Shri Hitesh Mulchand Doshi, RAJKOT-GUJARAT V. The Assistant Commr. Income Tax,Cen. Cir-1, RAJKOT-GUJARAT

ITSSA 24/RJT/2013

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 2086 (ITAT-RAJKOT)
• Duration Of Justice: 2 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 16-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 05-05-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 09-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MJ RANPURA
• Keywords: Capital asset; Period of limitation
• Section: 43B; 54F; 153A; 54; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH : E COURT, AT AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./ IT(SS)A.NO.24/RJT/2013 [ASSTT.YEAR 2009-2010] HITESH MULCHAND DOSHI C/O. HAPPINESS GENERAL STORES OPP: GUNDAWADI POLICE CHOWKI RAJKOT. VS THE ACIT, CC - 1 RAJKOT. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI M.J. RANPURA, CA REVENUE BY : SHRI YOGESH PANDEY, CIT - DR / DATE OF HEARING : 05/05/2016 / DATE OF PRONOUNCEMENT: 16/05/2016 !'#/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: THE PRESENT APPEAL IS DIRECTED AT THE INSTANCE OF T HE ASSESSEE AGAINST ORDER OF THE LD.CIT(A)-IV, AHMEDABAD DATED 29.8.2013 PASSED IN THE ASSTT.YEAR 2009-10. 2. SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT THE L D.CIT(A) HAS ERRED IN CONFIRMING THE PENALTY OF RS.18,92,986/- WHICH WAS IMPOSED BY THE AO UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT. IT(SS)A NO.24/RJT/2013 2 3. BRIEF FACTS OF THE CASE ARE THAT SEARCH OPERATIO N WAS CARRIED OUT AT THE PREMISES OF THE ASSESSEE UNDER SECTION 132 OF T HE INCOME TAX ACT ON 15.9.2010. IN ORDER TO GIVE LOGICAL END TO THE PRO CEEDINGS, A NOTICE UNDER SECTION 153A OF THE INCOME TAX ACT WAS ISSUED UPON THE ASSESSEE ON 10.6.2010. IN RESPONSE TO THE NOTICE, THE ASSES SEE HAS FILED HIS RETURN OF INCOME ON 31.8.2010 DECLARING TOTAL INCOME AT RS .58,85,910/-. AN ASSESSMENT ORDER WAS PASSED UNDER SECTION 153A OF T HE INCOME TAX ACT ON 26.12.2011. THE LD.AO HAS ACCEPTED THE INCOME R ETURNED BY THE ASSESSEE. IN OTHER WORDS, HE DETERMINED THE TAXABL E INCOME OF THE ASSESSEE AT RS.58,85,910/-. THE LD.AO HAS INITIATE D PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT. THE CASE OF TH E AO IS THAT AS PER EXPLANATION 5 A APPENDED TO SECTION 271(1)(C) OF THE ACT, THE INC OME DECLARED BY THE ASSESSEE IN RESPONSE TO THE NOTICE UNDER SECTION 153A OF THE ACT IS TO BE DEEMED AS CONCEALED INCOME. ULTIM ATELY, THE AO HAS IMPOSED PENALTY OF RS.18,92,986/- WHICH IS EQUIVALE NT TO TAX SOUGHT TO BE EVADED BY THE ASSESSEE ON THE RETURNED INCOME. 4. APPEAL TO THE CIT(A) DID NOT GIVE ANY RELIEF TO THE ASSESSEE. 5. ON THE STRENGTH OF THE ITAT ORDER PASSED IN THE CASE OF ITO VS. GOPE M. ROCHLANI, 49 TAXMANN.COM 46 (MUM.)=ITA NO.7 737(MUM.) OF 2011 THE LD.COUNSEL FOR THE ASSESSEE CONTENDED THAT THE ASSESSEE FALLS WITHIN THE IMMUNITY PROVIDED FROM IMPOSITION OF PEN ALTY IN CLAUSE (B) OF THE EXPLANATION 5A APPENDED TO SECTION 271(1)(C) OF THE ACT. ACCORDI NG TO THE LD.COUSNEL FOR THE ASSESSEE, THE ASSESSEE HA S FILED RETURN WITHIN THE DUE DATE AS PROVIDED UNDER SECTION 139(4) OF THE AC T. HE HAS PAID TAXES. IT(SS)A NO.24/RJT/2013 3 HE HAS MADE DECLARATION IN A STATEMENT GIVEN UNDER SECTION 132(4) OF THE ACT. THEREFORE, THE ASSESSEE HAS COMPLIED WITH THE CONDITIONS ENUMERATED IN THE EXPLANATION FOR AVAILING THE EXEMPTION PROVIDED THEREIN. HE HAS PLACED ON RECORD DECISION OF THE I TAT, MUMBAI BENCH WHEREIN THIS ASPECT HAS BEEN ELABORATELY DEALT WITH . 6. ON THE OTHER HAND, THE LD.DR RELIED ON THE ORDER OF THE REVENUE AUTHORITIES. HE CONTENDED THAT THE DUE DATE FOR FI LING RETURN IN THE ASSESSEES CASE WAS 31.7.2010 AND NOT 30.9.2010 AS CLAIMED BY THE ASSESSEE. SEARCH WAS CONDUCTED ON 15.9.2010. THER EFORE, DUE DATE FOR FILING OF THE RETURN IN THE ASSTT.YEAR 2009-10 HAS ALREADY EXPIRED ON 31.7.2010. ON THE OTHER HAND, THE LD.COUNSEL FOR T HE ASSESSEE POINTED OUT THAT THE DUE DATE FOR FILING THE RETURN WAS 30.9.20 10. EVEN IF THIS DATE WAS NOT TAKEN, THEN ALSO, THE ASSESSEE COULD FILE R ETURN UNDER SECTION 139(4) OF THE INCOME TAX ACT UPTO 31.3.2011. THE I TAT, MUMBAI BENCH HAS OBSERVED THAT THIS EXTENDED PERIOD AVAILA BLE UNDER SECTION 139(4) OF THE ACT WOULD ALSO BE CONSIDERED AS FALLI NG IN THE DUE DATE PERIOD. IN ANY CASE, THE ASSESSEE HAS FILED RETURN BEFORE THE 31.3.2011, AND THEREFORE, HE IS ENTITLED FOR IMMUNITY. 7. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. A PERUSAL OF THE ITATS ORDER IN THE CASE OF ITO VS. GOPE M. ROCHLANI (SUPRA), WE ARE OF THE VIEW THAT T HE TRIBUNAL HAS MADE LUCID ENUNCIATION OF LAW ON THIS ISSUE AND W E CANNOT DO BETTER THAN EXTRACTING THE DISCUSSION MADE BY THE TRIBUNAL IN T HIS REGARD. IT(SS)A NO.24/RJT/2013 4 THE ISSUE BEFORE US IS WHETHER THE RETURN OF INCO ME FILED UNDER SECTION 139(4) CAN BE HELD TO BE THE 'DUE DAT E' FOR FILING THE RETURN OF INCOME FOR SUCH PREVIOUS YEAR AS MENTIONE D IN CLAUSE (B) OF EXPLANATION 5A TO SECTION 271(1)(C) AND, IF SO, WHETHER THE PENALTY CAN BE LEVIED ON THE FACTS OF THE PRESENT C ASE UNDER THE EXPLANATION 5A. FOR BETTER APPRECIATION OF THE PROV ISIONS OF EXPLANATION 5A, THE SAME IS REPRODUCED HEREIN BELOW :- [EXPLANATION 5A.-- WHERE, IN THE COURSE OF A SEARCH INITIATED UNDER SECTION 132 ON OR AFTER THE 1ST DAY OF JUNE, 2007, THE ASSESSEE IS FOUND TO BE THE OWNER OF-- (I) ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING (HEREAFTER IN THIS EXPLANATION REFERRED TO AS ASSET S) AND THE ASSESSEE CLAIMS THAT SUCH ASSETS HAVE BEEN ACQUIRED BY HIM BY UTILISING (WHOLLY OR IN PART) HIS INCOME FOR ANY PR EVIOUS YEAR; OR (II) ANY INCOME BASED ON ANY ENTRY IN ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS AND HE CLAIMS THAT SUCH ENTRY IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACT IONS REPRESENTS HIS INCOME (WHOLLY OR IN PART) FOR ANY P REVIOUS YEAR, WHICH HAS ENDED BEFORE THE DATE OF SEARCH AND,-- (A) WHERE THE RETURN OF INCOME FOR SUCH PREVIOUS YE AR HAS BEEN FURNISHED BEFORE THE SAID DATE BUT SUCH INCOME HAS NOT BEEN DECLARED THEREIN; OR (B) THE DUE DATE FOR FILING THE RETURN OF INCOME FO R SUCH PREVIOUS YEAR HAS EXPIRED BUT THE ASSESSEE HAS NOT FILED THE RETURN, THEN, NOTWITHSTANDING THAT SUCH INCOME IS DECLARED BY HIM IN ANY RETURN OF INCOME FURNISHED ON OR AFTER THE DATE OF SEARCH, HE SHALL, FOR THE PURPOSES OF IMPOSITION OF A PENALTY UNDER CLAUSE (C ) OF SUB-SECTION (1) OF THIS SECTION, BE DEEMED TO HAVE CONCEALED TH E PARTICULARS OF HIS INCOME OR FURNISHED INACCURATE PARTICULARS OF S UCH INCOME.' 10. ON A PLAIN READING OF THE AFORESAID EXPLANATION , IT IS APPARENT THAT FOLLOWING CONDITIONS ARE ESSENTIAL FOR LEVY OF PENALTY UNDER SECTION 271(1)(C):- IT(SS)A NO.24/RJT/2013 5 (I) THIS EXPLANATION IS APPLICABLE TO AN ASSESSEE I N WHOSE CASE SEARCH HAS BEEN INITIATED UNDER SECTION 132 ON/OR A FTER 1ST JUNE 2007; FURTHER, MR. GOPE M. ROCHLANI (II) DURING THE COURSE OF SEARCH, THE ASSESSEE SHOU LD BE FOUND TO BE THE OWNER OF - (A) ANY MONEY, BULLION, JEWELLERY, FOR OTHER VALUAB LE ARTICLE OR THING TO WHICH AND THE ASSESSEE CLAIMS TO HAVE ACQU IRED SUCH ASSETS BY UTILIZING HIS INCOME FOR ANY PREVIOUS YEA R; OR (B) ANY INCOME WHICH IS BASED ON ANY ENTRY IN ANY B OOKS OF ACCOUNT OR OTHER DOCUMENTS OR TRANSACTIONS AND CLAI MS THAT THESE REPRESENTS INCOME FOR ANY PREVIOUS YEAR WHICH IS EN DED BEFORE THE DATE OF SEARCH; AND FURTHER, (III) IF SUCH ASSET OR INCOME WHICH REPRESENTS THE INCOME OF ANY PREVIOUS YEAR, FIRSTLY, HAS NOT BEEN SHOWN IN THE R ETURN OF INCOME WHICH HAS BEEN FURNISHED BEFORE THE DATE OF SEARCH I.E., SUCH INCOME HAS NOT BEEN DECLARED THEREIN AND SECONDLY, THE DUE DATE FOR FILING THE RETURN OF INCOME HAD EXPIRED I.E., T HE ASSESSEE HAS NOT SHOWN THIS INCOME IN THE RETURN OF INCOME FILED ON OR BEFORE THE DUE DATE; (IV) THEN ON SUCH INCOME DECLARED BY HIM IN THE RET URN OF INCOME FURNISHED ON OR AFTER THE DATE OF SEARCH, HE IS LIA BLE FOR PENALTY UNDER SECTION 271(1)(C) AND HE IS DEEMED TO HAVE CO NCEALED THE PARTICULARS OF HIS INCOME OR FURNISH INACCURATE PAR TICULARS OF INCOME. 11. THERE ARE TWO SAVING CLAUSE IN THE AFORESAID EX PLANATION WHEREIN PENALTY CANNOT BE HELD TO BE LEVIABLE UNDER SECTION 271(1)(C), FIRSTLY, THE ASSESSEE HAD SHOWN SUCH ASS ET AS MENTIONED IN CLAUSE (I) OR INCOME AS MENTIONED IN CLAUSE (II) IN THE RETURN OF INCOME FURNISHED BEFORE THE DATE OF SEARCH AND, SEC ONDLY, SUCH ASSET AND THE INCOME HAS BEEN SHOWN IN THE RETURN O F INCOME FILED ON THE DUE DATE. THUS, IF ANY ASSESSEE FALLS UNDER THESE SAVING CLAUSES, EXPLANATION 5A CANNOT BE INVOKED. IT(SS)A NO.24/RJT/2013 6 12. FOR THE PURPOSE OF THE INSTANT CASE, WE HAVE TO SEE WHETHER OR NOT THE ASSESSEE HAS SHOWN THE INCOME IN THE RETURN OF INCOME FILED ON THE 'DUE DATE'. PROVISIONS OF SECTION 139(1) PRO VIDES FOR VARIOUS TYPES OF MR. GOPE M. ROCHLANI ASSESSES TO F ILE RETURN OF INCOME BEFORE THE DUE DATE AND SUCH DUE DATE HAS BE EN PROVIDED IN THE EXPLANATION 2, WHICH VARIES FROM YEAR-TO-YEA R. WHEREAS, PROVISIONS OF SECTION 139(4) PROVIDES FOR EXTENSION OF PERIOD OF 'DUE DATE' IN THE CIRCUMSTANCES MENTIONED THEREIN A ND IT ENLARGES THE TIME LIMIT PROVIDED IN SECTION 139(1). THE OPER ATING LINE OF SUB-SECTION 4 OF SECTION 139 PROVIDES THAT 'ANY PER SON WHO HAS NOT FURNISHED THE RETURN WITHIN THE TIME ALLOWED', HERE THE TIME ALLOWED MEANS UNDER SECTION 139(1), THEN IN SUCH A CASE, THE TIME LIMIT HAS BEEN EXTENDED. WHEREVER THE LEGISLATURE H AS SPECIFIED THE 'DUE DATE' OR HAS SPECIFIED THE DATE FOR ANY COMPLI ANCE, THE SAME HAS BEEN CATEGORICALLY SPECIFIED IN THE ACT. FOR E. G., UNDERSECTION 44AB WHERE THE ASSESSEE IS REQUIRED TO GET HIS ACCO UNTS AUDITED BEFORE THE SPECIFIED DATE AND FURNISH BY THAT DATE, THE SPECIFIED DATE HAS BEEN SPECIFICALLY MENTIONED AS THE DATE PR OVIDED IN SECTION 139(1). SIMILARLY, IN SECTION 43B ALSO, THE 'DUE DATE' HAS BEEN SPECIFICALLY PROVIDED AS THE DATE MENTIONE D IN SUB- SECTION (1) OF SECTION 139. IN THE AFORESAID EXPLAN ATION 5A, THE LEGISLATURE HAS NOT SPECIFIED THE DUE DATE AS PROVI DED INSECTION 139(1) BUT HAS MERELY ENVISAGED THE WORDS 'DUE DATE '. THIS 'DUE DATE' CAN BE VERY WELL INFERRED AS DUE DATE OF THE FILING OF RETURN OF INCOME FILED UNDER SECTION 139, WHICH INCLUDESSECTI ON 139(4). WHERE THE LEGISLATURE HAS PROVIDED THE CONSEQUENCES OF FILING OF THE RETURN OF INCOME UNDER SECTION 139(4), THEN THE SAME HAS ALSO BEEN SPECIFICALLY PROVIDED. FOR E.G., SECTION 139(3 ), PROVIDES THAT FOR THE PURPOSE OF CARRY FORWARD LOSSES UNDER SECTI ONS 72 TO 74A, THE RETURN OF INCOME SHOULD BE FILED WITHIN THE TIM E LIMIT PROVIDED UNDER SECTION 139(1), OTHERWISE LOSSES CANNOT BE SE T-OFF. IN ABSENCE OF SUCH A RESTRICTION, THE LIMITATION OF TI ME OF 'DUE DATE' CANNOT BE STRICTLY RECKONED WITH SECTION 139(1). TH US, THE MEANING OF THE WORDS 'DUE DATE', SANS ANY LIMITATION OR RES TRICTION AS GIVEN IN CLAUSE (B) OF EXPLANATION 5A, CANNOT BE READ AS 'DUE DATE' AS PROVIDED IN SECTION 139(1). THE WORDS 'DUE DATE' TH EREFORE, CAN ALSO MEAN DATE OF FILING OF THE RETURN OF INCOME UN DER SECTION 139(4). IT(SS)A NO.24/RJT/2013 7 13. THIS PROPOSITION HAS BEEN EXPLAINED BY THE VARI OUS HIGH COURTS ALSO WHEREIN IN THE CONTEXT OFSECTIONS 54F A ND 54(2), IT HAS BEEN INTERPRETED MR. GOPE M. ROCHLANI THAT THE DUE DATE OF SECTION 139 CAN BE INFERRED AS DUE DATE UNDER SE CTION 139(4) ALSO. THIS PROPOSITION HAS BEEN ELABORATED I N THE FOLLOWING DECISIONS:- I) CIT V/S RAJESH KUMAR JALAN, [2006] 286 ITR 276 ( GAU.). WHEREIN IT HAS BEEN OBSERVED AND HELD AS UNDER:- 'FROM A PLAIN READING OF SUB-S. (2) OF S. 54, IT IS CLEAR THAT ONLY S. 139 IS MENTIONED IN S. 54(2) IN THE CONTEXT THAT TH E UNUTILISED PORTION OF THE CAPITAL GAIN ON THE SALE OF PROPERTY USED FOR RESIDENCE SHOULD BE DEPOSITED BEFORE THE DATE OF FU RNISHING THE RETURN OF THE INCOME-TAX UNDER S. 139. SEC. 139 CAN NOT BE MEANT ONLY AS S. 139(1) BUT IT MEANS ALL SUB-SECTIONS OF S. 139. UNDER SUB-S. (4) OF S. 139, ANY PERSON WHO HAS NOT FURNIS HED A RETURN WITHIN THE TIME ALLOWED TO HIM UNDER SUB-S. (1) OF S. 142 MAY FURNISH THE RETURN FOR ANY PREVIOUS YEAR AT ANY TIM E BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT ASS ESSMENT YEAR OR BEFORE THE COMPLETION OF THE ASSESSMENT WHICHEVER I S EARLIER. SUCH BEING THE SITUATION, IT IS THE CASE OF THE ASSESSEE THAT THE ASSESSEE COULD FULFILL HE REQUIREMENT UNDER S. 54 FOR EXEMPT ION OF THE CAPITAL GAIN FROM BEING CHARGED TO INCOME-TAX ON TH E SALE OF PROPERTY USED FOR RESIDENCE UPTO 30TH MARCH, 1998, INASMUCH AS THE RETURN OF INCOME-TAX FOR THE ASST. YR. 1996-97 COULD BE FURNISHED BEFORE THE EXPIRY OF ONE YEAR FROM THE EN D OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION OF THE ASS ESSMENT WHICHEVER IS EARLIER UNDER SUB-S. (4) OF S. 39. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSEE WAS ENTITLE D TO CLAIM BENEFIT UNDER S. 54 ON THE ENTIRE AMOUNT RECEIVED B Y HIM ON ACCOUNT OF SALE OF HIS HOUSE PROPERTY. II) CIT V/S M/S. JAGRITI AGGARWAL, [2011] 339 ITR 6 10 (P&H), WHEREIN IT HAS BEEN OBSERVED AND HELD AS UNDER:- '6. SEC. 54 OF THE ACT CONTEMPLATES THAT THE CAPITA L GAIN ARISES FROM THE TRANSFER OF A LONG-TERM CAPITAL ASSET, BUT IF THE ASSESSEE WITHIN A PERIOD OF ONE YEAR BEFORE OR TWO YEARS AFT ER THE DATE ON IT(SS)A NO.24/RJT/2013 8 WHICH THE TRANSFER TOOK PLACE PURCHASES RESIDENTIAL HOUSE, THEN INSTEAD OF THE CAPITAL GAIN, THE INCOME WOULD BE CH ARGED IN TERMS OF PROVISIONS OF SUB-S. (1) OF S. 54. AS PER SUB-S. (2), IF THE AMOUNT OF CAPITAL GAINS IS NOT APPROPRIATED BY THE ASSESSE E TOWARDS THE PURCHASE OF NEW ASSET WITHIN ONE YEAR BEFORE THE DA TE ON WHICH THE TRANSFER OF THE ORIGINAL ASSET TOOK PLACE, OR WHICH IS NOT UTILIZED BY HIM FOR THE PURCHASE OR CONSTRUCTION OF THE NEW ASS ET BEFORE THE DATE OF FURNISHING THE RETURN OF INCOME UNDER S. 13 9, THE AMOUNT SHALL BE DEPOSITED BY HIM BEFORE FURNISHING SUCH RE TURN NOT LATER THAN DUE DATE APPLICABLE IN THE CASE OF ASSESSEE FO R FURNISHING THE RETURN OF INCOME UNDER SUB-S. (1) OF S. 139 IN AN A CCOUNT IN ANY SUCH BANK OR INSTITUTION AS MAY BE SPECIFIED. RELEV ANT SUB-S. (2) OF S. 54 OF THE ACT READS AS UNDER:- XXX XXX XXX 7. THE QUESTION WHICH ARISES IS; WHETHER THE RETURN FILED BY THE ASSESSEE BEFORE THE EXPIRY OF THE YEAR ENDING WITH THE ASSESSMENT YEAR IS VALID UNDER S. 139(4) OF THE ACT? 8. LEARNED COUNSEL FOR THE REVENUE HAS ARGUED THAT THE ASSESSEE WAS REQUIRED TO FILE RETURN UNDER SUB-S. (1) OF S. 139 OF THE ACT IN TERMS OF SUB-S. (2) MR. GOPE M. ROCHLANI OF S. 54 O F THE ACT. IT IS CONTENDED THAT SUB-S. (4) IS NOT APPLICABLE IN RESP ECT OF THE ASSESSEE SO AS TO AVOID PAYMENT OF LONG-TERM CAPITA L GAIN. 9. ON THE OTHER HAND, LEARNED COUNSEL FOR THE RESPO NDENT RELIES UPON A DIVISION BENCH JUDGMENT OF KARNATAKA HIGH CO URT IN FATHIMA BAL VS. ITO (2009) 32 DTR (KAR) 243 WHER E IN SOMEWHAT SIMILAR CIRCUMSTANCES, IT HAS BEEN HELD TH AT TIME- LIMIT FOR DEPOSIT UNDER SCHEME OR UTILISATION CAN BE MADE BEFORE THE DUE DATE FOR FILING OF RETURN UNDER S. 139(4) OF THE AC T. LEARNED COUNSEL FOR THE RESPONDENT ALSO RELIES UPON A DIVISION BENC H JUDGMENT OF GAUHATI HIGH COURT IN CIT VS. RAJESH KUMAR JALAN (2 006) 206. CTR (GAU) 361 (2006) 286 ITR 274 (GAU). 10. HAVING HEARD LEARNED COUNSEL FOR THE PARTIES, W E ARE OF THE OPINION THAT SUB-S. (4) OF S. 139 OF THE ACT IS, IN FACT, A PROVISO TO SUB-S. (1) OF S. 139 OF THE ACT. SEC. 139 OF THE AC T FIXES THE DIFFERENT IT(SS)A NO.24/RJT/2013 9 DATES FOR FILING THE RETURNS FOR DIFFERENT ASSESSEE . IN THE CASE OF ASSESSEE AS THE RESPONDENT, IT IS 31ST DAY OF JULY OF THE ASSESSMENT YEAR IN TERMS OF CI. (C) OF THE EXPLN. 2 TO SUB-S. (1) OF S. 139 OF THE ACT, WHEREAS SUB-S. (4) OF S. 139 PROVIDES FOR EXTE NSION IN PERIOD OF DUE DATE IN CERTAIN CIRCUMSTANCES. IT READS AS U NDER:- 11. A READING OF THE AFORESAID SUB-SECTION WOULD SH OW THAT IF A PERSON HAS NOT FURNISHED THE RETURN OF THE PREVIOUS YEAR WITHIN THE TIME ALLOWED UNDER SUB-S (1) I.E., BEFORE 31ST DAY OF JULY OF THE ASSESSMENT YEAR, THE ASSESSEE CAN FILE RETURN BEFOR E THE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YE AR.' III) CIT V/S JAGTAR SINGH CHAWLA, PASSED IN INCOME TAX APPEAL NO.71 OF 2012, VIDE JUDGMENT DATED 20TH MARCH 2013 WHEREIN IT HAS BEEN OBSERVED AND HELD AS UNDER:- 'THE PROVISIONS OF SECTION 54F(4) OF THE ACT ARE PA RI-MATERIA WITH SECTION 54(2) OF THE ACT. SECTION 54 DEALS WIT H THE PROFIT ON SALE OF A RESIDENTIAL HOUSE, WHEREAS SECTION 54F DE ALS WITH THE TRANSFER OF ANY LONG TERM CAPITAL ASSETS NOT BEING A RESIDENTIAL HOUSE. A DIVISION BENCH OF THE GAUHATI HIGH COURT IN A CAS E REPORTED AS COMMISSIONER OF INCOME TAX V. RAJESH KUMAR JALAN (2006) 286 ITR 274, HELD THAT ONLY SECTION 139 OF THE ACT IS MENTIONED IN SECTION 54(2) OF THE ACT IN THE CONTEXT THAT THE UN UTILIZED PORTION OF THE CAPITAL GAIN ON THE SALE OF PROPERTY USED FOR R ESIDENCE SHOULD BE DEPOSITED BEFORE THE DATE OF FURNISHING THE RETU RN OF THE INCOME TAX UNDER SECTION 139 OF THE ACT AND THAT IT WOULD INCLUDE EXTENDED PERIOD TO FILE RETURN IN TERMS OF SUB SECT ION 4 OF SECTION 139 OF THE ACT. IT WAS HELD AS UNDER:- 'FROM A PLAIN READING OF SUB-SECTION (2) OF SECTION 54 OF THE INCOME-TAX ACT, 1961, IT IS CLEAR THAT ONLY SECTION 139 OF THE INCOME-TAX ACT, 1961, IS MENTIONED IN SECTION 54(2) IN THE CONTEXT THAT THE UNUTILIZED PORTION OF THE CAPITAL GAIN ON THE SALE OF PROPERTY USED FOR RESIDENCE SHOULD BE DEPOSITED BEF ORE THE DATE OF FURNISHING THE RETURN OF THE INCOME-TAX UNDER SECTI ON 139 OF THE INCOME-TAX ACT. SECTION 139 OF THE INCOME TAX ACT, 1961, CANNOT IT(SS)A NO.24/RJT/2013 10 BE MEANT ONLY SECTION 139(1), BUT IT MEANS ALL SUB- SECTIONS OF SECTION 139 OF THE INCOME-TAX ACT, 1961. UNDER S UB- SECTION (4) OF SECTION 139 OF THE INCOME-TAX ACT ANY PERSON WHO HAS NOT FURNISHED A RETURN WITHIN THE TIME ALLOWED TO HIM U NDER SUB- SECTION (1) OF SECTION 142 MAY FURNISH THE RETURN F OR ANY PREVIOUS YEAR AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION O F THE ASSESSMENT YEAR WHICHEVER IS EARLIER.' THE SAID JUDGMENT WAS RELIED UPON BY A DIVISION BEN CH OF THE KARNATAKA HIGH COURT IN FATHIMA BAI V. ITO, ITA NO. 435 OF 2004 DECIDED ON 17TH OCTOBER 2008, WHEREIN IT WAS HELD T O THE FOLLOWING EFFECT:- '11. THE EXTENDED DUE DATE UNDER SECTION 139(4) WOU LD BE 31.3.1990. THE ASSESSEE DID NOT FILE THE RETURN WIT HIN THE EXTENDED DUE DATE, BUT FILED THE RETURN ON 27.2.2000. HOWEVE R, THE ASSESSEE HAD UTILIZED THE ENTIRE CAPITAL GAINS BY PURCHASE O F A HOUSE PROPERTY WITHIN THE STIPULATED PERIOD OF SECTION 54 (2) I.E., BEFORE THE EXTENDED DUE DATE FOR RETURN UNDER SECTION 139. THE ASSESSEE TECHNICALLY MAY HAVE DEFAULTED IN NOT FILING THE RE TURN UNDER SECTION 139(4). BUT, HOWEVER, UTILIZED THE CA PITAL GAINS FOR PURCHASE OF PROPERTY BEFORE THE EXTENDED DUE DATE U NDER SECTION 139(4). THE CONTENTION OF THE REVENUE THAT THE DEPO SIT IN THE SCHEME SHOULD HAVE BEEN MADE BEFORE THE INITIAL DUE DATE AND NOT THE EXTENDED DUE DATE IS AN UNTENABLE CONTENTION.' A DIVISION BENCH OF THIS COURT IN WHICH ONE OF US ( HEMANT GUPTA, J.) WAS A MEMBER, HAD AN OCCASION TO CONSIDER THE P ROVISIONS OF SECTION 54(2) OF THE ACT, WHEREIN IT HAS BEEN HE LD THAT SUBSECTION (4) OF SECTION 139 OF THE ACT IS IN FACT A PROVISO TO SECTION 139(1) OF THE ACT. THEREFORE, SINCE THE ASSESSEE HAS INVESTED THE SALE PROCEEDS IN A RESIDENTIAL HOUSE W ITHIN THE EXTENDED PERIOD OF LIMITATION, THE CAPITAL GAIN IS NOT PAYABLE. THE JUDGMENTS IN RAJESH KUMAR JALAN'S CASE AND FATHIMA BAI'S CASE (SUPRA) WERE REFERRED TO. IT HAS BEEN HELD AS UNDER :- 'HAVING HEARD LEARNED COUNSEL FOR THE PARTIES, WE A RE OF THE OPINION THAT SUB- SECTION (4) OF SECTION 139 OF THE ACT IS, IN ACT, A IT(SS)A NO.24/RJT/2013 11 PROVISO TO SUB-SECTION (1) OF SECTION 139 OF THE AC T. SECTION 139OF THE ACT FIXES THE DIFFERENT DATES FOR FILING THE RE TURNS FOR DIFFERENT ASSESSES. IN THE CASE OF ASSESSEE AS THE RESPONDENT , IT IS 31ST DAY OF JULY, OF THE ASSESSMENT YEAR IN TERMS OF CLAUSE (C) OF THE EXPLANATION 2 TO SUB-SECTION 1 OF SECTION 139 OF TH E ACT, WHEREAS SUB-SECTION (4) OF SECTION 139 PROVIDES FOR EXTENSI ON IN PERIOD OF DUE DATE IN CERTAIN CIRCUMSTANCES.' FROM THE PROPOSITIONS LAID DOWN BY THE AFORESAID DE CISIONS, IT IS ABSOLUTELY CLEAR THAT PROVISIONS OF SECTION 139(4) IS ACTUALLY THE EXTENSION OF THE DUE DATE OF SECTION 139(1) AND, TH EREFORE, THE DUE DATE FOR FILING OF THE RETURN OF INCOME CAN ALSO BE RECKONED WITH THE DATE MENTIONED IN SECTION 139(4). 14. IN OUR CONSIDERED OPINION, ONCE THE LEGISLATURE HAS NOT SPECIFIED THE 'DUE DATE' AS PROVIDED IN SECTION 139 (1) IN EXPLANATION 5A, THEN BY IMPLICATION, IT HAS TO BE T AKEN AS THE DATE EXTENDED UNDER SECTION 139(4). IN VIEW OF THE ABOVE , WE HOLD THAT THE ASSESSEE GETS THE BENEFIT / IMMUNITY UNDER CLAU SE (B) OF EXPLANATION TO SECTION 271(1)(C) BECAUSE THE ASSESS EE HAS FILED ITS RETURN OF INCOME WITHIN THE 'DUE DATE' AND, THEREFO RE, THE PENALTY LEVIED BY THE ASSESSING OFFICER CANNOT BE SUSTAINED ON THIS GROUND. EVEN THOUGH WE ARE NOT AFFIRMING THE FINDINGS AND T HE CONCLUSIONS OF THE LEARNED COMMISSIONER (APPEALS), HOWEVER, AS PER THE MR. GOPE M. ROCHLANI DISCUSSION MADE ABOVE, PENALTY IS DELETED IN VIEW OF THE INTERPRETATION OF EXPLANATION 5A TO SEC TION 271(1)(C). CONSEQUENTLY, THE GROUND RAISED BY THE REVENUE IS T REATED AS DISMISSED. 8. IN THE LIGHT OF THE ABOVE PROPOSITION, IF WE EXA MINE THE FACTS OF THE PRESENT CASE, THEN IT WOULD REVEAL THAT THE ASSESSE E HAS FILED THE RETURN WITHIN THE PERIOD AVAILABLE UNDER SECTION 139(4) OF THE AC T, AND THEREFORE, HE IS ENTITLED FOR THE IMMUNITY AVAILABLE IN CLAUSE (B) O F EXPLANATION 5A APPENDED TO SECTION 271(1)(C) OF THE ACT. THE LD.DR HAS NOT POINTED OUT ANY CIRCUMSTANCES, WHICH CAN INDICATE THAT THE ASSESSEE DOES NOT FULFILL THE CONDITIONS OF CLAUSE (B) OF EXPLANATION 5A. IN OTHER WORDS, THE ITAT, IT(SS)A NO.24/RJT/2013 12 MUMBAI BENCH HAS MADE A DISCUSSION IN PARA 11 OF TH E ORDER ABOUT THE CONDITIONS, WHICH WOULD ABSOLVE THE ASSESSEE FROM T HE IMPACT OF APPLICABILITY OF EXPLANATION 5 A. THEREFORE, IN OUR OPINION, THIS CASE IS CLEARLY APPLICABLE ON THE FACTS OF THE ASSESSEES CASE. IN VIEW OF TH E ABOVE, WE ALLOW THE APPEAL OF THE ASSESSEE AND DELETE THE PENALTY. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE COURT ON 16 TH MAY, 2016 AT AHMEDABAD. SD/- SD/- ( N.K. BILLAIYA ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER