Smt. Anjali Pranav Mehta, Nagpur V. I.T.O. Ward 1(3), Nagpur

ITA 271/NAG/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2146 (ITAT-NAGPUR)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 19-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A R NINAWE
• Keywords: Capital asset; Period of limitation; Question of law
• Section: 54; 139

Judgement Text

1 ITA NO. 271/NAG/2015 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. (S.M.C.) I.T.A. NO. 271/NAG/2015. ASSESSMENT YEAR : 2011 - 12 SMT. ANJALI PRANAV MEHTA, THE INCOME - TAX OFFICER, NAGPUR. VS. WARD - 1(3), NAGPUR. PAN AFUPM4252M. APPELLANT. RESPONDENT. APPELLANT BY : NONE. RESPONDENT BY : SHRI A.R. NINAWE. DATE OF HEARING : 11 - 07 - 2016 DATE OF PRONOUNCEMENT : 11 TH JULY, 2016 O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(APPEALS) - I, NAGPUR DATED 31 - 08 - 2015 AND PERTAINS TO ASSESSMENT YEAR 2011 - 12. THE GROUNDS OF APPEAL READ AS UNDER : 1. THE ADDITION MADE BY A.O. AT RS.44,51,540/ - BY DENYING EXEMPTION U/ S 54 OF I.T. ACT, 1961 IS UNJUSTIFIED, UNWARRANTED AND BAD IN LAW AND LD. CIT(A) ERRED IN CONFIRMING THE SAME. 2. THE LEARNED CIT(A) ERRED IN HOLDING THAT THOUGH ASSESSEE HAS PURCHASED NEW RESIDENTIAL HOUSE WITHIN TWO YEARS, YET ASSESSEE IS NOT ENTITLED TO EX EMPTION UNDER SECTION 54 OF I.T. ACT, 1961 AS ASSESSEE HAS NOT SATISFIED THE CONDITIONS LAID DOWN IN SECTION 54(1) AND 54(2) OF I.T. ACT, 1961 COMULATIVELY. 3. THE LEARNED AUTHORITIES OUGHT TO HAVE ALLOWED EXEMPTION U/S 54 AS CLAIMED IN THE RETURN. 2. IN THIS CASE SALE OF CAPITAL ASSET BEING HOUSE PROPERTY TOOK PLACE ON 21 - 02 - 2011. THE ASSESSEE MADE INVESTMENT IN A NEW RESIDENTIAL HOUSE ON 06 - 12 - 2 ITA NO. 271/NAG/2015 2012. THE CLAIM FOR EXEMPTION U/S 54(2) WAS DENIED BY THE AUTHORITIES BELOW. THE ASSESSEE HAS CLAIMED THAT THE ISSUE INVOLVED IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. MS. JAGRUTI AGGARWAL 339 ITR 610. HOWEVER, LEARNED CIT(APPEALS) HELD THAT THE CASE WAS NOT APPLICABLE O N THE FACTS OF THE CASE. 3. AGAINST THE ABOVE ORDER, ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL . 4. I HAVE HEARD THE LEARNED D.R. NONE APPEARED ON BEHALF OF THE ASSESSEE. HOWEVER, UPON CAREFUL CONSIDERATION, IN MY CONSIDERED OPINION, THE ISSUE CAN BE DISPOSED OF BY HEARING THE LEARNE D D.R. AND PERUSING THE RECORDS. 5. BEFORE PROCEEDING FURTHER THE PROVISIONS OF SECTION 54(2) CAN BE GAINFULLY REFERRED TO, WHICH READ AS UNDER : THE AMOUNT OF CAPITAL GAIN WHICH IS NOT APPROPRIATED BY THE ASSESSEE TOWARDS THE PURCHASES 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 NEW ASSET BEFORE THE DATE OF FURNISHING THE RETURN OF INCOME U/S 139 SHALL BE DEPOSITED BY HIM BEFORE FURNISHING SUCH RETURN 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 BE NOTIFICATION IN THE OFFICIAL GAZETTE FRAME IN THIS BEHALF AND SUCH RETURN SHA LL BE ACCOMPANIED BY PROOF OF SUCH DEPOSIT AND FOR THE PURPOSE OF SUB - SECTION (1), THE AMOUNT IF ANY, ALREADY UTILISED BY THE ASSESSEE FOR THE PURCHASE OR CONSTRUCTION OF A NEW ASSET TOGETHER WITH THE AMOUNT SO DEPOSITED SHALL BE DEEMED TO BE THE COST OF T HE NEW ASSET. HONBLE PUNJAB & HARYANA HIGH COURT HAD THE OCCASION TO EXPOUND UPON THE SAID SECTION IN THE CASE OF MS. JAGRUTI AGGARWAL (SUPRA). THE DECISION OF THE HONBLE PUNJAB & HARYANA HIGH COURT MAY BE GAINFULLY REFERRED TO AS UNDER : THE DUE DATE U/S 139(1) AS MENTIONED IN SECTION 54(2), HAS TO BE CONSTRUED WITH RESPECT TO THE DUE DATE PRESCRIBED FOR FILING THE RETURN U/S 139(4). THEREFORE, AS PER THIS DECISION THE TIME LIMIT FOR MAKING THE INVESTMENT IN NEW RESIDENTIAL HOUSE PROPERTY SHALL BE WIT HIN ONE YEAR FROM THE END OF THE ASSESSMENT YEAR CONCERNED, CAN BE PERMISSIBLE: 3 ITA NO. 271/NAG/2015 THE FACTS OF THE CITED CASE ARE AS UNDER : SR. NO. PARTICULARS OF TANSACTION DATE 1. SALE OF RESIDENTIAL HOUSE OWNED BY JAGRUTI AGGARWAL. 13 - 01 - 2006 2. INVESTMENT IN NEW HOUSE PROPERTY QUALIFYING FOR DEDUCTION U/S 54. 02 - 01 - 2007 3. DELAY IN DAYS AFTER THE DUE DATE U/S 139(1). 154. IN THIS CASE THE HON PUNJAB AND HARYANA HIGH COURT HELD AS UNDER: QUOTE THE SALE OF THE ASSET HAVING BEEN TAKEN PLACE ON 13 .1.2006 , FALLING IN THE PREVIOUS YEAR 2006 - 07, THE RETURN COULD BE FILED BEFORE THE END OF RELEVANT ASSESSMENT YEAR 2007 - 08 I.E. 31.3.2007. THUS, SUB - SECTION (4) OF SECTION 139 PROVIDES EXTENDED PERIOD OF LIMITATION AS AN EXCEPTION TO SUB - SECTION (1) OF SECTION 1 39 OF THE ACT. SUB - SECTION (4) IS IN RELATION TO THE TIME ALLOWED TO AN ASSESSEE UNDER SUB - SECTION (1) TO FILE RETURN. THEREFORE, SUCH PROVISION IS NOT AN INDEPENDENT PROVISION, BUT RELATES TO TIME CONTEMPLATED UNDER SUB - SECTION (1) OF SECTION 139. THEREFO RE, SUCH SUB - SECTION (4) HAS TO BE READ ALONG WITH SUB - SECTION (1). SIMILAR IS THE VIEW TAKEN BY THE DIVISION BENCH OF KARNATAKA AND GAUHATI HIGH COURTS IN FATHIMA BAIS CASE (SUPRA) AND RAJESH KUMAR JALANS CASE (SUPRA) RESPECTIVELY. IN VIEW OF THE ASBOVE, 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. CONSEQUENTLY, THE QUESTION OF LAW IS ANSWERED AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE. THUS, THE PRESENT APPEAL IS DISMISSED. 6. I FIND THAT THE ABOVE CASE LAW IS FULLY APPLICABLE ON THE FACTS OF THE CASE. THE ASSESSEE HAS MADE INVESTMENT IN THE NEW HOUSE PROPERTY ON 05 - 12 - 2012 WHICH IS WELL WITHIN THE LIM IT SPECIFIED U/S 139(4) WHICH IN THE PRESENT CASE IS 31 - 03 - 2013 (FOR ASSESSMENT YEAR 2011 - 12). THUS I FIND THAT THE ISSUE INVOLVED IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT. NO DECISION OF THE JURISDICTIONA L HIGH COURT TO THE CONTRARY HAS 4 ITA NO. 271/NAG/2015 BEEN PRODUCED BEFORE ME. IN THE LIGHT OF ABOVE PRECEDENT AND DISCUSSION I HOLD THAT JUDICIAL DISCIPLINE DEMANDED THAT THE DECISION OF HONBLE HIGH COURT CITED ABOVE SHOULD HAVE BEEN FOLLOWED BY THE LEARNED CIT(APPEALS) . AC CORDINGLY I SET ASIDE THE ORDER OF LEARNED CIT(APPEALS) AND DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE. 7. IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 11 TH DAY OF JULY,2016. SD/ - ( SHAMIM YAHYA) ACCOUNTANT MEMBER. NAGPUR, DATED: 11 TH JULY, 2016. COPY FORWARDED TO : 1. SMT. ANJALI PRANAV MEHTA, 101, RAMDEO BABA APARTMENT, BAJAJ NAGAR, NAGPUR - 10. 2. I.T.O., WARD - 1 (3), NAGPUR. 3. C.I.T. - I, NAGPUR. 4. CIT(APPEALS), - I, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGIS TRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. WAKODE.