TMI Blog2013 (1) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of filing the return. Since the entire amount was invested before the time allowed under section 139, though not under the time allowed under section 139(1), in view of the case of Fathima Bai v ITO [2008 (10) TMI 563 - KARNATAKA HIGH COURT] and the Tribunal order in the case of Nipun Mehrotra v ACIT [2007 (3) TMI 283 - ITAT BANGALORE-B] wherein held that it is sufficient for the assessee to utilize the capital gains for the purchase of a flat before the extended due date under section 139(4) - thus the assessee is entitled to deduction under section 54F - in favour of assessee. - ITA No.1317/Bang/2011 - - - Dated:- 19-10-2012 - George George K And Jason P Boaz, JJ. Appellant Rep by: Shri Sundera Rajan, JCIT Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vi) The learned CIT(A) erred in not appreciating the fact that the assessee did not invest any amount of the sale proceeds in the capital gains accounts scheme before the due date under section 139(1) as required by 54F(4). vii) The learned CIT(A) erred in relying on the case of Nipun Mehrotra v ACIT reported in 297 ITR (AT) 110 (2008). 3. The facts in brief are as under:- The assessee is an individual. He is an agriculturist. In the course of search proceedings in the case of Shri S K Srinivasa and others on 31.1.2008, it transpired that the assessee had sold 3.37 acres of land for a total consideration of Rs.51,02,500/- as per sale agreement dated 25/10/2005 to Sri S K Srinivasa. The assessee admitted in the statement record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Before the first appellate authority it was submitted that the assessee is a senior citizen and constructed the residential house within three years from the date of sale of the original property and since the entire sale consideration was invested, he was eligible for exemption under section 54F of the Act. The assessee also submitted the details regarding the building construction, permission obtained in Form 44 dated 9/10/2006. Further, relying on the order of the Tribunal in the case of Nipun Mehrotra v ACIT reported in 297 ITR (AT) 110, it was contended that the assessee had made investment within the due date of filing of the return of income under section 139, which includes 139(4) and not necessarily under section 139(1) only, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment, the Hon ble Tribunal has even quoted the provisions of section 54F wherein within the brackets section 139(1) is mentioned. Even after noticing the same, the Hon ble Tribunal has made the distinction on two issues:- (i) If it is utilized for purchase of construction, it should be within the time allowed under section 139. (ii) If it is invested in capital gains account, the limitation of 139(1) applies. In the instant case, assessment year involved is assessment year 2007-08. Time allowed to file the return under section 139(1) was up to 31/7/2007. However, under section 139(4), they were permitted to file the return up to 31.3.2009. Before 31.3.2009, the appellant has utilized the sale proceeds for construc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee was entitled to file the return up to 31/3/2009. The assessee had utilized the sale proceeds for construction of house, which was completed before 26/3/2009 (which is not in dispute). The major portion amounting to Rs.49,17,000/- out of the total investment of Rs.55,43,750/- was invested much before 6/11/2008, the date of filing the return. Since the entire amount was invested before the time allowed under section 139, though not under the time allowed under section 139(1), in view of the Hon ble jurisdictional High Court in the case of Fathima Bai v ITO reported in 32 DTR (Kar.) 243 and the Tribunal order in the case of Nipun Mehrotra v ACIT reported in 297 ITR (AT) 110, the assessee is entitled to deduction under section 54F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1990. The extended due date under section 139(4) would be 31st March, 1990. The assessee did not file the return within the extended due date, but filed the return on 27th Feb.,2000. However, the assessee had utilized the entire capital gains by purchase of a house property within the stipulated period of sec.54(2) i.e., before the extended due date for return under section 139. The assessee technically may have defaulted in not filing the return under section 139(4). But, however, utilized the capital gains for purchase of property before the extended due date under section 139(4). The contention of the revenue that the deposit in the scheme should have been made before the initial due date and not the extended due date is an untenab ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
