ITO, Jaipur V. VINITA GHIYA, Jaipur

ITA 336/JPR/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99429 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 30-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MADHUKAR GARG
• Keywords: Capital asset
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH FOE FLAG ;KN O] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI VIKRAM SINGH YA DAV, AM VK;DJ VIHY LA- @ ITA NO. 336/JP/2014 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2009-10 INCOME TAX OFFICER, WARD 1(4), JAIPUR. CUKE VS. SMT. VINITA GHIYA, 493, GOVIND RAJ JI KA RASTA, CHANDPOLE BAZAR, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABDPG 1013 B VIHYKFKHZ@ APPE LLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI KAILASH MANGAL (JCIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MADHUKAR GARG (CA) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 27/10/2015 MN?KKS'K .KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 30/10/2015 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M.: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 14/02/2014 PASSED BY THE LD CIT(A)-I JAIPUR FOR A.Y . 2009-10. THE RESPECTIVE GROUNDS OF APPEAL ARE REPRODUCED AS UNDE R:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN ALLOWING THE DE DUCTION U/S 54EC OF THE IT ACT. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD CIT(A) HAS ERRED IN HOLDING THAT PE RIOD OF ITA 336/JP/2014_ ITO VS. SMT. VINITA GHIYA 2 SIX MONTHS SPECIFIED IN SEC. 54EC SHOULD BE RECKONE D FROM THE END OF THE MONTH IN WHICH THE TRANSFER TAKEN PLA CE AND NOT FROM THE DATE OF TRANSFER OF ASSETS? 2. BOTH THE GROUNDS OF APPEAL ARE INTERLINKED AND A RE AGAINST ALLOWING THE DEDUCTION U/S 54EC OF THE IT ACT AND HOLDING THA T PERIOD OF SIX MONTHS SPECIFIED IN SEC. 54EC SHOULD BE RECKONED FR OM THE END OF THE MONTH IN WHICH THE TRANSFER TAKEN PLACE AND NOT FRO M THE DATE OF TRANSFER OF ASSETS. THE ASSESSEE FILED HER RETURN OF INCOME F OR A.Y. 2009-10 ON 27/07/2009 DECLARING TOTAL INCOME OF RS. 9,44,220/- . THE CASE WAS SCRUTINIZED U/S 143(3) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT). THE LD ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD SOLD PLOT NO. 10 OF 500 SQUARE YARDS SITUATED AT BASNI CHOURAHA, KHASRA NO. 21-22, JODHPUR. THE REGISTERED SALE DEED WAS EXECUTED ON 17/09/2008 A ND PROPERTY TRANSFERRED ON THIS DATE. AS PER SECTION 54EC, ASSE SSEE HAS TO INVEST FOR CLAIMING DEDUCTION U/S 54EC WITHIN SIX MONTHS FROM T HE DATE OF TRANSFER (BOTH DATES-DATE OF TRANSFER AND DATE OF INVESTMENT ARE INCLUDED WITHIN SIX MONTHS). ON PERUSAL OF BANK ACCOUNT OF THE ASSESSEE MAINTAINED WITH CORPORATION BANK, TRIPOLIA BAZAR, JAIPUR THE AMOUNT OF RS. 19,00,000/- TRANSFERRED IN THE ACCOUNT OF NATIONAL HIGHWAYS ON 2 5/03/2009. ASSESSEE HAS ALSO FURNISHED A LETTER FROM NATIONAL HIGHWAYS A UTHORITY OF INDIA DATED 01/04/2009 IN WHICH PAYMENT OF INTEREST TO THE ASSESSEE OF RS. ITA 336/JP/2014_ ITO VS. SMT. VINITA GHIYA 3 1952/- HAS BEEN SHOWN FROM 25/03/2009 TO 30/03/2009. NHAI ISSUED BONDS NO. 1603051 TO 1603240 (190) OF RS. 19,00,000 /- ON 31/03/2009 AND MATURITY OF BOND IS 31/3/2012. AS PER A.O., THE ABOVE FACTS PROVED THAT THE ASSESSEE DID NOT INVEST IN NHAI BONDS WITHI N THE STATUTORY PERIOD OF SIX MONTHS HENCE, DEDUCTION CLAIMED BY THE ASSES SEE OF RS. 19,00,000/- WAS DISALLOWED. 3. AGGRIEVED, THE ASSESSEE TOOK THE MATTER BEFORE T HE LD CIT(A), WHO HAD DELETED THE ADDITION BY OBSERVING AS UNDER:- 4. I HAVE CONSIDERED SUBMISSIONS OF THE APPELLANT AND HAVE ALSO GONE THROUGH THE ASSESSMENT ORDER. IT IS SEEN THAT THE APPELLANT HAD SOLD LAND THROUGH REGISTRATION ON 17/ 09/2008 AND 14/11/2008 RESPECTIVELY. THE A.O. NOTED THAT PLOT NO . 10 SITUATED AT BASNI CHOURAHA, JODHPUR WAS SOLD ON 17/0 9/2008 AND THE SAME CONSIDERATION WAS INVESTED IN THE SPECI FIED NHAI BONDS AFTER THE STATUTORY PERIOD OF SIX MONTHS. THE A.O. NOTED THAT THE INVESTMENT IN THE NHAI BOND WAS MADE ON 25/ 3/2009 AND WAS THUS BEYOND THE PERIOD OF SIX MONTHS AND ACC ORDINGLY, DISALLOWED THE CLAIM U/S 54EC AS THE INVESTMENT IN T HE SPECIFIED BONDS WAS MADE AFTER SIX MONTHS. 4.1 IT IS, HOWEVER, NOTED THAT FOR THE PURPOSES OF S EC 54EC THE HONBLE ITAT MUMBAI IN THE CASE OF YAHIA E. DHARIWAL A (ITA NO. 5501/MUM/2009 HAS HELD THAT THE SIX MONTHS PERI OD ITA 336/JP/2014_ ITO VS. SMT. VINITA GHIYA 4 SHOULD BE RECKONED FROM THE END OF THE MONTH IN WHI CH THE TRANSFER TAKES PLACE. IN THE PRESENT CASE THE PROPE RTIES WERE SOLD THROUGH REGISTERED DOCUMENTS ON 17/09/2008 AND 14/11/2008. THE CAPITAL GAIN WAS RS. 28,14,891/- OUT OF WHICH RS. 19 LACS WAS DEPOSITED IN NHAI BONDS BEFORE 31/03 /2009. IN SUCH A SITUATION, IN VIEW OF THE DECISION OF THE HON BLE ITAT MUMBAI (SUPRA), IT CANNOT BE SAID THAT THE INVESTME NT IN NHAI BONDS WAS BEYOND SIX MONTHS. THE DENIAL OF DEDUCTION WAS MADE BY THE A.O., THEREFORE, APPEARS TO BE UNCALLED FOR, AND IS ACCORDINGLY, DELETED. 4. NOW THE REVENUE IS IN APPEAL BEFORE US. THE LD DR HAS VEHEMENTLY SUPPORTED THE ORDER OF THE LD ASSESSING OFFICER. AT THE OUTSET, THE LD AR OF THE ASSESSEE HAS REITERATED THE ARGUMENTS MADE BEFO RE THE LD CIT(A) AND RELIED ON THE DECISION OF SPECIAL BENCH IN THE CASE OF ALKABEN B PATEL VS ITO IITA NO. 1973(AHD) OF 2012 DATED 25/3/2014 WHEREI N THE QUESTION BEFORE THE SPECIAL BENCH WAS WHETHER FOR THE PURPOSES OF SECTION 54EC OF THE ACT, THE PERIOD OF INVESTMENT OF SIX MONTHS SHO ULD BE RECKONED AFTER THE DATE OF TRANSFER OR FROM END OF THE MONTH IN WHI CH TRANSFER OF CAPITAL ASSET TOOK PLACE. THE RELEVANT OBSERVATION OF THE S PECIAL BENCH ARE REPRODUCED AT PARA 6 AND 7 OF THE ORDER, WHICH ARE R EPRODUCED AS UNDER:- 6. THE SUBTLE QUESTION IS THAT WHETHER THE WORD MO NTH REFERS IN THIS SECTION A PERIOD OF 30 DAYS OR IT REFERS TO THE MONTHS ITA 336/JP/2014_ ITO VS. SMT. VINITA GHIYA 5 ONLY. SECTION 54EC, IF WE READ AGAIN PRESCRIBES THAT AN INVESTMENT IS REQUIRED TO BE MADE WITHIN A PERIOD OF SIX MONTHS. WHETHER THE INTENTION OF THE LEGISLATOR WAS TO COMPUTE SIX CALENDAR MONTHS OR TO COMPUTE 180 DAYS. TO RESOLVE THIS CONTROVERSY, WE ARE GUIDED BY A DECISIO N OF HONBLE ALLAHABAD HIGH COURT PRONOUNCED IN THE CASE OF MUNNALAL SHRI KISHAN MAINPURI, 167 ITR 415 WHERE ANSWERING THE DISPUTE IN RESPECT OF LAW OF LIMITATION THE HONBLE COURT HAS CLEARLY HELD THAT THERE IS NOTHIN G IN THE CONTEXT OF SECTION 256(2) TO WARRANT THE CONCLUSION THAT THE WORD MONTH IN IT REFERS TO A PERIOD OF 30 DAYS, TH EREFORE, REFERS TO SIX MONTHS IN SECTION 256(2) IS TO SIX CA LENDAR MONTHS AND NOT 180 DAYS. RATHER, IN THIS CITED DECI SION AN INTERESTING OBSERVATION OF THE COURT WAS THAT WHILE COMPARING THE PRECEDENTS THE CONTEXTUAL SETTING IS TO BE EXAMINED AND IF ENTIRELY DISTINCT AND DIFFERENT THE N DO NOT WARRANT TO APPLY UNIVERSALLY. EVEN IN THE CASE OF TAM AL LAHIRI VS. KUMAR P. N. TAGORE, 1978 AIR 1811/1979 SCC (1) 7 5, IT WAS OPINED WHILE INTERPRETING SECTION 533 OF BANGALOR E MUNICIPAL ACT, 1932 THAT THE EXPRESSION SIX MONTHS IN THE SAID SECTION MEANS SIX CALENDAR MONTHS AND NOT 180 DAYS. A COPY OF THE JUDGMENT IS PLACED BEFORE US. THE PURPOS E OF MENTIONING THIS PLANK OF ARGUMENT IS THAT AFTER SCR UTINIZING FEW MORE SECTIONS OF THE ACT IT IS EVIDENT THAT ON SO ME OCCASION THE LEGISLATURE HAD NOT USED THE TERMS M ONTH BUT USED THE NUMBER OF DAYS TO PRESCRIBE A SPECIFIC PERIOD. ITA 336/JP/2014_ ITO VS. SMT. VINITA GHIYA 6 FOR EXAMPLE IN SECTION 254(2A) FIRST PROVISO IT IS PRESCRIBED THAT THE TRIBUNAL MAY PASS AN ORDER GRANTING STAY BU T FOR A PERIOD NOT EXCEEDING ONE HUNDRED AND EIGHTY DAYS. TH IS IS AN IMPORTANT DISTINCTION MADE IN THIS STATUTE WHILE SUBSCRIBING THE LIMITATION/ PERIOD. THIS DISTINCTION THUS RESOLVES THE PRESENT CONTROVERSY BY ITSELF. 7. SO THE LOGICAL CONCLUSION IS THAT IN THE ABSENC E OF ANY DEFINITION OF THE WORD MONTH IN THE ACT, THE DEFIN ITION OF GENERAL CLAUSES ACT 1897 SHALL BE APPLICABLE AND BY DOING SO THERE IS NO ATTEMPT ON OUR PART TO INTERPRET THE LA NGUAGE OF SEC. 54EC , WHAT TO SAY A LIBERAL OR LITERAL INTERPR ETATION. WE HEREBY HOLD THAT THE LEGISLATURE HAS IN ITS WISDOM H AS CHOSEN TO USE THE WORD MONTH. THIS WAS DONE BY KE EPING IN MIND THE DEFINITION AS PRESCRIBED IN GENERAL CLA USES ACT 1857. THEREFORE WE HAVE ALSO READ THE WORD MONTH WITH IN THE RECOGNIZED WAYS OF INTERPRETATION. RATHER WE HAVE ALSO SEEN BOTH; THE CONVENTIONAL AS WELL AS LEXICON MEANI NG. HERE THERE IN NO ATTEMPT TO SUPPLY CASUS-OMISSUS BUT REP LICATED AS PER THE LANGUAGE USED. THEREFORE, HE PRAYED TO CONFIRM THE ORDER OF THE LD CIT(A). 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT IS NOTED T HAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF COORDINATE BENCH IN THE CASE OF YAHIA E. ITA 336/JP/2014_ ITO VS. SMT. VINITA GHIYA 7 DHARIWALA (ITA NO. 5501/MUM/2009) (SUPRA) AS WELL AS SUBSEQUENT SPECIAL BENCH DECISION IN THE CASE OF ALKABEN B PAT EL VS ITO (SUPRA) WHEREIN THE COORDINATE BENCH DECISION HAS BEEN CONSI DERED FAVOURABLY. BY RESPECTFULLY FOLLOWING THE SPECIAL BENCH DECISION IN THE CASE OF ALKABEN B PATEL VS ITO (SUPRA), WE FIND NO INFIRMITY IN THE ORDER OF THE LD CIT(A). ACCORDINGLY, GROUNDS RAISED BY THE REVENUE ARE DISM ISSED. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/10/2015. SD/- SD/- VKJ-IH-RKSYKUH FOE FLAG ;KNO (R.P.TOLANI) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30 TH OCTOBER, 2015 * RANJAN VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, WARD 1(4), JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- SMT. VINITA GHIYA, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 336/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR