TaxTMI 
TaxTMI 
2022 (1) TMI 1044
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....ing of the case of the assessee u/s 147 is against the law, and consequential passing of orders u/s143(3) r.w.s. 147 by the Assessing Officer and u/s 250 by the C.I.T.(A) deserves to be quashed in the interest of justice. 2.Thelearned C.I.T.(Appeals)-3,Surat has erred is disallowing the claim of exemption u/s 54-F of the Act as the assessee had rightly opened Capital Gain scheme account before his return of income u/s 139(4) and purchased a residential house property within the prescribed time limit of 2 years as prescribed u/s 54-F on the facts and in the circumstances of the case and as per law the deduction u/s 54-F be given to the assessee and 3. All the undecided grounds of appeal by the C.I.T.(Appeal) in his appellate order be heard and to be decided on merits in the interest of justice. 4.The appellant may be permitted to withdraw to amend, modify and ground duly raised and to introduce new grounds of appeal." 2. Brief facts of the case are that assessee is an individual, filed his return of income for assessment year (AY) 2010-11 under section on 31.03.2011 declaring income of Rs. 10,230/-. The return of income was filed under section 139(4). The case of assessee was....
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....010. Accordingly, the claim of exemption to the extent of Rs. 14,94,166/- was disallowed and the same was added to the income of the assessee. 5. Aggrieved by the reopening as well as in making addition in the assessment, the assessee filed an appeal before Ld. CIT(A). Before Ld. CIT(A) the assessee filed detailed written submission. The detailed written submission of the assessee are extracted on pages 3 to 11 in para-7 of his order. In his written submission, the assessee in sum and substance stated that he filed return of income manually on 31.03.2011 alongwith return of income, he furnished computation of income, copy of ITR filed before ITO Ward-7(4) Surat, with computation of income. The assessee further explained that he alongwith his cousin brother sold immovable property jointly owned by him on 26.02.2010 for a consideration of Rs. 51,37,500/-. On sale of asset / immovable property, the assessee earned capital gains of Rs.,24,94,166/- after claiming indeed cost of acquisition. The working of capital gains was also furnished. The assessee further submits that he invested in the bonds of NHAI of Rs. 10 lakh on 26.03.2010, within six months from the date of sale.Further Rs. ....
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....Section139 cannot mean any section, it means all sub-section of section 139. Under sub-section (4) of section 139, any person who has to furnished return within time allowed to him under sub-section (1) of section 142, may furnish return of any previous year at any time before the expiry of one year, from the end of relevant assessment year, or before completion of assessment year whichever is earlier. Such being the situation, it is the case of the assessee that it could fulfil the requirement of section 54-F for exemption of capital gains charged to income-tax. The assessee also relied on the basis of decision of Hon'ble Guwahati High Court in the case of CIT vs. Rajesh Kumar Jalan (2007) 286 ITR 274 (Gau). 8. The Ld. CIT(A) after considering the submission of assessee upheld the action of Assessing Officer in making disallowance of exemption under section 54-F by taking view that assessee purchased asset under section 54-F on 22.09.2011. The assessee made deposit in capital gains account beyond the due date as per section 139(1) and investment in purchase / construction of eligible asset is beyond the due date under section 139(4) of the Act. The Ld. CIT(A) referred and rel....
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....se. The Ld. AR of the assessee submits that filing of return of income on 31.03.2011 and purchased of NHAI Bonds of Rs. 10 lakh on 26.03.2010 and Rs. 15 lakh on 11.08.2010 and purchased of new residential house on 22.09.2011 are not in dispute. Ld. AR of the assessee submits that assessee is entitled to exemption section 54-F.Thus, the assessee is liable to be succeeded on valid reopening as well as on merit. 11. To support his contention, Ld.AR of the assessee relied upon the following decisions:- * CIT vs. Rajesh Kumar Jalan (2006) 206CTR361 (Gau) * Ashok Kapasiawala vs. ITO ITA No.2692/AHD/2014 dated 10.09.2015 * CIT vs. Shri K Ramachandra Rao TA No.46 of 2014 14.07.2014 * Fathima Bai vs. ITO (2009) 32 DTR 243 (Kar) * CIT vs. Shri Jagtar Singh Chawla TA No. 71 of 2012 (O&M) (P&H) * CIT-Ii vs. Ms. Jagriti Aggarwal TA No. 176 of 2011 dated 03.10.2011 * Sri Nipun Mehrotra Vs. ACIT 113 TTTJ 223 (Bang.Tribunal) * Shri Shankar Lal Saini vs. ACIT in ITA No.75/JP/2016 dated 22.11.2016 12. On the other hand, Ld. Senior departmental representative ( Sr -DR) for the Revenue supported the orders of authorities below. The Ld. Sr-DR for the Revenue submits that deposits of R....
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....irement under section 54 for exemption of the capital gain from being charged to income-tax on the sale of property used for residence, could be furnished before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier, under sub-section (4) of section 139. 15. We find that the provisions of Section 54F(4) of the Act are pari-materia with Section 54(2) of the Act. Section 54 deals with the profit on sale of a residential house, whereas Section 54F deals with the transfer of any long term capital assets not being a residential house. 16. Further we find that Hon'ble Punjab & Haryana High Court in CIT Vs Jagtar Singh Chawla (supra) followed the decision of Gauhati High Court in Rajesh Kumar Jalan (supra) and passed the following order; 9. A Division Bench of the Gauhati High Court in a case reported as CIT v. Rajesh Kumar Jalan [2006] 286 ITR 274/157 Taxman 398, held that only Section 139 of the Act is mentioned in Section 54(2) of the Act in the context that the unutilized portion of the capital gain on the sale of property used for residence should be deposited before the date of furnishing the return o....
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....le proceeds in a residential house within the extended period of limitation, the capital gain is not payable. The judgments in Rajesh Kumar Jalan's case (supra) and Fathima Bai's case (supra) were referred to. It has been held as under:- "Having heard learned counsel for the parties, we are of the opinion that sub-section (4) of Section 139 of the Act is, in act, a proviso to subsection (1) of Section 139 of the Act. Section 139 of the Act fixes the different dates for filing the returns 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 the Act, whereas sub-section (4) of Section 139 provides for extension in period of due date in certain circumstances. It reads as under:- "(4) Any person who has not furnished a return within the time allowed to him under sub-section (1), or within the time allowed under a notice issued under sub-section (1) of Section 142, may furnish the return for any previous year at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment ....