Mr. Tajjudin M Somjee, Pune V. ACIT, Pune

MA 152/PUN/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2646 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 4 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-01-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 30-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S NAIK
• Assessee Lawyers: KAPIL A HIRANI; AJIT R TOLANI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE MS SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER M.A. NO.152/PN/2013 ARISING OUT OF ITA NO.1199/PN/2006 (ASSESSMENT YEAR: 2003-04) MR. TAJJUDIN M. SOMJEE 1, NAYLOR ROAD, PUNE 411001 PAN: ACQPS5642E APPLICANT VS. THE ASST. COMMISSIONER OF INCOME TAX(OSD), PUNE RESPONDENT APPLICANT BY : S/SHRI KAPIL A. HIRANI AND AJIT R. TOLANI RESPONDENT BY : SHRI P.S. NAIK DATE OF HEARING : 14.11.2014 DATE OF PRONOUNCEMENT : 30.12.2014 ORDER PER SUSHMA CHOWLA, JM : THE CAPTIONED MISCELLANEOUS APPLICATION HAS BEEN MOVED BY THE ASSESSEE AGAINST ORDER OF THE TRIBUNAL IN ITA NO.1199/PN /2006 DATED 30.08.2011 RELATING TO ASSESSMENT YEAR 2003-04. 2. THE PLEA OF THE ASSESSEE WAS THAT WHILE DISPOSING OF T HE GROUNDS OF APPEAL NOS.1 & 2.1 WITH REGARD TO THE AMOUNT OF DEDUCT ION UNDER SECTION 54EC OF THE ACT, THE TRIBUNAL HAD DISMISSED THE CLAIM OF THE ASSE SSEE BY TAKING THE DATE OF TRANSFER AS 23.01.2003 AGAINST WHICH, THE DATE OF I NVESTMENT IN THE BONDS ELIGIBLE FOR DEDUCTION UNDER SECTION 54EC OF THE ACT WAS 29.09 .2003. 3. IT WAS POINTED OUT BY THE LEARNED AUTHORIZED REPRES ENTATIVE FOR THE ASSESSEE THAT NHCCG BONDS AMOUNTING RS.1,57,00,000/- WE RE PURCHASED VIDE CHEQUE NO.200465 DATED 04.07.2003 WHICH IN TURN, WAS CLEAR ED ON 2 MA NO.152/PN/2013 OUT OF ITA NO.1199/PN/2006 05.07.2003. IT WAS FURTHER POINTED OUT BY THE LEARNED A UTHORIZED REPRESENTATIVE FOR THE ASSESSEE THAT THE CERTIFICATE ALLOT TING THESE BONDS WAS ISSUED ON 29.09.2003. THE PLEA OF THE LEARNED AUTHORIZED R EPRESENTATIVE FOR THE ASSESSEE IN THIS REGARD WAS THAT ACTUAL DATE OF PAY MENT WAS 05.07.2003 AND THE DATE OF ALLOTMENT WAS 31.07.2003 WHICH WAS WITHIN T HE PERIOD OF SIX MONTHS STARTING FROM THE DATE OF TRANSFER TAKEN AS 23.01 .2003. THE DATE OF ISSUE OF THE CERTIFICATE I.E. 29.09.2003 COULD NOT BE HELD TO B E THE DATE OF INVESTMENT IN THE BONDS AND ONCE THE CORRECT DATES AR E TAKEN, THEN THE ASSESSEE IS ELIGIBLE TO THE EXEMPTION UNDER SECTION 54EC O F THE ACT. IT WAS POINTED OUT BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE THAT A MISTAKE HAD CREPT IN THE ORDER OF TRIBUNAL. 4. THE ASSESSEE ALSO RAISED CONTENTION AGAINST THE NON-A DMISSIBILITY OF DEDUCTION 54EC OF THE ACT VIS--VIS RS.40,00,000/- INVESTED TILL 10.05.2003, WHICH WAS WITHDRAWN BY THE LEARNED AUTHORIZED REPRESENT ATIVE FOR THE ASSESSEE DURING THE COURSE OF HEARING ITSELF. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVEN UE PLACED RELIANCE ON THE ORDER OF THE TRIBUNAL. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE TRIBUNAL VIDE PARA 14 OF ITS ORDER DATED 30.08.2011 HELD AS UNDER:- ' 14. REGARDING DISALLOWANCE OF CLAIM FOR EXEMPTION U/S 5 4EC WE FIND THAT EVEN IF THE DATE OF TRANSFER IS TAKEN AS 23-1-20 03, THE AMOUNT OF RS. 1,57,00,000/- DEPOSITED IN THE CAPITAL GAIN BONDS ON 29-9-20 03 IS BEYOND THE PERIOD OF SIX MONTHS FROM THE DATE OF TRANSFER AND, THEREFORE, NO DEDUCTION U/S 54EC IN ANY CASE IS AVAILABLE TO THE A SSESSEE ON THIS AMOUNT. FURTHER, THE ASSESSEE HAD RECEIVED AN AMOUNT OF RS. 1,64,00,000/- ONLY DURING THE PERIOD 16-4-2002 TO 23-1-2003. THE AMOUNT OF RS.1,57,00,000/- HAS BEEN DEPOSITED OUT OF THIS AMOU NT OF RS. 1,64,00,000/- RECEIVED DURING THE YEAR. FURTHER, RS.40,00,0 00/- HAD BEEN RECEIVED PRIOR TO 7-11-2001 WHICH WAS NOT DEPOSITED TI LL 10-5-2003 AND, THEREFORE, THIS AMOUNT ALSO LOOSES EXEMPTION BEING BEY OND A PERIOD OF SIX MONTHS. THE AMOUNT OF RS.47,00,000/- DEPOSITED ON 10-5-2 003, IN ANY CASE WAS OUT OF THE AMOUNT RECEIVED PRIOR TO 17-6-200 2 AND THEREFORE, THE ENTIRE AMOUNT OF RS.47,00,000/- IS NOT ELIGIBLE FOR DEDUCTION U/S.54EC. 3 MA NO.152/PN/2013 OUT OF ITA NO.1199/PN/2006 7. THE PERUSAL OF THE ORDER PASSED BY THE TRIBUNAL REFLEC TS THAT WHILE DECIDING THE ISSUE OF DEDUCTION UNDER SECTION 54EC OF THE ACT, THE DATE OF TRANSFER WAS TAKEN AS 23.01.2003 AND IT WAS OBSERVED TH AT THE INVESTMENT IN THE CAPITAL GAIN BONDS WAS MADE ON 29.09.2003 WHICH WAS B EYOND THE PERIOD OF SIX MONTHS FROM THE DATE OF TRANSFER AND HENCE, THE A SSESSEE WAS NOT ELIGIBLE FOR THE DEDUCTION UNDER SECTION 54EC OF THE ACT. THE AS SESSEE ON THE OTHER HAND, HAS FURNISHED EVIDENCE TO THE EFFECT THAT THE INVES TMENT IN THE BONDS WAS MADE VIDE CHEQUE DATED 04.07.2003 WHICH WAS CLEARED FROM THE BANK OF THE ASSESSEE ON 05.07.2003 AND THE DATE OF ALLOTMENT OF T HE BONDS WAS 31.07.2003. HOWEVER, UNDER THE PROVISIONS OF SECTION 54EC OF THE ACT, IT IS THE DATE OF INVESTMENT WHICH IS THE MATERIAL DATE ENTITLING THE ASSE SSEE TO THE CLAIM OF THE ASSESSEE. 8. IN THE FACTS OF THE PRESENT CASE, WHERE THE ASSESS EE HAD MADE THE INVESTMENT ON 04.07.2003 I.E. WITHIN THE PERIOD OF SIX MONTHS FROM THE DATE OF TRANSFER I.E. 23.01.2003, WE FIND THAT A MISTAKE HAD CREPT IN THE ORDER OF THE TRIBUNAL WHILE DECIDING THE ISSUE OF CLAIM OF DEDUCTION UNDER SECTION 54EC OF THE ACT. ACCORDINGLY, WE RECALL THE OBSERVATIONS IN PARA S 14 AND 15 OF THE ORDER DATED 30.08.2011 FOR THE PURPOSE OF HEARING THE ISS UE ON THIS LIMITED POINT AND PARAS 14 AND 15 WOULD READ AS UNDER:- 14. REGARDING DISALLOWANCE OF CLAIM FOR EXEMPTION UNDE R SECTION 54EC OF THE ACT, WE FIND THAT IF THE DATE OF TRANSFER IS TAKEN AS 23.01.2003 AND WHERE THE AMOUNT OF RS.1,57,00,000/- WAS DEPOSITED IN THE CAPITAL GAIN BONDS ON 05.07.2003, THE SAME IS WITHIN THE PERIOD OF S IX MONTHS FROM THE DATE OF TRANSFER AND THEREFORE, THE DEDUCTION UNDER SECTION 54EC OF THE ACT IS AVAILABLE TO THE ASSESSEE ON THIS ACCOUNT. THE AS SESSEE HAD RECEIVED THE SUM OF RS.1,64,00,000/- DURING THE PERIOD FROM 16.04.2 002 TO 23.01.2003 AND THE DATE OF TRANSFER BEING 23.01.2003, WH ICH IS ALTERNATE FINDING GIVEN BY CIT(A) AND NOT CHALLENGED BY THE REVE NUE AND SINCE THE AMOUNT OF RS.1,57,00,000/- WAS DEPOSITED ON 05.07.2003 WAS WITHIN THE STIPULATED PERIOD. THEREFORE, THE ASSESSEE WAS ENTIT LED TO CLAIM OF DEDUCTION UNDER SECTION 54EC OF THE ACT. FURTHER, SU M OF RS.40,00,000/- HAD BEEN RECEIVED PRIOR TO 07.11.2001 WHICH WAS NOT D EPOSITED TILL 10.05.2003, HENCE THE ASSESSEE IS NOT ELIGIBLE FOR CLAIM OF DEDUCTION UNDER SECTION 54EC OF THE ACT ON THIS AMOUNT OF RS.40,00,000 /-. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS, PARTLY ALLOWED. 4 MA NO.152/PN/2013 OUT OF ITA NO.1199/PN/2006 15. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED AND THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 9. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS THE 30 TH DAY OF DECEMBER, 2014. SD/- SD/- (R.K. PANDA) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER GCVSR PUNE, DATED THE 30 TH DECEMBER, 2014 COPY TO: 1. THE ASSESSEE 2. DEPARTMENT 3. THE CIT(A)-II, PUNE 4. THE CIT-II, PUNE 5. THE DR B BENCH, ITAT, PUNE. 6. GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, PUNE.