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TMI Blog2017 (3) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... an affidavit filed before as one of administrative delay. The learned counsel for the Assessee has no objection for condoning the delay in filing appeal. Keeping in mind the reasons given in the application for condonation of delay and the submissions of the ld. Counsel for the assessee, we condone the delay in filing the appeal by the revenue. 4. As far as the issue raised by the revenue in the grounds of appeal is concerned, the same relates to eligibility of the assessee's for exemption u/s 54G of the Income Tax Act, 1961 (Act) in respect of a sum of Rs. 10 crores. Sec.54G of the Act reads as follows: "Exemption of capital gains on transfer of assets in cases of shifting of industrial undertaking from urban area. 54G. (1) Subject to the provisions of sub-section (2), where the capital gain arises from the transfer of a capital asset, being machinery or plant or building or land or any rights in building or land used for the purposes of the business of an industrial undertaking situate in an urban area, effected in the course of, or in consequence of, the shifting of such industrial undertaking (hereafter in this section referred to as the original asset) to any area (other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iated by the assessee towards the cost and expenses incurred in relation to all or any of the purposes mentioned in clauses (a ) to (d) of sub-section (1) within one year before the date on which the transfer of the original asset took place, or which is not utilised by him for all or any of the purposes aforesaid 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 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 scheme 40 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 sub-section (1), the amount, if any, already utilised by the assessee for all or any of the purposes aforesaid together with the amount, so deposited shall be deemed to be the cost of the new asset : Provided that if the amount deposited under this sub-section is not utilised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the Act. Section 139 of the Act has two time limit for filing return of income. The first time limit is one laid down in Sec.139(1) of the Act of "due date"for filing return of income. Such due date in this case is 30.9.2009. There is another date given for filing revised return of income in Sec.139(5) of the Act, which lays down that if any person, having furnished a return under sub-section (1) of Sec.139 of the Act, discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier. The period of one year from the end of the relevant AY would, in the present case, be 31.3.2011. The Assessee filed the revised return in this case on 28.10.2010. 6. HDIL paid the following sums towards sale consideration: 28.01.2009 Rs.20,00,00,000 9.7.2009 Rs.10,00,00,000 20.8.2009 Rs.10,00,00,000 7.9.2009 Rs.10,00,00,000 21.10.2009 Rs.10,00,00,000 20.11.2009 Rs.10,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase was similar to the case already been decided by ITAT, 'A' Bench, Kolkata vide consolidated order in the case of Chanchal Kumar Sircar v/s Income Tax Officer, Wd32(l), Kolkata (I.TA Nos. 1146/KoI/2011)and Chapal Sircar v/s Income Tax Officer, Wd-32(1), Kolkata(ITA Nos. 1147/Kol/2011). In that case, the date of transfer was hence for the purposes of capital gains transfer of capital asset was completed on 02.07.2004 and assessee has made investment with NABARD on or after 02.01.2005 i.e. after six months and therefore the AO held that the assessee was not entitled for exemption u/s. 54EC of the Act. The appellate authority found that though the transfer had taken place during the previous year, the sale consideration was received by the Assessee at a later point of time and that within one month of the receipt of sale consideration the deposit into specified account was made. The appellate authority took the view that the period of six months for making deposit u/s. 54EC of the Act should be reckoned from the dates of actual receipt of the consideration, because if the assessee receives part payment as on the date of transfer and receives part payment after six months the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter execution of agreement to sale and handing over of possession thereby completing the transaction in terms of section 53A of Transfer of Property Act but invested in specified bonds within one month of the receipt of sale consideration being part payment is eligible for exemption u/s. 54EC of the Act. It observed as under:- "9. In view of the above consistent principle adopted by Hon 'ble High Courts in respect to interpretation of a beneficial provision i.e. exemption provision under capital gains tax, we have to take similar approach in deciding the issue in hand i.e. the claim of assessee for exemption u/s. 54EC of the Act because this is exactly similar to section 54E, 54B or 54EA or EB of the Act. In the present case before us, admittedly assessee received part payments after execution of agreement to sale and handing over of possession thereby completing the transaction in terms of section 53A of Transfer of Property Act but invested in specified bonds i.e. NABARD bonds within one month of the receipt of sale consideration being part payment. Hence, we are of the considered view that the assessee is eligible for exemption u/s. 54EC of the Act on part payment receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the possession was given by the appellant but the payments were not received as per schedule. In the absence of receipt of money it was impossible to deposit in the capital gain scheme and specially for the assessee which has come out of the BIFR only because of receipt of money from the sale of land and it has to invest for shifting of plant and machinery to start manufacturing the machines to be delivered as per orders to avoid the heavy penalty clauses. The appellant was caught in a web of financial constraints relating to shifting of plant; manufacturing and supply of machines as per order and non receipt of payment from an undertaking of Govt. of Maharashtra even after getting the land registered in the name of the buyer. In the facts and circumstances and relying upon the judgment of Hon'ble ITAT Kolkata Bench 'A' in the case of Chanchal Kumar Sircar v. Income-tax Officer, Ward-32(1) and the Hon'ble ITAT Pune Bench 'A' in the case of Mahesh Nemichandra Ganeshwade v. Income-tax Officer (supra), it is held that the appellant having deposited the money within the due date of filing of 'revised return permitted u/s 139(5) and subsequently filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see. We have already seen that the first part of Sec.54G(2) gives time limit for making investment upto the time limit for filing return of income u/s.139 of the Act which includes both Sec.139(1) of the Act and Sec.139(5) of the Act. The second part of Sec.54G(2) however adds a rider that "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". If the time limit laid down in the first part is taken into account viz., time limit u/s.139 of the Act which includes both Sec.139(1) & 139(5) of the Act, than the deposit of Rs. 10 crores by the Assessee in the specified account was eligible for exemption u/s.54G of the Act because the time limit laid down in Sec.139(5) of the Act was 31.3.2011 and the deposit of Rs. 10 crores was made on 30.3.2010. If the time limit laid down in the second part is taken into account viz., Sec.139(1) of the Act which is 30.9.2009 in the present case, than the deposit of Rs. 10 crores by the Assessee in the specified account was not eligible for exemption u/s.54G of the Act as it was made beyond the time limit. In the case of Jagriti Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed under a notice issued under sub-s. (1) of s. 142, may furnish the return for any previous year at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment whichever is earlier : Provided that where the return relates to a previous year relevant to the assessment year commencing on the 1st day of April, 1988 or any earlier assessment year, the reference to one year aforesaid shall be construed as a reference to two years from the end of the relevant assessment year." A reading of the aforesaid sub-section would show that if a person has not furnished the return of the previous year within the time allowed under subs. (1) i.e., before 31st day of July of the assessment year, the assessee can file return before the expiry of one year from the end of the relevant assessment year. The sale of the asset having taken place on 13th Jan., 2006, falling in the previous (sic- assessment) year 2006- 07, the return could be filed before the end of relevant asst. yr. 2007-08 (sic-2006-07) i.e. 31st March, 2007. Thus, sub-s. (4) of s. 139 provides extended period of limitation as an exception to sub-s. (1) of s. 139 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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