Tax Consultation (US and India)
2970 Points
Posted on 18 January 2015
Withdrawl is allowed only for the specific purpose, if amount is not utilized then the section under which you claimed exemption [54F, in this case] specifically states that such un-utilized amount would be taxable as cap gain as per the criteria mentioned in the provision
I believe there is a judgement on similar facts but am not able to recall it.
In my opinion exemption will not be provided. If there are exceptional circumstances because of which you were not able to invest in property then the judge in his discretion may allow the exemption but I would not recomend taking such chances
The property was sold in F.Y 12-13 you still have time till 15-16
Relevant rules and provision have been cited for your reference
As per Rule 10 of the cap gain scheme
10. (1) A depositor, withdrawing any amount out of the deposit made in pursuance of sub-section (2) of section 54 or sub-section (2) of section 54B or sub-section (2) of section 54D or sub-section (4) of section 54F or sub-section (2) of section 54G [or sub-section (2) of section 54GB], shall utilise the whole or any part of the amount so withdrawn for the purposes specified in sub-section (1) of the section in relation to which the deposit has been made.
(2) The amount withdrawn shall be utilised by the depositor within sixty days from the date of such withdrawal for the purposes specified in sub-paragraph (1) and the amount or any part thereof which has not been so utilised shall be re-deposited in account-A immediately thereafter.
S.54F proviso states that
"
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 by which—
(a) the amount of capital gain arising from the transfer of the original asset not charged under section 45 on the basis of the cost of the new asset as provided in clause (a) or, as the case may be, clause (b) of sub-section (1),
exceeds
(b) the amount that would not have been so charged had the amount actually utilised by the assessee for the purchase or construction of the new asset within the period specified in sub-section (1) been the cost of the new asset,
shall be charged under section 45 as income of the previous year in which the period of three years from the date of the transfer of the original asset expires "