2013 (11) TMI 675

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....turn as under section 139(4); 2. The ld. CIT(A) fell in error of law in not appreciating that the appellant/ assessee is entitled for the exemption u/s 54F if the sale consideration utilized for investment in new residential property within the due date stipulated under section 139(4) of the Act. 3. The ld. CIT(A) was not justified in not considering the decision of the Hon'ble High Court and the Hon'ble Tribunal which were bought to his notice." 2. Relevant facts concerning to this issue are that the assessee filed his return of income on 25.9.2009 declaring total income at Rs.3,23,410/- and filed revised return of income on 5.4.2010 declaring total income at Rs.3,33,630/-. It is seen from the AIR information that assessee has sold a pr....

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....ny investment in capital gain scheme before the due date of filing of return u/s 139(1) as the purchase of flat was virtually finalized and investment in capital gain scheme for a brief period was not feasible. The assessee contended that transaction was completed before 31.7.2009. Hence, he is eligible for exemption u/s 54F of the Act. The assessee stated that the flat was purchased on 15.10.2009 and therefore capital gain for the purchase of property had been utilized before the extended due date of filing of return u/s 139(4) i.e. 31.3.2010. In support of his contention, he relied on the decision of Hon'ble Karnataka High Court in the case of Fatimabai V/s ITO (2009) 32 DTR 243 and the decision of Hon'ble Guwahati High Court in the case ....

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....ore the lower authorities and contended that the very issue has came up before the Hon'ble Mumbai Bench of Tribunal in the case of Kishore H Galaiya V/s ITO [2012] 24 taxmann.com 11 (Mum), wherein on identical facts and circumstances, the issue has been decided in favour of the assessee and in support of his contention he placed a copy of order passed in Kishor H Galaiya (supra). He submitted that the issue is squarely covered in favour of the assessee by the decision of Mumbai Bench of Tribunal in the case of Kishor H Galaiya(supra). To corroborate his submissions, he also placed copies of orders in Smt.Rita Chetan Naik in ITA No.3986/Mum/2012 (AY-2008-09) dated 10.7.2013, CIT V/s Rajesh Kumar Jain (2006) 286 ITR 274 (Gauhati), Fathima Bai....

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....ated to time contemplated under the provision of section 139(1) of the Act. Accordingly, section 139(4) had to be read along with sub-section (1) of section 139 and the due date for furnishing the return of income u/s 139(1) is subject to the extended period provided u/s 139(4). Hence, extended period u/s 139(4) has to be considered for the purpose of utilization of the capital gain amount. The ITAT, Mumbai following the decision of the Hon'ble Punjab and Haryana High Court in the case of Kishore Galaiya V/s ITO (137 ITD 229) has held that when the assessee had utilized the amount which was more than the capital gain earned towards consideration of new residential house within extended period u/s 139(4) of the Act, the claim made by assesse....