Shri. M.V. Narasingasa, Bangalore V. ITO, Bangalore

ITA 854/BANG/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63678 (ITAT-BANGALORE)
• Duration Of Justice: 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-08-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 30-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SARAVANAN
• Assessee Lawyers: H GURUSWAMY
• Keywords: Revised return
• Section: 143(3); 54F; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI JASON P. BOAZ, ACCOUNTANT MEMBER I.T.A. NO.854/BANG/2011 (ASSESSMENT YEAR : 2008-09) SHRI M.V. NARASINGASA, PROP. M/S. MYSORE CLOTH CENTRE, NO.122-123, KESAR COMPLEX, AM LANE, CHICKPET CROSS, BANGALORE-560 053 . A PPELLANT. PAN AGRPM 3708J VS. INCOME TAX OFFICER, WARD 5(3), MISSION ROAD, BANGALORE. .. R ESPONDENT. APPELLANT BY : SHRI H. GURUSWAMY. RESPONDENT BY : SHRI B. SARAVANAN. DATE OF HEARING : 21.8.2012. DATE OF PRONOUNCEMENT : 31.8.2012. O R D E R PER SHRI JASON P. BOAZ : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-II, BANGALORE DT.20.7.2011 FOR THE A SSESSMENT YEAR 2007-08. 2. THE FACTS OF THE CASE, IN BRIEF, ARE AS UND ER : 2.1 THE ASSESSEE, AN INDIVIDUAL, CARRYING ON TH E BUSINESS DEALING IN SALE OF SAREES, FILED HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2008-09 ON 29. 9.2008 DECLARING TOTAL INCOME OF RS.5,43,960. THE RETURN OF INCOME WAS PROCESSED UN DER SECTION 143(1) AND THE CASE WAS TAKEN UP FOR SCRUTINY BY ISSUE OF NOTICE UNDER SECTION 14 3(2) OF THE INCOME TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS 'THE ACT'). THE ASSESSMENT W AS COMPLETED BY AN ORDER UNDER SECTION 143(3) 2 ITA NO.854/BANG/11 OF THE ACT ON 22.10.2010 DETERMINING THE TOTAL INCO ME AT RS.58,06,434 BY BRINGING TO TAX AN AMOUNT OF RS.52,62,474 REPRESENTING LONG TERM CAPIT AL GAINS (HEREINAFTER REFERRED TO AS LTCG). THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A) WHO D ISMISSED THE ASSESSEES APPEAL BY ORDER DT.20.7.2011. 3. THE ASSESSEE IS NOW IN APPEAL BEFORE US. T HE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS UNDER : 1. THE APPELLATE ORDER DATED 20-07-2011 IS OPPOSED TO LAW, FACTS AND WEIGHT OF EVIDENCE IN SO FAR AS IT IS OPPOSED TO THE INTEREST OF THE APPELLANT. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) -II, BANGALORE OUGHT TO HAVE NOT HELD THAT THE APPELLANT WAS ENTITLED FOR DEDUCT ION OF REINVESTMENT MADE IN THE NEW PROPERTY UPTO 29-09-2008 AMOUNTING TO RS. 55,00 ,000/- AS AGAINST THE APPELLANT CLAIM OF RS. 88,00,198/- MADE WITHIN THE TIME LIMIT PROVIDED U/S. 139(4) OF THE ACT. 3. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) -II, BANGALORE OUGHT TO HAVE NOT HELD THAT THE APPELLANT CLAIMS FOR THE DEDUCTION FO R REINVESTMENT MADE IN THE PROPERTY AMOUNTING TO RS. 88,00,198/- WAS NOT ALLOW ABLE WITH OUT FILING A REVISED RETURN OF INCOME. 4. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) -II, BANGALORE OUGHT TO HAVE ALLOWED THE DEDUCTION OF THE REINVESTMENT OF RS. 88 ,00,198/- MADE IN THE NEW PROPERTY ON OR BEFORE THE TIME LIMIT PRESCRIBED U/S . 139(4) OF THE ACT FOLLOWING DECISION OF THE HONBLE ITAT, BANGALORE BENCH, BANG ALORE IN THE CASE OF NIPUN MEHROTRA V/S. ACIT (2008) 297 ITR (AT) 110 AND THE DECISION OF THE HONBLE GAUHATI HIGH COURT IN THE CASE OF CIT V/S. RAJESH K UMAR JALAN (2006) 286 ITR 274. 5. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND DELETE ANY OF THE GROUNDS AT THE TIME OF HEARING. 4. THE GROUNDS OF APPEAL RAISED AT S.NOS.1 AND 5 ARE GENERAL IN NATURE AND THEREFORE DO NOT WARRANT ANY ADJUDICATION THEREON. 5.1 THE GROUNDS OF APPEAL AT S.NOS.2 TO 4 ALL PERTAIN TO THE ISSUE OF COMPUTATION OF LONG TE RM CAPITAL GOODS (LTCG) ON SALE OF PROPERTY SITUATED A T NO.31 (OLD NO.27/32), 2 ND MAIN ROAD KNOWN AS DISPENSARY ROAD, KALASIPALAYAM EXTENSION, BANGALORE. THE ASSESSING OFFICER NOTED 3 ITA NO.854/BANG/11 THAT THE SAID PROPERTY WAS PURCHASED BY THE ASSESSE ES WIFE SMT. INDIRA BAI THROUGH REGISTERED SALE DEED DT.15.5.1972. THE SAID PROPERTY WAS BEQU EATHED TO THE ASSESSEE BY HIS WIFES WILL DT.14.11.1990 AND HE BECAME THE ABSOLUTE OWNER OF T HE PROPERTY SUBSEQUENT TO HER DEATH ON 25.4.1991 WHICH DEVOLUTION WAS CONSENTED TO BY HIS SIX CHILDREN. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE SOLD THE SAID PROPERTY THROUGH A REGISTERED SALE DEED DT.6.10.2007 FOR A CONSIDERATION OF RS.1.20 CRORE AND WAS A CAPITAL AS SET NOT BEING A RESIDENTIAL HOUSE AS IT WAS A PLOT MEASURING 3881.25 SQ. FT. ON WHICH STOOD A DIL APIDATED HOUSE MEASURING 300 SQ. FT. AS EVIDENCED BY PROPERTY TAX RECEIPT ISSUED BY BBMP. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD NOT DISCLOSED THE LTCG ARISING ON SALE OF THE SAID PROPERTY IN HIS RETURN OF INCOME FOR THE RELEVANT PERIOD (VIZ. ASSESSMENT YEAR 2008- 09). PURUSANT TO SUMMONS ISSUED BY THE ASSESSING OFFICER, THE ASSESSEE STATED THAT OUT OF THE SALE CONSIDERATION OF RS.1,20,00,000 HE HAD INVESTED A SUM OF RS.55 LAKHS BEFORE THE DUE DA TE FOR FILING THE RETURN OF INCOME FOR ASSESSMENT YEAR 2008-09 AND A FURTHER SUM OF RS.33 LAKHS ON 4.4.2009 FOR THE PURCHASE AND REGISTRATION OF PROPERTY AT NO.20/3, BANGIYAPPA GAR DEN, AKKI THIMMANAHALLI, SHANTINAGAR, BANGALORE. THUS, THE TOTAL INVESTMENT IN THE PURCH ASE OF THE NEW PROPERTY WAS RS.88 LAKHS. THE ASSESSEE CLAIMED THAT HE WAS ENTITLED TO DEDUCT ION OF RS.88 LAKHS UNDER SECTION 54F WHICH THE ASSESSING OFFICER RESTRICTED TO RS.45,08,350 AS PER THE WORKING OF LTCG ON SALE OF THE SAID PROPERTY ON PAGE 19 OF THE ORDER OF ASSESSMENT. TH IS POSITION WAS CONFIRMED BY THE LEARNED CIT(A) WHILE DISMISSING THE ASSESSEES APPEAL. 5.2 THE LEARNED COUNSEL FOR THE ASSESSEE WAS HE ARD AND FILED WRITTEN SUBMISSION DT.25.6.2012 IN SUPPORT OF THE PROPOSITION THAT THE ASSESSEE BE ALLOWED THE INVESTMENT OF RS.88,00,198 UNDER SECTION 54F OF THE ACT INCURRED FOR PURCHASE OF THE NEW PROPERTY ON 4.4.2009 AT 4 ITA NO.854/BANG/11 SHANTINAGAR, BANGALORE WHILE COMPUTING LTCG ON SALE OF HIS ERSTWHILE PROPERTY ON 6.10.2007. IN WRITTEN SUBMISSION OF THE LEARNED COUNSEL FOR TH E ASSESSEE WHICH ARE EXTRACTED HEREIN BELOW, IT IS CONTENDED THAT - THE APPELLANT IS AN INDIVIDUAL CA R RY I NG ON B USINESS OF SALE OF S AR EE S AND HE HAS FILED HI S RETU R N OF INCOME FOR THE ASST YEA R 2008 - 09 O N 29 - 09-2008 , DECLARING TOTAL INCOME OF RS.5,43,90. THE ASSESSIN G OFFICER HAS COMPLETED SCRUTINY ASSESSMENT U/S . 143(3) OF THE ACT ON 22-12-2010 , DETERMINING THE TOTAL INCOME AT RS.58,06,434 CONSIS TING OF ADMITTED INCOME OF RS.5,43,960 AND ADDITION MADE BY THE ASSESSING O FFICER ON ACCOUNT O F IN CO M E COMPUTED F R OM LONG TERM CAPITAL GA I NS AMOUNTING TO RS.52,62,474. THE APPELLANT ' S WI FE SMT . INDIRA BAI HAD OWNED A P ROPERTY B E A RING NO.31 (OLD NO.27/32), SITUATED AT 2 ND MA I N ROAD KNOWN AS D I SPE NS A R Y ROAD , KALASIPALYAM EXTENSION , BANGALO R E , WH I CH WAS PU R CHASED BY HER THROUGH A REGISTERED SALE DEED , DATED 15-05-1972 . THE APPELLANT ' S WIFE DURING HER LIFE TIME HAD MADE A WIL L DATED 14-11-1990 BEQUEATHING THE ABOVE PROPERTY IN FAVOUR OF THE APPELLANT . T H E APPELLANT ' S WIFE HAD PASSED AWAY ON 25-04 - 1991 AND AS PER THE WILL , DA T ED 14-11-1990 THE APPELLANT BECAME AN ABSOLUTE OWNER O F THE PROPE R TY AND HE HAS SOLD THE SAID PROPERTY THROUGH A REGISTERED SALE DEED , DATED 06-10-2007 FOR A CONSIDE R ATION OF RS . 1,20 , 00,000/-. THE APPELLANT IN THE RETURN OF INCOME FILED FOR THE ASST YEAR 2008-09 HA D NOT DECLARED ANY INCOME FROM LONG TERM CAPITAL GAIN ON SALE OF THE A BOVE SAID PROPERTY AS HE HAD INTENDED TO REINVEST THE ENTIRE CONSIDERATIO N IN ACQUIRING A NEW RESIDENTIAL HOUSE WITHIN THE PRESCRIBED TIME LIM I T U/S . 54F OF THE ACT . THE APPELLANT HAD INVESTED A SUM OF RS . 88 , 00 , 198/- OUT OF THE TOTA L CONSIDERATION OF RS . 1 , 20 , 00 , 000/- IN CONSTRUCTION OF A NEW AS PE R THE DETAILS FURNISHED AS UNDER:- DATE CHEQUE NO. & DA TE AMOUNT INVESTED ON THE NEW ASSET (RS) 26-03-2008 CASH 5 , 00 , 000/- 10-09-2008 CASH 10 , 000/- 12-09-2008 NO. 528135 , 10-09-2008 43 , 50 , 000/- 13-09-2008 NO . 528134 , 10-09-2008 6 , 40 , 000/- BEFORE THE DUE DATE OF FILING THE RETURN OF 55,00 , ODD/- INCOME 5 ITA NO.854/BANG/11 03-12-2008 NO . 528140 , 01-12-2008 2 , 50 , 000 /- 04-04-2009 CASH 2 , 50 , 000 / - 04-04-2009 REGISTRATION & STAMP DUTY 4 , 63 , 730 /- 2009 - 10 CONSTRUCTION 23 , 36 , 468 /- TOTAL 88,00,198/- THE LEARNED AO HAS NOT ALLOWED THE INVESTMENT OF RS . 88 , 00 , 198/- CLA I MED BY THE APPELLANT U/S. 54F OF THE ACT, BUT HE HA S ALLOWED THE DEDUCTION AMOUNTING TO RS . 55,00,000/- WHICH WAS SPENT BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME, MAINLY ON THE GROUND THAT THE APPELLANT WAS NOT ENTITLED FOR THE DEDUCTION IN RESPECT OF TH E AMOUNT OF REINVESTMENT OF RS . 88,00 , 198 BEYOND THE DUE DATE APPLICABLE FOR FILING THE R ETURN OF INCOME U/S . 139(1) OF THE ACT . THE LEARNED AO HAS NOT APPRECIATED THE APPELLANT ' S CONTENTIONS AS TO THE AMOUNT OF INVESTMENT MADE U PTO THE DUE DATE BEING 31-03-2010 APPLICABLE U/S. 139(4) OF THE ACT, ACCORDINGLY, THE LEARNED AO HAS RESTRICTED THE APPELLANT'S CLAIM OF REINVESTMENT TO A SUM OF RS. 55,00,000/- AS AGAINST RS. 88,00,198/-. THE APPELLANT HAVING BEING AGGRIEVED WITH THE DISAL LOWANCE OF DEDUCTION CLAIMED U/S. 139(4) OF THE ACT AMOUNTING TO RS. 88 , 00,198/- (AS AGAINST RS . 55,00,000/- ALLOWED BY THE LEARNED AO) FILED AN APP EAL BEFORE THE LEARNED COMMISS I ONER OF INCOME-TAX (APPEALS)-II , BANGALORE AND CLAIMED THE RELIEF OF DEDUCTION ADMISSIBLE U/S. 139 (4) OF THE ACT AMOUNTING TO RS. 88,00 , 198/- AS AGAINST THE DEDUCTION ALLOWED BY THE LEARN ED AO AMOUNTING TO RS . 55 , 00,000/- BEING THE QUALIFYING AMOUNT EL I GIB L E FO R DEDUCTION UPTO THE DUE DATE FOR FILING THE RETURN O F INCOME. HOWEVER, THE LEARNED CIT(A)-II, BANGALORE HAS NOT A PPRECIATED THE CONTENTION OF THE APPELLANT AS TO THE DEDUCTION ADM ISSIBLE IN RESPECT OF THE REINVESTMENT OF THE SALE CONSIDERATION CLAIMED U/S. 139(4) OF THE ACT ON THE GROUND THAT THE APPELLANT HAD FILED THE RETURN OF I NCOME ON 29-09-2008 U/S. 139(1) OF THE ACT AND ANY REINVESTMENT THEREAF TER WAS NOT ADM I SSIBLE WITHOUT FILING A REVISED RETURN OF INCOME TO BE FIL ED U/S. 139(4) OF THE ACT . THE RELEVANT FINDINGS OF THE LEARNED CIT(A )-II, BANGALORE ARE REPRODUCED AS UNDER : - ' 3.10 THE RATIO OF THE DECISIONS OF THE HON ' BLE H I GH COURT OF GAUHATI (REFERRED TO SUPRA) AND THE HON ' BLE ITAT , BANGALORE (REFERRED TO SUPRA) IS THAT, WHEN AN ASSE SSEE FILES A RETURN U/S. 139(4) , HE SHOULD BE GIVEN THE BENEFIT OF HAVING MADE THE INVESTMENT UP TO THE DATE OF FIL ING THE RETURN OF INCOME. THIS IS NOT THE CASE IN THE PRESE NT CASE WHERE THE APPELLANT HAD FILED HIS RETURN OF INCOME ON 29- 09-2008 U/S. 139(1) . IN FACT, NO CAPITAL GAIN FROM THE SAID PROPERTY HAD BEEN OFFERED FOR TAX BY THE APPELLANT HIMSELF. ON BEING QUESTIONED BY THE AO , A SUM OF RS . 21 , 43 , 138/ - WAS COMPUTED AS TAXABLE LONG-TERM CAPITAL GAINS AS DETAILED IN PARA 3.1 ABOVE . THE AO HAS ALREADY GIVEN THE 6 ITA NO.854/BANG/11 BENEFIT OF INVESTMENT IN THE NEW PROPERTY UP TO THE DATE OF FILING THE RETURN OF INCOME . FURTHER , INVESTMENT MADE IN NEW PROPERTY SUBSEQUENT TO FILING OF RETURN OF INCO ME CANNOT BE ALLOWED AS THERE IS NO REVISED RETURN FIL ED U/S . 139(4). THIS VIEW IS FURTHER STRENGTHENED BY THE DE CISION OF THE HON ' BLE SUPREME COURT IN THE CASED OF M/S. GOETZE INDIA LTD . V. CIT (2006) 286 ITR 323. THE RETURN OF I NCOME HAV I NG ALREADY BEEN FILED , NO FURTHER CLAIM CAN BE ALLOWED IN THE PRESENT CIRCUMSTANCES . THEREFORE , THE DEDUCTION ALLOWED BY THE AO IS IN ORDER AND THE DEC ISIONS QUOTED BY THE APPELLANT ARE NOT APPLICABLE. THE ADD ITION MADE BY THE AO IS UPHELD . THIS GROUND OF APPEAL IS , THEREFORE , DISMISSED ' . THE APPELLANT SUBMITS THAT THE LEARNED CIT(A)-II , BANGA L O R E WAS NOT J USTIFIED TO HOLD THAT THE APPELLANT WAS NOT ENTITLE D FOR THE DEDUCTION AS NO REVISED RETURN OF INCOME WAS FILED U/S. 139(4) OF T HE ACT RELYING UPON THE DECISION OF THE HON ' BLE SUPREME COURT IN THE CASE M/S. GOETZE INDIA LTD V . CIT (2006) 286 ITR 323. IN THIS REGARD , THE APPELLANT SUBMITS THAT SECT I ON 139(4) OF THE ACT IS APPL I CABLE IN RELATION TO THE D U E DATE FOR FIL I NG THE R ETURN OF INCOME IN A CASE WHERE NO RETURN OF INCOME WAS FURNISHED WITHIN THE PRESCRIBED TIME LIMIT PROVIDED U/S. 139( 1) OF THE ACT . AS PER THE SAID PROVISION THE TIME LIMIT IS PROVIDE D TO AN ASSESSEE FOR FILING THE RETURN OF INCOME WITHIN ONE YEAR FROM TH E END OF THE RELEVANT ASST YEAR , WHERE NO R ETU R N OF I NCOME WAS F I LED U/S . 139 ( 1) OF THE ACT . THE EXTENDED TIME LIM I T PROVIDED U / S . 139(4) OF THE ACT FOR FILING THE RETURN OF INCOME CANNOT TAKE AWAY THE APPELLANT ' S CLAIM FOR DEDUCT I ON O F REINVESTMENT MADE UPTO THE EXTENDED TIME LIMIT PROV IDED U/S . 139(4) OF THE ACT . THE LEARNED CIT WAS NOT JUSTIFIED TO DENY THE DEDUC TION ON THE GROUND THAT THE APPELLANT HAD FILED HIS RETURN OF I NCOME U/S . 139(1) OF THE ACT AND NO REV I SED RETURN WAS FILED U/S . 139(4 ) OF THE ACT . PROVISIONS OF SECTION 139(4) OF THE ACT DO NOT ENABLE TO FILED A REVISED RETURN OF I NCO M E AS THE SAID PROVISION IS CONCERNED ABOUT THE EXTEND ED DUE DATE ADM I SSIBLE UNDER THE ACT FOR FILING THE RETURN OF INCOME WHERE NO RETURN OF INCOME WAS FILED U/S. 139(1) OF THE ACT AND HENCE, THE CIT(A)- II , BANGALORE WAS NOT JUSTIFIED TO DISA L LOW THE AMOUNT OF REINVESTMENT MADE UPTO THE DUE DA TE AS APPLICABLE U/S. 139 ( 4 ) OF THE ACT . THE LEARNED CIT(A ) -II , BANGALORE HAS NOT APPRECIATED THE FOLLOWI N G DEC I S I ONS REL I ED UPON BY THE APPELLANT : - 1. THE HON ' BLE ITA T ' S DECISION BANGALORE BENCH IN THE CASE OF NIPUN MEH R OTRA VIS . ACIT ( 2008) 297 ITR (AT) 110 . 2. THE DEC I S I ON OF THE HON ' BLE HIGH COURT OF GAUHATI IN THE CASE OF CIT V I S . RAJESH KUMAR JALAN (2006) 286 ITR 274. THE APPELLANT SUBMITS THAT AS PER THE DECISION OF T HE ABOVE CASES , HE IS ENTITLED FOR THE DEDUCTION OF REINVESTMENT MADE UPTO THE EXTENDED T IME L I M I T PROVIDED U/S. 139 ( 4 ) OF THE ACT . THE APPELLANT SUBMITS HEREWITH COPIES OF THE DECISI ONS OF THE ABOVE CASES FOR KIND PERUSAL AND CONSIDERATION OF YOUR HO N'BLE AUTHORITY. 7 ITA NO.854/BANG/11 UNDE R THESE FACTS AND CIRCUMSTANCES, THE APPELLANT RESPEC TFUL L Y PRAYS THAT YOUR HON'BLE AUTHORITY BE PLEASED TO PAS S ORDERS SETTING ASIDE THE ASSESSMENT ORDER AND THE APPELLATE ORDER AND DI RECT THE AO TO ALLOW THE DEDUCTION IN RESPECT OF THE REINVESTMENT MADE A MOUNTING TO RS. 88 , 00 , 198/- AS AGAINST THE DEDUCTION ALLOWED AMOUNTING TO RS . 55 , 00 , 000/- AND FURTHER BE PLEASED TO PASS SUCH OTHER ORD ERS GRANTING SUCH OTHER RELIEF AS YOUR HON'BLE AUTHORITY MAY DEE M FIT IN THE INTEREST OF EQUITY AND ADVANCEMENT OF SUBSTANTIAL JUSTICE. 5.3 THE LEARNED DEPARTMENTAL REPRESENTATIVE SUP PORTED THE ORDERS OF THE AUTHORITIES BELOW. 5.4 WE HAVE HEARD BOTH PARTIES AT LENGTH, CAREF ULLY PERUSED AND CONSIDERED THE WRITTEN SUBMISSIONS MADE, THE JUDICIAL DECISIONS CITED AND THE ORDERS OF THE AUTHORITIES BELOW. IT IS NOT DISPUTED THAT THE ASSESSEE HAD SOLD A PROPERTY BEAR ING NO.31 (OLD NO.27/32), DISPENSARY ROAD, KALASIPALAYAM EXTENSION, BANGALORE ON 6.10.2007 FOR A CONSIDERATION OF RS.1.20 CRORES WHICH WAS IN THE PERIOD RELEVANT TO ASSESSMENT YEAR 2008- 09. IT IS ALSO A MATTER OF RECORD THAT ON BEING SUMMONED BY THE ASSESSING OFFICER, THE ASSESS EE ACKNOWLEDGED THAT HE HAD SOLD THE SAID PROPERTY BUT HAD NOT DECLARED THE SAME IN HIS RETUR N OF INCOME AS HE INTENDED TO INVEST THE ENTIRE SALE CONSIDERATION RECEIVED IN ACQUIRING A N EW RESIDENTIAL HOUSE WITH THE TIME LIMIT PRESCRIBED UNDER SECTION 54F OF THE ACT. WE FIND F ROM THE RECORD THAT THE ASSESSING OFFICER CONSIDERED THE INVESTMENT MADE BY THE ASSESSEE IN A CQUIRING THE NEW RESIDENTIAL PROPERTY ONLY UPTO THE EXTENT OF RS.55 LAKHS FOR THE PURPOSE OF CALCULATING THE LTCG WHICH WAS ADMITTEDLY INVESTED BY THE ASSESSEE UPTO THE DATE OF FILING TH E RETURN OF INCOME FOR ASSESSMENT YEAR 2008- 09. THE REMAINING INVESTMENTS IN ACQUIRING THE NEW RESIDENTIAL PROPERTY AMOUNTING TO RS.33,00,198 (VIZ. RS.88,00,198 LESS RS.55,00,000) MADE THEREAFTER UPTO 4.4.2009 I.E. THE DATE OF REGISTRATION WAS NOT CONSIDERED BY THE ASSESSING OFFICER AND THE LEARNED CIT(A) AS THEY WERE OF THE VIEW THAT SINCE THE ASSESSEE HAD FILED THE R ETURN OF INCOME ON 29.9.2008 UNDER SECTION 139(1) OF THE ACT, ANY INVESTMENT THEREAFTER WAS NO T ADMISSIBLE WITHOUT FILING A REVISED RETURN 8 ITA NO.854/BANG/11 OF INCOME UNDER SECTION 139(4) OF THE ACT. WE ARE OF THE VIEW THAT THE AUTHORITIES BELOW WERE NOT JUSTIFIED IN DENYING/RESTRICTING THE ASSESSEES CLAIM OF INVESTMENT OF RS.88,00,198 IN PURCHASE OF THE NEW RESIDENTIAL PROPERTY TO RS.55,0 0,000 MERELY BECAUSE THE ASSESSEE HAD FILED HIS RETURN UNDER SECTION 139(1) OF THE ACT AND HAD NOT FILED A REVISED RETURN UNDER SECTION 139(4) OF THE ACT. A SIMILAR ISSUE HAD COME UP BEF ORE THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF NIPUN MEHROTRA VS. ACIT REPORTED IN (20 08) 297 ITR (AT) 110 AND IN WHICH THE BENCH HELD THAT UNDER SECTION 54F OF THE ACT THE AS SESSEE HAS TO USE THE NET CONSIDERATION FOR THE PURCHASE OR CONSTRUCTION OF THE NEW ASSET BEFOR E THE DATE OF FURNISHING THE RETURN UNDER SECTION 139. THE BENCH NOTED THAT THERE WAS NO MEN TION OF ANY SUB-SECTION OF SECTION 139 AND THAT ONE CANNOT INTERPRET THAT SECTION 139 MENTIONE D THEREIN SHOULD BE READ AS SECTION 139(1). IN THIS CITED CASE EXEMPTION WAS DENIED ON A SUM OF RS.2,10,883 ON THE GROUND THAT THE ASSESSEE FAILED TO INVEST THIS SUM IN THE CAPITAL G AINS ACCOUNT BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME FOR ASSESSMENT YEAR 2000-01, WHICH WAS 31 ST JULY, 2001. THE CIT(A) CONFIRMED THIS VIEW. ON FURTHER APPEAL, THE TRIBUNAL HELD TH AT THE SALE CONSIDERATION HAVING BEEN UTILIZED BEFORE THE DATE OF FILING THE RETURN OF INCOME UNDE R SECTION 139(4) OF THE ACT, THE ASSESSEE WAS ENTITLED TO EXEMPTION OF RS.2,10,833 UNDER SECTION 54F OF THE ACT. IN COMING TO THIS FINDING THE CO-ORDINATE BENCH OF THE TRIBUNAL FOLLOWED THE DECI SION OF THE HON'BLE GAUHATI HIGH COURT IN THE CASE OF CIT VS. RAJESH KUMAR JALAN REPORTED IN 286 ITR 274 (2006). 5.5 ON CAREFUL CONSIDERATION OF THE FACTS OF TH E CASE, AS DISCUSSED ABOVE, WE ARE OF THE CONSIDERED OPINION THAT THE FACTS OF THE CITED CASE I.E. NIPUN MEHROTRA (SUPRA) OF THE CO- ORDINATE BENCH OF THIS TRIBUNAL ARE SIMILAR TO THO SE OF THE INSTANT CASE OF THE ASSESSEE AND THAT THE DECISION THEREIN IS SQUARELY APPLICABLE AND COV ERS THE ISSUE IN FAVOUR OF THE ASSESSEE. WE, 9 ITA NO.854/BANG/11 THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF T HE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF NIPUN MEHROTRA (SUPRA) DIRECT THE ASSESSING OFFICER TO ALLOW THE CLAIM OF THE ASSESSEE, THAT INVESTMENT TO THE EXTENT OF RS.88,00,198 MADE UPTO 4.4.2009 IN THE PURCHASE OF THE NEW RESIDENTIAL PROPERTY BE ADOPTED IN COMPUTING THE EL IGIBLE EXEMPTION UNDER SECTION 54F OF THE ACT WHILE RECOMPUTING THE LTCG ON SALE OF THE SAID RESIDENTIAL PROPERTY ON 6.10.2007 AS THE SAID INVESTMENT IS WELL WITHIN THE RELEVANT PERIOD UNDER SECTION 139(4) WHICH IN THE INSTANT CASE IS 31.3.2010. IT IS ORDERED ACCORDINGLY. 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 3 1 ST AUG., 2012. SD/- SD/- (N.V. VASUDEVAN) (JASON P BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMB ER BANGALORE, DATED: 31.08.2012. *REDDY GP COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, - B BENCH. 6. GUARD FILE. (TRUE COPY ) BY ORDE R SR. PRIVATE SECRETARY, ITAT, BANGALORE