TMI Blog2013 (7) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... al has been preferred by the assessee against the impugned order dated 29.03.2012 passed by Ld. CIT(Appeals)-30, Mumbai, for the quantum of assessment passed u/s 143(3), for the Assessment Year- 2008-09. Only issue raised in the grounds of appeal is disallowance of part claim of ₹ 8,90,218/-, u/s 54. 2. Brief facts of the case are that the assessee during the year under consideration has sold a residential flat No. 504, Mamta Coop Hsg Society, Plot No. 138, Sher E Punjab Society, Off Mahakali Caves Road, Andheri(E), Mumbai-93 for a total consideration of ₹ 26,75,000/-, vide agreement dated 30.01.2008. The long term capital gain was worked out at ₹ 18,90,218/- as per the computation incorporated by the Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount of unappropaited long term capital gain of ₹ 8,90,218/- has to be disallowed, as the due date in this case was 31.07.2008, and the appropriation of balance amount was done after this date. 4. Before the CIT(Appeals), the assessee gave following facts:- During the A.Y. 2008-09 the appellant had sold a house property for ₹ 26,75,0001- on 8.2.2008. The Long Term Capital Gain of ₹ 18,90,218/- was re-invested in a property at Pune, jointly with her husband. The appellant had claimed exemption U/s 54 while filing the Return of Income on 30.03.2009. The payments were made from her Canara Bank Account No. 905 as under: Date Amount Remark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant has not appropriated the balance sum of ₹ 8,90,218/- before the due date for filing of return u/s 139(1) which was on 31.07.2008. The relevant observations of the CIT(Appeals) are reproduced herein below. I find that the AO is quite justified in making the impugned addition by not allowing exemption u/s 54 of the I.T. Act on the sum of ₹ 8,90,218/- Section 54(2) is very clear in this regard. The appellant has not appropriated the sum of ₹ 8,90,218/- before the due date of filing the return of income which was 31.07.2008 in the case of the appellant. As regards to the case laws cited by the AR of the appellant in his paper book the same were found to be distinguishable on facts and therefore not helping the cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the assessee on 30.03. 2009. The Assessing Officer as well as the CIT(Appeals) has taken a view that since sum of ₹ 10,00,000/- was paid prior to 31st July 2008, therefore, the same can be allowed u/s 54 and the balance sum of ₹ 8,90,218/- will not be allowed as the same was not appropriated till that date. The Hon ble High Court had an occasion to deal with the similar issue in the case of CIT Vs. Ms. Jagriti Aggarwal (supra), wherein their lordships after analyzing the provision of section 54(2) and section 139(1) reached to the following conclusion. Having heard learned counsel for the parties, we are of the opinion that subsection (4) of section 139 of the Act is, in fact, a provision to sub-section(1) of sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n January 13, 2006, falling in the year 2006-2007, the return could be filed before the end of the relevant assessment year 2007-08, i.e., March 31, 2007. Thus, sub-section (4) of section 139 provides the extended period of limitation as an exception to sub-section (1) of section 139 of the Act. Sub-section (4) is in relation to the time allowed to an assessee under subsection (1) to file return. Therefore, such provision is not an independent provision, but relates to time contemplated under sub-section (1) of section 139. Therefore, such sub-section (4) has to be read along with sub-section (1). Similar is the view taken by the Division Bench of the Karnataka and Gauhati High Courts in Fatima Bai [2009] 32 DTR 243 and Rajesh Kumar Jalan [ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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