SUDHA GARG, Jaipur V. ITO, Jaipur

ITA 291/JPR/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5586 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 27-03-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DR DHK
• Section: 54

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 291/JP/2015 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07 SMT. SUDHA GARG PLOT NO. 216, KATEWA NAGAR JAIPUR CUKE VS. THE ITO WARD- 6(4), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AFXPG 5829 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI SIDDHARTH RANKA, ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY: SMT. POONAM RAI, DCIT- DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 17/02/2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 21/02/2017 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDE R OF THE LD. CIT(A)-2 , JAIPUR DATED 23-01-2015 FOR THE ASSES SMENT YEAR 2006-07 RAISING FOLLOWING GROUND OF APPEAL. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE A S WELL AS IN LAW, THE LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE DISALLOWED EXEMPTION OF RS. 13 LACS MADE U/S 54 EC OF THE I.T. ACT, 1961 AS THE INVESTMENT WAS MADE WELL BEFORE FILING OF RETURN. THUS, EXEMPTION CLAIMED U/S 54EC OF THE ITA NO.291/JP/2015 SMT. SUDHA GARG VS. ITO, WARD- 6(4), JAIPUR 2 I.T. ACT AND DISALLOWED BY THE AO AND CONFIRMED BY THE LD. CIT(A) DESERVES TO BE QUASHED. 2.1 APROPOS SOLITARY GROUND OF THE ASSESSEE, THE FA CTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS AS UNDER:- 4.3 I HAVE PERUSED THE FATS OF THE CASE, THE ASSESSMENT ORDER AND THE SUBMISSIONS OF THE APPELLA NT. THE APPELLANT SOLD THE ABOVE IMMOVABLE PROPERTY ON 28-0 5-2005. FOR CLAIMING DEDUCTION U/S 54C, THE APPELLANT SHOUL D HAVE INVESTED THE MONEY IN NATIONAL HOUSING BOND WITHIN A PERIOD OF SIX MONTHS FROM THE DATE OF TRANSFER OF T HE IMMOVABLE PROPERTY. THIS TIME PERIOD OF SIX MONTHS EXPIRED ON 2-11-2005 WHEREAS THE APPELLANT HAS MADE INVESTM ENT IN NATIONAL HOUSING BOARD ON 02-01-2006 WHICH IS TWO M ONTHS AFTER LAPSE OF THE STATUTORY PERIOD. THE APPELLANT HAS RELIED UPON THE CASE OF JAGAN NATH LODHA VS. ITO OF THE IT AT JODHPUR BENCH. THE ASSESSING OFFICER HAS RIGHTLY ST ATED THAT THE ISSUE IN THIS CASE WAS REGARDING DELAY IN INVES TMENT IN CAPITAL GAINS ACCOUNT AND NOT DELAY FOR THE PURPOSE S OF CLAIMING DEDUCTION U/S 54EC. THEREFORE, THE STAND O F THE ASSESSING OFFICER OF NOT ALLOWING DEDUCTION U 54C I S UPHELD. THIS GROUND IS DISMISSED. 2.2 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE PRAYED THAT THE LOWER AUTHORITIES HAVE ERRED IN DISALLOWING EXE MPTION OF RS. 13.00 ITA NO.291/JP/2015 SMT. SUDHA GARG VS. ITO, WARD- 6(4), JAIPUR 3 LACS MADE U/S 54EC OF THE I.T. ACT AS THE INVESTMEN T HAD BEEN MADE WELL BEFORE THE FILING OF THE RETURN. DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE TO THIS EFFECT RELIED ON FOLLOWING CAS E LAWS. 1. NIAMAT MAHROOF VIRJI VS. ITO (2017)77 TAXMANN.C OM 174 (MUMBAI ITAT ) BONDS TO BE TREATED AS 6 CALENDAR MONTHS 2. ACIT VS. ACIT VS. MAMLAKAR MOGHE (2-15) 64 TAXMANN.COM 413(BOMBAY) BONDS NOT AVAILABLE WHEN ASSESSEE WANTED TO INVEST PERIOD TO BE EXTENDED 3. SUNIL KUMAR SAHA VS. ITO (2015) 64 TAXMANN.COM 1 09 (KOLKATA ITAT ) - BONDS NOT AVAILABLE WHEN ASSESSEE WANTED TO INVEST PERIOD TO BE EXTENDED 4. K PARTHASARTHY VS. ITO (2014) 49 TAXMANN. COM 50 (CHENNAI- ITAT) DELAY CAN BE EXTENDED IN CASE OF DOCTRINE OF SUPERVENING IMPOSSIBILITY 2.3 ON THE OTHER HAND, THE LD. DR RELIED ON THE OR DERS OF THE AUTHORITIES BELOW. 2.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ISSUE IN QUESTION IS THAT THE ASSESSEE HAD MADE INVESTMENT OF RS. 13.00 LACS IN NATIONAL HOUSING BO NDS AND CLAIMED EXEMPTION U/S 54EC OF THE ACT FOR WHICH THE ASSESS EE HAD PRODUCED COPY OF CERTIFICATE OF HOLDING THE BOND BEFORE THE AO. A S PER COPY OF THE CERTIFICATE, THE AO NOTICED THAT THE INVESTMENT IN THE NATIONAL HOUSING ITA NO.291/JP/2015 SMT. SUDHA GARG VS. ITO, WARD- 6(4), JAIPUR 4 BOND HAD BEEN MADE BY THE ASSESSEE ON 02-01-2006. AS PER THE AO, IN ORDER TO AVAIL OF THE BENEFIT OF SECTION 54C OF THE ACT, THE ASSESSEE SHOULD HAVE MADE INVESTMENT IN THE BOND ON OR BEFORE 2-11- 2005 I.E. WITHIN SIX MONTHS FROM THE DATE OF THE TRANSFER OF THE PROPERT Y. IN THIS CASE, THE ASSESSEE MADE INVESTMENT IN THE NATIONAL HOUSING BO ND ON 02-01-2006 WHICH IS AFTER 08 MONTHS FROM THE DATE OF SALE OF P ROPERTY. ACCORDING TO THE AO, THE ASSESSEE FAILED TO MAKE INVESTMENT IN T HE SPECIFIED BOND WITHIN THE STIPULATED PERIOD UNDER THE PROVISIONS O F SECTION 54EC OF THE ACT. THE AO THEREFORE, DID NOT ALLOW THE EXEMPTION TO THE ASSESSEE U/S 54EC OF THE ACT WHICH HAS BEEN CONFIRMED BY THE LD. CIT(A) IN FIRST APPEAL LOOKING INTO THE FACTS AND CIRCUMSTANCES OF THE CASE. THE LD. AR CLAIMS THAT THE BONDS OF NATIONAL HOUSING BONDS WER E NOT AVAILABLE DURING THE PERIOD AND THE BONDS OF NATIONAL HOUSING BONDS WERE MADE AVAILABLE ONLY AFTER THE DUE DATE FOR CLAIMING EXEM PTION U/S 54EC OF THE ACT. HE PLEADED THAT ASSESSEE COULD NOT ASKED TO DO IMPOSSIBLE WORK. ASSESSEE'S CASE IS GOVERNED BY DOCTRINE OF SUPERVEN ING IMPOSSIBILITIES. THEREFORE, THE ASSESSEE SHOULD BE GIVEN BENEFIT OF CLAIM OF DEDUCTION U/S 54EC OF THE ACT. FOR VERIFICATION IN MY CONSIDERED VIEW, IT WILL BE IN THE INTEREST OF EQUITY AND JUSTICE TO RESTORE THE ISSUE TO THE FILE OF THE AO TO DECIDE IT AFRESH BY PROVIDING REASONABLE OPPORTUNIT Y OF BEING HEARD TO THE ITA NO.291/JP/2015 SMT. SUDHA GARG VS. ITO, WARD- 6(4), JAIPUR 5 ASSESSEE IN ACCORDANCE WITH LAW AND ALSO TAKING I NTO CONSIDERATION THE CASE LAWS CITED BY THE LD. AR OF THE ASSESSEE (SUPR A) THE ASSESSEE IS ALSO DIRECTED TO PRODUCE THE NECESSARY EVIDENCE BEFORE THE AO IN THIS REGARD. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STAT ISTICAL PURPOSES. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21 /02/2 017. SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 21/02/ 2017 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. SUDHA GARG, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 6(4), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 291/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR