Rashesh Shirish Sanjanwala v. Assistant Commissioner Of Income Tax Circle 4(1)(4) ==========================================================

IN THE HIGH COURT OF GUJARAT AT AHMEDABADR/SPECIAL CIVIL APPLICATION NO. 17328 of 2021 FOR APPROVAL AND SIGNATURE: HONOURABLE MS. JUSTICE SONIA GOKANI andHONOURABLE MS. JUSTICE NISHA M. THAKORE ========================================================== ========================================================== RASHESH SHIRISH SANJANWALA Versus ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 4(1)(4) ========================================================== Appearance: LD.SR.ADV.MR.SOPARKAR ASSISTED BY MR B S SOPARKAR(6851) for the Petitioner(s) No. 1DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 1NOTICE NOT RECD BACK(3) for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MS. JUSTICE SONIA GOKANIand HONOURABLE MS. JUSTICE NISHA M. THAKORE Date : 01/12/2021 ORAL JUDGMENT (PER : HONOURABLE MS. JUSTICE SONIA GOKANI) 1.This Court at the time of issuance of notice for final disposal passed the following order on 23.11.2021: “1. Petitioner challenges the order dated 28.10.2021passed by the respondent rejecting the request of issuanceof no objection certificate to the petitioner, who hasalready paid the advance tax to the tune of Rs.1.25crores, which is more than the amount of Capital Gain taxthat may be required to pay. 2. The petitioner, being one fourth owner of the parcel ofthe land sold in December, 2018, has gained Rs.4.75crores from the sale of the land. For claiming exemptionunder section 54F of the Income Tax Act, 1961 (“the Act”for short), the amount has been deposited with the Bankof India in terms of Capital Gains Scheme Accounts, 1988.The disclosure of the said sale of parcel of land in thereturn of income of AY 2019-20 reveals that the claim ofdeduction under section 54F at Rs.4.65 crores in Nil whilecomputing the taxable Capital Gain. 3. Prayer sought for are as follows: “7. The Petitioner, therefore, prays that thisHon’ble Court be pleased to issue a writ ofmandamus or a writ in the nature of mandamus ora writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, direction ororder and be pleased to: (a) quash and set aside the impugned order atAnnexure-’A’ to this Petition and direct theRespondent to issue ‘No Objection Certificate’ tothe petitioner; (b) pending the admission, hearing and finaldisposal of this petition, to stay implementation andoperation of the order at Annexure-’A’ to thispetition and stay recovery of tax for A.Y.2018-19and further be pleased to direct the Respondent toissue ‘No Objection Certificate’ to the Petitioner; (c) any other and further relief deemed just andproper be granted in the interest of justice; (d) to provide for the cost of this petition.” 4. We have heard Mr. B.S. Soparkar, learned advocate forthe petitioner. He also has drawn our attention to theindemnity bond, the petitioner has furnished in favour ofthe Assistant Commissioner of Income Tax on 23.10.2021.He has further urged that the tax which the petitioner isrequired to pay on a regular basis is not more than Rs.58lakhs and the payment of the said amount towards CapitalGain Tax should not be doubted and there is nothing underthe law to preclude the Assessing Officer to allow the remaining amount, which has remained with theDepartment, as the petitioner is no longer going to claimthe benefit under the provisions of Capital Gain SchemeAccounts. He has relied on the decision of the KarnatakaHigh Court rendered in the case of Padma Swaminathan vs.Income Tax Officer, Non-Corporate Ward-15(4), Chennai,[2017] 88 taxmann.com 596(Madras). 5. Notice for final disposal returnable on 30.11.2021. 6. Over and above the regular mode, direct service by wayof Speed Post is also permitted.”of Speed Post is also permitted.” remaining amount, which has remained with theDepartment, as the petitioner is no longer going to claimthe benefit under the provisions of Capital Gain SchemeAccounts. He has relied on the decision of the KarnatakaHigh Court rendered in the case of Padma Swaminathan vs.Income Tax Officer, Non-Corporate Ward-15(4), Chennai,[2017] 88 taxmann.com 596(Madras). 5. Notice for final disposal returnable on 30.11.2021. 6. Over and above the regular mode, direct service by wayof Speed Post is also permitted.”of Speed Post is also permitted.” 2.On the returnable date, learned seniorstandingcounsel,Ms.MaithiliMehta appeared for the department and she resisted this petition. 3.We have taken up the matter for final hearing at the stage of admission and have heard the learned senior advocate, Mr.Soparkar assisted by the learned advocate, Mr.Bandish Soparkar for the petitioner and learned senior standing counsel, Ms.Maithili Mehta. We hadrequested learned senior advocate, Mr.Bhattto assist the cause and he has also insupport of the submissions made by thelearnedseniorstandingcounsel,requested learned senior advocate, Mr.Bhattto assist the cause and he has also insupport of the submissions made by thelearnedseniorstandingcounsel, Ms.Maithili Mehta has argued before thisCourt. 4. Brief facts leading to the presentpetition are as follow:petition are as follow: 4.1The petitioner is an individual and a citizen of this country. He is alsopracticing advocate before this Court, who has been on a regular basis filing thereturn and paying the income tax. His return upto the Financial Year 2019-2020have been assessed in terms of Section 143(1) of the Income Tax Act, 1961 (‘the Act’ hereinafter). According to the petitioner, there has been no default sofar on his part. 4.2On 24.12.2018 he along with threeother co-owners of a land parcel sold theland for the total consideration of Rs.19Crore and he being 1/4[th] owner of the samegained Rs.4.75 Crore. 4.3Desirous of investing the gain intoa residential home in terms of Section 54 Fof the Act, he claimed exemption underSection 54 F of the Act by depositing theamount of Rs.4.67 Crore with the Bank ofIndia in terms of Capital Gains AccountsScheme, 1988. C/SCA/17328/2021 JUDGMENT DATED: 01/12/2021 4.4The petitioner filed the return ofincome for the Assessment Year 2019-2020 on23.09.2019 disclosing the sale of landparcel and computed the taxable CapitalGain as Nil after the claim of deductionunder Section 54 F of the Act. 4.5The interest upon the amountdeposited with the Bank of India had beenreceived by the petitioner. According tohim, he was waiting for the opportunity toinvest in the residential home. However hecould find the viable opportunity after along time and the maximum time allowableunder Section 54 F since is three yearsfrom the date of transfer to construct theresidential house, his time is expiring on23.12.2021. It is averred that since he isnot in a position to carry out the desired objective, he seeks to withdraw the moneydeposited with the Bank to utilize the samefor the purchase of land. As a No ObjectionCertificate of the respondent was a must asper the say of the Bank, the petitionerchose to pay the Capital Gain by way of anadvance tax of Rs.1.25 Crore on 15.09.2021.He also sought No Objection Certificatefrom the respondent vide letter dated20.09.2021. The amount of Rs.1.25 Crore asaverred by the petitioner is more than theamount which is actually due and payable asthe Capital Gain Tax. The petitioner hasalso paid the additional advance tax on15.09.2021 over and above the said amountof Rs.1.25 Crore which concerns hisprofessional income and income from othersources. 4.6The respondent sought the details from the petitioner on 21.10.2021 in 4.6The respondent sought the details from the petitioner on 21.10.2021 in relation to his sale deed executed for consideration of Rs.4.75 Crore, Bank Statement reflecting the said amount, copy of Capital Gain Scheme Account and Indemnity Bond for offering the income inAssessment Year 2022-2023. 4.7On 22.10.2021 the request was made to the respondent for issuance of the No Objection Certificate to enable the petitioner to withdraw the money from theBank of India account. 4.8On 28.10.2021 the rejection had come for issuance of No Objection Certificate only on the ground that the same cannot be done until the return of income is filed for Assessment Year 2022-2023. 4.9 The petitioner is, therefore, before this Court with the aforementionedprayers at para 7. 5.We have extensively heard the learnedsenior advocate, Mr.Soparkar assisted bythe learned advocate, Mr.Bandish Soparkar,who has argued along the line of the memoof the petition and also has urged that theordinarily income offered by the petitionerand the tax paid by him with respect to hisprofessional income is nearly Rs.55 to 57Lakh every year. The tax liability of thepetitioner on Capital Gain is calculatedand it can not exceed the amount ofRs.1.25 Crore. The said sum being due andpayable as the Capital Gain Tax, there could be no earthly reason for the respondent not to issue the No ObjectionCertificate for the Bank to allow himwithdrawal of the remaining amount. 5.1According tolearnedsenior advocate, Mr.Soparkar, the petitioner sinceis unable to now purchase the residentialhome for which the amount had been parkedfor three years, he is seeking to withdrawthe money deposited with the Bank of Indiafor utilisation of the said fund for thepurchase of other land. It is further urgedthat necessary undertaking is being offeredby the petitioner when he offered the Capital Gains on such transfer in thereturn of income to be filed for the Assessment Year 2022-2023 in terms of Section 54 F of the Act. He has undertaken to supply the physical copy of the return of income for the Assessment Year 2022-2023to the Jurisdictional Assessing Officer no sooner then he e-files the return of incomeunder the provision of Section 139 of theAct. He has also further undertaken not to claimthesetoffofany business/professional loss against the saidCapital Gain that he may offer in theAssessment Year 2022-2023. 5.2Learned counsel has relied on thefollowing two decisions to substantiate hissubmissions: (I) Professor P.N.Shetty vs. Office of Income-tax Officer, reported in (2019) 112taxman.com 218 (Karnataka). (II) Padma Swaminathan vs. Income Tax Officer, Non-CorporateWard-15(4), Chennai, reported in (2017) 88 taxman.com596 (Madras). 6.From the Capital Gain AccountScheme the learned senior standing counsel, Ms.Maithili Mehta has urged that theoffering of sum of Rs.1.25 Crore may notsuffice as there may be a possibility atthe time of filing of the return for theAssessment Year 2022-2023 for him to claimthe set off against the loss. Moreover, hecan always wait as provided in the communication rejecting his request for NoObjection Certificate till he completes thefiling of return of income under Section139 of the Act for the Assessment Year2022-2023. She has also emphasised that the C/SCA/17328/2021 JUDGMENT DATED: 01/12/2021 said amount for three years had been parked with an intent to purchase the residential house which has not been done so far. Therefore, the authority concerned was right in denying the No ObjectionCertificate considering the possibility of certain loopholes and the possibility ofenhanced liability of tax. 6.1 However, in response to the communication rejecting his request for NoObjection Certificate till he completes thefiling of return of income under Section139 of the Act for the Assessment Year2022-2023. She has also emphasised that the C/SCA/17328/2021 JUDGMENT DATED: 01/12/2021 said amount for three years had been parked with an intent to purchase the residential house which has not been done so far. Therefore, the authority concerned was right in denying the No ObjectionCertificate considering the possibility of certain loopholes and the possibility ofenhanced liability of tax. 6.1 However, in response to the additional affidavit which has been filedtoday, she has fairly submitted that thisis in compliance on furnishing of the hardcopy of the return and in the event of notclaiming any kind of loss in the return, assubmitted by the petitioner before thisCourt. 6.2She has further argued that theprovision of Section 54 F (4) of the Act specifically provides that the amountdeposited under this sub-section if is notutilised wholly or partly for the purchaseor construction of the new asset within thespecified time period then the said amountis to be charged under Section 45 of theAct as the income of the previous year inwhich the period of three years from thedate of the transfer of the original assetexpires. According to her, this being thecharging provision, the tax paid may not besufficient as the final calculation shallbe done only at the stage of the assessmentafter once the return is filed for theAssessment Year 2022-2023. 7.At the outset, provision of Section 54F of the Act will require to be reproducedat this stage: “54 F: (1) Subject to the provisions of sub-section (4), where, inthe case of an assessee being an individual or a Hinduundivided family], the capital gain arises from thetransfer of any long-term capital asset, not being aresidential house (hereafter in this section referred to asthe original asset), and the assessee has, within a periodof one year before or [two years] after the date onwhich the transfer took place purchased, or has within aperiod of three years after that date [constructed, oneresidential house in India] (hereafter in this sectionreferred to as the new asset), the capital gain shall bedealt with in accordance with the following provisions ofthis section, that is to say, (a) if the cost of the new asset is not less than the netconsideration in respect of the original asset, the wholeof such capital gain shall not be charged under section45; (b) if the cost of the new asset is less than the netconsideration in respect of the original asset, so much ofthe capital gain as bears to the whole of the capital gainthe same proportion as the cost of the new asset bearsto the net consideration, shall not be charged undersection 45: "[Provided that nothing contained in this sub-section shall apply where- (a)the assessee,- (i) owns more than one residential house, other than thenew asset, on the date of transfer of the original asset;or (ii) purchases any residential house, other than the newasset, within a period of one year after the date oftransfer of the original asset; or (iii) constructs any residential house, other than the newasset, within a period of three years after the date oftransfer of the original asset; and (b) the income from such residential house, other thanthe one residential house owned on the date of transferof the original asset, is chargeable under the head"Income from house property".] Explanation. For the purposes of this section- [***] [***] "net consideration", in relation to the transfer of acapital asset, means the full value of the considerationreceived or accruing as a result of the transfer of thecapital asset as reduced by any expenditure incurredwholly and exclusively in connection with such transfer. or (iii) constructs any residential house, other than the newasset, within a period of three years after the date oftransfer of the original asset; and (b) the income from such residential house, other thanthe one residential house owned on the date of transferof the original asset, is chargeable under the head"Income from house property".] Explanation. For the purposes of this section- [***] [***] "net consideration", in relation to the transfer of acapital asset, means the full value of the considerationreceived or accruing as a result of the transfer of thecapital asset as reduced by any expenditure incurredwholly and exclusively in connection with such transfer. (2) Where the assessee purchases, within the period of"[two years] after the date of the transfer of the originalasset, or constructs, within the period of three yearsafter such date, any residential house, the income fromwhich is chargeable under the head "Income from houseproperty", other than the new asset, the amount ofcapital gain arising from the transfer of the original assetnot charged under section 45 on the basis of the cost ofsuch new asset as provided in clause (a), or, as the casemay be, clause (b), of sub-section (1), shall be deemedto be income chargeable under the head "Capital gains"relating to long-term capital assets of the previous yearin which such residential house is purchased orconstructed. (3) Where the new asset is transferred within a period ofthree years from the date of its purchase or, as the casemay be, its construction, the amount of capital gainarising from the transfer of the original asset not chargedunder section 45 on the basis of the cost of such newasset as provided in clause (a) or, as the case may be,clause (b), of sub-section (1) shall be deemed to beincome chargeable under the head "Capital gains"relating to long-term capital assets of the previous yearin which such new asset is transferred.] (4) The amount of the net consideration which is notappropriated by the assessee towards the purchase of the new asset made within one year before the date onwhich the transfer of the original asset took place, orwhich is not utilised by him for the purchase orconstruction of the new asset before the date offurnishing the return of income under section 139, shallbe deposited by him before furnishing such return (suchdeposit being made in any case not later than the duedate applicable in the case of the assessee for furnishingthe return of income under sub-section (1) of section139] in an account in any such bank or institution asmay be specified in, and utilised in accordance with, anyscheme which the Central Government may, bynotification in the Official Gazette, frame in this behalfand such return shall be accompanied by proof such ofdeposit; and, for the purposes of sub-section (1), theamount, if any, already utilised by the proof of suchdeposit: assessee for the purchase or construction of thenew asset together with the amount so deposited shall bedeemed 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 purchaseor construction of the new asset within the periodspecified 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 thebasis 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 hadthe amount actually utilised by the assessee for thepurchase or construction of the new asset within theperiod specified in sub-section (1) been the cost of thenew asset, shall be charged under section 45 as income of theprevious year in which the period of three years fromthe date of the transfer of the original asset expires; and (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 thebasis 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 hadthe amount actually utilised by the assessee for thepurchase or construction of the new asset within theperiod specified in sub-section (1) been the cost of thenew asset, shall be charged under section 45 as income of theprevious year in which the period of three years fromthe date of the transfer of the original asset expires; and (ii) the assessee shall be entitled to withdraw theunutilised amount in accordance with the schemeaforesaid.” 7.1 This provision clearly provides for the Capital Gain on transfer of certain capital assets which are not to be charged in case of the investment made in residential house. In case of an assesseebeing an individual, if the Capital Gainarises from the transfer of any long term capital asset, not being a residentialhouse and if the assessee has within aperiod of one year before or after the dateon which the transfer took place purchasedor has within a period of three years afterthat date constructed a residential house,the Capital Gain shall be dealt with asprovided in the said provision. Sub-section(4) of Section 54 F of the Act providesthat the amount of the net considerationwhich is not appropriated by the assesseetowards the purchase of the new asset madewithin one year before the date on whichthe transfer of the original asset tookplace, or the same is not utilized for thepurchase or construction of the new assetbefore the date of furnishing the return ofincome under Section 139 of the Act, thesame is required to be deposited before furnishing such return in an account in any such Bank or institution as may bespecified in, and utilized in accordance with any scheme which the Central Government may by notification in theOfficial gazette frame in this behalf andsuch return shall be accompanied by proofof such deposit and for the purpose of Sub-section (1) of Section 139 of the Act, theamount, if any, already utilized by theassessee for the purchase or constructionof the new asset together with the amountso deposited shall be deemed to be cost ofthe new asset. 7.2The proviso, of course, providesthat if the amount deposited is notutilized wholly or partly for the purchaseor construction of the new asset within the period specified in Sub-section (1) ofSection 139 of the Act and the amount ofCapital Gain that arises from the transferof the original asset not charged underSection 45 of the Act on the basis of thecost of the new asset as provided exceedsthe amount that would not have been socharged had the amount been actuallyutilized by the assessee for the purchaseor construction of new asset, then it shallbe charged under Section 45 of the Act asincome of the previous year in which the period of three years from the date oftransfer of the original asset expires. 7.2Apt would be to refer to Section 45 of the Act at this stage: “45. Any profits or gains arising from the transfer of acapital asset effected in the previous year shall, save asotherwise provided in Section 54, 54B...54D, 54E, 54EA, 54EB, 54F, 54G and 54H be chargeable to income-tax underthe head “Capital gains”, and shall be deemed to be theincome of the previous year in which the transfer tookplace.” 7.3Thus, any profit or gains arisingfrom transfer of capital asset effected in the previous year shall be chargeable, as provided under the provisions of Sections 54, 54B which includes Section 54F to income tax under the head Capital Gains andshall be deemed to be the income of theprevious year in which the transfer tookplace. 7.2Apt would be to refer to Section 45 of the Act at this stage: “45. Any profits or gains arising from the transfer of acapital asset effected in the previous year shall, save asotherwise provided in Section 54, 54B...54D, 54E, 54EA, 54EB, 54F, 54G and 54H be chargeable to income-tax underthe head “Capital gains”, and shall be deemed to be theincome of the previous year in which the transfer tookplace.” 7.3Thus, any profit or gains arisingfrom transfer of capital asset effected in the previous year shall be chargeable, as provided under the provisions of Sections 54, 54B which includes Section 54F to income tax under the head Capital Gains andshall be deemed to be the income of theprevious year in which the transfer tookplace. 8.The High Court of Karnataka in caseof Professor P.N.Shetty (supra) was dealingwith a case where assessee had sold the immovable property and deposited theCapital Gain of Rs.1.15 Crore in CapitalGain Account Scheme, 1988 and claimed exemption under Section 54 F of the Act. He purchased a property premise for price ofRs.21.32 Lakh before the expiry of threeyears from the date of transfer of originalcapital assets. Since only a part of theamount deposited in Capital Gains AccountScheme was utilized for construction orpurchase of a new asset within specified time of three years, the question waswhether the income tax was chargeable onremaining unutilized amount in previous year in which the period of three years had expired. The Court answered it inaffirmation by holding that if only a partof the amount deposited in Capital GainsAccount Scheme is utilized for the construction or purchase of new asset within the specified time period, the income tax is chargeable on unutilised amount. The appellant before the Karnataka High Court was held entitled for withdrawalof the amount deposited under Sub-section(4) of Section 54F of the Act, subject todeduction of the tax applicable. 9. In case of Padma Swaminathan (supra) the question of profit on sale of theproperty used for residential house whererevenue refused to give No ObjectionCertificate to petitioner enabling her towithdraw amount deposited by way of fixeddeposit under Capital Gain Account. TheCapital Gain Accounts were in eightdifferent account numbers and thepetitioner had raised a request for issuingthe ‘No Objection Certificate’, so far asthe five accounts were concerned, byretaining three accounts which, according to the petitioner, would cover the total demand of tax. When this was denied by theauthority, the Court had intervened anddirected the revenue to issue the NoObjection Certificate in respect of theremaining five accounts. While so doing theCourt held that since the tax liabilityunder dispute would cover the total amountin deposit, in respect of the three accountnumbers when the petitioner had comeforward with a request only in respect ofother five accounts and was willing to gobefore the respondent for considering thematter afresh in respect of those threeaccounts, the revenue was directed to issueNo Objection Certificate for the remainingfive accounts. 10. Reverting to the facts on hands, the parcel of land situated at District Ahmedabad in Ghatlodiya Taluka had beensold by the petitioner and other co-ownersby way of a registered sale deed executedon 24.12.2018. The petitioner along with 10. Reverting to the facts on hands, the parcel of land situated at District Ahmedabad in Ghatlodiya Taluka had beensold by the petitioner and other co-ownersby way of a registered sale deed executedon 24.12.2018. The petitioner along with the other co-owners had received theconsideration of Rs.19 Crore and being the1/4[th] owner of the property, he gainedRs.4.75 Crore from the sale of this land.With an intent to invest it into theresidential house, he had deposited theamount with the Bank of India in terms ofCapital Gains Account Scheme, whichprovides the modalities of the deposits tobe made, the types of deposits, theapplication for opening account, theissuance of duplicate pass book or receipt,transfer and conversion of the account, theinterest to be paid on such amount and also provides for the withdrawal from the account. It provides that a depositor having an account may at any time after making the initial subscription, may apply in Form C nearer as possible together with the pass book to the deposit office for withdrawal of the amount from the balance to his credit subject to the other provisions of this scheme. It also provides for utilisation of the amount of withdrawal, nomination and the closure of the account. 10.1Apt would be to reproduce para13(1) of the Capital Gains Account Schemeswhich provides thus:13(1) of the Capital Gains Account Schemeswhich provides thus: Closure of the account. “13(1). If a depositor (other than aneligible company asreferred to in section 54GB) desires to close his account, anreferred to in section 54GB) desires to close his account, an application shall be made with the approval of the Assessing Officer who has jurisdiction over the depositor to thedeposit office in Form G or as near thereto as possible, andthe deposit office shall pay the amount of balance includinginterest accrued, to the credit in the account of thedepositor by means of crediting such amount to any bankaccount of the depositor.” 10.2 It provides clearly that if a depositor other than the eligible company when desires to close its account an application needs to be made with the approval of the Assessing Officer having jurisdiction over the depositor to thedeposit office. The deposit office shall pay the amount of balance including interest accrued, to the credit in the account of the depositor by means ofcrediting such amount to any Bank accountof the depositor. 11. Here is a case where it is not on account of the depositor having fulfilledthe requirement of Section 54 F of the Actis choosing to close the account, but hehas instead shown his inability to purchaseany residential house and therefore, onpayment of tax he has sought to close theaccount and permit the withdrawal of theremaining amount for the same to be utilised as may be legally permissible.However, for so doing he would be requiringnot only the payment of the tax as providedunder Section 54 F of the Act in theproviso clearly while reading the saidprovision and Section 45 of the Act. 12. With no mechanism or modality provided for the withdrawal of the amount which at one point of time had beencontemplated for the purchase of the C/SCA/17328/2021 JUDGMENT DATED: 01/12/2021 residential premises from the amount ofCapital Gains under the said scheme, therequest had been made to the respondent for issuance of the No Objection Certificate towhich for the apprehension ventilatedbefore this Court, it has chosen not toissue the same. 13.We see no reason for the authorityconcerned not to allow this. More 12. With no mechanism or modality provided for the withdrawal of the amount which at one point of time had beencontemplated for the purchase of the C/SCA/17328/2021 JUDGMENT DATED: 01/12/2021 residential premises from the amount ofCapital Gains under the said scheme, therequest had been made to the respondent for issuance of the No Objection Certificate towhich for the apprehension ventilatedbefore this Court, it has chosen not toissue the same. 13.We see no reason for the authorityconcerned not to allow this. More particularly, on the entire amount theadvance tax of Rs.1.25 crore is alreadypaid. It is given to understand thatordinarily the tax which is being offeredfrom the professional income is over theperiod of time being regularly paid and atno stage the petitioner has defaulted. Thesaid amount of Rs.1.25 Crore is not to beadjusted against any possible loss which is quite unlikely and the same has been statedby way of an affidavit. It has beenundertaken further that while filing of thereturn, physical copy shall be also givento the Assessing Officer having thejurisdiction. With all possible loopholeshaving been plugged cementing the same withthe affidavit tendered before this Courtadditionally pursuant to the submissionsmade by the learned senior standingcounsel, Ms.Maithili Mehta, the action ofthe Assistant Commissioner, Income Taxdated 20.10.2021 whereby he denied to issuethe No Objection Certificate for thebalance withdrawal of the deposit deservesand warrants interference.14. From the robust facts which have 14. From the robust facts which havebeen set out coupled with the circumstanceswhich exist in the instant case and being convinced with the credibility of the petitioner as the assessee of income taxdepartment over the years, the Court is ofthe opinion that this petition deserves tobe permitted. 15. We accordingly allow the present petition and direct the respondentauthority concerned that from the part ofthe amount deposited in the Capital GainAccount Scheme, the amount which remainsshall be permitted to be withdrawn. 15.1Let No Objection Certificate in respect of Account No.200116810000015 beissued within a period of one week from thedate of receipt of a copy of this order. 16. The petitioner, over and above the additional affidavit dated 01.12.2021tendered before this Court, shall file anundertaking before the concerned AssessingOfficer along the same line. 17.Over and above the regular mode ofservice, direct service is permittedthrough speed post as well as e-mode. Sd/-(SONIA GOKANI, J) M.M.MIRZA Sd/-(NISHA M. THAKORE,J)