Y.R. MEENA, J.M. ORDER This is appeal by assessee against order of CIT(A) dt. 18th March, 19 83. only issue for our consideration in this appeal is whether CIT(A) has erred in holding that assessee is entitled to relief under s. 54E only to extent of Rs. 46,000. relevant facts are that assessee has released her interest in port trust plot No. 6 situated at Seweree Port Road, Bombay and Shah Construction Co. has agreed to pay sum of Rs. 1,74,990 and amount of Rs. 12,990 was paid on signing of agreement and balance amount of Rs. 1,62,000 would be paid within one year in 10 equal instalments from date of his agreement. assessee has deposited consideration with Natpur Co-operative Bank Ltd., Nadiad and United Mercantile Co-op. Nadiad. According to ITO, assessee had not invested these deposits within time limit of 6 months after date of transfer. According to ITO period expires on 11th Nov., 19 78. assessee has received Rs .12,990, Rs. 16,200 and Rs. 16,200 aggregating to Rs. 61,599 from Shah Construction Co. Ltd. upto 11th Nov., 19 78 and she has thus not invested entire consideration of Rs. 1,57,094 in fixed deposits within statutory period. claim of assessee was that it was not possible for assessee to deposit entire consideration in fixed deposits within statutory period in absence of receipts of amounts from Shah Construction Co. and ITO did not agree with claim of assessee. Finally he taxed additional amount which was not deposited in fixed deposits within 6 months. Being aggrieved, assessee carried matter to CIT(A). CIT(A) has confirmed view taken by ITO. Being aggrieved assessee came in appeal before us. 2. submission of ld. counsel for assessee Shri K.C. Patel was that assessee has received only Rs. 12,999 at time of signing agreement and balance she received in instalments and as and when she received instalments she deposited amounts as required under s. 54E of IT Act. In absence of receipts of such amounts assessee should not be denied benefit of s. 54E of IT Act. He also referred to Circular of Board No. 359 dt. 10th May, 19 83 wherein Board has clarified that even without transfer if assessee has received some amounts as consideration, consideration so deposited should be taken into account for purpose of relief under s. 54E. On other hand, ld. Departmental Representative Shri Saxena submitted that moment assessee has agreed to relinquish her interest in properties in question there was transfer of immovable assets and when she failed to deposit investment in fixed deposits within 6 months from date of transfer assessee is not entitled for relief. 3 . We have heard rival submissions and considered material on record. fact is not in dispute that assessee has entered into agreement with M/s Shah Construction Co. and relinquished her rights and share in port trust plot No. 6 situated at Seweree Port and under agreement assessee received Rs. 12,999 on date of signature and balance Rs. 1,62,000 she was to receive in 10 equal instalments. In consequence of this agreement according t o assessee, assessee received amount of consideration on following dates by cheque and demand draft as under : 12-5- 19 Ch. No. Rs. 12,999.00 78 444391 3-6- 19 Ch. No. Rs. 16,200.00 78 461616 31-7- 19 Ch. No. Rs. 16,200.00 78 274464 7-11- 19 Ch. No. Rs. 16,200.00 78 250582 30-10- D/D No. Rs. 5,670.00 19 79 675575 1-12- 19 D/D No. Rs. 5,670.00 79 16135 29-12- D/D Rs. 5,670.00 19 79 No.953802 30-1- 19 Rs. 5,670.00 D/D No.1364 80 29-2- 19 Rs. 5,670.00 D/D No.4298 80 1-4- 19 D/D Rs. 5,670.00 80 No.300425 3-5- 19 D/D Rs. 5,670.00 80 No.302174 2-6- 19 D/D Rs. 5,670.00 80 No.303214 26-3- 19 D/D Rs. 5,670.00 80 No.702379 19 -8- 19 D/D Rs. 5,670.00 80 No.703349 16-9- 19 D/D Rs. 5,670.00 80 No.121838 31-10- D/D Rs. 5,670.00 19 80 No.932389 28-11- D/D Rs. 5,663.30 19 80 No.1783622 11-12- D/D Rs. 5,676.70 19 80 No.1785253 29-12- D/D Rs. 5,670.00 19 80 No.1591322 29-1- 19 D/D Rs. 5,670.00 81 No.1592655 27-2- 19 D/D No. Rs. 5,670.00 81 2120305 16-4- 19 D/D No. 16-4- 19 D/D No. Rs. 5,670.00 81 74463 22-5- 19 D/D No. Rs. 5,670.00 81 2758256 15-6- 19 D/D No. Rs. 5,670.00 81 275956 Rs. 1,74,999.00 . . assessee deposited said amounts on following dates in banks and claimed benefit of s. 54E : Rs. 46,000 Receipt No. 5376 dt. 26-10- 19 78 to 26-11- 19 81 Natpur Bank Rs. 36,100 Receipt No. 5250/756/10 dt. 18-4- 19 80 to 18-5- 19 83 U.M.C.O.B. Rs. 35,000 Receipt No. 5868/507/11 dt. 19 -12- 19 80 to 19 -1- 19 84 - do - Rs. 60,000 Receipt No. 8170 dt. 4-7- 19 81 to 4-7- 19 84 Natpur Bank Rs. 1,75,100 relevant portion of s. 54E reads as under : "54E (1) Where capital gain arises from transfer of capital asset, not being short-term capital asset, (the capital asset to transferred being hereafter in this section referred to as original asset), and assessee has, within period of six months after date of such transfer, invested or deposited whole or any part of net consideration in any specified asset (such specified asset being hereafter in this section referred to as new asset), capital gain shall be dealt with in accordance with following provisions of this section, that is to say, " Now, on above facts can it be said that assessee is entitled for benefit of s. 54E. requirement of s. 54E is that if assessee has invested or deposited whole or any part of net consideration in any specified assets within 6 months from date of transfer assessee shall have benefit of within 6 months from date of transfer assessee shall have benefit of s. 54E of Act. In this case deed was of course registered on 12th May, 19 78 but under agreement assessee was to receive consideration in 10 instalments within one year but in fact assessee has received instalments till 19 81. Now question arises that when assessee had not received consideration on date of registration of deed as well as within one year of date of registration for receipt but has received last instalment on 15th June, 19 81 can it be said that receipt of consideration is immaterial but date of registration should be criterion for relief of s. 54E. In our view, that cannot be intention of legislature that on transfer of assets even if assessee has not received consideration he should borrow amount and deposit it as required under s. 54E then only he will be entitled for relief under s. 54E. What is material is consideration for transfer. If assessee has not received consideration for transfer in our view, he is not bound to borrow amount equivalent to that and deposit it within 6 months. correct approach must be that as and when under agreement assessee received consideration that should be deposited in specified assets within 6 months from date of receipt if mode of payment is one of conditions under agreement. In this case, under agreement assessee was to receive consideration in instalments and till she received instalment it cannot be said that transfer was final. It is only date when assessee received instalment under agreement which should be taken as date for period of 6 months and any amount deposited within 6 months from dates of receipts should be allowed and benefit of s. 54E should be given to assessee. Accordingly, we set aside order of CIT(A) and remit matter back to ITO to ascertain exact date of receipt and date of deposits of receipts in banks and allow benefit of s. 54E if deposits are made within 6 months from date of receipt of consideration under agreement. Opportunity of being heard should be given to assessee. 4. In result, appeal is allowed for purpose of statistics. *** SMT. HARKHABEN C. PATEL v. INCOME TAX OFFICER