TMI Blog2023 (1) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... e claim. Whether the benefit or exemption from capital gain tax can be given, if the investment has been made in terms of section 54 within date specified u/s. 139(4); or can capital gain exemption be denied mearly because on account of failure on part of the Assessee to deposit the capital gains in the capital gains account scheme before the due date specified u/s 139 (1). Find that, this issue stands covered by the decision in the case of CIT vs. M/s. Jagriti Aggarwal [ 2011 (10) TMI 279 - PUNJAB AND HARYANA HIGH COURT ] Thus hold that if the investment u/s 54 has been made within the time limit of date specified u/s. 139(4), exemption cannot be denied. Thus, the claim of exemption u/s. 54 is allowed to the Assessee. - I.T.A. No. 744/Mum/2022 - - - Dated:- 28-11-2022 - Shri Amit Shukla, Judicial Member For the Appellant : Shri. Anil Sathe For the Respondent : M/s. Neeta Jeph ORDER PER AMIT SHUKLA, JUDICIAL MEMBER: The aforesaid appeal has been filed by the assessee against the order dated 12.03.2022, passed by NFAC Delhi, for the quantum of assessment passed u/s, 143(3) for the assessment year 2011-12. 2. The only issue raised by the Assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital gains account before the due date for filing the return u/s 139(1), which the appellant failed to do and hence his claim u/s 54 was rejected. 5. Before us, the Ld. Counsel submitted that; Firstly, the decision of the Apex Court in Goetze (India) Ltd. applies only to the power of the assessing officer to admit claim of the assessee otherwise than by way of revised return and not to power of appellate authorities to admit the claim and he referred to the judgment of Pruthvi Brokers and shareholders (P) Ltd. 349 ITR 336 (Bom) ; Secondly, if the investment u/s 54 is made within the due date specified u/s 139(4), Capital Gain exemption cannot be denied merely on account of failure on the part of the assessee to deposit the capital gains in the capital gains account scheme before due date specified u/s 139(1). In support he relied on Ms. Jagriti Aggarwal [2011] 15 taxmann.com 146 (Punjab Haryana). Thirdly, where assessee was in a position to satisfy that amount for which deduction was sought for under section 54 was utilized either for purchasing or constructing residential house in India within time prescribed under section 54(1), assessee could not be denied be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 139(1). The Assessee had not disclosed capital gain albeit had made a claim before the Assessing Officer in the revised computation. 8. First of all, I agree with the contention of the Ld. Counsel that if a claim was not made in the return of income the same can be made during the course of assessment proceedings and the judgment of Hon ble Supreme Court in case of GOETZE (India Ltd.) applies only to the power of the Assessing Officer and not to the power of the appellate authorities to admit the claim. 9. Issue here is, whether the benefit or exemption from capital gain tax can be given, if the investment has been made in terms of section 54 within date specified u/s. 139(4); or can capital gain exemption be denied mearly because on account of failure on part of the Assessee to deposit the capital gains in the capital gains account scheme before the due date specified u/s 139 (1). I find that, this issue stands covered by the decision of Hon ble Panjab Haryana High Court in the case of CIT vs. M/s. Jagriti Aggarwal (Supra). Hon ble High Court on similar set of facts and on similar, issue had observed and held as under: 10. Having heard learned counsel for the parties, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, we find that due date for furnishing the return of income as per Section 139(1) of the Act is subject to the extended period provided under Sub-Section (4) of Section 139 of the Act. 14. Consequently, the question of law is answered against the Revenue and in favour of the assessed Thus, the present appeal is dismissed. 10. Similarly, Hon ble Madras High Court in the case of Venkata Dilip Kumar vs. CIT (Supra), held and observed that: Section 54 deals with profit on sale of property used for residence. It contemplates that the capital gain arises from the transfer of a long term capital asset being buildings or lands appurtenant thereto and being a residential house, the income of which is chargeable under the head income from house property' and the assessee has, within a period of one year before or two years after the date on which the transfer took place, purchased or has, within a period of three years after that date, constructed, one residential house in India, then the capital gain shall be dealt with in accordance with the provisions made under section 54(1)(i)(ii) instead of being charged to income tax as income of the previous year in which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute is only with regard to the balance sum spent on additional construction cost, which to the revenue, is not entitled for deduction under section 54, since it was not deposited in capital gain account as required under section 54(2). It is viewed that the contention of the revenue to deny the benefit of deduction to the petitioner/assessee cannot be justified for the following reasons: Section 54(2) cannot be read in isolation and on the other hand, application of section 54(2) should take place only when the assessee failed to satisfy the requirement under section 54(1). While the compliance of requirement under section 54(1) is mandatory and if complied, has to be construed as substantial compliance to grant the benefit of deduction, the compliance of requirement under section 54(2) could be treated only as in nature. If the assessee with the material details and particulars satisfies that the amount for which deduction is sought for under section 54 is utilised either for purchasing or constructing the residential house in India within the time prescribed under section 54(1), the deduction is bound to be granted without reference to section 54(2), which compliance woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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