TMI Blog2022 (10) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... al filed by the assessee is allowed. - ITA No. 1885/Mum/2017 - - - Dated:- 12-10-2022 - Shri Aby T Varkey, Judicial Member And Shri Gagan Goyal, Accountant Member For the Appellant : Sh. Satish Mody For the Respondent : Smt. Mahita Nair, CIT-DR ORDER PER GAGAN GOYAL, A.M: This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-46, Mumbai [hereinafter referred to as [ CIT(A) ] dated 31.01.2017 passed under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as [ the Act ] for the Assessment Year (AY) 2012-13. The assessee has raised the following grounds of appeal: Based on the facts and circumstances of the case and in law, the Appellant respectfully submits that the Ld. Income Tax Officer - 34(1)(3), Mumbai (the 'AO) and the Commissioner of Income Tax (Appeals) - 46, Mumbai (the 'CIT(A)) have in their orders, erred on the following grounds which are without prejudice to each other. 1. In not allowing the benefit of Section 54 of the Income Tax Act, 1961 (the Act) while computing long term capital gain on sale of property merely on the ground that the appellant had failed to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot convinced with the argument advanced by the assessee in her favour and disallowed the claim of the assessee. Being aggrieved, assessee preferred an appeal before the Ld. CIT (A)-46, Mumbai. 5. Ld. CIT (A) also affirmed the view of AO. Against this order of Ld. CIT (A), assessee preferred this appeal before us. We observed that certain facts are not under challenge from both the sides i.e. (1) amount of LTCG arisen (2) Nature of Capital Gain (3) Availability of section 54 to the assessee subject to our final decision on the issue of entitlement of section 54 of the Act. 6. During the course of hearing, ld. counsel of the assessee filed a Paper Book (PB) and in support of his contentions filed following Rulings of Jurisdictional Bench of ITAT as well as other Co-ordinate Bench and Hon ble High Courts as under: i. Mrs. Madhu Kaul Vs. CIT in ITA No. 89 of 1999 order dt. 17.01.2014 (P H) ii. CIT Vs. Bharati C. Kothari [2000) 160 CTR 0165 (Cal. HC). iii. CIT Vs. Ms. Jagriti Aggarwal [2011] 339 ITR 610 (P H). iv. CIT Vs. Manjula J. Shah [2013] 355 ITR 474 (Bom). v. Mrs. Seema Sabharwal Vs. ITO in ITA No. 272/Chd/2017 for AY 2013-14. vi. Rajendra Pal Verma Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 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 : 10. Section 54(2) provides for an interesting proposition that the amount of capital gains which is not appropriated by the assessee for prescribed purposes within one year before; or on or before the due date of filing of return of income under section 139, shall be deposited in the capital gains account scheme. It needs to be emphasized that the literal reading of section 54(2) provides for the two dates i.e. the due date under section 139 and the due date under section 139(1). Pertinently, section 139 cannot be said to mean only section 139(1), but it means all sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013] 33 taxmann.com 38/215 Taxman 154 (Punj. Har.) 7. CIT v. Ms. Jagriti Aggarwal [2011] 339 ITR 610/203 Taxman 203/15 taxmann.com 146 (Punj. Har.) 8. CIT v. Rajesh Kumar Jalan [2006] 157 Taxman 398/286 ITR 274 (Gau.) 9. Fathima Bai v. ITO [2010] 32 DTR 243 (Kar.) 10. R.K.P. Elayarajan v. DCIT [2012] 23 taxmann.com 206/52 SOT 159 (Chennai) (URO) 11. ITO v. Smt. Sapana Dimri [2012] 19 taxmann.com 15/50 SOT 96 (Delhi) 14. Interestingly, none of the decisions referred above rely upon a binding precedent of the Supreme Court which has settled this issue. The aforesaid interpretation has been approved by the Hon'ble Supreme Court in the case of Xavier J. Pulikkal v. Dy. CIT [2016] 242 Taxman 59/73 taxmann.com 34 when the Hon'ble Apex Court, while allowing the civil appeal, modified (or so to say - reversed) the reasoning of the Kerala High Court in the underlying order reported in [2016] 242 Taxman 206 (Kerala). The Kerala High Court held as under: So far as the facts of the present case, we have already stated above, it is possible that facts of the other appeal considered by the Appellate Tribunal along with appeal of the revenue may be different. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court. 17. It is also submitted that the order passed by the Hon'ble Supreme Court, albeit in brief, is the declaration of law in terms of Article 141 of the Constitution of India, the exemption needs to be allowed if the amount is inve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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