PADMANABH PANDURANG PAWAR, MUMBAI V. ITO 20(2)(3), MUMBAI

ITA 7669/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92777 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 31-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PREMANAND J
• Assessee Lawyers: SUBHASH SHETTY
• Section: 54F; 54; 139

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI N.K . BILLAIYA, A CCOUNTANT M EMBER / I .T.A. NO . 7669 /MUM/ 2013 ( / ASSESSMENT YEAR : 2009 - 10 MR. PADMANABH PANDURANG PAWAR, B/31, PARAPORE GARDEN, LINK ROAD, ANDHERI (W), MUMBAI - 400 053 / VS. THE ITO 20(2)(3), 411, PIRAMAL CHAMBERS, LAL BAUG, PAREL, MUMBAI - 400 012 ./ ./ PAN/GIR NO. : AEVPP 6464L ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI SUBHASH SHETTY / RESPONDENT BY : SHRI PREMANAND J / DATE OF HEARING : 0 3 . 0 6 .2015 / DATE OF PRONOUNCEMENT : 0 3 .0 6 .2015 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF THE LD. CIT(A) - 31 , MUMBAI DT. 2 9 . 11 .201 3 PERTAINING TO ASSESSMENT YEAR 2009 - 10. 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF THE AO REJECTING THE CLAIM OF DEDUCTION U/S. 54 OF THE ACT. ITA. NO. 7669/M/2013 2 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT WHILE SCRUTINIZING THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION, THE AO NOTICED THAT THE ASSESSEE HAS SOLD A PLOT OF LAND ON 18.3.2009 AND HAS CLAIMED EXEMPTION U/S. 54 BY MAKING PAYMENT ON 11.8.2009 AND 31.8.2009 OF RS. 3,00,000/ - & 39,00,000/ - RESPECTIVELY FOR PURCHASE OF PROPERTY. TO VERIFY THE CLAIM OF DEDUCTION U/S. 54 OF THE ACT, THE AO ASKED THE ASSESSEE WHETHER HE HAD DEPOSITED THE CAPITAL GAIN IN THE CAPITAL GAINS SCHEME ACCOUNT OR FDR ACCOUNT WITH BANK ON OR BEFORE THE DUE DATE OF FILING THE RETURN I.E. 31.7.2009. THE AO FURTHER ASKED THE ASSESSEE THAT IF THE AFORESTATED CONDITION S ARE NOT FULFILLED, T HEN WHY THE EXEMPTION SHOULD NOT BE DENIED. THE ASSESSEE FILED A DETAILED REPLY. IT WAS EXPLAINED THAT THE SALE PROCEEDS COULD NOT BE DEPOSITED IN THE CAPITAL GAIN ACCOUNT BUT THE SAME WAS INVESTED IN THE DEPOSITS WITH PUNJAB & MAHARASHTRA CO. OP. BANK AND SUBSEQUENTLY THE SALE PROCEEDS WERE UTILIZED FOR THE PURCHASE OF HOUSE PROPERTY. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, THE AO REFERRED TO SEC. 54F(4) OF THE ACT AND CONCLUDED THAT THE ASSESSEE HAS NOT UTILIZED THE NET CONSIDERATION RECEIV ED ON THE SALE OF PLOT OF LAND FOR THE PURCHASE OF NEW HOUSE AS PER PROVISIONS OF THE ACT AND THEREFORE NOT ELIGIBLE FOR THE CLAIM OF DEDUCTION U/S. 54F OF THE ACT. 4. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) BUT WITHOUT ANY SUCCE SS. 5. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE STRONGLY SUBMITTED THAT THERE IS A DEBATE WHETHER THE AMOUNT HAS TO BE DEPOSITED IN THE CAPITAL GAINS SCHEME ON OR BEFORE THE DUE DATE OF FILING THE RETURN U/S. 139(1) OR SEC. 139(4) OF THE ACT. IT IS T HE SAY OF THE LD. COUNSEL THAT THE ASSESSEE HAS FILED THE RETURN U/S. 139(4) OF THE ACT. BEFORE FILING THE RETURN, THE ASSESSEE HAS UTILIZED THE ENTIRE SALE CONSIDERATION INTO THE PURCHASE OF ITA. NO. 7669/M/2013 3 NEW HOUSE PROPERTY AND THEREFORE ENTITLED FOR DEDUCTION U/S. 54 F OF THE ACT. 6. THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. IT IS THE SAY OF THE LD. DR THAT COMPLIANCE TO THE STATUTORY PROVISION IS MANDATORY AND THE ASSESSEE HAS FAILED TO COMPLY WITH THE PROVISIONS OF SEC. 54F OF THE ACT AND THEREFORE THE LD. CIT(A) RIGHTLY UPHELD THE DENIAL OF SEC. 54F OF THE ACT. 7. HAVING HEARD THE RIVAL SUBMISSIONS, WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHORITIES BELOW. THE UNDISPUTED FACT IS THAT THE AS SESSEE HAS PURCHASED A NEW HOUSE PROPERTY BEFORE FILING THE RETURN U/S. 139(4) OF THE ACT. IT IS ALSO AN UNDISPUTED FACT THAT THIS TRANSACTION HAS NOT BEEN DISPUTED BY THE AO. THE ONLY POINT OF DISPUTE IS THAT THE ASSESSEE FAILED TO DEPOSIT THE NET CONSI DERATION IN THE CAPITAL GAIN ACCOUNT SCHEME. THE LOWER AUTHORITIES ARE OF THE STRONG VIEW THAT THE INVESTMENT SHOULD HAVE BEEN MADE BEFORE THE DUE DATE OF FILING OF THE RETURN AS PER PROVISIONS OF SEC. 139(1) OF THE ACT. IN OUR UNDERSTANDING OF LAW, FR OM A READING OF SEC. 54F(4), IT IS CLEAR THAT ONLY SEC. 139 HAVE BEEN MENTIONED THEREIN IN THE CONTE X T THAT THE UNUTILIZED PORTION OF THE CAPITAL GAINS ON THE SALE OF PROPERTY USED FOR RESIDENCE SHOULD BE DEPOSITED BEFORE THE DATE OF FURNISHING THE RETURN OF INCOME U/S. 139 OF THE ACT. AT THIS POINT, IT CAN BE SAID THAT SEC. 139 CANNOT MEAN ONLY SEC. 139(1) BUT IT MEANS ALL SUB - SECTIONS OF SEC. 139. UNDER SUB - SEC. 4 OF SEC. 139 , ANY PERSON WHO HAS NOT FURNISHED A RE TURN WITHIN THE TIME ALLOWED TO HIM, 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 IS EARLIER. THERE IS NO DISPUTE T HAT THE RETURN OF THE ASSESSEE WAS FILED U/S. 139(4) OF THE ACT. ITA. NO. 7669/M/2013 4 THERE IS ALSO NO DISPUTE THAT THE ASSESSEE HAS OTHERWISE COMPLIED WITH THE PROVISIONS OF SEC. 54F OF THE ACT I.E. INVESTED THE ENTIRE CONSIDERATION IN THE PURCHASE OF HOUSE PROPERTY. THE R EVENUE AUTHORITIES HAVE TAKEN A HYPER TECHNICAL ISSUE WHICH IN OUR CONSIDERED OPINION CANNOT BE ACCEPTED AS IT WOULD DENY THE BENEFIT OF A BENEFICIAL PROVISION OF THE ASSESSEE. WE, THEREFORE, SET ASID E THE ORDER OF THE LD. CIT(A) AND DIRECT THE AO TO ALLO W THE DEDUCTION U/S. 54F OF THE ACT TO THE ASSESSEE. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. OR DER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 3 RD JUNE , 2015 SD/ - SD/ - ( JOGINDER SING H ) (N.K. BILLAIYA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 22 ND JUNE , 2015 . . ./ RJ , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI