SUNIL VISHNU MEHTA, MUMBAI V. ITO 11(1)(4), MUMBAI

ITA 2498/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4325 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 11-11-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 13-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAMOD NIKHALJE
• Assessee Lawyers: R PRASAD RAO
• Keywords: Period of limitation
• Section: 54; 139

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI- E,BENCH , , BEFORE S/SH. RAJENDRA,ACCOUNTANT MEMBER & SANDEEP GOSAIN,JUDICIAL MEMBER /.ITA NO.2498/MUM/2012 /ASSESSMENT YEAR-2007-08 SH.SUNIL VISHNU MEHTA 3, DELUXE APARTMENT ALTAMOUNT ROAD MUMBI-400 026. PAN:ADYPM 6720 E VS. INCOME TAX OFFICER-11(1)(4) AAYAKAR BHAVAN, M.K. MARG NEW MARINE LINES MUMBAI. ( / ASSESSEE ) ( / RESPONDENT) /ASSESSEE BY :SH. R. PRASAD RAO (AR) / REVENUE BY :SH. PRAMOD NIKHALJE (DR) / DATE OF HEARING :23 - 11 -2015 / DATE OF PRONOUNCEMENT :01.01.2016 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDER 27.02.2012 OF CIT(A)-3,MUMBAI THE ASSESSEE HAS FILED THE PRESENT APPEAL. ASSESSEE,AN INDIVIDUAL,FILED HIS RETURN OF INCOME O N 01.08.2007,DECLARING TOTAL INCOME AT RS.7, 72,193/-.THE ASSESSING OFFICER(AO)COMPLETED THE ASS ESSMENT ON 21.12.2009,U/S.143(3)OF THE ACT,DETERMINING HER INCOME AT RS.18,35,420/-. 2. EFFECTIVE GROUND OF APPEAL IS ABOUT DENIAL OF BENEF IT OF EXEMPTION CLAIMED U/S.54 OF THE ACT.DURING THE ASSESSMENT PROCEEDINGS,THE AO FOUND THAT THE ASSESSEE HAD SOLD A HOUSE PROPERTY ON 02.02.2007 FOR A CONSIDERATION OF RS.1.70 CRORES ,THAT HE HAD INVESTED PART OF THE CAPITAL GAIN IN PURCHASE OF ANOTHER RESIDENTIAL UNIT,THAT HE HAD PURCHASED THE NEW PROPERTY FOR RS.72.96 LAKHS,THAT PAYMENT WAS MADE UP TO 27.07.2007,THAT HE HAD COMPUTED CAPITAL GAIN AT RS.80.87 LAKHS AND HAD CLAIMED EXEMPTION U/S.54 OF THE ACT,T HAT THE ASSESSEE HAD NOT INVESTED TOTAL CAPITAL GAIN IN PURCHASING THE NEW HOUSE PROPERTY,THAT HE H AD NOT DEPOSITED RS.7.91 LAKHS IN THE SPECIFIED SCHEME I.E.CAPITAL GAINS ACCOUNTS SCHEME, 1988,THAT MONEY WAS TO BE DEPOSITED IN THE ACCOUNT ON OR BEFORE DUE DATE OF FILING OF RETURN O F INCOME I.E.31.07.2007,THAT HE HAD VIOLATED THE PROVISIONS OF SECTION 54(2)OF THE ACT. 3 .AGGRIEVED BY THE ORDER OF THE AO,THE ASSESSEE PREF ERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY (FAA).AFTER CONSIDERING THE SUBMISSIONS O F THE ASSESSEE AND THE ASSESSMENT ORDER,HE HELD THAT THE ASSESSEE HAD INVESTED RS.72.96 LAKHS FOR PURCHASING NEW HOUSE PROPERTY TILL 27.07.2007,THAT HE HAD FILED HIS RETURN OF INCOME O N 01.08.2007,THAT BALANCE AMOUNT OF RS.7.16 LAKHS WAS INVESTED IN THE MONTHS OF JUNE AND JULY 2 008,THAT HE WAS NOT ENTITLED TO CLAIM EXEMPTION IN RESPECT OF SAID AMOUNT,THAT UNUTILIZED AMOUNT OF CAPITAL GAIN FOR PURCHASE OF NEW ASSET HAD TO BE DEPOSITED IN THE SPECIFIED SCHEME O F CAPITAL GAINS,THAT HE HAD NEITHER INVESTED THE AMOUNT IN QUESTION IN PURCHASING NEW ASSET NOR HAD DEPOSITED IT IN THE SPECIFIED SCHEME,THAT THE AO WAS RIGHT IN RESTRICTING THE CLAIM TO RS.72.96 L AKHS.HE FURTHER HELD THAT SOCIETY CHARGES WERE 2498/12-SUNIL VISHNU.M 2 RIGHTLY RESTRICTED TO RS.12,500/- AS AGAINST RS.1.2 5 LAKHS BY THE AO,THAT THE ASSESSEE HAD NOT PRODUCED ANY DOCUMENTARY EVIDENCE IN THAT REGARD.IN SHORT,HE UPHELD THE ORDER OF THE AO. 4 .BEFORE US,THE AUTHORISED REPRESENTATIVE(AR)ARGUED THAT THE ASSESSEE HAD INVESTED RS.72.96 LAKHS FOR PURCHASING NEW HOUSE PROPERTY,THAT THE BA LANCE AMOUNT WAS DEPOSITED IN THE SPECIFIED SCHEME BEFORE THE DUE DATE OF FILING OF RETURN AS PER THE PROVISIONS OF SECTION 139(4)OF THE ACT.HE RELIED UPON THE CASES OF JAGRITI AGARWAL(339 ITR610),KISHORE H GALAIYA (24 TAXMANN. COM.11)R SRINIVAS(63TAXMANN.COM.101).DEPARTMENTAL R EPRESENTATIVE(DR)LEFT THE ISSUE TO THE DISCRETION OF THE BENCH. 5 .WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL BEFORE US.WE FIND THAT OUT OF THE CAPITAL GAINS OF RS.80 LAKHS THE ASSESSEE HAD INVES TED RS.72.96 LAKHS BY 27.07.2007,THAT BALANCE AMOUNT WAS DEPOSITED IN THE SPECIFIED SCHEME IN THE MONTHS OF JUNE AND JULY,2008,THAT THE DUE DATE OF FILING OF RETURN AS PER THE PROVISIONS OF S ECTION 139(4) WAS 31.03.2009.WE FIND THAT THE HONBLE P & H HIGH COURT IN THE CASE OF JAGRITI AGA RWAL(SUPRA),HAS DEALT WITH THE ISSUE OF DUE DATE OF FILING OF RETURNS OF INCOME WITH REGARD TO SECTION 54 OF THE ACT.FACTS OF THE CASE WERE THAT THE ASSESSEE HAD SOLD HER HOUSE PROPERTY FOR RS. 45 LAKHS ON 13.01.2006, AND HAVING PURCHASED A NEW RESIDENTIAL PROPERTY ON 02.01.2007, CLAIMED DED UCTION UNDER SECTION 54 OF THE ACT.THE AO DECLINED THE CLAIM HOLDING THAT THE ASSESSEE FAILED TO DEPOSIT THE AMOUNT IN THE CAPITAL GAINS ACCOUNT SCHEME AND ALSO FAILED TO PURCHASE HOUSE PR OPERTY BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME.THE FAA HELD THAT THE ASSESSEE HAD PURCHA SED A NEW RESIDENTIAL PROPERTY ON 02.01.2007,THAT THE DUE DATE ACCORDING TO SECTION 1 39(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.THE HONBLE HIGH COURT DISMISSED THE A PPEAL FILED BY THE DEPARTMENT AND HELD AS UNDER: THE SALE OF THE ASSET HAD TAKEN PLACE ON JANUARY 13 , 2006, FALLING IN THE PREVIOUS YEAR 2006- 07, 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 PROV IDES THE EXTENDED PERIOD OF LIMITATION AS AN EXCEPTION TO SUB-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 FIL E THE RETURN. THEREFORE, SUCH PROVISION WAS NOT AN INDEPENDENT PROVISION, BUT RELATES TO THE TIME C ONTEMPLATED UNDER SUB-SECTION (1) OF SECTION 139 . THEREFORE, SUB-SECTION (4) HAD TO BE READ ALO NG WITH SUB-SECTION (1). THEREFORE, THE DUE DATE FOR FURNISHING THE RETURN OF INCOME ACCORDING TO SE CTION 139(1) OF THE ACT WAS SUBJECT TO THE EXTENDED PERIOD PROVIDED UNDER SUB-SECTION (4) OF S ECTION 139 OF THE ACT. RESPECTFULLY,FOLLOWING THE ABOVE JUDGMENT,WE DECIDE THE EFFECTIVE GROUND IN FAVOUR OF THE ASSESSEE,AS HE HAD INVESTED THE BALANCE AMOUNT IN SPECIFIED SCHEME BEFORE THE DUE DATE AS ENVISAGED BY THE SECTION 139(4)OF THE ACT. AS A RESULT,APPEAL FILED BY THE ASSESSEE STANDS ALL OWED. . ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST JANUARY, 2016. 01 , 2016 SD/- SD/- ( /SANDEEP GOSAIN ) ( / RAJENDRA ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER MUMBAI, DATE: 01.01.2016 . . . JV.SR.PS. 2498/12-SUNIL VISHNU.M 3 / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR E BENCH, ITAT, MUMBAI / , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.