TMI Blog2016 (8) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 1,01,44,025/- made to returned income is deleted. Thus the appeal of the assessee is allowed. - ITA No. 827/JP/2015 - - - Dated:- 4-7-2016 - SHRI BHAGCHAND, AM SHRI LALIET KUMAR, JM For The Assessee : Shri Anil Kumar Sharma, CA For The Revenue : Shri R.A. Verma, Addl.CIT -DR ORDER PER BHAGCHAND, AM The assessee has filed an appeal against the order of the ld. CIT(A)-II, Jaipur dated 19-10-2015 for the assessment year 2012-13 raising therein following ground:- Under the facts and circumstances of the case, the ld. CIT(A) is not justified in upholding the order of the AO in restricting the deduction u/s 54F of the I.T. Act, 1961 to the extent of ₹ 41,59,180/- against that of ₹ 1,43,03,205/- claimed by the assessee towards investment of construction of New Residential House and thereby in sustaining the addition of ₹ 1,01,44,025/- to returned income as Long term capital gain. 2.1 Brief facts of the case are that the assessee filed her return of income on 14-02-2013 for the assessment year 2012-13 declaring her total income of ₹ 2,53,050/-. The case of the assessee was processed u/s 143(1) (a) of the Act, 1961. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited the sale consideration in capital gain account before the due date of filing of income tax return. The AO vide letter No. 1714 dated 26-12-2014 asked the assessee as under:- During the year under consideration, you have sold a property situated at 1, Anand Bhawan, Gruh Nirman Sahkari Samiti, Tagore Nagar Yojna, Jaipur on consideration of ₹ 1.50 crores on 23-01-2012. You have also claimed deduction u/s 54F for purchasing of two flats situated at Unit No. D-1002 1002, Ansal Heights, 86, Village Nawada, Fatehpur, Gurgaon. To purchase these flats, you have made agreement on 15-10-2012 with Ansal Housing Construction Ltd. New Delhi. Section 54F (4) reads as under:- The amount of the net consideration which is not appropriated by the assessee towards the purchase of the new asset made within one year before the date on which the transfer of the original asset took place, or which is not utilised by him for the purchase or construction of the new asset before the date of furnishing the return of income under section 139, shall be deposited by him before furnishing such return [such deposit being made in any case not later than the due date applicable in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e wants to claim any deduction, she was to follow the conditions laid down in respective sections. The AO observed that the liberty provided by the assessee to the purchaser for payment of sale consideration after the date of registry, would not change the liability of paying capital gain or condition laid down in the Act for the assessee is claiming deduction. The AO further observed that the assessee has invested only of ₹ 43,61,799/- for purchase of residential property for claiming deduction u/s 54F before due date of filing of return under sub-section (1) of Section 139 i.e. 31-07-2012. The AO observed that considering the facts of the case and submission filed by the ld. AR of the assessee, deduction u/s 54F is allowable for investment of ₹ 43,61,799/- only. The AO further asked the assessee to furnish the details of supporting evidences for cost of improvement totaling to ₹ 2.15 lacs in respect of property sold out during the year. The AO observed from the details filed by the assessee that supporting evidences for expenses claimed of ₹ 19,282 an cost of boundary wall other expenses of ₹ 65,000/- were not furnished. Therefore, the AO disallowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y him before furnishing such return [such deposit being made in any case not later than the due date applicable in the case of the assessee for furnishing the return of income under sub-section (1) of section 139] in an account in any such bank or institution as may be specified in, and utilised in accordance with, any scheme95 which the Central Government may, by notification in the Official Gazette, frame in this behalf and such return shall be accompanied by proof of such deposit ; and, for the purposes of subsection (1), the amount, if any, already utilised by the assessee for the purchase or construction of the new asset together with the amount so deposited shall be deemed to be the cost of the new asset. .. In view of the decision of the Apex Court in the case of P.N. Khanna vs. CIT (2004) 266 ITR 1 / 135 Taxman 327, and the decision of the Hon'ble Tribunal which has relied on this decision, the due date as specified in the Section 139 of the I.T. Act, 1961 has to be as per 139(1) and not 139(4) of the I.T. Act, 1961. The second plea taken by the assessee is that the consideration was received by the assessee later and after the due date for filing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt No.677701024886 of ICICI Bank, as follows: (PB No.36-39) S.No. Cheque No. Date of realization Amount PB No. 1. 906841 04.12.2012 2000000/- 37 2. 906843 07.12.2012 1000000/- 38 3. 906845 11.12.2012 1500000/- 38 Total 4500000/- - other two cheques of ₹ 5000000/- each were returned unpaid on 31.12.2012. (PB No.28-31) 6. In lieu of the cheques returned unpaid of ₹ 10000000/- the assessee received RTGHS of ₹ 5000000/- directly in SBI Capital Gain Account as follows:(PB No.40- 42) S.No. Cheque No. Date of realization Amount PB No. 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 4361799/- on or before the due date prescribed u/s 139(1), for making payments to M/s Ansal Housing Construction Ltd. for construction of new residential house comprising two adjoining Flats No.D-1002 and D-1003 at Ansal Heights, Sector-86, Gurgaon, Haryana as follows:(PB No.67-75) Date R.No.D-1002/1003 Amount Flat No.D-1002 Amount Flat No.D-1003 Total 28.02.2012 495696/495695 600000/- 600000/- 1200000/- 12.03.2012 496960/496961 330899/- 331900/- 662799/- 14.04.2012 501131/501132 624500/- 624500/- 1249000/- 12.05.2012 504348/504340 500000/- 624500/- 1124500/- 12.05.2012 504343 125500/- 125500/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TA No.106/Mds/2012N has decided the identical issue in favour of the assessee. (Copy of Judgment annexed) 13.The Hon. Mumbai Bench of ITAT in the case of Anil Kumar Omkar Singh Aurora, v.ITO, ITA No.4648/Mum/2013, following the Judgement of Hon. Punjab Haryana High Court in the case of CITv. Jagriti Agrwal, and that of Hon. Gauhati High Court in the case of CIT v. Rajesh Kumar Jalan(supra) and it s own judgement in the case of Kishore Galiya v. ITO, 137 ITD 229, has decided the identical issue in favour of the assessee. (Copy of Judgment annexed). 14. Even when there is conflicting view of the Hon. Cochin Bench of ITAT as relied by ld. CIT(A) the view favorable to the assessee should be adopted as held by Hon. Supeme Court in CIT v. Vegetable Products Ltd. 88 ITR 192. 15. Thus the assessee has filed her return of income on 14.02.2013, i.e. before the due date prescribed u/s 139(4) of IT Act 1961 and has utilized the sales consideration of ₹ 4361799/- towards construction of new residential house and deposited ₹ 10660000/-in capital Gain Account before that date. 2.5 The ld. DR relied on the orders of the lower authorities. 2.6 We have heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent dates between 01.01.2013 to 14.01.2013 vide different cheques/RTGS. Therefore it was not possible for the assessee to deposit the same in Capital Gain Account before due date of filing of return of income u/s 139(1). It is further submitted that the assessee as and when received the amount has deposited the same in Capital Gain Account either on the same day or within few days without utilising the same for any other purpose. It is noticed that the above said explanation of the ld. A.R. appears to us convincing to us. The ld. A.R. further relying on various case laws submitted that the amount deposited in capital Gain Account before filing of return of income within the period allowed u/s 139(4) should be considered to have been deposited before the due date of filing of return of income prescribed u/s 139(1) of the Act. Now the issue for our consideration is that whether the sales consideration invested in Capital Gain Account within the period allowed u/s 139 (4) should also be considered to be within the period allowed u/s 139(1) of the Act. We find that the above said issue is covered within the decision of Hon ble . Punjab Haryana High Court in the case of CIT v. Jag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en by the Division Bench of Karnataka and Gauhati High Courts in Fathima Bai's case (supra) and Rajesh Kumar Jalan's case (supra) respectively. 13. In view of the 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. ' The Coordinate Mumbai Bench of this Tribunal in the case of Anil Kumar Omkar Singh Aurora v. ITO, (ITA No.4648/Mum/2013 order dated 6-11-2013) following the decision of Hon ble P H High Court in the case of Jagriti Aggarwal (supra) has decided the identical issue in favour of the assessee as follows:- 6. Only issue involves in this appeal is as to whether extended period as per section 139(4) has to be considered for the purpose of utilization of amount of capital gain for the purpose of claiming exemption u/s 54F of the Act. The above issue is squarely covered by the decision of Hon ble Punjab and Haryana High Court in the case of CIT V/s Ms. Jagriti Aggarwal (2011) 339 ITR 610 (P H), wherein, Their Lordships have held that provision of section 139(4) is not an independent provision, but is related to time con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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