Aneel Kumar Bakshi, Gurgaon V. ACIT, Circle- I, Noida

ITA 237/DEL/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7058 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 09-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: RAJESH LAL
• Keywords: Opportunity of being heard; Period of limitation
• Section: 54; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , DELHI BENCH SMC, NEW DELHI BEFORE SHRI BHAVNSH SAINI, JUDICIAL MEMBER ITA NO. 237/DEL./2018 ASSESSMENT YEAR : 2009-10 ANEEL KUMAR BAKSHI, 52/1, EMILIA-5, VATIKA CITY, SOHNA ROAD, SECTOR 49, GURGAON PAN : AAHPB5594R VS ACIT, CIRCLE-1 ROOM NO. 308, AAYAKAR BHAWAN (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. RAJESH LAL, CA REVENUE BY : SH. S.L.ANURAGI, SR. DR DATE OF HEARING : 11.07.2018 DATE OF PRONOUNCEMEN T : 13.07.2018 ORDER PER BHAVNESH SAINI, JUDICIAL MEMBER : THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(A) 1, NOIDA, DATED 29 TH SEPTEMBER, 2017 FOR ASSESSMENT YEAR 2009-10, CHALL ENGING THE ADDITION OF RS. 10,07,816/-. 2. THE AO NOTED THAT ASSESSEE HAS SOLD PROPERTY AT NOIDA ON 30 TH MARCH, 2009 FOR SALE CONSIDERATION OF RS. 32,00,000/- AND CAPIT AL GAIN OF RS. 24,36,988/- ARISEN ON THE PROPERTY WAS NOT FULLY UTILIZED BY THE ASSES SEE FOR PURCHASE OR CONSTRUCTION OF ITA NO.237/DEL/2018 2 NEW RESIDENTIAL PROPERTY BEFORE THE DUE DATE OF FUR NISHING THE RETURN NOR IT WAS DEPOSITED BY THE ASSESSEE ON OR BEFORE THE DUE DAT E OF FILING OF INCOME TAX RETURN WITH THE CAPITAL GAINS ACCOUNTS SCHEME AS PER REQU IREMENT OF PROVISIONS CONTAINED IN SECTION 54 OF IT ACT. FROM THE PERUSAL OF POINT NO. 2 OF REPLY OF THE ASSESSEE DATED 12.09.2016, IT WAS SEEN THAT ASSESSEE HAS MAD E PAYMENT IN INVESTMENT OF NEW PROPERTY TOTALING OF RS. 14,29,172/- BEFORE DUE DAT E OF FILING OF THE RETURN. THEREFORE, ASSESSEE WAS ALLOWED TO CLAIM EXEMPTION OF RS. 14,2 9,172/- IN INVESTMENT OF NEW PROPERTY AGAINST LONG TERM CAPITAL GAIN OF RS. 24,3 6,988/-. ACCORDINGLY ADDITION OF RS. 10,07,816/- WAS MADE TO THE INCOME OF ASSESSEE ON ACCOUNT OF LONG TERM CAPITAL GAIN. THE ASSESSEE CHALLENGED THE ADDITION BEFORE L D. CIT(A) AND IT WAS SUBMITTED THAT FILING OF THE RETURN U/S 139(4) IS ALSO PERMIT TED AS REFERENCE IN SECTION 54 IS TO SECTION 139 AND NOT 139(1) AS CLAIMED BY THE AO. TH E LD. CIT(A) ACCEPTED THIS CONTENTION OF THE ASSESSEE. HOWEVER, THE LD. CIT(A) NOTED THAT THE SAME PROVISION PRESCRIBES THAT THE UNUTILIZED CAPITAL GAINS SHOULD BE DEPOSITED IN THE DESIGNATED CAPITAL GAINS ACCOUNT MAINTAINED WITH PRESCRIBED BA NK ON OR BEFORE THE DUE DATE U/S 139(1) OF THE INCOME TAX ACT. IN THE INSTANT CASE, ADMITTEDLY, THE ASSESSEE HAS NOT DEPOSITED THE UNUTILIZED LONG TERM CAPITAL GAINS IN THE DESIGNATED CAPITAL GAINS ACCOUNT WITH THE SCHEDULED BANK, THEREFORE, APPEAL OF ASSESSEE WAS DISMISSED. 3. AFTER CONSIDERING RIVAL SUBMISSION, I AM OF THE VIEW THE MATTER REQUIRES RE- CONSIDERATION AT THE LEVEL OF THE AO. THE LD. COUNS EL FOR THE ASSESSEE SUBMITTED THAT ITA NO.237/DEL/2018 3 ASSESSEE HAS UTILIZED THE AMOUNT OF RS. 59,98,887/- FROM 01.08.2009 TO 31 ST MARCH, 2011. HOWEVER, NO DETAILS ARE FILED AT THE STAGE. I N THIS CASE, THE DUE DATE OF FILING OF THE RETURN WAS 31 ST JULY, 2009 AND EXTENDED PERIOD U/S 139(4) WOULD B E EXPIRING ON 31 ST MARCH, 2010. THE AO HAS GIVEN BENEFIT OF RS. 14,29 ,172/- BECAUSE IT WAS INVESTED IN NEW PROPERTY BEFORE DUE DATE OF FILING OF THE RETURN. LD. CIT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE THAT ASSESSEE WOULD BE ENTITLED TO FILE RETURN OF INCOME U/S 139(4) OF THE INCOME TAX ACT WITH REFERENCE TO SECTION 54 OF THE IT ACT, HONBLE PUNJAB AND HARYANA HIGH COURT CASE CIT VS. MS. JAGRITI AGGARWAL REPORTED IN 339 ITR 610 :- THE ASSESSEE SOLD HER HOUSE PROPERTY FOR RS. 45 LAK HS ON JANUARY 13, 2006, AND HAVING PURCHASED A NEW RESIDENTIAL PR OPERTY ON JANUARY 2, 2007, CLAIMED DEDUCTION UNDER SECTION 54 OF THE INC OME-TAX ACT, 1961. THE ASSESSING OFFICER DECLINED THE CLAIM HOLDING TH AT THE ASSESSEE FAILED TO DEPOSIT THE AMOUNT IN THE CAPITAL GAINS ACCOUNT SCHEME AND ALSO FAILED TO PURCHASE HOUSE PROPERTY BEFORE THE DUE DATE OF F ILING THE RETURN OF INCOME. THE COMMISSIONER (APPEALS) HELD THAT THE AS SESSEE HAD PURCHASED A NEW RESIDENTIAL PROPERTY ON JANUARY 2, 2007, AND THE DUE DATE ACCORDING TO SECTION 139(4) WAS MARCH 31, 2007 , AND, THUS, THE ASSESSEE HAD COMPLIED WITH THE PROVISIONS OF SECTIO N 54 OF THE ACT. THIS ORDER WAS AFFIRMED BY THE TRIBUNAL. ON APPEAL : HELD, DISMISSING THE APPEAL, THAT THE SALE OF THE A SSET HAD TAKEN PLACE ON JANUARY 13, 2006, FALLING IN THE PREVIOUS YEAR 2 006-07, THE RETURN COULD BE FILED BEFORE THE END OF THE RELEVANT ASSES SMENT YEAR 2007-08, I.E., ITA NO.237/DEL/2018 4 MARCH 31, 2007. THUS, SUB-SECTION (4) OF SECTION 13 9 PROVIDES THE EXTENDED PERIOD OF LIMITATION AS AN EXCEPTION TO SU B-SECTION (1) OF SECTION 139 OF THE ACT. SUB-SECTION (4) WAS IN RELATION TO THE TIME ALLOWED TO AN ASSESSEE UNDER SUB-SECTION (1) TO FILE THE RETURN. THEREFORE, SUCH PROVISION WAS NOT AN INDEPENDENT PROVISION, BUT RELATES TO TH E TIME CONTEMPLATED UNDER SUB-SECTION (1) OF SECTION 139 . THEREFORE, S UB-SECTION (4) HAD TO BE READ ALONG WITH SUB-SECTION (1). THEREFORE, THE DUE DATE FOR FURNISHING THE RETURN OF INCOME ACCORDING TO SECTION 139(1) OF THE ACT WAS SUBJECT TO THE EXTENDED PERIOD PROVIDED UNDER SUB-SECTION (4) OF S ECTION 139 OF THE ACT. 4. SINCE NO DETAILS HAVE BEEN FILED BY ASSESSEE FO R MAKING FURTHER INVESTMENT IN PROPERTY AS PER LAW AND LD. CIT(A) HAS ALSO NOT EXA MINED THIS ASPECT IN THE LIGHT OF JUDGMENT IN THE CASE OF MS. JAGRITI AGGARWAL (SUPRA ), THEREFORE, MATTER REQUIRES RE- CONSIDERATION AS THE LEVEL OF THE AO. I, ACCORDINGL Y SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND RESTORED THE MATTER IN ISSUE TO THE FILE OF THE AO WITH DIRECTION TO RE- DECIDE THE ISSUE STRICTLY AS PER LAW BY GIVING REAS ONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE, AT LIBE RTY, TO PRODUCE SUFFICIENT EVIDENCE BEFORE AO IN SUPPORT OF THE ABOVE CONTENTION. 5. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT.) SD/- (BHAVNESH SAINI) JUDICIAL MEMBER ITA NO.237/DEL/2018 5 DATED: 13 /07/2018 *BINITA* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR DATE OF DICTATION 12 .0 7 .2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 13 .0 7 .2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 13 .0 7 .2018 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 13 .0 7 .2018 DATE ON WHI CH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 13 .0 7 .2018 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 13 .0 7 .2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 13 .0 7 .2018 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER **