TaxTMI 
TaxTMI 
2022 (4) TMI 740
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....1961 (hereinafter referred to as "the Act") for A.Y. 2010-11. 2. We have heard the rival submissions made by the respective parties and we have also perused the relevant materials available on record. 3. In the case in hand the assessee has sold an immovable property on 04.11.2009 i.e. during the F.Y. 2009-10. No return of income, however, was filed for the said A.Y. 2010-11. Thus, under Section 147 of the Act the case was reopened and the same was finalized on 16.12.2017 on total income at Rs. NIL. The said order dated 16.12.2017 passed under Section 143(3) r.w.s. 147 of the Income Tax Act, 1961 for A.Y. 2010-11 was found to be erroneous and prejudicial to the interest of the Revenue for the following reason as reflecting from the no....
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.... Math the provision of the Act as it indicated that the amount of cash was not out of capital gain. This has resulted in under assessment of long term capital gain (LTCG) of Rs. 64,47,347/- and resultant short levy of tax of Rs. 36,52,446/-. In view of above, you are being granted an opportunity ff being heard and to show cause as to why the aforesaid assessment made by the Assessing Officer for A.Y. 2010-11 should not be set-aside with a direction d make fresh assessment in accordance with the provisions of law in this regard. For this purpose, you may appear before the undersigned, in person or trough your authorized representative or file written submission on 03.03.2020 at 11:30 A.M./P.M. In case of non compliance, the matter w....
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....ax return as per section 139 and section 139 is main section which include from 139(1) and 139(4) and all the other subsection comes under section 139. The same view had being considered by Supreme Court in the case of Xavier J. Pulikkal Vs. Deputy Commissioner of Income tax in Civil appeal no. 13849 of 2015. [2016] 73 taxmann.com 34 (SC) dated 30 November, 2015. "In the concerned case, Supreme Court considered the due date for having new investment in the properties will be due date as per Section 139(4) which itself included in section 139 of Income tax Act, fact of which are similar so the facts in our case."" 5. In support of his case the assessee relied upon the judgment passed by the Coordinate Bench in the cases ....
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....ction 54 says that the unutilized portion of the amount, of capital gain [not utilized before the date of furnishing the return of income under section 139] which is otherwise liable for capital gain tax shall be deposited in the capital gain account scheme within the period of due dat for filing return of income under section 139(1), to claim the exemption u/s 54. Section 54B(2) speaks of two conditions for availing deduction under section 54B(1), Firstly, the assessee has to utilise the capital gain in purchase of agricultural land before the date of furnishing of return of income under section 139 which encompasses sub-sections (1), (4) and (5). Secondly, if it was not done so, it has to be deposited in a Capital Gain Account Sc....
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....d after 31.07.2010 the Ld. PCIT observed as follows: "It has been submitted by the assessee that he had withdrawn sizable amount from his bank accounts on various dates in which sale proceeds of the land sold being received during the period and from such withdrawal of the amount and out of past saving and cash held by him, sum of which is nearer to Rs. 38 lacs, utilized for the purchase of properties. In view of the clear words used in Section 54B(2) of the Act, it can be seen that the Act compels the assessee to deposit the unutilized amount in the prescribed scheme, therefore, this submission of the assessee is not acceptable since the assessee fails to comply with the provision of the Act and therefore, exemption avail....
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.... two are contradictory with each other since the amount of cash was not out of the capital gain account. 8. In this regard, the Ld. PCIT has relied upon the judgment passed by the Hon'ble Madras High Court in the case of K. A. Ramaswamy Chettiar, reported in 220 ITR 657 and the judgment passed by the Hon'ble Allahabad High Court in the case of Swarup Vegetable Products vs. CIT, reported in (1990) 187 ITR 412 (All) which is also found to be proper and relevant to the issue involved before us. 9. We do not find any iota of evidence submitted by the assessee before the Revenue during the reopening proceeding under Section 147 of the Act in regard to the capital gain account scheme in respect of the several transactions entered into by th....