Shirish Arunchandra Shroff, Aurangabad V. Commissioner of Income-tax: 2,

ITA 475/PUN/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0433 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-11-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 16-04-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Capital asset; Revision of order; Opportunity of being heard; Set aside; Capital Gains
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 54F; 139(1); 139(4); 13; 153

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE , ! ' , $ % BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.475/PN/2015 ' ' / ASSESSMENT YEAR : 2010-11 SHIRISH ARUNCHANDRA SHRO F F , 01 ARCHANA APARTMENTS 65, OPP. TO MONALISA BEAUTY PARLOUR, SAMRATH NAGAR, AURANGABAD. PAN NO.ACZPS0215N. . / APPELLANT V/S COMMISSIONER OF INCOME - TAX II , AURANGABAD. . / RESPONDENT / APPELLANT BY : SHRI PRAMOD SHING TE / RESPONDENT BY : SHRI O.A. MAO ( / ORDER PER ANIL CHATURVEDI, AM : THIS APPEAL OF THE ASSESSEE IS EMANATING OUT OF THE ORDE RS OF COMMISSIONER OF INCOME TAX (A) II (CIT), AURANGABAD DA TED 27.01.2015 PASSED U/S 263 OF THE ACT. / DATE OF HEARING :29.11.2016 / DATE OF PRONOUNCEMENT: 09.12.2016 2 ITA NO.475/PN/2015 AY.NO.2010-11 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER :- 2.1 ASSESSEE IS AN INDIVIDUAL STATED TO BE WORKING AS A DEVELOPMENT OFFICER IN LIC OF INDIA. HE FILED HIS ORIGINAL RETU RN OF INCOME FOR A.Y. 2010-11 ON 10.03.2011 WHICH WAS SUBSEQUENTLY REVISED ON 29.03.2011 AND THE TOTAL INCOME DECLARED WAS RS.8,52,720/-. THE CASE WAS SELECTED FOR SCR UTINY AND THEREAFTER THE ASSESSMENT WAS FRAMED U/S 143(3) VIDE ORDER DT.21.02.2013 AND THE TOTAL INCOME WAS DETERMINED AT RS.8,52,720/-, BEING THE SAME AS PER THE RETURNED INCOME. THEREAFTER ON VERIFICATION OF THE CASE RECORDS, LD. CIT NOTIC ED THAT THE CLAIM OF DEDUCTION U/S 54F AS MADE BY THE ASSESSEE AND THAT WAS ALLOWED BY THE AO, WAS NOT AS PER THE PROVISIONS OF T HE ACT IN VIEW OF THE FACT THAT THE NET CONSIDERATION ON SALE OF ASSET WHICH WAS NOT APPROPRIATED TOWARDS PURCHASE OF NEW ASS ET SHOULD HAVE BEEN DEPOSITED IN THE BANK ACCOUNT BEFORE T HE DUE DATE OF FILING OF RETURN. IN THE ASSESSEES CASE SINCE TH E AMOUNT OF RS.25,00,000/- THAT WAS DEPOSITED IN CAPITAL GAIN SCHEME ACCOUNT WAS MADE ON 23.02.2011, WHICH WAS AFTER THE DUE DATE OF FILING OF RETURN U/S 139(1) OF THE ACT AND THEREFORE AS PE R LD. CIT, THE CLAIM OF DEDUCTION U/S 54F WAS NOT ALLOWABLE TO T HE ASSESSEE. CIT WAS OF THE VIEW THAT SINCE AO HAD ALLOWED THE CLAIM WITHOUT CONSIDERING THE ASPECT OF LATE DEPOSIT OF UNUT ILIZED NET CONSIDERATION, THE ASSESSMENT ORDER FRAMED BY THE A O WAS ERRONEOUS AS IT WAS PREJUDICIAL TO THE INTERESTS OF REVE NUE. HE ACCORDINGLY ISSUED NOTICE ON 30.12.2014 AND CALLED UPON TH E ASSESSEE TO SHOW CAUSE AS TO WHY THE ORDER U/S 263 NOT BE PASSED. IN RESPONSE TO THE NOTICE, ASSESSEE INTER ALIA RAISED 3 ITA NO.475/PN/2015 AY.NO.2010-11 OBJECTIONS AGAINST INITIATION OF PROCEEDINGS AND THE ASSUMP TION OF JURISDICTION BY LD. CIT U/S 263 OF THE ACT AND ALSO ON T HE MERITS OF THE ISSUE. THE SUBMISSIONS OF THE ASSESSEE WAS NOT FOUND ACCEPTABLE TO LD. CIT AS HE WAS OF THE VIEW THAT A SSESSEE IS ENTITLED FOR EXEMPTION U/S 54F, IN CASE HE CONSTRUCTS RES IDENTIAL HOUSE WITHIN A PERIOD OF THREE YEARS AFTER THE SALE OF CAP ITAL ASSET. HE WAS OF THE VIEW THAT AS PER THE PROVISIONS OF SEC.54F(4), THE UNUTILIZED PORTION OF THE NET SALE CONSIDERATIO N HAS TO BE DEPOSITED IN THE CAPITAL GAIN ACCOUNT SCHEME W ITHIN THE DUE DATE OF FILING OF RETURN OF INCOME U/S 139. ACCORDI NG TO LD.CIT THE DUE DATE MENTIONED IN SEC.54F(4) REFERS TO THE D UE DATE OF FILING OF RETURN U/S 139(1) AND NOT THE DUE DATE AS PER SEC.139(4) OF THE ACT. HE THEREFORE HELD THAT TO THE EXT ENT THE AMOUNT THAT WAS DEPOSITED BY THE ASSESSEE IN THE CAPIT AL GAIN ACCOUNT SCHEME, AFTER THE DUE DATE OF FILING OF RETURN OF IN COME, THE ASSESSEE WAS NOT ELIGIBLE FOR EXEMPTION U/S 54F OF T HE ACT. HE ACCORDINGLY RE-WORKED THE LONG TERM CAPITAL GAINS AN D WORKED OUT THE TAXABLE LONG TERM GAIN AT RS.25,67,666/- AND DIREC TED THE AO TO PASS A CONSEQUENTIAL ORDER. AGGRIEVED BY THE ORDER OF LD. CIT, ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW , THE LEARNED CIT HAS ERRED IN PASSING ORDER U/S 263 OF THE INCOME TAX ACT , 1961 BY TREATING THE ORDER PASSED U/S 143(3) OF THE INCOME TAX ACT , 1961 DT . 21/02/2013 AS ERRONEOUS AND PREJUDICIAL OF THE INTEREST OF THE REVENUE . 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW , THE LEARNED CIT HAS ERRED IN NOT APPRECIATING THE FACT THAT ALL THE NECESSARY DETAILS AND EXPLANATION S RELEVANT WITH REFERENCE TO ASSESSMENT WERE OFFERED TO 4 ITA NO.475/PN/2015 AY.NO.2010-11 LEARNED ASSESSING OFFICER AT THE TIME OF PASSING OF ORIGINAL ORDER U/S 143(3) OF THE INCOME TAX ACT , 1961, AND AFTER DUE APPLICATION OF MIND A VIEW HAS BEEN TAKEN BY THE LEARNED ASSESSING OFFICER AND THEREFORE JUST BE CAUSE THERE EXISTS ANOTHER VIEW FAVORABLE TO REVENUE, ACT ION UNDER SECTION 263 IS NOT JUSTIFIED IN LAW . 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW , THE LEARNED CIT HAS ERRED I N PASSING THE FINAL ORDER U/S 263 OF THE INCOME TAX ACT , 1961 MERELY ON THE BASIS OF VIEWS EXPRESSED BY THE COCHIN TR I BUNAL , THEREBY REJECTING THE VIEW OF HON ' BLE HIGH COURT JUDGMENTS . THE ACTION I S PATENTLY IN VIOLATION OF THE JUDICIAL HIERARCHY A ND THEREFORE ORDER PASSED U/S 263 OF THE INCOME TAX AC T , 1961 IS BAD IN LAW . 4. WITHOUT PREJUDICE TO THE ABOVE GROUND , YOUR APPELLANT WISHES TO SUBMIT THAT LEARNED CIT ERRED IN NOT GRAN TING THE RELIEF OF RS. 25 , 00 , 000/- BEING AMOUNT INVESTED IN CAPITAL GAIN SCHEME BEFORE THE DUE DATE PRESCRIBED U/S 139(4) OF THE INCOME TAX ACT , 1961 . 3. BEFORE US, AT THE OUTSET, LD. AR SUBMITTED THAT THOUGH THE ASSESSEE HAS RAISED VARIOUS GROUNDS, BUT TH E SOLE CONTROVERSY IS THAT WITH RESPECT TO ASSUMPTION OF JURISD ICTION U/S 263 AND PASSING OF CONSEQUENTIAL ORDER. 4. BEFORE US, THE LD. AR REITERATED THE SUBMISSIONS MADE BEFORE AO AND LD. CIT AND FURTHER SUBMITTED THAT IN THE PRESENT CASE THE PRE-REQUISITE CONDITIONS SPECIFIED U/S 26 3 OF THE ACT WERE NOT SATISFIED AND THEREFORE THE PROCEEDINGS U/S 263 INITIATED BY LD. CIT LACKS JURISDICTION AND THEREFORE THE ORD ERS PASSED BY LD. CIT IS BAD-IN-LAW. HE SUBMITTED THAT U/S 26 3, THE LD. CIT CAN REVISE THE ORDER PASSED BY THE AO ONLY ON THE SATISFACTION OF TWIN CONDITIONS NAMELY, (1) THE ORDER IS ERRON EOUS (2) IT IS PREJUDICIAL TO THE INTEREST OF REVENUE. IF ONE OF T HEM IS ABSENT I.E., IF EITHER THE ORDER OF THE REVENUE IS ERRONEOUS BUT IT 5 ITA NO.475/PN/2015 AY.NO.2010-11 IS NOT PREJUDICIAL TO THE INTEREST OF REVENUE OR IF IT IS NO T ERRONEOUS BUT IT IS PREJUDICIAL TO THE INTEREST OF REVENUE , RECOURSE CANNOT BE HAD TO SEC.263(1). HE FURTHER SUBMITT ED THAT THE ERROR ENVISAGED OF SEC.263 IS NOT ONE, WHICH DEPENDS ON POSSIBILITY BUT IT SHOULD BE AN ACTUAL ERROR EITHER ON FACT S OR ON LAW. HE FURTHER STATED THAT WHEN ON AN ISSUE, TWO VIEWS ARE POSSIBLE AND THE AO HAS TAKEN ONE VIEW WITH WHICH THE LD. CIT DOES NOT AGREE, THE ORDER OF AO CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF REVENUE, UNLESS THE VIEW TAKEN BY THE AO IS UNSUSTAINABLE IN LAW AND FOR T HIS PROPOSITION, HE RELIED ON DECISION IN THE CASE OF MALABAR INDUSTRIAL COMPANY VS. CIT (2000) 243 ITR 83 (SC). HE FURTH ER SUBMITTED THAT AO DURING THE COURSE OF PROCEEDINGS HAD RAISED A QUERY AND THE SAME WAS REPLIED BY THE ASSESSEE AND O N BEING SATISFIED BY THE REPLY, AO HAD ALLOWED THE CLAIM OF ASSESSEE . IN SUPPORT OF HIS SUBMISSION THAT THE QUERY WAS RAISED DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS, HE POINTED TO THE COP Y OF THE ORDER SHEETS, WHICH WERE OBTAINED BY THE ASSESSEE AND ARE PLACED ON RECORD AT PAGES 1 TO 20 OF THE PAPER BOOK. HE FURTHER POINTED OUT TO THE ASSESSMENT ORDER AND SUBMITTED THA T THE ISSUE OF LONG TERM CAPITAL GAINS WAS DISCUSSED BY THE AO IN THE ASSESSMENT ORDER AND THEREAFTER ON BEING SATISFIED BY TH E REPLIES GIVEN BY THE ASSESSEE THE CLAIM WAS ALLOWED. ON THE MER ITS OF THE ISSUE WITH RESPECT TO THE DEDUCTION CLAIMED U/S 54F OF THE ACT, HE SUBMITTED THAT THE HONBLE GAUHATI HIGH COURT IN THE CASE OF CIT(A) VS. RAJESH KUMAR JALAN (2016) 286 ITR 27 4, PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT VS. JA GRITI AGGARWAL (2011) 339 ITR 610 AND KARNATAKA HIGH COURT IN THE 6 ITA NO.475/PN/2015 AY.NO.2010-11 CASE OF AND FATHIMA BAI VS. ITO REPORTED IN 2009 32 DTR 243 (KAR) HAVE TAKEN A VIEW THAT THE UNUTILIZED PORTION OF CAP ITAL GAIN ON SALE OF RESIDENTIAL PROPERTY CAN BE DEPOSITED IN N OTIFIED SCHEME UPTO THE EXPIRY OF TIME LIMIT FOR FILING OF RETURN U/S 139(4). HE THEREFORE SUBMITTED THAT THE VIEW TAKEN BY TH E AO WHILE ALLOWING THE CLAIM OF DEDUCTION U/S 54F WAS NOT AN IMPROBABLE VIEW AND THE VIEW OF THE AO WAS IN LINE WITH THE AFORESAID DECISIONS. IN SUPPORT OF HIS CONTENTION THAT WH EN THE ORDER OF AO WAS IN ACCORDANCE WITH LAW AND THEREFORE TH E PROVISIONS OF SEC.263 CANNOT BE INVOKED, HE RELIED ON THE DECISION OF BOMBAY HIGH COURT REFERRED IN THE CASE OF CIT VS. GABRIEL INDIA LTD., (1993) 203 ITR 108 (BOM) AND THE DECISIO N IN THE CASE OF CIT VS. NIRAV MODI REPORTED IN (2016) 71 TAXMANN.COM 272 (BOM). LD. AR FURTHER SUBMITTED THAT THOUGH HONBLE BOMBAY HIGH COURT RECENTLY IN THE CASE OF HUMA YUN SULEMAN MERCHANT VS. CCIT (2016) 387 ITR 421 (BOM) HAS TAKEN A VIEW AGAINST THE ASSESSEE BUT THIS DECISION WAS NOT AVAILABLE WHEN THE AO PASSED THE ASSESSMENT ORDER AND THEREFORE IT CANNOT BE SAID THAT AO HAD IGNORED THE BIN DING DECISION OF HONBLE HIGH COURT AND THEREFORE THE ORDER OF AO WAS NOT AS PER LAW. THE LD. AR THEREFORE SUBMITTED THAT THE ORDER OF LD. CIT PASSED U/S 263 OF THE ACT NEEDS TO BE SET ASIDE BOTH ON THE GROUNDS OF JURISDICTION AND ON FACTS. 5. THE LD. DR ON THE OTHER HAND SUPPORTED THE ORDER OF LD. CIT AND FURTHER SUBMITTED THAT THE PROVISION OF SEC.54 (F)(4) ARE VERY CLEAR AND THAT THE UNUTILIZED AMOUNT OF CONSIDER ATION HAS TO BE DEPOSITED IN THE CAPITAL GAIN SCHEME ACCOUNT BEFORE THE 7 ITA NO.475/PN/2015 AY.NO.2010-11 DUE DATE OF FILING PRESCRIBED U/S 139(1) OF THE ACT. HE FUR THER SUBMITTED THAT THE HONBLE APEX COURT IN THE CASE OF S RI PRAKASH NATH KHANNA VS. CIT (2004) 266 ITR1 HAS HELD THAT DUE DATE MEANS DATE OF FILING OF RETURN U/S 139(1) AND NOT U/S 139( 4) OF THE ACT. HE FURTHER SUBMITTED THAT COCHIN BENCH OF TRIBU NAL IN CASE OF ITO VS. SMT. ROSAMMA KORAH REPORTED IN (2014) 45 TAXMANN. COM 153 (COCH. TRIB) AND AFTER RELYING ON THE D ECISION OF THE APEX COURT IN THE CASE OF PRAKASH NATH KHANNA (SUPRA) HAS HELD THAT THE DUE DATE MENTIONED U/S 54F IS DUE DATE FOR FILING RETURN U/S 139(1) AND NOT U/S 139(4) OF THE ACT. HE THEREFORE SUBMITTED THAT SINCE AO HAS ALLOWED THE CLAIM OF DEDUCTION EVEN ON THE AMOUNT THAT WAS DEPOSITED AFTER THE DUE DATE OF FILING THE RETURN OF INCOME U/S 139(1), THE LD. CIT HAS RIGHTLY HELD THE ORDER PASSED BY THE AO TO BE ERRONEO US AND PREJUDICIAL TO THE INTEREST OF REVENUE. HE THUS, SUPPORTE D THE ORDER OF LD. CIT. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE I N THE P R ESE NT CASE IS ABOUT TH E IN VOK I NG O F P R OVISIONS O F SEC TI O N 263 BY C IT . 7. S . 263(1) OF THE ACT , THE POWERS UNDER WHICH CIT HAS ASSUMED POWER F O R REVISION , READS AS UNDER : ' T HE COMMISS I ONE R MAY CALL FOR AND EXAMINE T HE R ECORD OF ANY P R OCEED I NG UNDE R THIS ACT , AND IF HE CONSIDERS THAT ANY ORDER PASSED THERE I N BY THE ITO IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTER ESTS OF THE REVENUE , HE MAY , AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND AFTER MAKING OR CAUS I NG TO BE MADE SUCH I NQU I RY AS HE DEEMS NECESSARY , PASS SUCH O R DE R T HEREON AS T HE CI R CUMSTANCES O F THE CASE J UST I FY , I NCLUDING AN ORDER 8 ITA NO.475/PN/2015 AY.NO.2010-11 ENHANC I NG O R MODIFYING THE ASSESSMENT, OR CANCELLING THE ASSESSMENT AND DIRECTING A FRESH ASSESSMENT. 8. THE R EAD I NG O F TH E ABOVE PROV I S I O N S M AKES IT VE RY C L EA R THAT T HE POWER OF S U O MOTU REVISION U / S 263(1 ) IS I N T HE NA T U R E OF SUPE R V I SORY J URISD I C T ION AND T HE SA M E CAN BE EXE R CISED ONLY I F T HE C IR C U MS T A N CES SPECIF I ED THEREIN EX I ST. T WO C I RCUMSTANCES MUST EX I ST TO ENABLE T HE COMM I SS I ONER TO E X ERCISE POWER OF REVISIO N U / S 263 , NAMELY (I) THE O R DER IS ERRONEOUS ( I I) BY VIRTUE OF BEING ERRONEOUS P R EJUDICE HAS BEEN CAUSED TO THE I NTERESTS OF THE REVENUE . 9. HON ' BLE AP E X CO U RT I N THE CASE OF MA L ABA R IND U ST RI A L CO LTD VS CIT ( 2000 ) 2 4 3 I TR 83 ( SC ) H AS HE L D TH A T CIT HAS TO BE SA TI S F IED O F T W IN CO N D ITI O N S , N AME L Y , ( I ) TH E ORDE R O F TH E AO SO U GHT T O BE R EVISED I S E R RO N EO U S ; AN D (II) IT I S PRE JU D I C I AL T O THE IN TERES T S O F TH E REVE NU E . I F O NE O F TH EM I S ABSE NT-IF TH E ORDE R O F TH E IT O I S ER R O N EO U S B UT I S N O T P R E JU D I C I A L T O THE REVE NU E O R IF I T I S NO T E RR O N EO U S B UT I S PRE JU D I C I A L T O TH E REVE N UE -R ECO UR SE CA NN OT B E H A D T O S. 263 (1) . IT WAS FURTHER H E L D T H AT TH E PROV I SIO N CA NN OT BE IN VOKED T O CO RR ECT EAC H AND EVERY TYPE O F MISTAKE O R ER R OR COMM ITT E D BY TH E AO ; WHEN AN I TO ADOP T ED ONE OF THE COURS E S PERMISS I BLE IN LAW AND IT HAS RESUL T ED I N LOSS O F REVE N UE ; OR WHERE T WO V I EWS AR E POSSIBLE AND THE ITO HAS TAKEN ONE VIEW WITH WHICH THE CIT DOES NOT AGREE , IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERESTS OF THE REVE NUE UNLESS THE VIEW TAKEN BY THE ITO IS UNSUSTA I NAB L E IN LAW . 9 ITA NO.475/PN/2015 AY.NO.2010-11 10. I N T H E CASE O F CI T VS. GAB RI EL I N D I A LT D (1 993 ) 203 I T R 1 08 ( BOM ), THE HON ' B L E BO M BAY H I GH COU R T HAS HE L D AS U NDE R : ' AN ORD ER C A NNO T BE T ERMED AS ER R O N EOUS UNLESS IT I S NO T I N ACCO R DANCE W I TH L AW . IF A N ITO ACTING IN ACCORDANCE W I TH L AW MAKES CER T A I N A SSESSMENT , T H E SA M E CANNOT BE BRANDED AS ERRONEOUS BY T HE COMMISSIONE R S I MPLY BECAUSE A C CO R D IN G TO HIM THE ORDER SHOULD H A V E BEE N WR IT TEN MORE E L ABO R ATELY . THIS SEC TI ON DOES NOT V ISUAL I SE A CASE OF SUBS TIT UT I ON O F J UDGMEN T OF T HE COMMISSIONER FOR THAT O F THE ITO , WHO PASSED THE ORDER , UNLESS T HE DECIS I ON IS HELD TO BE ERRONEOUS . 11. IN THE PRESENT CASE IT IS AN UNDISPUTED FACT THAT ASSESSEE HAS DEPOSITED UNUTILIZED AMOUNT OF CONSIDERATION RECEIVED ON SALE OF CAPITAL ASSET IN THE CAPITAL GAIN SCHEM E ACCOUNT AFTER THE DUE DATE PRESCRIBED FOR FILING THE RETUR N OF INCOME U/S 139(1) OF THE ACT BUT BEFORE THE FILING OF RETURN U/S 139(4) OF THE ACT. ON PERUSING THE COPY OF THE ORDER SHE ETS FROM THE FILE OF AO AND WHICH HAS BEEN OBTAINED BY THE ASSESSE E, IT IS SEEN THAT AO HAS MADE A NOTE OF THE CAPITAL GAINS ARISING ON SALE OF LAND AND THE EXEMPTION CLAIMED BY THE ASSESSEE BY PUR CHASE OF OLD HOUSE WHICH WAS LATER DEMOLISHED FOR CONSTRUCTION OF NEW HOUSE AND THE INVESTMENT MADE BY THE ASSESSEE IN THE CAPITAL GAIN SCHEME. FURTHER ON PERUSING THE ASSESSMENT ORDER PASSED BY THE AO U/S 143(3), IT IS SEEN THAT AO HAS DISCUSSED AB OUT THE ISSUE OF CAPITAL GAINS AND THEREAFTER ALLOWED THE CLAIM OF THE ASSESSEE. IT THEREFORE APPEARS THAT THE QUERY WAS RA ISED BY THE AO WITH RESPECT TO THE CLAIM OF DEDUCTION U/S 54F OF THE ACT AND THE REPLIES FILED BY THE ASSESSEE WERE FOUND ACCEPTABLE T O HIM BECAUSE THE CLAIM OF THE ASSESSEE WAS ACCEPTED BY AO. WE FURTHER FIND THAT THE HONBLE GAUHATI HIGH COURT IN THE CASE OF 10 ITA NO.475/PN/2015 AY.NO.2010-11 RAJESH KUMAR JALAN (SUPRA), PUNJAB & HARYANA HIGH COURT IN THE CASE OF JAGRITI AGGARWAL (SUPRA) AND KARNATAKA HIGH C OURT IN THE CASE OF FATHIMA BAI (SUPRA) HAVE HELD THAT ASSESSE E CAN FULFILL THE REQUIREMENTS OF SEC.54F OF DEPOSITING THE UN-UTILIZE D PORTION OF CAPITAL GAIN ON SALE OF RESIDENTIAL PROPERTY IN NOT IFIED SCHEME UPTO THE EXPIRY OF TIME LIMIT FOR FILING RETURN OF INCOME U/S 139(4). WE ARE THEREFORE OF THE VIEW THAT THE VIEW TA KEN BY THE AO WHILE ALLOWING THE CLAIM DEDUCTION U/S 54F WAS A POSSIBLE VIEW. WE FIND THAT HONBLE APEX COURT IN THE CAS E OF LD. CIT(A) VS. MAX INDIA LIMITED (2007) 295 ITR 282 SC HAS HELD THAT WHERE TWO VIEWS ARE POSSIBLE AND ITO HAS TAKEN ON E VIEW WITH WHICH LD. CIT DOES NOT AGREE THEN THE ORDER OF AO C ANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE INTERE ST OF REVENUE UNLESS THE VIEW TAKEN BY THE AO IS UNSUSTAINABL E IN LAW. WE FURTHER FIND THAT THE HONBLE BOMBAY HIGH COURT I N THE CASE OF GABRIEL INDUSTRIAL LIMITED (SUPRA) HAS HELD THAT SEC.2 63 DOES NOT VISUALISE THE CASE OF SUBSTITUTION OF JUDGMENT OF THE COMMISSIONER FOR THAT OF THE ITO WHO PASSED THE ORDER U NLESS THE DECISION IS ERRONEOUS. WE FIND THAT THOUGH THE HONB LE BOMBAY HIGH COURT IN THE RECENT DECISION IN THE CASE OF HUMAYUN SULEMAN (SUPRA) HAS DECIDED THE ISSUE AGAINST THE ASSESSEE BUT THE BENEFIT OF THIS DECISION WAS NOT AVAILABLE TO THE AO AT THE TIME WHEN HE PASSED THE ORDER AS THE HONB LE HIGH COURT DECIDED THE ISSUE ON 18.08.2016 AND THEREFORE IT CA NNOT BE SAID THAT THE AO HAS NOT FOLLOWED THE BINDING DECISION OF HONBLE BOMBAY HIGH COURT. 11 ITA NO.475/PN/2015 AY.NO.2010-11 12. AT THE TIME OF DICTATING ORDER, WE HAVE COME ACROSS THE DECISION RENDERED BY HONBLE KERALA HIGH COURT IN THE CA SE OF XAVIER J. PULIKKAL (TS-151-HC-2014 (KER) WHEREIN THE H ONBLE HIGH COURT HAD OBSERVED THAT FOR SEC.54F EXEMPTION, THE RELEVANT DATE FOR INVESTMENT IS THE DUE DATE FOR FILING ORIG INAL RETURN U/S 139(1) AND NOT BELATED RETURN U/S 139(4). THE HIGH COURT THEREAFTER REMANDED THE MATTER TO AO TO DECIDE THE MATTER AS PER THE DIRECTIONS CONTAINED HEREIN. THEREAFTER MATT ER WAS CARRIED BEFORE THE HONBLE APEX COURT. HONBLE APEX CO URT MODIFIED THE KERALA HIGH COURT ORDER BY DIRECTING THAT THE AO SHALL CONSIDER THE MATTER DENOVO WITHOUT BEING INFLUENCED B Y ANY OBSERVATION MADE BY HIGH COURT. THE CONCLUSION OF HO NBLE APEX COURT AS REPORTED IN (TS-45-SC-2015) IS AS UNDER: SC MODIFIED KERALA HC ORDER WITH RESPECT TO ASSESSEES CAPITAL GAINS EXEMPTION CLAIM U/S 54F; HC HAD RULED THAT FOR CLAIMING SEC.54F EXEMPTION, THE DATE RELEVANT FOR INVESTMENT IN RESIDENTIAL HOUSE IS THE DUE DATE FOR FILING ORIGINAL RETURN U/S 139(1) AND NOT BELATED RETURN U/S 139(4); HC HAS DIRECTED AO TO CONSIDER ASSESSEES FACTS WITH REFERENCE TO PROVISIONS OF SECTION 54F(4) ALONG WITH SECTION 139(1); SC MODIFIES HC ORDER BY DIRECTING THAT THE AO SHALL CONSIDER THE MATTER DO NOVO WITHOUT BEING INFLUENCED BY ANY OBSERVATION MADE BY THE HC, IN ACCORDANCE WITH LAW 13 THE AFORESAID FACTS FURTHER SUPPORT THE VIEW OF THE LD. AR THAT WHETHER THE UNUTILIZED PORTION OF NET CONSIDERATION H AS TO BE DEPOSITED BEFORE THE DUE DATE OF FILING THE RETURN OF IN COME U/S 139(1) OR COULD BE DEPOSITED UPTO THE DATE OF FILING OF R ETURN OF INCOME U/S 139(4), IS A DEBATABLE ISSUE. IN SUCH A SITUA TION, WE DO NOT FIND THE VIEW ADOPTED BY THE AO TO BE AN IMPERMISSIBLE VIEW. BEFORE US REVENUE HAS NOT PLACED ANY 12 ITA NO.475/PN/2015 AY.NO.2010-11 MATERIAL ON RECORD TO DEMONSTRATE THAT THE VIEW TAKEN BY THE AO WAS IMPERMISSIBLE VIEW OR WAS CONTRARY TO LAW OR WAS ON ERRONEOUS APPLICATION ON LEGAL PRINCIPLES NECESSITATING THE EXERCISING OF REVISIONARY POWERS U/S 263. IN VIEW OF THESE FACTS AND RELYING ON THE DECISIONS CITED HEREINABOVE, WE ARE OF THE VIEW THAT LD.CIT WAS NOT JUSTIFIED IN RESORTING TO REVISIONARY PO WERS U/S 263. WE THEREFORE SET ASIDE THE ORDER OF LD. CIT SET TING ASIDE THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT. THUS, THE GROUND OF THE ASSESSEE IS ALLOWED. 14. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THE 9 TH DAY OF DECEMBER, 2016. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER $ / ACCOUNTANT MEMBER PUNE; !'# DATED : 9 TH DECEMBER, 2016. YAMINI ( ) *!+, -,! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3 . 4. 5. THE JT.CIT, RANGE-2, AURANGABAD. %&' (()*, , )* , / DR, ITAT, B PUNE; '-. / / GUARD FILE ( / BY ORDER , //// // TRUE COPY // T // //TRUE COPY// 012 (3 )4 / SR. PRIVATE SECRETARY , )* , / ITAT, PUNE