO STRICTLY SATISFY THE C ONDITIONS WHICH PERMIT THEM TO REOPEN THE ASSESSMENT UNDER SECTION 147 OF THE SAID ACT. THIS COURT IN THE MATTER OF CARTINI INDIA LTD. V. ADDL. CIT [2009] 314 ITR 275 / 179 TAXMAN 157 HAS TAKEN A VIEW THAT REOPENING OF ASSESSMENT ON THE BASIS OF MATERIAL ALREADY ON RECORD AT THE TIME ASSESSMENT WAS COMPLETED CANNOT BE THE BASIS OF REOPENING TH E ASSESSMENT EVEN WITHIN THE NORMAL PERIOD OF 4 YEARS. 6. IN THE PRESENT CASE IT IS NOT DISPUTED THAT DURING THE COURSE OF ASSESSMENT PROCEEDING UNDER SECTION 143(2) AND (3) OF THE SAID ACT THE PETITIONER WAS ASKED BY A LETTER DATED 05.08.2008 OF RESPONDE NT NO.1 TO SUBMIT DETAILS OF INVESTMENT MADE UNDER SECTION 54EC OF THE SAID ACT. IT IS ALSO AN ADMITTED POSITION AS IS EVIDENT IN THE ASSESSMENT ORDER DATED 28.11.2008 THAT IN RESPONSE TO THE QUESTIONNAIRE DATED 05.08.2008 THE PETITIONER HAD FILED THE REQ UIRED DETAILS CALLED FOR. PAGE 5 OF 11 7. CONSEQUENTLY THE BASIC/PRIMARY DOCUMENT SHOWING INVESTMENT IN TERMS OF SECTION 54EC OF THE SAID ACT WAS ON RECORD BEFORE RESPONDENT NO.1 WHEN HE PASSED HIS ORDER DATED 28.11.2008 GRANTING THE BENEFIT OF DEDUCTION UNDER SECTION 54EC EVEN IN RESPECT OF THE INVESTMENT MADE OF RS.90.84 LACS IN NABARD BONDS AND NATIONAL HOUSING BONDS PRIOR TO THE SALE/CONVEYENCE OF LAND TO THE BUYER BY THE PETITIONER. CONSEQUENTLY IT FOLLOWS THAT RESPONDENT NO. 1 WHILE GRANTING THE ABOVE BENEFIT TO THE PETITIONER TOOK A VIEW THAT INVESTMENT MADE OUT OF EARNEST MONEY/ADVANCE RECEIVED AS A PART OF THE SALE CONSIDERATION BEFORE THE DATE OF THE TRANSFER OF THE ASSETS WOULD ALSO BE ENTITLED TO THE BENEFIT OF SECTION 54EC OF THE SAID ACT. THIS VIEW WAS A POSSIBLE VIEW IN VIEW OF THE CIRCULAR NO. 359 DATED 10.05.1983 AND THE DECISION OF THE TRIBUNAL IN THE MATTER OF RAMESH NARHARI JAKHADI ( SUPRA ). THE CIRCULAR NO.359 DATED 10.05.1983 INTER ALIA PROVIDES AS UNDER: '1. SECTION 54E PROVIDES FOR EXEMPTION OF LO NG TERM CAPITAL GAINS IF THE NET CONSIDERATION IS INVESTED BY THE ASSESSEE IN SPECIFIED ASSETS WITHIN A PERIOD OF SIX MONTHS AFTER THE DATE OF SUCH TRANSFER. A TECHNICAL INTERPRETATION OF SECTION 54E COULD MEAN THAT THE EXEMPTION FROM TAX ON CAPITAL GAINS WOULD NOT BE AVAILABLE IF PART OF THE CONSIDERATION IS INVESTED PRIOR TO THE DATE OF EXECUTION OF THE SALE DEED AS THE INVEST CANNOT BE REGARDED AS HAVING BEEN MADE WITHIN A PERIOD OF SIX MONTHS AFTER THE DATE OF TRANSFER. 2. ON CONSIDERATION OF THE MATTER IN CONSULTATION WITH THE MINISTRY OF LAW IT IS FELT THAT THE FOREGOING INTERPRETATION WOULD GO AGAINST THE PURPOSE AND SPIRIT OF THE SECTION. AS THE SECTION CONTEMPLATES INVESTMENT OF THE NET CONSIDERATION IN SPECIFIED FOR A MINIMUM PERIOD AND AS EARNEST MONEY OR ADVANCE IS A PART OF THE SALE CONSIDERATION THE BOARD HAS DECIDED THAT IF THE ASSESSEE INVEST THE EARNEST MONEY OR THE ADVANCE RECEIVED IN SPECIFIED ASSETS BEFORE THE DATE OF TRANSFER OF ASSET THE AMOUNT SO INVESTED WILL QUALIFY FOR EXEMPTION U NDER SECTION 54E.' 8. THE TRIBUNAL IN THE CASE OF RAMESH NARHARI JAKHADI ( SUPRA ) WHILE CONSTRUING SECTION 54B OF THE SAID ACT APPLIED THE CIRCULAR NO.359 DATED 10.5.1983 TO HOLD THAT AN INVESTMENT MADE IN BONDS OUT OF ADVANCE RECEIVED FOR TRANSFER OF LAND BEFORE THE ACTUAL DATE OF TRANSFER WOULD BE ENTITLED TO THE BENEFIT OF EXEMPTION UNDER SECTION 54B OF THE SAID ACT. THEREFORE THE VIEW TAKEN BY RESPONDENT NO.1 IN THE ORDER DATED 28.11.2008 IS A POSSIBLE VIEW IN LAW AND THE NOTICE ISSUED TO REOPEN THE AS SESSMENT IS ONLY ON ACCOUNT OF CHANGE OF OPINION. IN FACT IN THE AFFIDAVIT IN REPLY DATED 19.12.2012 THE RESPONDENT NO. 1 HAS STATED THAT REASSESSMENT PROCEEDINGS WITHIN A PERIOD OF 4 YEARS CAN BE INITIATED ON ACCOUNT OF CHANGE OF OPINION. THIS IS IN THE F ACE OF THE DECISION OF THE APEX COURT IN THE MATTER OF KELVINATOR OF INDIA LTD. ( SUPRA ). THE REASONS RECORDED FOR REOPENING THE ASSESSMENT REFER ONLY TO FACTS WHICH WERE ALREADY ON RECORD AT THE TIME WHEN ASSESSMENT ORDER DATED 28.11.2008 WAS PASSED. 9. FURTHER AT THE HEARING MR. VIMAL GUPTA CONTENDED THAT RESPONDENT NO.1 WHILE PASSING THE ORDER OF THE ASSESSMENT DATED 28.11.2008 DID NOT APPLY HIS MIND AND/OR CONSIDER THE FACT THAT RS. 90.84 LACS HAD BEEN INVESTED IN TERMS OF SECTION 54EC PRIOR TO THE C OMPLETION OF SALE. THE BASIS OF HIS AFORESAID SUBMISSION IS THAT THE SAME IS NOT DISCUSSED IN THE ORDER DATED 28.11.2008. THIS GROUND URGED BY MR. GUPTA DURING THE HEARING IS A NEW GROUND WHICH DOES NOT FIND MENTION IN THE REASONS RECORDED FOR REOPENING OF ASSESSMENT. AS HELD BY THIS COURT IN THE MATTER OF HINDUSTAN LEVER LTD. V. R.B. WADKAR [2004] 268 ITR 332 / 137 TAXMAN 479 IT IS NOT OPEN TO IMPROVE UPON THE REASONS RECORDED AT THE TIME OF REOPENING THE ASSESSMENT BY FILING AN AFFIDAVIT AND/OR MAKING ORAL SUBMISSIONS AT THE HEAR ING OF THE PETITION. THE COURT VERY CATEGORICALLY HELD THAT THE REASONS RECORDED MUST CLEARLY ESTABLISH SOME FACTS OR MATERIAL WHICH LEAD TO ESCAPEMENT OF INCOME. IN ANY VIEW OF THE MATTER THE AFORESAID SUBMISSION IS NOT SUSTAINABLE FOR THE REASON THAT IF A QUERY IS RAISED DURING ASSESSMENT PROCEEDINGS AND THE ASSESSEE MEETS THE QUERY AND/OR SUPPLIES THE INFORMATION CALLED FOR IT MUST BE PRESUMED THAT THE OFFICER WAS SATISFIED BEFORE PAGE 6 OF 11 ALLOWING THE CLAIM AND THERE IS NO NEED TO DISCUSS THE MATTER IN HIS ASSE SSMENT ORDER. AS OBSERVED BY THE GUJARAT HIGH COURT IN THE MATTER OF CIT V. NIRMA CHEMICALS WORKS (P.) LTD. [2009] 309 ITR 67 / 182 TAXMAN 183 . 'THE CONTENTION ON BEHALF OF THE REVENUE THAT THE ASSESSMENT ORDER DOES NOT REFLECT ANY APPLICATION OF MIND AS TO THE ELIGIBILITY OTHERWISE UNDER SECTION - 80 - I OF THE ACT REQUIRES TO BE NOTED TO BE RE JECTED. AN ASSESSMENT ORDER CANNOT NOT INCORPORATE REASONS FOR MAKING/GRANTING A CLAIM OF DEDUCTION. IF IT DOES SO AN ASSESSMENT ORDER WOULD CEASE TO BE AN ORDER AND BECOME AN EPIC TOME. THE REASONS ARE NOT FAR TO SEEK. FIRSTLY IT WOULD CAST AN ALMOST IM POSSIBLE BURDEN ON THE ASSESSING OFFICER CONSIDERING THE WORKLOAD THAT HE CARRIES AND THE PERIOD OF LIMITATION WITHIN WHICH AN ORDER IS REQUIRED TO BE MADE; AND SECONDLY THE ORDER IS AN APPEALABLE ORDER. AN APPEAL LIES WOULD BE FILED ONLY AGAINST DISALL OWANCES WHICH AN ASSESSEE FEELS AGGRIEVED WITH'. 10. FURTHER THE REASONS RECORDED BY RESPONDENT NO.1 FOR REOPENING THE ASSESSMENT DO NOT STATE THAT THE DEDUCTION UNDER SECTION 54E WAS NOT CONSIDERED IN THE ASSESSMENT PROCEEDINGS. IN FACT FROM THE REASONS IT APPEARS THAT ALL FACTS WERE AVAILABLE ON RECORD AND ACCORDING TO THE RESPONDENTS WAS ONLY ERRONEOUSLY GRANTED. THIS IS A CLEAR CASE OF REVIEW OF AN ORDER. THE APPLICATION OF LAW OR INTERPRETATION OF A STATUE LEADING TO A PARTICULAR CONCLUSION CANNOT LEA D TO A CONCLUSION THAT TAX HAS ESCAPED ASSESSMENT FOR THIS WOULD THEN CERTAINLY AMOUNT TO REVIEW OF AN ORDER WHICH IS NOT PERMITTED UNLESS SO SPECIFIED IN A STATUE. THE ORDER DATED 14.11.2011 DISPOSING OF THE PETITIONER'S OBJECTION TO INITIATION OF PROCEED INGS UNDER SECTION 147 OF THE SAID ACT ALSO PROCEEDS ON THE VIEW THAT THERE HAS BEEN NON APPLICATION OF MIND DURING THE ORIGINAL PROCEEDINGS FOR ASSESSMENT. THIS IS UNSUSTAINABLE AND AS HELD THIS COURT IN ASIAN PAINTS LTD. V. DY. CIT [2009] 308 ITR 195 A FRESH APPLICATION OF MIND BY THE ASSESSING OFFICER ON THE SAME SET OF FACTS AMOUNTS TO A CHANGE OF OPINION AND DOES NOT WARRANT REOPENING. IN FACT OUR COURT FOLLOWED THE FUL L BENCH DECISION OF THE DELHI HIGH COURT IN THE MATTER OF KELVINATOR OF INDIA LTD. ( SUPRA ) WHEREIN IT HAS BEEN HELD AS UNDER: 'WE ALSO CANNOT ACCEPT THE SUBMISSION OF MR. JOLLY TO THE EFFECT THAT ONLY BECAUSE IN THE ASSESSMENT ORDER DETAILED REASONS HAVE NOT BEEN RECORDED AN ANALYSIS OF THE MATERIALS ON THE RECORD BY ITSELF MAY JUSTIFY THE ASSESSING OFFICER TO INITIATE A PROCEEDING UNDER SECTION 147 OF THE ACT. THE SAID SUBMISSION IS FALLACIOUS. AN ORDER OF ASSESSMENT5 CAN BE PASSED EITHER IN TERMS OF SUB SECTION (1)OF SECTION 143 OR SUB - SECTION (3) OF SECTION 143. WHEN A REGULAR ORDER OF ASSESSMENT IS PASSED IN TERMS OF THE SAID SUB - SECTION (3) OF SECTION 143 A PRESUMPTION CAN BE RAISED THAT SUCH AN ORDER HAS BEEN PASSED ON APPLICATION OF MIND. IT IS WELL KNOWN THAT A PRESUMPTION CAN ALSO BE RAISED TO THE EFFECT THAT IN TERMS OF CLAUSE (E) OF SECTION 114 OF THE INDIAN EVIDENCE ACT JUDICIAL AND OFFICIAL ACTS HAVE BEEN REGULARLY PERFORMED. IF IT BE HELD THAT AN ORDER WHICH HAS BEEN PASSED PURPORTEDLY WITHOUT APPLICATION OF MIND WOULD ITSELF CONFER JURISDICTION UPON THE ASSESSING OFFICER TO REOPEN THE PROCEEDING WITHOUT ANYTHING FURTHER THE SAME WOULD AMOUNT TO GIVING A PREMIUM TO AN AUTHORITY EXERCISING QUASI JUDICIAL FUNCTION TO TAKE BENEFIT OF ITS OWN WRONG '. 11. ONE MORE POINT VERY STRENUOUSLY URGED BY MR. GUPTA FOR THE REVENUE WAS THAT THE COURT SHOULD NOT AT THIS STAGE QUASH THE PROCEEDINGS AS THE ONLY OBLIGATION OF THE REVENUE IS TO ESTABLISH THAT PRIMA FACIE MATERIAL EXISTS TO SHOW THAT INCOME HAS ESCAP ED ASSESSMENT AND THE PARTY CAN THEREAFTER ESTABLISH IN REASSESSMENT PROCEEDINGS THAT THE DEDUCTIONS AS ALLOWED IN THE ORIGINAL ASSESSMENT PROCEEDINGS ARE VALID. 12. THE ISSUE HERE IS ONE OF JURISDICTION TO ISSUE NOTICE AND NOT SUFFICIENCY OF REASONS IN I SSUING A NOTICE FOR REASSESSMENT. WE ARE CONSIDERING THE JURISDICTION TO ISSUE A PAGE 7 OF 11 NOTICE UNDER SECTION 148 TO REOPEN PROCEEDINGS. IN VIEW OF WHAT IS STATED EARLIER WE DO NOT FIND ANY MERIT IN THIS CONTENTION. 13. IN VIEW OF THE ABOVE THE NOTICE UNDER SECT ION 148 DATED 31.03.2011 IS WITHOUT JURISDICTION AND WE SET ASIDE THE SAME. SIMILARLY THE ORDER REJECTING THE OBJECTIONS RAISED BY THE PETITIONER DATED 14.11.2011 IS ALSO SET ASIDE AS RESPONDENT NO.1 HAS NOT SATISFIED THE JURISDICTIONAL REQUIREMENT TO ISS UE NOTICE UNDER SECTION 148 OF THE SAID ACT. 7. FURTHER COORDINATE BENCH IN HAS DECIDED IDENTICAL ISSUE IN HEMANT KUMAR NEMA V ACIT [ 67 SOT 49] AS UNDER : - 5. GROUND NO. 2 IN I.T.A.NO. 423/IND/2013 GROUND NO. 2 IN I.T.A.NO. 424/IND/2013 GROUND NO. 3 IN I.T.A.NO. 425/IND/2013 AND GROUND NO. 2 IN I.T.A.NO. 426/IND/13 BOTH THE PARTIES AGREED IS THE COMMON GROUND AND WHATEVER VIEW THIS TRIBUNAL MAY TAKE ON THE BASIS OF GROUND NO.2 IN I.T.A.NO. 423/IND/2013 THE SAME VIEW MAY BE TAKEN IN THE OTHER APPEAL. THIS GROUND READS AS UNDER '2. THAT THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN DENYING EXEMPTION TO THE EXTENT OF RS. 50 LACS CLAIMED BY APPELLANT U/S 54EC OF THE ACT IN RESPECT OF THE INVESTMENT MADE IN REC BONDS ON 31.03.2008 HOLDING THAT THE SAID INVESTMENT WAS MADE BEFORE THE DATE OF TRANSFER OF THE PROPERTY. ' 6. WE THEREFORE DECIDE TO DISPOSE OF THE GROUND IN I.T.A.NOS. 423 TO 426/IND/2013 ON THE BASIS OF THE FACTS RELATING TO I.T.A.NO. 423/IND/2013 IN THE CASE OF SHRI HEMANT KUMAR NEMA. 7. THE BRIEF FACTS OF THE CASE RELATING TO THESE GROUNDS ARE THAT THE ASSESSING OFFICER NOTED THAT THE ASSESSEE INVESTED A SUM OF RS. 50 LACS IN RURAL ELECTRIFICATION BOND (REC) AND CLAIMED IT AS DEDUCTION U/S 54EC. THE ASSESSING OFFICER NOTED THAT THE INVESTMENT IN REC BOND WAS MADE DURING THE FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR. THE ASSESSEE WAS NOT ELIGIBLE FOR DEDUCTION UNDER THE SAID SECTION AS THE INVESTMENT IN SPECIFIED BOND WAS REQUIRED TO BE MADE AFTER THE CAPITAL ASSET IS TRANSFERRED. THE ASSESSING OFFICER THEREFORE REOPENED THE ASSESSMENT AND ALLOWED THE EXEMPTION U/S 54EC. IT WAS ALSO NOTED BY HIM THA T THE ASSESSEE WAS ONE OF THE OWNERS OF THE PROPERTY AT KESHAR BAGH ROAD WITH SHRI GOPALDAS NEMA AND SHRI SUBHASH CHANDRA NEMA THE PROPERTY WAS SOLD FOR A CONSIDERATION OF RS. 7 CRORES TO M/S. BRIJ REAL ESTATE THE SHARE OF EACH OF THE COOWNER WAS RS. 1.7 5 CRORES AND AGAINST WHICH EACH OF THE OWNER INVESTED IN REC BOND ON 25.3.2008. THE TRANSFER OF THE PROPERTY HAS TAKEN PLACE SUBSEQUENT TO THE INVESTMENT ALTHOUGH EACH OF THE OWNER HAS RECEIVED ADVANCES PRIOR TO THE DATE OF INVESTMENT AGAINST THE SALE OF T HE SAID PROPERTY. 8. THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A). THE LD.CIT(A) NOTED FROM THE COPY OF THE AGREEMENT FILED BY THE ASSESSEE THAT THE AGREEMENT TO SALE IS DATED 22.1.2008 AND THE SCHEDULE OF THE PAYMENT AS PER THE AGREEMENT WAS AS UNDER : C HEQUE NO. 501186 DATED 22.1.2008 RS.95 00 000 CHEQUE NO. 501182 DATED 24.1.2001 RS. 80 000/ - PAYMENT TO BE MADE TILL 01.05.2008 AS PER CONVENIENCE RS. 5 25 00 000/ - 9. THE ASSESSING OFFICER THEREFORE TOOK THE VIEW THAT THE TRANSFER HAS NOT TAKEN PLACE BEF ORE 25TH MARCH 2008 I.E. THE DATE OF INVESTMENT OF RS. 50 LACS IN REC BOND BY EACH OF THE COOWNER. HE THEREFORE CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME ALONGWITH THE ORDERS OF THE TAX AUTHORITIES BELOW AS WELL AS THE SUBMISSIONS MADE BEFORE US FROM BOTH THE SIDES. WE NOTED THAT THIS IS AN UNDISPUTED FACT THAT ALL THE FOUR ASSESSEES ENTERED INTO AN AGREEMENT WITH SHRI DEEPAK S/O SHRI NANAK RAM JI KALRA R/O 6 PAGE 8 OF 11 SHRIRAM NAGAR I NDORE FOR THE SALE OF SURVEY NO. 1465 MEASURING 1.49 ACRES SITUATED AT KESHAR BAGH ROAD INDORE PROPERTY FOR A CONSIDERATION OF RS. 7 CRORES. AS PER THE TERMS CLAUSE (2) OF AGREEMENT THE CONSIDERATION HAS TO BE PAID AS UNDER CHEQUE NO.501186 DATED 22.1. 2008 95 00 000/ - CHEQUE NO. 501182 DATED 24.1.2001 80 000/ - PAYMENT TO BE MADE TILL 01.05.2008 AS PER CONVENIENCE RS. 5 25 00 000/ - 11. SUBSEQUENTLY THE POSSESSION LETTER WAS EXECUTED ON 25.03.2008 AND AS PER CLAUSE (2) OF THE POSSESSION LETTER THE COPY OF WHICH IS AVAILABLE FROM PAGES 51 TO 56. AS NOTARIZED IT WAS MENTIONED THAT AS ON THAT DATE EACH OF THE OWNER HAS DELIVERED POSSESSION TO THE BUYER AS ON 25.2.2008. AS ON THAT DATE THE CONSIDERATION WAS PAID BY ISSUING THE FOLLOWING CHEQUES IN FAVOUR OF THE RESPECTIVE CO - OWNERS ( I ) SHRI HEMANT KUMAR NEMA : RS. 50 00 000/ BY CHEUQE NO. 573711 DATED 25.3.2008 OF UNION BANK RECEIVED FROM DEEPAK KALRA. RS. 75 00 000/ BY CHEQUE NO. 573727 DATED 10.04.08 OF UNION BANK RECEIVED FROM DEEPAK KALRA. RS. 50 00 000/ BY CHEQUE NO. 573728 DATED 10.04.08 OF UNION BANK RECEIVED FROM DEEPAK KALRA. RS. 1 75 00 000 - 00 ( II ) SHRI VIJAY KUMARJI NEMA : RS. 50 00 000/ BY CHEUQE NO. 573712 DATED 27.3.2008 OF UNION BANK RECEIVED FROM DEEPAK KALRA. RS. 75 00 000/ BY CHEQUE NO. 573729 DATED 10.04.08 OF UNION BANK RECEIVED FROM DEEPAK KALRA. RS. 50 00 000/ BY CHEQUE0 NO. 573730 DATED 10.04.08 OF UNION BANK RECEIVED FROM DEEPAK KALRA. RS. 1 75 00 000 - 00 ( III ) SHRI GOPALDAS JI NEMA : RS. 75 00 000/ - BY CHEUQE NO. 501186 DATED 22.1.2008 OF UNION BANK RS. 50 00 000/ - BY CHEQUE NO. 573725 DATED 10.04.08 OF UNION BANK RECEIVED FROM DEEPAK KALRA. RS. 50 00 000/ - BY CHEQUE NO. 573728 DATED 10.04.08 OF UNION BANK RECEIVED FROM DEEPAK KALRA RS. 1 75 00 000 - 00 ( IV ) SHRI SUBHASHCHANDRA JI NEMA : 1 75 00 000/ - BY CHEQUE NO. 573704 DATED 04.03.2008 OF UNION BANK RECEIVED FROM DEEPAK KALRA. RS. 1 75 00 000 - 00 12. IN VIEW OF THE AFORESAID POSSESSION LETTER EXECUTED AS ON 25.3.2008 IT IS APPARENT THAT EACH OF THE COOWNER HAD RECEIVED MORE THAN RS. 50 LAKHS ON 25.3.2008. THE EACH PAGE 9 OF 11 OF THE COOWNER HAD RECEIVED MORE THAN RS. 50 LAKHS ON 25.3.2008. THE EACH OF THE COOWNE R HAS ISSUED THE CHEQUE FOR PURCHASE OF THE BOND. OUT OF THE PART OF THE CONSIDERATION RECEIVED EACH OF THE SELLER. THE BONDS WERE ULTIMATELY ALLOTTED TO EACH OF THE COOWNER ON 31.3.2008. THEREFORE THIS REMAINS AN UNDISPUTED FACT THAT THE INVESTMENTS ARE MADE IN THE REC BOND. OUT OF THE PART OF THE CONSIDERATION RECEIVED FOR THE SALE OF THE AFORESAID PROPERTY. THIS IS ALSO FACT THAT THE REVENUE HAS ASSESSED THE CAPITAL GAINS IN RESPECT OF THE SAID PROPERTY IN THE HANDS OF THE EACH OF THE COOWNER IN THE AFO RESAID ASSESSMENT YEAR IN VIEW OF THE PROVISIONS OF SECTION 2(47). THE ONLY CONTENTION OF THE REVENUE BEFORE US IS THAT SINCE THE PROVISIONS OF SECTION 54EC SPECIFICALLY PROVIDES THAT THE DEDUCTION U/S 54EC HAS TO BE MADE IF THE INVESTMENTS ARE MADE WITHIN A PERIOD OF SIX MONTHS AFTER THE DATE OF SUCH TRANSFER. IN THIS REGARD THE ASSESSEE HAS RELIED ON THE FOLLOWING CIRCULAR ISSUED BY THE DEPARTMENT WHICH READS AS UNDER : 'CIRCULAR NO. 359 DATED 10TH MAY 1983. SUB : SECTION 54E - WHETHER THE INVESTMENT OF EARNEST MONEY OR ADVANCE RECEIVED IN SPECIFIED ASSETS BEFORE THE DATE OF TRANSFER VITIATES CLAIM FOR EXEMPTION - CLARIFICATION REGARDING. SECTION 54E OF THE INCOME - TAX ACT 1961 PROVIDES FOR EXEMPTION OF LONG - TERM CAPITAL GAINS IF THE NET CONSIDERATION IS INVESTED BY THE ASSESSEE IN SPECIFIED ASSETS WITHIN A PERIOD OF SIX MONTHS AFTER THE DATE OF SUCH TRANSFER. A TECHNICAL INTERPRETATION OF SECTION 54E COULD MEAN THAT THE EXEMPTION FROM TAX ON CAPITAL GAINS WOULD NOT BE AVAILABLE IF PART OF THE CONSIDER ATION IF INVESTED PRIOR TO THE DATE OF EXECUTION OF THE SALE DEED AS THE INVESTMENT CANNOT BE REGARDED AS HAVING BEEN MADE WITHIN A PERIOD OF SIX MONTHS AFTER THE DATE OF TRANSFER. 2. ON CONSIDERATION OF THE MATTER IN CONSULTATION WITH THE MINISTRY OF LAW IT IS FELT THAT THE FOREGOING INTERPRETATION WOULD GO AGAINST THE PURPOSE AND SPIRIT OF THE SECTION. AS THE SECTION CONTEMPLATES INVESTMENT OF THE NET CONSIDERATION IN SPECIFIED ASSETS FOR A MINIMUM PERIOD AND AS EARNEST MONEY OR ADVANCE IS A PART OF THE SALE CONSIDERATION THE BOARD HAVE DECIDED THAT IF THE ASSESSEE INVESTS THE EARNEST MONEY OR THE ADVANCE RECEIVED IN SPECIFIED ASSETS BEFORE THE DATE OF TRANSFER OF ASSETS THE AMOUNT SO INVESTED WILL QUALIFY FOR EXEMPTION UNDER SECTION 54E OF THE INCOME - T AX ACT 1961. YOURS FAITHFULLY SD/ - P.SAXENA SECRETARY CBDT ( F.NO.207/8/82 - ITA.II) ' 13. FROM THIS CIRCULAR ALTHOUGH IT IS WITH REFERENCE TO THE INTERPRETATION OF THE PROVISIONS AS ARE STIPULATED U/S 54E IT IS APPARENT THAT ALTHOUGH THE WORDING IN THE SECTION ARE SIMILAR TO THE PROVISIONS OF SECTION 54EC THAT THE INVESTMENT IN THE SPECIFIED ASSETS HAS TO BE MADE WITHIN PERIOD OF SIX MONTHS AFTER THE DATE OF SUCH TRANSFER BUT THE BOARD HAS CLEARLY LAID DOWN IN THE CIRCULAR UNDER PARA (2) THAT IN ITS OPTION IT IS FELT THAT IF STATUTORY INTERPRETATION IS TAKEN THAT THE INVESTMENT HAS TO BE MADE AFTER THE DATE OF TRANSFER THIS INTERPRETATION WOULD GO AGAINST THE PURPOSE AND SPIRIT OF THE SECTION. THE SECTION CONTEMPLATES INVESTMENT OF THE NET CONSIDERATION IN THE SPECIFIED ASSETS FOR THE MINIMUM PERIOD AND AS EARNEST MONEY OR ADVANCE IS A PART O F THE SALE CONSIDERATION. THEREFORE THE BOARD HAVE DECIDED THAT IF THE ASSESSEE INVESTS THE EARNEST MONEY ON THE ADVANCE RECEIVED IN THE SPECIFIED ASSETS BEFORE THE DATE OF THE TRANSFER OF THE ASSETS THE AMOUNT SO INVESTED WILL QUALIFY FOR EXEMPTION U/S 54E OF THE INCOME - TAX ACT 1961. EVEN THOUGH THIS CIRCULAR HAS BEEN ISSUED FOR THE PURPOSE OF AVAILING OF THE EXEMPTION U/S 54E BUT IF WE SEE THE LOGIC AND THE LANGUAGE OF BOTH THE SECTIONS THE PURPOSE OF ALLOWING THE EXEMPTION TO THE ASSESSEE FOR MAKING THE INVESTMENT IN SPECIFIED ASSETS IS THAT THE ASSESSEE SHOULD INVEST IN THE SPECIFIED ASSETS OUT OF THE PART OF THE CONSIDERATION RECEIVED BY HIM. ON THE FACTS OF THIS IT IS APPARENT THAT EACH OF THE ASSESSEE HAS INVESTED INTO THE REC BOND EVEN THOUGH P RIOR PAGE 10 OF 11 TO THE TRANSFER BUT OUT OF THE PART OF THE CONSIDERATION RECEIVED ON THE SALE OF THE ASSETS IN RESPECT OF WHICH THE CAPITAL GAIN HAS BEEN ASSESSED. 14. WE NOTED THAT THE SIMILAR ISSUE HAS ARISEN BEFORE THE PUNE BENCH B OF I.T.A.T. IN I.T.A.NO. 1672/PN /2011 AND I.T.A.NO. 152/PN/2012 DATED 28 - 6 - 2013 IN THE CASE OF SUBHASH VINAYAK SUPNEKAR V. DY. CIT PUNE IN WHICH THE HON'BLE TRIBUNAL WHILE ALLOWING THE RELIEF TO THE ASSESSEE HELD AS UNDER : 'WE FIND THE CBDT VIDE CIRCULAR NO.359 (F.NO.207/8/82 - IT(A - LL) DATED 10 - 05 - 1983 HAS HELD THAT EARNEST MONEY OR ADVANCE IS A PART OF THE SALE CONSIDERATION AND THEREFORE IF THE ASSESSEE INVESTS THE EARNEST MONEY OR THE ADVANCE RECEIVED IN SPECIFIED ASSETS BEFORE THE DATE OF TRANS FER OF THE ASSET THE AMOUNT SO INVESTED WILL QUALIFY FOR EXEMPTION U/S. 54E. ALTHOUGH IN THE INSTANT CASE THE ISSUE IS U/S.54EC HOWEVER WE FIND THE LANGUAGE IN THE ABOVE SECTION IS SIMILAR TO THAT OF SECTION 54. THEREFORE WE FIND FORCE IN THE ARGUMENTS OF THE LD. COUNSEL FOR THE ASSESSEE THAT EARNEST MONEY OR ADVANCE MONEY IS A PART OF SALE CONSIDERATION. 8.2 WE FIND THE NAGPUR BENCH OF THE TRIBUNAL IN THE CASE OF BHIKULAL CHANDAK (HUF) V S. ITO 126 TTJ 545 HAS HELD THAT ASSESSEE CANNOT BE TREATED AS DEFAULTER IN MAKING INVESTMENT IN BONDS AS REQUIRED U/S. 54EC ON RECEIPT OF ADVANCE AS PER THE AGREEMENT TO SELL PROPERTY AND CLAIMING EXEMPTION U/S. 54EC. SO FAR AS THE DECI SION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF HINDUSTAN UNILEVER LTD. (SUPRA) RELIED ON BY THE LD. CIT(A) IS CONCERNED WE FIND THE SAME IS DISTINGUISHABLE AND NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. THE HON'BLE COURT IN THE SAID CASE HAS HE LD THAT FOR THE PURPOSE OF CLAIMING DEDUCTION UNDER THE PROVISIONS OF SECTION 54EC THE DATE OF INVESTMENT BY THE ASSESSEE MUST BE RECORDED AS THE DATE ON WHICH PAYMENT WAS MADE AND RECEIVED BY THE NATIONAL HOUSING BANK. SINCE IN THAT CASE THE INVESTMENT W AS WITHIN A PERIOD OF 6 MONTHS FROM THE DATE OF TRANSFER OF THE ASSET THE HON'BLE COURT HELD THAT THE PROVISIONS OF SECTION 54EC WERE COMPLIED WITH BY THE ASSESSEE. HOWEVER IN THE INSTANT CASE THE ISSUE IS REGARDING ADVANCE MONEY RECEIVED ON THE BASIS OF AGREEMENT TO SALE AND THE APPLICABILITY OF SECTION 54EC ON ACCOUNT OF INVESTMENT IN SPECIFIED BOND OUT OF ADVANCE MONEY BUT BEFORE THE DATE OF ACTUAL SALE. THEREFORE THE SAID DECISION IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. WE ALSO DO NOT FIN D FORCE IN THE SUBMISSION OF THE LD. DEPARTMENTAL REPRESENTATIVE THAT THE ACT DOES NOT CONTEMPLATE ANY ADVANCE AND THAT THE CBDT CIRCULAR NO. 359 DATED 10 - 5 - 1983 IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE.' 15. RE SPECTFULLY FOLLOWING THE AFORESAID DECISION AND IN VIEW OF OUR DISCUSSION IN THE PRECEDING PARAGRAPHS WE SET - ASIDE THE ORDER OF THE CIT(A) ON THIS ISSUE AND ALLOW THE GROUND TAKEN BY THE ASSESSEE AND DIRECT THE ASSESSING OFFICER TO ALLOW DEDUCTION TO ALL THE ASSESSEES U/S 54EC. THUS ALL THE APPEALS FILED BY THE ASSESSEES ARE PARTLY ALLOWED. 8. FROM READING OF THE ABOVE DECISION S IT IS APPARENT THAT LD. ASSESSING OFFICER HAS TAKEN ONE OF THE POSSIBLE VIEWS ON ALLOWING THE DEDUCTION/EXEMPTION TO THE ASSESSEE UNDER THE PROVISIONS OF SECTION 54 EC OF THE INCOME TAX ACT. WHERE OUT OF THE TWO VIEWS POSSIBLE THE ASSESSING OFFICER HAS TAKEN ONE OF THE POSSIBLE VIEWS THEN IT CANNOT BE SAID THAT THE ORDER OF THE LD. ASSESSING OFFICER IS ERRONEOUS. IN VIEW OF THIS WE HOLD THAT THE LD. COMMISSIONER OF INCOME TAX HAS ERRED IN PASSING THE ORDER UNDER SECTION 263 OF THE INCOME TAX ACT AND THE REFORE THE ORDER UNDER APPEAL PASSED BY THE LD. COMMISSIONER OF INCOME TAX UNDER SECTION 263 OF THE INCOME TAX ACT DATED PAGE 11 OF 11 11/03/2014 IS HEREBY SET ASIDE. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 5 / 10 /2016. - S D / - - S D / - ( C.M.GARG ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 5 / 1 0 /2016 A K KEOT COPY FORWARDED TO 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT NEW DELHI