ITO, Kannur V. Sri, K,T. Biju, Kannur

ITA 768/COCH/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81402 (ITAT-COCHIN)
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-11-2014
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 10-11-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 02-12-2013
• Court: TRIBUNAL
• Department Lawyers: K K JOHN
• Assessee Lawyers: T M SREEDHARANSR
• Keywords: Capital asset; Period of limitation
• Section: 54; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND CHANDRA POOJ ARI, AM I.T.A. NO. 768/COCH/2013 ASSESSMENT YEAR : & 2008-09 THE INCOME TAX OFFICER, WARD-1, KANNUR. VS. DR. K.T. BIJU, KRISHNAKRIPA CHANDAN ROAD, TALAP, KANNUR-670 002. [PAN: ADOPB 8652DC] REVENUE-APPELLANT) (ASSESSEE-RESPONDENT) REVENUE BY SHRI K.K.JOHN, SR. DR ASSESSEE BY SHRI T.M. SREEDHARAN, SR.COUNSEL DATE OF HEARING 10/11/2014 DATE OF PRONOUNCEMENT 21/11/2014 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER DATED 10/09/2013 PASSED BY THE CIT(A), KOZHIKODE FOR THE ASSESSMENT YEAR 2008- 09. 2. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLO WING GROUNDS: (A) THE CIT(A) ERRED IN DELETING THE ADDITION OF RS .15,63,166/- MADE BY THE ASSESSING OFFICER, BY REJECTING THE CLAIM FO R EXEMPTION U/S. 54 AS THE CONDITIONS LAID DONW IN SEC. 54(2) ARE NOT S ATISFIED. I.T.A. NO.768/COCH/2013 2 (B) THE CIT(A) ERRED IN NOT APPRECIATING THE FACT T HAT THE ASSESSEE HAD NEITHER INVESTED THE CAPITAL GAIN ARISING OUT O F THE TRANSFER OF THE LONG TERM CAPITAL ASSET FOR CONSTRUCTION/PURCHASE O F NEW RESIDENTIAL PROPERTY, WITHIN THE STIPULATE TIME NOR DEPOSITED T HE UNUTILIZED AMOUNT IN ANY BANK ACCOUNT FRAMED IN ACCORDANCE WIT H THE CAPITAL GAIN ACCOUNT SCHEME, 1988 ON OR BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME U/S. 139(1). (C) SINCE SEC. 54(2) IS VERY SPECIFIC THAT DEPOSIT OF UNUTILIZED CAPITAL GAIN IN SPECIFIED BANK ACCOUNTS SHOULD BE MADE IN A NY CASE NOT LATER THAN THE DUE DATE APPLICABLE IN THE CASE OF THE ASS ESSEE FOR FURNISHING THE RETURN OF INCOME UNDER SUB-SECTION ( 1) OF SECTION 139. THE CIT(A) ERRED IN DECIDING THAT THE DUE DATE FOR FURNISHING THE RETURN OF INCOME CONTEMPLATED IN SECTION 54(2) SHOU LD ALSO INCLUDE SUB-SECTION (4) OF SEC. 139 OF THE I.T. ACT INASMUC H AS SUB-SECTION (2) OF SEC. 54 MENTIONS ONLY SECTION 139. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE SO LD A PROPERTY FOR RS.23,00,000/- DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2008-09 AND CLAIMED AN AMOUNT OF RS.16,63,166/- AS EXEMPT U/S. 54. THE ASSESSEE HAD CLAIMED THIS EXEMPTION IN RESPECT OF A PROPERTY PURCHASED FOR RS.15,00,000/- ON 10-11-2008. ACCORDING TO THE ASS ESSING OFFICER, IN ORDER TO CLAIM EXEMPTION U/S. 54, THE UNUTILIZED PORTION OF CAPITAL GAIN SHOULD BE DEPOSITED IN A CAPITAL GAIN DEPOSIT ACCOUNT BEFORE THE DUE DATE FOR FILING OF RETURN OF INCOME U/S. 139(1) OF THE I.T. ACT. THUS WHILE COMPLETING THE ASSESSMENT, THE ASSESSING OFFICER ALLOWED ONLY AN A MOUNT OF RS.1,00,000/- AS EXEMPT U/S. 54, AS THE SAME WAS PAID TOWARDS THE PROPERTY PURCHASED BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME U/S. 139(1) OF THE I.T. ACT AND THE BALANCE AMOUNT OF RS.15,63,166/- WAS BR OUGHT TO TAX AS CAPITAL GAIN. I.T.A. NO.768/COCH/2013 3 3. BEFORE THE CIT(A), THE LD. AR SUBMITTED THAT AS PER SECTION 54(2), THE SALE CONSIDERATION HAS TO BE DEPOSITED IN THE C APITAL GAIN ACCOUNT ONLY IF THE SUM IS NOT UTILIZED FOR PURCHASE OR CONSTRUCTIO N OF NEW ASSET BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME U/S. 139. IT DOES NOT STIPULATE UTILIZATION BEFORE THE DUE DATE FOR FILING THE RETU RN SPECIFIED U/S. 139(1) BUT SIMPLY SAYS WITHIN DUE DATE OF FILING THE RETURN OF INCOME WHICH INCLUDES SECTION 139(4) ALSO. THUS, THE LD. AR SUBMITTED TH AT U/S. 139(4), THE ASSESSEE HAS GOT TIME TILL 31-03-2009. ACCORDING T O THE LD. AR, SINCE THE ASSESSEE HAS UTILIZED THE CAPITAL GAIN ON 30-09-200 8 FOR PURCHASE OF A HOUSE, HE IS ELIGIBLE FOR EXEMPTION U/S. 54 OF THE ACT. IN SUPPORT OF HIS ARGUMENT, THE LD. AR RELIED ON THE FOLLOWING CASE L AW: (I) FATHIMA BAI VS. ITO (2009) (32 DTR (KAR) 243 ). (II) CIT VS. RAJESH KUMAR JALAN (286 ITR 74) (GAU ). (III) CIT VS. VR DESAI (197 TAXMAN 52). (IV) SHRI KISHORE H. GALALIYA VS. ITO (2012) (150 TTJ (MUM) 444. (V) CIT VS. MS. JAGRITI AGGARWAL (2011) 339 ITR 6 10. 4. ON APPEAL, THE CIT(A) BY FOLLOWING THE DECISIONS OF THE HIGH COURTS/ITATS CITED SUPRA OBSERVED THAT THE DUE DATE FOR FILING THE RETURN IS TO BE CONSIDERED AS PER SUB-SECTION (4) OF SECTION 139 AS ONLY SECTION 139 IS MENTIONED IN SECTION 54 AND SECTION 139 CANNOT MEAN ONLY SECTION 139(1) BUT MEANS ALL SUB-SECTIONS OF SECTION 139. WITH THI S OBSERVATION, THE CIT(A) I.T.A. NO.768/COCH/2013 4 DIRECTED THE ASSESSING OFFICER TO ALLOW THE EXEMPTI ON U/S. 54 AS CLAIMED BY THE ASSESSEE. AGAINST THIS, THE REVENUE IS IN APPEA L BEFORE US. 5. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT AS PER THE PURCHASE DOCUMENT DATED 10-11-2008, THE ASSESSEE HAS PAID ON LY AN ADVANCE AMOUNT OF RS.1,00,000/- BEFORE THE DUE DATE FOR FIL ING THE RETURN OF INCOME U/S. 139(1) OF THE I.T. ACT AND THE BALANCE CONSIDE RATION WAS PAID BY WAY OF CHEQUE DATED 31/11/2008. THE LD. AR SUBMITTED T HAT IN VIEW OF THE PROVISIONS OF SEC. 54(2) OF THE I.T. ACT, IN ORDER TO CLAIM EXEMPTION U/S. 54, THE UNUTILIZED PORTION OF CAPITAL GAIN SHOULD BE DE POSITED IN A CAPITAL GAIN DEPOSIT BEFORE THE DUE DATE FOR FILING RETURN OF IN COME U/S. 139(1) OF THE I.T. ACT. FURTHER, ACCORDING TO THE LD. DR, SUCH DE POSIT BEING MADE IN ANY CASE NOT LATER THAN THE DUE DATE APPLICABLE IN THE CASE OF THE ASSESSEE FOR FURNISHING THE RETURN OF INCOME UNDER SUB-SECTION ( 1) OF SEC. 139 OF THE I.T. ACT. THE LD. DR RELIED ON THE ORDER OF THE CO-ORDI NATE BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. SMT. ROSAMMA KORAH IN I.T.A. NO. 646 &663/COCH/2013 DATED 07/03/2014. 6. ON THE OTHER HAND, THE LD. AR SUBMITTED THAT THE ASSESSEE PURCHASED THE PROPERTY FOR SALE CONSIDERATION OF RS .15,00,000/- ON 10 TH JUNE, 2008 AND THE ASSESSEE HAS PAID A SUM OF RS.1, 00,000/- AS ADVANCE ON 10 TH JUNE, 2008 AND THE BALANCE OF RS.14,00,000/- WAS P AID BY CHEQUE I.T.A. NO.768/COCH/2013 5 DATED 31/11/2008. BEING SO, IT SHOULD BE DEEMED TH AT THE ASSESSEE HAS COMPLETED THE TRANSACTION WITHIN THE DUE DATE OF FI LING OF RETURN OF INCOME U/S. 139(1) OF THE I.T. ACT. HE RELIED ON THE ORD ER OF THE CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORD. WE FIND THAT THIS ISSUE HAS ALREADY BEEN DECIDED BY THE CO- ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF K.K. VENUGOPAL VS. DY.CIT I N I.T.A NO. 278/COCH/2013 DATED 10 TH JANUARY, 2014 (62 SOT 66) (COCHIN) WHEREIN IT WAS HELD AS UNDER: 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT BY A LETTER DATED 8-09-2009, THE ASSESSEE ADMITTED THE RECEIPT OF RS.9 LAKHS OVER AND ABOVE THE SALE CONSIDERATION DISCLOSED IN THE SALE DEED. THE ASSESSING OFFICER HAS ALSO FOUND THAT THIS RS.9 LAKHS WAS CRE DITED IN THE ACCOUNT OF THE ASSESSEES WIFE SMT. K.S. BEENA. SINCE THE AMOUNT W AS RECEIVED BY CHEQUE AND IT WAS CREDITED IN THE NAME OF THE ASSESSEES W IFE SMT. K.S. BEENA AND THE SAME WAS ALSO ADMITTED BY THE ASSESSEE BY A LET TER DATED 18-09-2009, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT(A) HAS RIGHTLY CONFIRMED THE ADDITION. ACCORDINGLY, THIS TRIBUNAL DO NOT ANY MERIT IN THE ORDER OF THE CIT(A). 10. THE NEXT GROUND OF APPEAL IS WITH REGARD TO CLA IM OF EXEMPTION U/S 54 OF THE ACT. 11. SHRI T.M. SREEDHARAN, THE LD.SENIOR COUNSEL SUB MITTED THAT THE ASSESSEE CLAIMED EXEMPTION OF RS.33,33,805. HOWEVER, THE ASS ESSING OFFICER ALLOWED ONLY RS.14,11,428 ON THE GROUND THAT THE AMOUNT SPE NT ON THE DUE DATE FOR FILING THE RETURN OF INCOME IS ONLY RS.14,11,428. R EFERRING TO THE ORDER OF THIS TRIBUNAL IN MUTHULETCHUMI JANARDANAN IN I.T. A CT NO.372/COCH/2011 DATED 07-12-2012, THE LD.SENIOR COUNSEL POINTED OUT THAT THIS TRIBUNAL, AFTER PLACING RELIANCE ON THE JUDGMENT OF THE PUNJAB & HA RYANA HIGH COURT IN CIT VS JAGRITI AGARWAL 339 ITR 610 (P&H) FOUND THAT THE TIME LIMIT FOR THE PURPOSE OF INVESTMENT IN CAPITAL GAIN ACCOUNT SCHEM E IS AVAILABLE UPTO THE TIME FOR FILING RETURN OF INCOME U/S 139(4) OF THE ACT. ACCORDING TO THE LD.SENIOR COUNSEL, IF THE TIME LIMIT IS EXTENDED TI LL THE FILING OF RETURN U/S I.T.A. NO.768/COCH/2013 6 139(4), THEN THE ASSESSEE HAS SPENT THE ENTIRE MONE Y BEFORE FILING THE RETURN OF INCOME; THEREFORE, THE CLAIM OF THE ASSES SEE FOR RS.33,33,805 HAS TO BE ALLOWED. 12. ON THE CONTRARY, SHRI K.K. JOHN, THE LD.DR SUBM ITTED THAT SECTION 54(2) CLEARLY SAYS THAT THE NET SALE CONSIDERATION WHICH WAS NOT APPROPRIATED TOWARDS THE PURCHASE OF THE NEW ASSET WITHIN ONE YE AR FROM THE DATE ON WHICH THE TRANSFER OF ORIGINAL ASSET TOOK PLACE OR USED FOR CONSTRUCTION OF A NEW ASSET BEFORE THE DATE OF FILING OF RETURN OF IN COME U/S 139(1) SHALL BE DEPOSITED BEFORE FURNISHING THE RETURN OF INCOME. T HE ASSESSEE HAS NOT UTILIZED THE PORTION OF THE AMOUNT BEFORE THE DUE D ATE FOR FILING THE RETURN OF INCOME U/S 139(1). THEREFORE, ACCORDING TO THE L D.DR, THE ASSESSEE IS NOT ENTITLED FOR EXEMPTION OF THE ENTIRE AMOUNT OF RS.3 3,33,805. THEREFORE, THE CIT(A) HAS RIGHTLY CONFIRMED THE DISALLOWANCE. 13. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. SECTION 5 4(2) READS AS FOLLOWS: (2) THE AMOUNT OF THE CAPITAL GAIN WHICH IS NOT AP PROPRIATED BY THE ASSESSEE TOWARDS THE PURCHASE OF THE NEW ASSET MADE WITHIN ONE YEAR BEFORE THE DATE ON WHICH THE TRANSFER OF THE ORIGIN AL ASSET TOOK PLACE, OR WHICH IS NOT UTILIZED BY HIM FOR THE PURCHASE OR CO NSTRUCTION OF THE NEW ASSET BEFORE THE DATE OF FURNISHING THE RETURN OF I NCOME UNDER 139, SHALL BE DEPOSITED BY HIM BEFORE FURNISHING SUCH RETURN ( SUCH DEPOSIT BEING MADE IN ANY CASE NOT LATER THAN THE DUE DATE APPLIC ABLE IN THE CASE OF THE ASSESSEE FOR FURNISHING THE RETURN OF INCOME UNDER SUB SECTION (1) OF SECTION 139) IN AN ACCOUNT IN ANY SUCH BANK OR INST ITUTION AS MAY BE SPECIFIED IN, AND UTILIZED IN ACCORDANCE WITH, ANY SCHEME WHICH THE CENTRAL GOVERNMENT MAY, BY NOTIFICATION IN THE OFFI CIAL GAZETTE, FRAME IN THIS BEHALF AND SUCH RETURN SHALL BE ACCOMPANIED BY PROOF OF SUCH DEPOSIT; AND FOR THE PURPOSES OF SUB-SECTION (1), THE AMOUNT , IF ANY, CONSTRUCTION OF THE NEW ASSET TOGETHER WITH THE AMOUNT SO DEPOSI TED SHALL BE DEEMED TO BE THE COST OF THE NEW ASSET: PROVIDED THAT IF THE AMOUNT DEPOSITED UNDER THIS SUB-SECTION IS NOT UTILIZED WHOLLY OR PARTLY FOR THE PURCHASE OR CONST RUCTION OF THE NEW ASSET WITHIN THE PERIOD SPECIFIED IN SUB-SECTION (1), THE N, - (I) THE AMOUNT NOT SO UTILIZED SHALL BE CHARGED UNDER S ECTION 45 AS THE INCOME OF THE PREVIOUS YEAR IN WHICH THE PERIOD OF THREE YEARS FROM THE DATE OF THE TRANSFER OF THE ORIGINAL ASSET EXPIRES; AND I.T.A. NO.768/COCH/2013 7 (II) THE ASSESSEE SHALL BE ENTITLED TO WITHDRAW SUCH AMO UNT IN ACCORDANCE WITH THE SCHEME AFORESAID. 14. IN VIEW OF THE ABOVE PROVISION, IF THE AMOUNT O F CAPITAL GAIN IS NOT APPROPRIATED BY THE ASSESSEE TOWARDS THE PURCHASE O F A NEW ASSET WITHIN ONE YEAR BEFORE THE DATE ON WHICH THE TRANSFER OF T HE ORIGINAL ASSET TOOK PLACE OR WHICH HAS NOT BEEN UTILIZED FOR THE PURPOS E OF CONSTRUCTION OF THE NEW ASSET BEFORE THE DATE OF FURNISHING THE RETURN OF INCOME U/S 139(1), THEN THE SAME SHALL BE DEPOSITED BEFORE FURNISHING SUCH RETURN. IN THIS CASE, ADMITTEDLY, THE ASSESSEE HAS NOT UTILISED THE ENTIRE AMOUNT BEFORE EXPIRY OF ONE YEAR. MOREOVER, IT WAS ALSO NOT DEPOS ITED IN THE PRESCRIBED ACCOUNT BEFORE DUE DATE FOR FURNISHING THE RETURN O F INCOME U/S 139(1) OF THE ACT. 15. WE HAVE CAREFULLY GONE THROUGH THE JUDGMENT OF THE PUNJAB & HARYANA HIGH COURT IN JAGRITI AGARWAL (SUPRA). IN T HE CASE BEFORE THE PUNJAB & HARYANA HIGH COURT, THE ASSESSEE SOLD HOUS E PROPERTY AND CLAIMED EXEMPTION U/S 54 OF THE ACT. AFTER REFERRIN G TO SUB CLAUSE (2) OF SECTION 54 AND SECTION 139(1) OF THE ACT, THE PUNJA B & HARYANA HIGH COURT FOUND THAT SUB SECTION 139(4) PROVIDES THE EX TENDED PERIOD OF LIMITATION FOR FILING OF RETURN OF INCOME WHICH IS AN EXCEPTION TO SUB SECTION (1) OF SECTION 139. THE HIGH COURT FURTHER FOUND THAT DUE DATE FOR FURNISHING OF RETURN OF INCOME AS PER SECTION 139(1 ) IS SUBJECT TO EXTENDED PERIOD PROVIDED U/S 139(4) OF THE ACT. IN VIEW OF S ECTION 54 OF THE ACT IT IS OBVIOUS THAT IF THE ASSESSEE COULD NOT UTILIZE THE AMOUNT WITHIN ONE YEAR EITHER FOR PURCHASE OF A NEW ASSET OR FOR CONSTRUCT ION OF A NEW ASSET, THE CAPITAL GAIN SHALL BE DEPOSITED IN THE APPROPRIATE ACCOUNT BEFORE THE DUE DATE FOR FILING OF RETURN OF INCOME U/S 139(1). 16. THUS, THE QUESTION ARISES FOR CONSIDERATION IS WHETHER THE DUE DATE MENTIONED IN SECTION 54(2) OF THE ACT WOULD BE THE DUE DATE FOR FILING OF RETURN OF INCOME U/S 139(1) OR THE DATE BY WHICH TH E ASSESSEE COULD FILES THE RETURN U/S 139(4) OF THE ACT. WE FIND THAT THE APEX COURT IN THE CASE OF PRAKASH NATH KHANNA & ORS VS CIT & ANOTHER (2004 ) 266 ITR 1 (SC) HAD AN OCCASION TO CONSIDER THE WORDS DUE DATE AS MENTIONED IN SECTION 139(1) AND 139(4) OF THE ACT. THE CASE BEFORE THE A PEX COURT IS WITH REGARD TO A CRIMINAL PROSECUTION U/S 276CC OF THE A CT. WHILE INTERPRETING SECTION 139(1), 139(2) AND 139(4) OF THE ACT, THE A PEX COURT FOUND THAT DUE DATE CERTAINLY MEAN DUE DATE AS PRESCRIBED IN S UB SECTION (1) OF SECTION 139. IN FACT, THE APEX COURT OBSERVED AS FO LLOWS AT PAGES 10 & 11 OF THE ITR: I.T.A. NO.768/COCH/2013 8 ONE OF THE SIGNIFICANT TERMS USED IN SECTION 276C C IS IN DUE TIME. THE TIME WITHIN WHICH THE RETURN IS TO BE FURNISHED IS INDICATED ONLY IN SUB-SECTION (1) OF SECTION 139 AND NOT IN SUB-SECTI ON (4) OF SECTION 139. THAT BEING SO, EVEN IF A RETURN IS FILED IN TE RMS OF SUB-SECTION (4) OF SECTION 139 THAT WOULD NOT DILUTE THE INFRACTION IN NOT FURNISHING THE RETURN IN DUE TIME AS PRESCRIBED UNDER SUB-SECTION (1) OF SECTION 139. OTHERWISE, THE USE OF THE EXPRESSION IN DUE TIME WOULD LOSE ITS RELEVANT AND IT CANNOT BE SAID THAT THE SAID EXPRES SION WAS USED WITHOUT ANY PURPOSE. BEFORE SUBSTITUTION OF THE EXP RESSION CLAUSE (I) OF SUB-SECTION (1) OF SECTION 142 BY THE DIRECT TA X LAWS (AMENDMENT) ACT, 1987, WITH EFFECT FROM APRIL 1, 19 89, THE EXPRESSION USED WAS SUB-SECTION (2) OF SECTION 139. AT THE R ELEVANT POINT OF TIME THE ASSESSING OFFICER WAS EMPOWERED TO ISSUE A NOTI CE REQUIRING FURNISHING OF A RETURN WITHIN THE TIME INDICATED TH EREIN. THAT MEANS THE INFRACTIONS WHICH ARE COVERED BY SECTION 276CC RELATE TO NON- FURNISHING OF RETURN WITHIN THE TIME IN TERMS OF SU B-SECTION (1) OR INDICATED IN THE NOTICE GIVEN UNDER SUB-SECTION (2) OF SECTION 139. THERE IS NO CONDONATION OF THE SAID INFRACTION, EVE N IF A RETURN IS FILED IN TERMS OF SUB-SECTION (4). ACCEPTING SUCH A PLEA WOULD MEAN THAT A PERSON WHO HAS NOT FILED A RETURN WITHIN THE DUE TI ME AS PRESCRIBED UNDER SUB-SECTION (1) OR (2) OF SECTION 139 WOULD G ET BENEFIT BY FILING THE RETURN UNDER SECTION 139(4) MUCH LATER. THIS CA NNOT CERTAINLY BE THE LEGISLATIVE INTENT. THIS JUDGMENT OF THE APEX COURT WAS NOT BROUGHT TO THE NOTICE OF THE CIT(A) AS WELL AS THE ASSESSING OFFICER. THE ASSESS EE ALSO HAD NO OCCASION TO EXPLAIN THE CONSEQUENCE OF THE JUDGMENT OF THE A PEX COURT BEFORE THE LOWER AUTHORITIES. THEREFORE, THIS TRIBUNAL IS OF T HE CONSIDERED OPINION THAT THE ASSESSING OFFICER SHALL GIVE AN OPPORTUNITY TO THE ASSESSEE WITH REGARD TO THIS JUDGMENT OF THE APEX COURT IN THE CASE OF P RAKASH NATH KHANNA (SUPRA) AND THEREAFTER DECIDE THE MATTER AFRESH IN ACCORDANCE WITH LAW. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES AR E SET ASIDE AND THE ISSUE WITH REGARD TO EXEMPTION U/S 54 IS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-E XAMINE THE ISSUE AFRESH AFTER CONSIDERING THE JUDGMENT OF THE APEX COURT IN THE CASE OF PRAKASH NATH KHANNA (SUPRA) AND THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSE SSEE. 17. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. I.T.A. NO.768/COCH/2013 9 5. IN VIEW OF THE ABOVE ORDER OF THE CSO-ORDINATE B ENCH, TO CLAIM DEDUCTION UNDER SECTION 54 OF THE ACT, THE ASSESSEE HAS TO MAKE INVESTMENT WITHIN THE DUE DATE OF FILING THE RETURN U/S. 139(1 ) OF THE I.T. ACT WHICH THE ASSESSEE HAS FAILED TO DO SO. THUS, THE ASSESSEE I S NOT ENTITLED FOR DEDUCTION U/S. 54 OF THE I.T. ACT. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED. PRONOUNCED IN THE OPEN COURT ON 21-11-2014 SD/- SD/- (N.R.S.GANESAN) (CHANDRA POOJARI) JUDICIAL MEMBER ACC OUNTANT MEMBER PLACE: KOCHI DATED: 21ST NOVEMBER, 2014 GJ COPY TO: 1. DR. K.T. BIJU, KRISHNAKRIPA CHANDAN ROAD, TALA P, KANNUR-670 002. 2. THE INCOME TAX OFFICER, WARD-1, KANNUR. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS), KOZHIKO DE. 4. THE COMMISSIONER OF INCOME-TAX, KOZHIKODE. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T., COC HIN