Ramrao Dhondiba Pimple, Pune V. Income-tax Officer,

ITA 473/PUN/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7256 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 10-10-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 16-04-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR VIVEK AGGARWAL
• Keywords: Capital asset; Period of limitation; Benefit of exemption
• Section: 54B; 54F; 234B; 54; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO , AM AND SHRI VIKAS AWASTHY, JM . / I TA NO. 473 /PUN/20 15 / ASSESSMENT YEAR : 2011 - 12 RAMRAO DHONDIBA PIMPLE, PLOT NO. 2, PIMPLE SADAN, KASARWADI, PUNE - 411 034. PAN : AARPP7671H ....... / APPELLANT / V/S. INCOME TAX OFFICER, WARD 8(3), PUNE. / RESPONDENT A SSESSEE BY : SHRI PRAMOD SHINGTE REVENUE BY : DR. VIVEK AGGARWAL / DATE OF HEARING : 10.10.2017 / DATE OF PRONOUNCEMENT : 30 .10.2017 / ORDER PER VIKAS AWASTHY, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX(APPEALS), PUNE - 6 DATED 30.01.2015 FOR ASSESSMENT YEAR 2011 - 12. 2 ITA NO.473 /PUN/2015 A.Y.2011 - 12 2. THE PRIMARY ISSUE RAISED BY AS SESSEE IN APPEAL IS AGAINST DENIAL OF EXEMPTION U/S.54B OF THE INCOM E TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) IN RESPECT OF INVESTMENT OF RS.71,56,000/ - MADE BEYOND THE PERIOD OF DUE DATE FOR FILING RETURN OF I NCOME AS SPECIFIED U/S.139(1) OF THE ACT BUT WITHIN THE DATE SPECIFIED U/S. 139(4) OF THE ACT. 3. THE BRIEF FACTS OF THE CASE AS EMANATING FROM THE RECORD S ARE : THE ASSESSEE HAD SOLD THREE PARCELS OF AGRICULTURAL LAND FOR TOTAL CONSIDERATION OF RS.5.88 CRORE AND HAD EARNED TOTAL LONG TERM CAPITAL GAIN TO THE TUNE OF RS.5.70 CRORE. THE ASSESSEE INVESTED RS.2.66 CRORE TOWARDS PURCHASING OF NEW AGRICULTURAL LAND AND CLAIMED EXEMPTION U/S. 54B OF THE ACT. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS , THE ASSESSING OFFICER DISCOVERED THAT THREE PARCELS OF LAND WERE PURCHASED BY THE ASSESSEE FOR AGGREGATE CONSIDERATION OF RS. 71,56,000/ - AFTER DUE DATE FOR FILING RETURN OF INCOME U/S. 139(1) OF THE 71,56,000/ - AFTER DUE DATE FOR FILING RETURN OF INCOME U/S. 139(1) OF THE ACT HAD ELAPSED . AS PER DOCUMENT S ON RECORD, THE AFORES AID THREE PIECES OF AGRICULTURAL LAND ON WHICH THE ASSESSING OFFICER DISALLOWED THE BENEFIT OF EXEMPTION U/S. 54B WERE PURCHASED IN THE MONTH OF AUGUST, 2012, W HEREAS , THE DUE DATE FOR FILING RETURN OF INCOME U/S. 139(1) WAS 30.09.2011. AGGRIEVED BY THE ASSESSMENT ORDER DATED 10.02.2014, THE ASSESSEE FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX(APPEALS). THE COMMISSIONER OF INCOME TAX(APPEALS) UPHELD THE FINDINGS OF ASSESSING OFFICER AND REJECTED THE CLAIM OF ASSESSEE. 3 ITA NO.473 /PUN/2015 A.Y.2011 - 12 4 . NOW, THE ASSESSEE IS IN S ECOND APPEAL BEFORE THE TRIBUNAL AND HAS IMPUGNED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) BY RAISING FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFFICER HAS ERRED IN NOT GRANTING EXEMPTION U/S. 54B OF THE INCOME TAX ACT, 1961 FOR THE PART OF INVESTMENT OF RS.71,56,000/ - BY DISREGARDING APPELLANTS CONTENTION IN THIS REGARDS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFFICER HAS ERRED IN LEVYING INTEREST U/S. 234B AND 234C OF THE INCOME TAX ACT, 1961 FOR THAT PORTION OF INCOME WHICH DEDUCTION U/S. 54B OF THE INCOME TAX ACT, 1961 HAS BEEN DENIED AND ASSESSEE COULD NOT HAVE APPREHENDED HIS ADVANCE TAX LIABILITY BY ASSUMING THAT ASSESSING OFF ICER WILL NOT CONSIDER THE LEGAL CLAIM. 5 . SHRI PRAMOD SHINGTE APPEARING ON BEHALF OF ASSESSEE SUBMITTED THAT ASSESSEE HAD FILED ITS RETURN OF INCOME FOR IMPUGNED ASSESSMENT YEAR ON 30.03.2013 I.E. BEFORE EXPIRY OF TIME PRESCRIBED U/S. 139(4) OF THE ACT AND HAD CLAIMED BENEFIT OF EXEMPTION U/S. 54B ON THE ENTIRE INVE STMENT OF RS.2,65,63,140/ - . THE ASSESSEE HAD PURCHASED VARIOUS INVE STMENT OF RS.2,65,63,140/ - . THE ASSESSEE HAD PURCHASED VARIOUS PIECES OF AGRICULTURAL LAND . OUT OF THE TOTAL INVESTMENT MADE, INVESTMENT TO THE TUNE OF RS.71,56,000/ - WAS MADE TOWARDS PURCHASE OF FOLLOWING LANDS IN AUGUST, 2012. I) LAND AT KURULI PURCHASE D ON 22.08.2012 RS.6,00,000/ - II) LAND AT KURULI PURCHASED ON 22.08.2012 RS.48,40,000/ - III) LAND AT VELE PURCHASED ON 07.08.2012 RS.17,16,000/ - TOTAL RS.71,56,000/ - THE AUT HORITIES BELOW HAVE REJECTED ASSESSEES CLAIM OF EXEMPTION U/S. 54B IN RESPECT OF ABOVEMENTIONED THREE AGRICULTURAL LANDS MERELY FOR THE REASON THAT THE INVESTMENT WAS MADE BY ASSESSEE IN AFORESAID LAND S AFTER THE DUE DATE OF FILING RETURN OF INCOME AS SPECIFIED U/S. 139(1) OF THE ACT. 4 ITA NO.473 /PUN/2015 A.Y.2011 - 12 5 .1 THE LD. A.R. FURTHER SUBMITTED THAT THE HON'BLE GAUHATI HIGH COURT IN THE CASE OF CIT VS. RAJESH KUMAR JALAN REPORTED AS 286 ITR 274 HAS HELD THAT THE REQUIREMENT OF SECTION 54 OF INVESTING THE UNUTILIZED PORTION OF THE CAPITAL GAIN IN NEW CAPITAL ASSET IS FULFILLED WITH THE INVESTMENT I S MADE IN NEW ASSET OR CAPITAL GAIN IS DEPOSITED IN SPECIFIED SCHEME WITHIN THE TIME LIMIT PRESCRIBED FOR FILING RETURN OF I NCOME U/S. 139(4) OF THE ACT. THE HON'BLE BOMBAY HIGH CO URT I N THE CASE OF HUMAYUN SULEM AN MERCHANT VS. CCIT REPORTED AS 387 ITR 421 HAS ACCEPTED THE RATIO LAID DOWN IN THE CASE OF CIT VS. RAJESH KUMAR JALAN (SUPRA.). 5 .2 THE LD. AR FURTHER SUBMITTE D THAT THE HON'BLE PUNJAB & HAR YANA HIGH COURT IN THE CASE OF CIT VS. MS. JAGRITI AGGARWAL REPORTED AS 339 ITR 610 HAS HELD THAT S UB SECTION (4) OF SECTION 139 IS IN FACT A PROVISO TO SUB - SECTION (1) AND PROVIDES FOR EXTENSION OF PERIOD OF DUE DATE FOR TO SUB - SECTION (1) AND PROVIDES FOR EXTENSION OF PERIOD OF DUE DATE FOR FILING RETURN OF INCOME IN CERTAIN CIRCUMSTANCES AND , THEREFORE, EXEMPTION U/S. 54 IS ALLOWABLE TO THE ASSESSEE WHERE NEW PROPERTY HAS BEEN PURCHASED BEFORE THE EXTENDED DUE DATE FOR FILING RETURN OF INCOME AS PER SEC TION 139(4) OF THE ACT. FURTHER TO BUTTRESS HIS SUBMISSION, THE LD. AR PLACED RELIANCE ON THE FOLLOWING DECISIONS: I) SMT. SHASH I VARMA VS. CIT REPORTED AS 224 ITR 106 (MP) II) CIT VS . K. RAMCHANDRA RAO REPORTED AS 277 CTR 522 (KAR) III) CIT VS. RAVINDER KUMAR ARORA REPORTED AS 342 ITR 38 (DEL) 6 . ON THE CONTRARY, DR. VIVEK AGGARWAL REPRESENTING THE DEPA RTMENT VEHEMENTLY DEFENDED THE FINDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS) I N REJECTING ASSESSEES CLAIM OF EXEMPTION U/S. 54B OF THE ACT 5 ITA NO.473 /PUN/2015 A.Y.2011 - 12 IN RESPECT OF THREE PROPERTIES PURCHASED AFTER DUE DATE OF FILING RETURN OF INCOME AS SPECIFIED U/S. 139(1) O F THE ACT. THE LD. DR SUBMITTED THAT THE PR OVISION OF SECTION 54B(2) ARE AMBIGUOUS . A BARE PERUSAL OF THE PROVISION OF S UB SECTION ( 2 ) WOULD SHOW THAT BENEFIT OF EXEMPTION U/S. 54B IS PERMISSIBLE ONLY IF THE NEW ASSET IS PURCHASED OR CAPITAL GAIN IS INVESTED IN SPECIFIED BANK ACCOUNT BEFORE THE DUE DATE FOR FUR NISHING RETURN OF INCOME UNDER S UB SECTION ( 1 ) OF SECTION 139 OF THE ACT. THE LD. DR IN SUPPORT OF HIS SUBMISSION PLACED RELIANCE ON THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF HUMAYUN SULEMAN MERCHANT VS. CCIT (SUPRA.) AND THE DECISION OF KERALA HIGH COURT IN THE CASE OF DR. XAVIER J. PULIKKAL VS. DCIT REPORTED AS 64 T AXMANN.COM 457. THE LD. DR SUBMITTED THAT THE HON'BLE JURISDICTIONAL HIGH COURT REJECTED ASSESSEES CLAIM OF EXEMPTION U/S. 54F WHERE THE INVESTMENT WAS MADE BY THE ASSESSEE AFTER EXPIRY OF DUE DATE FOR FILING RETURN OF INCOME U/S. 139 (1) OF THE ACT. 139 (1) OF THE ACT. 7 . CONTR OVERTING THE SUBMISSIONS MADE ON BEHALF OF DEPARTMENT , THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THE HON'BLE SUPREME COURT OF INDIA HAS MODIFIED THE JUDGMENT OF HON'BLE KERALA HIGH COURT IN THE CASE OF DR. XAVIER J. PULIKKAL VS. DCIT (SUPRA.) AND HA S RESTORED THE MATTER BACK TO THE FILE OF ASSESSING O FFICER TO CONSIDER THE MATTER DE - NOVO. THE LD. AR FURNISHED COPY OF DECISION OF THE HON'BLE SUPREME COURT OF INDIA IN THE CASE OF DR. XAVIER J. PULIKKAL VS. DCIT REPORTED AS 73 TAXMANN.COM 34 (SC). THE L D. AR FURTHER CONTENDED THAT IN THE CASE OF HUMAYUN SULEMAN MERCHANT VS. CIT (SUPRA.), THE HON'BLE JURISDICTIONAL HIGH COURT HAS NOT DISAPPROVED THE RATIO LAID DOWN IN RAJESH KUMAR JALAN S CASE (SUPRA.). THE HON'BLE HIGH COURT REJECTED ASSESSEES CLAIM THE REIN ONLY ON THE GROUND THAT THE FACTS OF THE CASE 6 ITA NO.473 /PUN/2015 A.Y.2011 - 12 ARE DISTINGUISHABLE AND HENCE, THE DECISION OF HON'BLE GAUHATI HIGH COURT IN THE CASE OF RAJESH KUMAR JALAN (SUPRA.) WOULD NOT APPLY. 8 . WE HAVE HEARD THE SUBMISSION MADE BY REPRESENTATIVES OF RIVAL SIDE S AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. THE GROUND N O. 1 RAISED IN THE APPEAL BY ASSESSEE IS AGAINST REJECTING ASSESSEES CLAIM OF EXEMPTION RS.71,56,000/ - U/S. 54B OF THE ACT ON THE GROUND THAT INVESTMENT HAS BEEN MADE AFTER DUE DATE FOR FILING RETURN OF INCOME U/S. 139(1) OF THE ACT. IT IS AN UNDISPUTED FACT THAT ASSESSEE HAS INVESTED RS.71,56,000/ - IN THREE PROPERTIES IN AUGUST, 2012 I.E. AFTER DUE DATE FOR FURNISHING RETURN OF INCOME U/S. 139 (1) OF THE ACT HAD ELAPSED . TH E ASSESSING OFFICER REJECTED ASSESSEES CLAIM OF EXEMPTION IN RESPECT OF AFORESAID INVESTMENT FOR THE REASON THAT AS PER THE PROVISION OF SECTION 54B(2), THE ASSESSEE SHOULD HAVE INVESTED/DEPOSITED THE AMOUNT BEFORE THE DUE DATE FOR FUR NISHING RETURN OF IN COME UNDER S UB - SECTION ( 1 ) OF THE DUE DATE FOR FUR NISHING RETURN OF IN COME UNDER S UB - SECTION ( 1 ) OF SECTION 139 OF THE ACT. 9. THE HON'BLE GAUHATI HIGH COURT IN THE CASE OF CIT VS. RAJESH KUMAR JALAN (SUPRA.) WHILE CONSIDERING ASSESSEES CLAIM OF EXEMPTION U/S. 54 WHERE THE ASSESSEE HAD DEPOSITED UNUTILIZED PORTION OF CAPI TAL GAIN IN THE SPECIFIED SCHEME AFTER THE STIPULATED TIME FOR FURNISHING RETURN OF INCOME U/S. 139(1) OF THE ACT HAS EXPIRED HELD : 6. FROM A PLAIN READING OF SUB - S (2) OF S. 54 OF THE IT ACT, 1961, IT IS CLEAR THAT ONLY S. 139 OF THE IT ACT, 1961, IS M ENTIONED IN S. 54(2) IN THE CONTEXT THAT THE UNUTILIZED PORTION OF THE CAPITAL GAIN ON THE SALE OF PROPERTY USED FOR RESIDENCE SHOULD BE DEPOSITED BEFORE THE DATE OF FURNISHING THE RETURN OF THE INCOME - TAX UNDER S. 139 OF THE IT ACT. SEC. 139 OF THE IT ACT , 1961, CANNOT BE MEANT ONLY AS S. 139(1) BUT IT MEANS ALL SUB - SECTIONS OF S . 139 OF THE IT ACT, 1961. UNDER SUB - S . (4) OF S. 139 OF THE IT ACT ANY PERSON WHO HAS NOT FURNISHED A RETURN WITHIN THE TIME ALLOWED TO HIM UNDER SUB - S . (1) OF S. 142 MAY FURNISH THE RETURN FOR ANY PREVIOUS YEAR AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION 7 ITA NO.473 /PUN/2015 A.Y.2011 - 12 OF THE ASSESSMENT WHICHEVER IS EARLIER . SUCH BEING THE S ITUATION, IT IS THE CASE OF THE RES PONDENT/ASSESSEE THAT THE RESPONDENT/ASSESSEE COULD FULFIL THE REQUIREMENT UNDER S. 54 OF THE IT ACT FOR EXEMPTION OF THE CAPITAL GAIN FROM BEING CHARGED TO INCOME - TAX ON THE SALE OF PROPERTY USED FOR RESIDENCE UPTO 30TH MARCH, 1998, INASMUCH AS THE RETURN OF INCOME - TAX FOR THE ASST. YR. 1997 - 98 COULD BE FURNISHED BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION OF THE ASSESSMENT WHICHEVER IS EARLIER UNDER SUB - S . (4) OF S . 139 OF THE IT ACT, 1961. 10. THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. MS. JAGRITI AGGARWAL (SUPRA.) WHILE CONSIDERING THE ISSUE , WHETHER THE ASSE SSEE IS ELIGIBLE FOR CLAIMING BENEFIT OF EXEMPTION U/S. 54 , IF CAPITAL GAIN AMOUNT IS DEPOSITED/INVESTED AFTER DUE DATE OF FURNISHING RETURN OF INCOME U/S. 139(1) BUT BEFORE THE DUE DATE OF FURNISHING RETURN OF INCOME U/S. 139(4) HELD : 10. HAVING HEARD LEARNED COUNSEL FOR THE PARTIES, WE ARE OF THE OPINION THAT SUB - S. (4) OF S. 139 OF THE ACT IS, IN FACT, A PROVISO TO SUB - S. (1) OF S. 139 OF THE ACT. SEC, 139 OF THE ACT FIXES THE DIFFERENT DATES FOR FILING THE RETURNS FOR DIFFERENT ASSESSEES. IN THE CASE OF ASSESSEE AS THE RESPONDENT, IT IS 31 ST DAY OF JULY OF THE ASSESSMENT YEAR IN TERMS OF CL. (C) OF THE EXPLN. 2 TO SUB - S. (1) OF S. ASSESSMENT YEAR IN TERMS OF CL. (C) OF THE EXPLN. 2 TO SUB - S. (1) OF S. 139 OF THE ACT, WHEREAS SUB - S. (4) OF S. 139 PROVIDES FOR EXTENSION IN PERIOD OF DUE DATE IN CERTAIN CIRCUMSTANCES. IT READS AS UNDER : (4) ANY PERSON WHO HAS NOT FURNISHED A RETURN WITH THE TIME ALLOWED TO HIM UNDER SUB - S (1), OR WIT HIN THE TIME ALLOWED UNDER A NOTICE ISSUED UNDER SUB S.(1) OF S. 142, MAY FURNISH THE RETURN FOR ANY PREVIOUS YEAR AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION OF THE ASSESSMENT WHICHEVER I S EARLIER: PROVIDED THAT WHERE THE RETURN RELATES TO A PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 1988 OR ANY EARLIER ASSESSMENT YEAR, THE REFERENCE TO ONE YEAR AFORESAID SHALL BE CONSTRUED AS A REFERENCE TO TWO YEAR S FROM THE END OF THE RELEVANT ASSESSMENT YEAR.' 11. A READING OF THE AFORESAID SUB - SECTION WOULD SHOW THAT IF A PERSON HAS NOT FURNISHED THE RETURN OF THE PREVIOUS YEAR WITHIN THE TIME ALLOWED UNDER SUB - SO (1) I.E., BEFORE 31ST DAY OF JULY OF THE ASSESSMENT YEAR, THE ASSESSEE CAN FILE RETURN BEFORE THE EXP IRY OF ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR. 12. THE SALE OF THE ASSET HAVING TAKEN PLACE ON 13TH JAN., 2006, FALLING IN THE PREVIOUS (SIC - ASSESSMENT) YEAR 2006 - 07, THE RETURN COULD BE FILED BEFORE THE END OF RELEVANT ASST. YR. 2007 - 08 ( SIC - 2006 - 07) I.E. 31ST MARCH, 2007. THUS, SUB - SO (4) OF S. 139 PROVIDES EXTENDED PERIOD OF LIMITATION AS AN EXCEPTION TO SUB - SO (1) OF S. 139 OF THE ACT. SUB - SO (4) IS IN 8 ITA NO.473 /PUN/2015 A.Y.2011 - 12 RELATION TO THE TIME ALLOWED TO AN ASSESSEE UNDER SUB - SO (1) TO FILE RETURN. THEREFOR E, SUCH PROVISION IS NOT AN INDEPENDENT PROVISION, BUT RELATES TO TIME CONTEMPLATED UNDER SUB - SO (1) OF S. 139. THEREFORE, SUCH SUB - SO (4) HAS TO BE READ ALONG WITH SUB - SO (1). SIMILAR IS THE VIEW TAKEN BY THE DIVISION BENCH OF KARNATAKA AND GAUHATI HIGH C OURTS IN FATIMA BAI AND RAJESH KUMAR JA LAN CASES (SUPRA) RESPECTIVELY. 11 . THE HON'BLE PUNJAB & HARYANA HIGH COURT IN ANOTHER CASE CIT VS. JAGTAR SINGH CHAWLA REPORTED AS 33 TAXMANN.COM 38 FOLLOWING THE RATIO LAID DOWN IN THE CASE OF RAJESH KUMAR JALAN (SUPRA.) ALLOWED ASSESSEES CLAIM OF EXEMPTION U/S. 54F WHERE THE ASSE SSEE PAID SUBSTANTIAL AMOUNT OF SALE CONSIDERATION FOR RESIDENTIAL HOUSE WITHIN EXTENDED PERIOD OF FILING RETURN OF INCOME U/S. 139(4) OF THE ACT. 12. IN THE CASE OF HUMAYUN SULEMAN MERCHANT VS. CCIT (SUPRA.), WE FIND THAT THE HON'BLE BOMBAY HIGH COURT HAS NOT DISAPPROVED THE RATIO LAID DOWN IN RAJESH KUMA R JALAN CASE. HOWEVER, THE ASSESSEES CLAIM OF EXEMPTION U/S. 54F WAS REJECTED THEREIN AS THE RATIO LAID DOWN IN RAJESH KUMAR J ALAN S CASE WAS NOT APPLICABLE ON THE FACTS AND CIRCUMSTANCES OF THAT PARTICULAR CASE. RELEVANT EXTRACT OF THE FINDINGS AND OBSE RVATION OF HON'BLE JURISDICTIONAL HIGH COURT READS AS UNDER: (V) LASTLY AND IN THE ALTERNATIVE, IT IS SUBMITTED BY MR. CHATTERJI, THAT AS THE ENTIRE AMOUNT HAS BEEN PAID TO THE DEVELOPER/BUILDER BEFORE THE LAST DATE TO FILE THE RETURN OF INCOME UNDER SECT ION 139 OF THE ACT, THE EXEMPTION IS AVAILABLE TO THE APPELLANT UNDER SECTION 54F(4) OF THE ACT. IN SUPPORT, THE DECISION OF GAUHATI HIGH COURT IN RAJESH KUMAR JALAN'S CASE (SUPRA . ) IS RELIED UPON. THE GAUHATI HIGH COURT IN THE ABOVE CASE WAS CONCERNED WIT H THE INTERPRETATION OF SECTION 54 OF THE ACT. IT CONSTRUED THE PROVISION OF SUB - SECTION (2) OF SECTION 54 OF THE ACT WHICH IS IDENTICALLY WORDED TO SUB - SECTION (4) OF SECTION 54F OF THE ACT THE COURT IN THE AFORESAID DECISION HELD THAT THE REQUIREMENT OF DEPOSITING BEFORE THE DATE OF FURNISHING OF RETURN OF INCOME UNDER SECTION 139 OF THE ACT HAS NOT TO BE RESTRICTED ONLY TO THE DATE SPECIFIED IN SECTION 139(1) OF THE ACT BUT WOULD INCLUDE ALL SUB - SECTION OF 139 INCLUDING SUB - SECTION (4) OF THE ACT. ON THE ABOVE BASIS IT CONCLUDED THAT IF THE AMOUNT IS UTILIZED BEFORE THE LAST DATE OF FILING OF THE RETURN UNDER SECTION 139 OF THE ACT THEN THE PROVISION OF SECTION 54(2) OF THE ACT WOULD NOT HIT THE ASSESSEE BEFORE IT. IT IS NOT VERY CLEAR IN THE ABOVE CASE W HETHER THE 9 ITA NO.473 /PUN/2015 A.Y.2011 - 12 AMOUNTS WERE UTILIZED BEFORE THE ASSESSEE FILED ITS RETURN OR NOT. (W) HOWEVER, THE FACTUAL SITUATION ARISING IN THE PRESENT CASE IS DIFFERENT. THE RETURN OF INCOME IS ADMITTEDLY FILED ON 4TH NOVEMBER, 1996. IN TERMS OF SECTION 54F(4) OF THE ACT AS INTERPRETED BY THE GAUHATI HIGH COURT IN RAJESH KUMAR JALAN'S CASE (SUPRA . ) TH E AMOUNTS SUBJECT TO CAPITAL GAIN ON SALE OF THE CAPITAL ASSET FOR PURPOSE OF EXEMPTION, HAS TO BE UTILIZED BEFORE THE DATE OF FILING OF RETURN OF INCOME. IN THIS CASE 4TH NOVEMBER, 1996 IS THE DATE OF FILING THE RETURN OF INCOME. IT IS NOT DISPUTED THAT O N 4TH NOVEMBER, 1996 WHEN THE RETURN OF INCOME WAS FILED, THE ENTIRE AMOUNT WHICH WAS SUBJECT TO CAPITAL GAIN TAX HAD NOT BEEN UTILIZED FOR THE PURPOSE OF CONSTRUCTION OF NEW HOUSE NOR WERE THE UNUTILIZED AMOUNTS DEPOSITED IN THE NOTIFIED BANK ACCOUNTS IN TERMS OF SECTION 54F (4) OF THE ACT BEFORE FILING THE RETURN OF INCOME. IT IS ALSO TO BE NOTED THAT IN LINE WITH THE INTERPRETATION OF GAUHATI HIGH COURT ON SECTION 54F(4) OF THE ACT, THE ASSESSING OFFICER HAD TAKEN INTO ACCOUNT ALL AMOUNTS UTILIZED FOR CO NSTRUCTION OF A HOUSE BEFORE FILING THE RETURN OF INCOME ON 4TH NOVEMBER, 1996 FOR EXTENDING THE BENEFIT OF EXEMPTION UNDER SECTION 54F OF THE ACT. THEREFORE, IN THE PRESENT FACTS, THE DECISION OF THE GAUHATI HIGH COURT IN RAJESH KUMAR JALAN'S CASE (SUPRA) WOULD NOT APPLY SO AS TO HOLD THAT THE APPELLANT HAD COMPLIED WITH THE SECTI ON 54F( 4) OF THE ACT . 13 . IN THE PRESENT CASE, THE ASSESSEE HAS CLAIMED EXEMPTION U/S. 54B OF THE ACT. WE OBSERVE THAT THE PROVISION OF SUB SECTION (2) OF SECTION 54, PROVISIO N OF SUB SECTION (2) OF SECTION 54 B AND PROVISIONS OF SUB SECTION (4) OF SECTION 54F ARE PERIMETERIA . THE JUDGMENTS ON WHICH THE LD. AR HAS PLACED RELIANCE ARE RENDERED WITH REFERENCE TO CLAIM OF EXEMPTION U /S. 54 /54F. S INCE PROVISION S OF SUB SECTION (2) OF SECTION 54 AND 54B AND (4) OF SECTION 54F ARE IDENTICAL , THEREFORE, RATIO LAID DOWN BY THE VARIOUS HON'BLE HIGH COURTS WOULD APPLY TO PROVISION S OF SECTION 54B (2) AS W ELL. THUS, IN THE LIGHT OF FACTS OF THE CASE AND VARIOUS DECISION S AS DISCU SSED ABOVE, WE FIND MERIT IN GROUND NO. 1 RAISED BY THE ASSESSEE IN A PPEAL AND THE SAME IS ACCEPTED. THE A SSESSEE IS ELIGIBLE TO CLAIM EXEMPTION U/S. 54B IN RESPECT OF INVESTMENT MADE TOWARDS PURCHASE OF AGRICULTURE LAND WITHIN THE TIME LIMIT FOR FILING RETURN OF INCOME SPECIFIED UNDER SECTION 139(4). 14 . IN GROUND NO. 2, THE ASSESSEE HAS ASSAILED LEVY OF INTEREST U/S. 234B AND 234C OF THE ACT. THE LEVY OF INTEREST U/S. 234B AND 234C IS MANDATORY AND 10 ITA NO.473 /PUN/2015 A.Y.2011 - 12 CONSEQUENTIAL. SINCE , GROUND NO. 1 RAISED BY T HE ASSESSEE HAS BEEN ALLOWED AND IT HAS BEEN CONTENDED THAT INTEREST U/S. 234B AND 234C HA S BEEN LEVIED IN RESPECT OF DISALLOWANCE OF EXEMPTION U/S. 54B, WE DEEM IT APPROPRIATE TO REMIT THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER TO GRANT CONSEQUENTIAL RELIEF TO THE ASSESSEE, IN LINE WITH THE RELIEF GRANTED TO THE ASSESSEE BY US . IN THE RESULT, GROUND NO. 2 RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 15 . IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED IN THE AFORESAID TERMS. ORDER PRO NOUNCED ON MONDAY , THE 30TH DAY OF OCTOBER , 201 7 . SD/ - SD/ - ( . / D. KARUNAKARA RAO ) ( /VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 30 TH OCTOBER , 2017 . SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (APPEALS), PUNE - 6 4. THE CIT, PUNE - 6. 5 . , , , / DR, ITAT, B BENCH, PUNE. 6 . / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE .