ITO, Yamunanagar V. Smt. Rajwinder Kaur Mhahal, Yamunanagar

ITA 771/CHANDI/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9850 (ITAT-CHANDIGARH)
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Next Hearing Date: 16-11-2015
• Assessment Year: 2012-2013
• Appeal Filed On: 01-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Revised return
• Section: 54; 139

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 771/CHD/2015 ASSESSMENT YEAR: 2012-13 THE ITO, WARD-3, VS. SMT. RAJWINDER KAUR MAHAL, YAMUNANAGAR W/O LATE SH. UDAR SINGH MAHAL, YAMUNANAGAR PAN NO. AQWPM0676N (APPELLANT) (RESPONDENT) APPELLANT BY : SH. MANJIT SINGH RESPONDENT BY : SH. TEJ MOHAN SINGH DATE OF HEARING : 27.06.2016 DATE OF PRONOUNCEMENT : 28.06.2016 ORDER PER SHAMIM YAHYA, AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A), PANCHKULA DATED 31.07.2015 AND PERTAINS TO ASSES SMENT YEAR 2012-13. 2. THE GROUNDS OF APPEAL READ AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW IN ALLOWING DEDUCTION U /S 54 OF THE I.T. ACT ON PURCHASE OF A NEW HOUSE FOR RS,4,28,30,000/- ON 15.11.2012 BY HOLDING CHAT THE DATE OF FURNISHING RETURN OF INCOME AS PER SECTION 139(1) IS SUBJECT TO THE EXTENDED PERIOD PROVIDED U NDER SUB-SECTION (4} OF SECTION 139 OF THE INCOME TAX AC T, 1961 . 2 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD.CIT(A) IS NOT RIGHT IN PLACING RELIANCE ON THE C ASE OF CIT VS MS JAGRITI AGGARWAL {2011} 339 ITR 610 (P&H), WHEN THE RELEVANT ISSUE REGARDING 'DUE DATE' WAS HELD TO BE 'DUE DATE AS PRESCRIBED IN SUB SECTI ON (L) OF SECTION 139' BY THE HON'BLE SUPREME COURT IN THE CASE OF PARKASH MATH KHANNA & ORS VS. CIT & ANOTHER (2004) 266 ITR L (SC). 3. IT IS PRAYED THAT THE ORDER OF THE LD. CIT (AP PEAL) BE SET-ASIDE AND THAT OF THE A.O, BE RESTORED. 3. THE ASSESSEE IN THIS CASE FILED HER RETURN OF IN COME BY WAY OF E-FILING ON 28.3.2013 DECLARING TOTAL INCOME OF RS. 25,12,080/- AND AGRICULTURE INCOME OF RS. 39,430/-. THIS RETURN WAS PROCESSED U/S 143(1) ON 11.5.2013. THE ASSESSEE FILED A REVISED RETURN OF INCOME ON 19.3.2014 DECLA RING TOTAL INCOME AT RS. 1,21,47,700/- AND AGRICULTURE INCOME OF RS. 39,430/ -. IN THESE FACTS, THE ASSESSING OFFICER OBSERVED THAT ASSESSEE DID NOT FI LE ORIGINAL RETURN OF INCOME WITHIN TIME LIMIT PRESCRIBED U/S 139(1), THEREFORE, THE REVISED RETURN FILED ON 19.3.2014 IS NOT BEING ENTERTAINED. 4. ON THE ISSUE OF CLAIM OF EXEMPTION U/S 54 OF THE ACT, THE ASSESSING OFFICER MADE THE DISALLOWANCE HOLDING AS UNDER:- THE ASSESSEE PURCHASED A KOTHI NO.1171, SECTOR-70, AT URBAN ESTATE, 5.A.S. NAGAR, MOHALI (MEASURING 500 SQ. YDS)} FOR RS.4,28,30,000/- ON 15.11.2012. THE ASSESSEE HAS CLAIMED EXEMPTION U/S 54 IN RESPECT OF THE AMOUNT INVESTED IN THE PURCHASE OF SAID KOTHI THE AMOUNT OF CAPITAL GAIN, WHICH WAS NOT UTILIZED BY THE ASSESSEE F OR THE PURCHASE OR CONSTRUCTION OF THE NEW HOUSE BEFORE THE DATE OF FU RNISHING OF THE RETURN OF INCOME MUST HAVE BEEN DEPOSITED BY HER UNDER THE CAPITAL GAINS ACCOUNTS SCHEME, BEFORE THE DUE DATE OF FURNI SHING THE RETURN, 3 SPECIFIED UNDER SECTION 139(1). THE DUE DATE OF FIL ING OF ITR IN THIS CASE WAS 31.07.2012 WHICH WAS FURTHER EXTENDED ON31 .8.2012. VIDE THIS OFFICE ORDER SHEET ENTRIES DATED 19.01.2015 AND 29. 01.2015 THE ASSESSEE WAS ASKED TO FURNISH DOCUMENTARY EVIDENCE REGARDING THE DEPOSIT OF CAPITAL GAIN AMOUNT IN THE CAPITAL GAINS ACCOUNTS S CHEME BEFORE THE DUE DATE OF FILING OF ITR. NO SUCH, EVIDENCE HAS BE EN FURNISHED. ON PERUSAL OF SALE DEED OF KOTHI NO. 1131, SECTOR-70, SAS NAGAR, MOHALI IT IS REVEALED THAT THE ASSESSEE ADVANCED RS. 3,00,00, 000/- VIDE FOLLOWING FOUR CHEQUES; - CHEQUE NO . DATED AMOUNT DRAWN ON 001572 16.08.2012 RS. 1,00,00,000/- ICICI BANK LTD . 032159 17.09.2012 RS. 50,00,000/- -DO- 032160 18.09.2012 RS. 50,00,000/- -DO- 001574 18.09.2012 RS. 1,00,00,000/- -DO- THE ASSESSEE GAVE CHEQUE NO. 001572 DATED 16.08.201 2 FOR RS. 1,00,00,000/- TO SMT. VARINDER KAUR WALIA, SELLER O F KOTHI NO. 1 131, SECTOR 70, MOHALI. THE DATE OF THIS CHEQUE WAS BEFO RE THE DUE DATE OF FILING OF ITR U/S 139(1), THEREFORE, FURTHER EXEMPT ION OF RS. 1,00,00,000/- IS ALLOWED U/S 54 OUT OF THE LONG TER M CAPITAL GAIN AMOUNT OF RS. 5,50,00,000/-(COMPUTED SUPRA). IN THI S WAY ADDITION OF THE LONG TERM CAPITAL GAIN AMOUNT OF RS.4,50,00,000 /- IS MADE TO THE TAXABLE INCOME OF THE ASSESSEE. 5. UPON ASSESSEES APPEAL, THE LD. CIT(A) DECIDED T HIS ISSUE IN FAVOUR OF THE ASSESSEE BY HOLDING AS UNDER:- 7.8 REGARDING THE THIRD ISSUE, ON CLAIM OF EXEMPT ION U/S 54, IT IS NOTED THAT THE APPELLANT SOLD HER HALF SH ARE OF PROPERTY ON.19.05.2011 AND AS PER PROVISIONS OF SEC TION 54 THE AMOUNT OF CAPITAL GAIN COULD HAVE BEEN USED BY PURCHASE OR CONSTRUCTION OF NEW HOUSE UPTO 18.05.20 13. THE APPELLANT HAS PURCHASED NEW HOUSE ON 15.11.2012 FOR 4 A CONSIDERATION OF RS. 4,28,30,000/- AND FURTHER PURCHASED REC BONDS FOR RS.50,00,000- ON THE SAME- DATE. ON REFERENCE TO SECTION 54(2), IT IS NOTED TH AT FOR CLAIM OF EXEMPTION U/S 54, THE APPELLANT IS REQUIRE D TO UTILIZE CAPITAL GAINS TOWARDS PURCHASE OF NEW HOUSE WITHIN ONE YEAR BEFORE THE DATE OF TRANSFER OF ORIG INAL ASSET OR TOWARDS PURCHASE OR CONSTRUCTION OF NEW HO USE BEFORE THE DATE OF FURNISHING OF RETURN OF INCOME U /S 139 OF THE ACT. ANY UN-UTILIZED AMOUNT CAN ONLY BE EX EMPTED IF THE SAME IS DEPOSITED BEFORE FURNISHING SUCH RET URN U/S 139 AND SUCH DEPOSIT IS MADE BEFORE THE DUE DATE APPLICABLE IN THE CASE OF APPELLANT U/S 139(1) OF T HE ACT. IN THE INSTANT CASE, THE APPELLANT HAS CLAIMED THE EXEMPTION U/S 54 ON ACCOUNT OF UTILIZATION OF CAPIT AL GAIN TOWARDS PURCHASE OF NEW HOUSE THROUGH REGISTERED SA LE DEED DATED 15.11.2012. THE DUE DATE FOR FILING RETU RN OF INCOME U/S 139(1) WAS 31.08.2012 (31.07.2012 EXTEND ED) AND TIME AVAILABLE TO FURNISH BELATED RETURN U/S 13 9(4) WAS UPTO 31.03.2014. THE APPELLANT HAS FILED RETURN OF INCOME ON 28.03.2013 AND HOUSE WAS PURCHASED ON 15.11.2012 WHICH WAS BEFORE THE FURNISHING OF RETUR N U/S 139 OF THE ACT. THE AO HAS WRONGLY CONSTRUED THAT T HE AMOUNT OF CAPITAL GAIN HAS TO BE UTILIZED BEFORE TH E DUE DATE AS PER SECTION 139(1) OF THE ACT. THE DUE DATE SPECIFIED IN THE SECTION 54(2) OF THE ACT IS FOR TH E UN- UTILIZED AMOUNT OF CAPITAL GAIN TO BE DEPOSITED BEF ORE THE DUE DATE U/S 139(1) THOUGH THE EVIDENCE OF SUCH DEP OSIT CAN BE FURNISHED ALONGWITH THE RETURN FILED U/S 139 OF THE ACT. IN THE PRESENT CASE, THE RETURN HAS BEEN FILED U/S 139(4) WHICH IS A SUB SECTION WITHIN THE SECTION 13 9 OF THE ACT. THEREFORE, THE APPELLANT HAS UTILIZED THE AMOUNT OF CAPITAL GAIN BY MAKING INVESTMENT OF RS.4,28,30, 000/- IN PURCHASE OF NEW HOUSE BEFORE THE FURNISHING OF R ETURN U/S 139 OF THE ACT. THE FACTS IN THE INSTANT CASE I S ALSO SIMILAR TO THE CASE OF MS. JAGRITI AGGARWAL (SUPRA) WHERE THE HON'BLE P&H HIGH COURT HAS ALLOWED THE EXEMPTIO N U/S 54 BY HOLDING THAT DUE DATE OF FURNISHING RETUR N OF 5 INCOME AS PER SECTION 139(1) OF THE ACT IS SUBJECT TO THE EXTENDED PERIOD PROVIDED UNDER SUB SECTION (4) OF S ECTION 139 OF THE ACT. THEREFORE, THE EXEMPTION U/S 54 IS ALLOWABLE FOR UTILIZATION OF CAPITAL GAIN OF 30 O/- BEING THE INVESTMENT IN PURCHASE OF NEW HOUSE. AGAINST THE ABOVE ORDER, THE REVENUE IS IN APPEAL B EFORE US. 6. WE HAVE HEARD BOTH THE LD. REPRESENTATIVES AND P ERUSED THE RECORDS. LD. DR SHRI MANJIT SINGH SUBMITTED THAT THOUGH LD. CIT( A) HAS FOLLOWED A JURISDICTIONAL HIGH COURT DECISION IN THE CASE OF C IT VS. MS. JAGRITI AGGARWAL [2011] 339 ITR 610 (P&H) BUT THERE IS A DECISION OF HON'BLE APEX COURT IN THE CASE OF PARKASH NATH KHANNA & ANOTHER VS. CIT & ANO THER (2004) 266 ITR 1 (SC). THE HON'BLE APEX COURT HAS EXPOUNDED THAT THE DUE DATE MEANS DUE DATE AS PRESCRIBED IN SUB SECTION (1) OF SECTION 139. L D. DR SUBMITTED THAT IN VIEW OF THIS HON'BLE APEX COURT DECISION, THE ISSUE NEED S TO BE DECIDED IN FAVOUR OF THE REVENUE. FURTHERMORE. THE LD. DR SUBMITTED THAT IDENTICAL ISSUE WAS DECIDED BY ITAT COCHIN BENCH IN THE CASE OF ITO VS DR. K.T.BIJU IN ITA NO. 768/COCH/2013 VIDE ORDER DATED 21.11.2014. THE LD. DR FURTHER SUBMITTED THAT IN THIS PRESENT CASE BEFORE US, THE ASSESSEE HAS F ILED A BELATED RETURN. HE PLEADED THAT IT IS SETTLED LAW THAT BELATED RETURN CANNOT BE REVISED, HENCE, LD. DR SUBMITTED THAT ON THIS PLANK ALSO, THE ASSESSEE S REVISED RETURN SHOULD NOT BE TAKEN AS A BASE TO GRANT EXEMPTION U/S 54 OF THE INCOME-TAX ACT, 1961. 7. PER CONTRA, SHRI TEJ MOHAN SINGH, LD. COUNSEL FO R THE ASSESSEE SUBMITTED THAT THE DECISION OF HON'BLE JURISDICTIONAL HIGH C OURT IN THE CASE OF MS. JAGRITI AGGRAWSAL (SUPRA) IS ON IDENTICAL FACTS AND IS A LA TER DECISION HENCE THE SAME SHOULD BE FOLLOWED. LD. COUNSEL FURTHER SUBMITTED THAT THE HON'BLE APEX COURT IN THE CASE OF PARKASH NATH KHANNA AND ANOTHER VS. CIT (SUPRA) WAS WITH REFERENCE TO SECTION 276CC AND HENCE THE SAME IS NO T APPLICABLE ON THE FACTS OF THE PRESENT CASE. THE LD. COUNSEL FURTHER PLACED RE LIANCE UPON ITAT, 6 CHANDIGARH BENCH DECISION IN THE CASE OF SH. MOHAN SINGH VS. ACIT IN ITA NO.330/CHD/2014 ORDER DATED 7.7.2015. LD. COUNSEL S UBMITTED THAT IN THIS CASE, ON IDENTICAL FACTS IN THE CASE OF A BELATED RETURN, THE TRIBUNAL FOLLOWING THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S JAGRITI AGARWAL (SUPRA) HAS GRANTED BENEFIT TO THE ASSESSEE OF EXEMPTION U/S 54 OF THE ACT. HENCE, THE LD. COUNSEL PLEADED THAT THE ORDER OF LD. CIT(A) NEEDS TO BE CONFIRMED. 8. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND FIND THAT THERE IS A JUDGEMENT OF HON'BLE JURISDICTIONAL HIGH COURT ON THE IDENTICAL SUBJECT . IN THIS CASE, THE HON'BLE JURISDICTIONAL HIGH COURT HAS EX POUNDED THAT DUE DATE OF FILING THE RETURN OF INCOME AS PER SECTION 139 OF T HE ACT WITH REFERENCE TO EXEMPTION U/S 54, IS SUBJECT TO THE EXTENDED PERI OD PROVIDED UNDER SUB SECTION (4) OF SECTION 139. IT IS UNDISPUTED THAT INVESTMEN T IN THE PRESENT APPEAL WERE DONE BEFORE THIS DATE. FURTHERMORE, CHANDIGARH BEN CH OF THE TRIBUNAL ON AN IDENTICAL LINES IN THE SIMILAR ISSUE OF BELATED RET URN HAS FOLLOWED THE HON'BLE JURISDICTIONAL HIGH COURT DECISION IN THE CASE OF SMT. JAGRFIT AGGARWAL (SUPRA) AND GRANTED THE BENEFIT OF SECTION 54 TO THE ASSESS EE. IT IS NOT THE CASE THAT THE SAID DECISION OF THE ITAT HAS BEEN REVERSED BY THE HON'BLE JURISDICTIONAL HIGH COURT . 9. IN THESE CIRCUMSTANCES, RESPECTFULLY FOLLOWING T HE DECISION FROM THE COORDINATE BENCH OF ITAT CHANDIGARH AND HON'BLE JUR ISDICTIONAL HIGH COURTS DECISION REFERRED TO ABOVE, WE UPHOLD THE ORDER OF LD. CIT(A). 10. IN THE RESULT, THIS APPEAL FILED BY THE REVENUE STANDS DISMISSED. SD/- SD/- (BHAVNESH SAINI) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 28 TH JUNE, 2016 RKK 7 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR