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2022 (9) TMI 1089
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....(A) has erred in law and facts in confirming the actions of the Ld. A.O. not to grant deduction U/s. 54 claimed of Rs. 8,00,000/-. The same needs to be allowed in respect of share of the assessee. 1.4. Without prejudice, the Ld. CIT(A) has erred in law and facts while confirming the action of the Ld. A.O. not to grant deduction U/s. 54 without considering and following the guidelines issued by the Hon. Supreme Court in the case of Vegetable Products 88 ITR 192 (SC). The same needs consideration. 2. The Ld. CIT(A) has erred in law and facts in confirming the income at Rs. 11,21,230/- as against return income of Rs. 97,838/- and there by endorsing addition of an amount of Rs. 10,23,392/-. The addition needs deletion. 3. The Ld. CIT(A) has erred in law and facts in confirming the income at Rs. 11,21,230/- as against return income of Rs. 97,838/- and there by endorsing addition of an amount of Rs. 10,23,392/- considering the cost of acquisition at Rs. 2,00,870/- as against declared value of Rs. 2,05,500/-. The addition needs deletion. 4. The Ld. CIT(A) has erred in law and facts in confirming the income at Rs. 11,21,230/- as against return income of Rs. 97,838/- and there by en....
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....ity of deduction of renovation and brokerage expenses of Rs. 2,86,500/-claimed as deduction by way of cost of improvement from sale consideration. 4. The brief facts in relation to the first issue before us are that the assessee sold his property on 27-03-2006. The due date of filing return under section 139(1) of the Act was 31-07-2006. The assessee purchased new property on 16-10-2006 and filed the return for the impugned assessment year on 28-12-2007. Accordingly, the assessee's contention is that since the assessee purchased new property before the due date of filing of return under section 139 (4) of the Act (which for the impugned year was 31-03-2008), it cannot be denied deduction u/s 54F of the Act. 5. In appeal, the ld. CIT(A) dismissed the assessee's appeal with the following observations:- "The other issue is exemption u/s 54. It is uncontroverted fact that the said investment in new property had not been made by the due date of furnishing return of income u/s 139(1) nor the unutilized amount was invested in the Capital Gains Account scheme. The AO accordingly denied the deduction. The claim of assessee is that the new asset was acquired jointly with daughter in law ....
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.... furnishing of return of income i.e. 4th November, 1996 under Section 139 of the Act. Therefore, on plain interpretation of Section 54F of the Act, it appears that the impugned order of the Tribunal cannot be faulted. (j) However, the aforesaid view would be subject to the result of our examination of the submissions and case laws relied- upon by Mr.Chatterji in support of the appeal to urge a view contrary to the plain meaning of Section 54F of the Act. (k) Reliance placed by the Appellant upon the decision of this Court in Mrs.Hilla J. B. Wadia (supra) to contend that the issue stands concluded in favour of the appellant-assessee is not acceptable. This for the reason that the only issue for consideration before the Court in the above case was the interpretation of Section 54 of the Act. In the above case the assessee had sold her residential property and invested a substantial amount in a Society for construction of a residential flat in the building to be constructed. The assessee therein had paid substantial amounts to the society and also acquired domain over the flat within a period of 2 years from the date of the sale of her house. At that point of time i.e. for the Ass....
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....does not advance the case of the Appellant We find that the facts in the above case are similar to the one in Mrs. Hilla J. B. Wadia (supra) and for the same reasons, will not govern the present dispute. In fact, the issue stood covered by the Circular dated 15th October, 1986 as the property purchased therein was of the Delhi Development Authority. Thus, the above decision has no application to the present facts. (n) Mr.Chatterji, learned Senior Counsel appearing for the appellant assessee then contended on the basis of the two Circulars dated 15th October, 1986 and 16th December, 1993 of the Central Board of Direct Taxes that once an allotment letter has been issued to the assessee, then it follows that the title of the constructed house has passed on to the assessee. Therefore the payment made subsequent to allotment letter in installments would not in any manner affect the assessee having satisfied Section 54F(1) of the Act. This submission ignores the fact that Sub Section (1) of Section 54F has been made subject to Sub Section (4) of the Act The requirement under Section 54F(4) of the Act is the deposit of the unutilized amount in the specified bank account till it is utili....
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....hus if on an. examination of the decisions of the other High. Court we are unable to accept the same, we are not bound to follow/accept the interpretation of the other High Courts leading to a particular conclusion. In this case we find that the decision of the Karnataka High Court in K. Ramchandra Rao (supra) was rendered sub-silentio i.e. no argument was made with regard to the requirement of deposit in notified bank account in terms of Section 54F(4) of the Act before the due date as provided in Section 139(1) of the Act. As observed in Salmond's Jurisprudence 12th Edition : "The rule that a precedent sub silentio is not authoritative goes back at least to 1661(m) when Counsel said, 'An hundred precedents subsilentio are not material'; and Twisden J agreed : precedents sub-silentio and without argument are of no moment'. This rule has ever since been followed." (q) In fact this Court in Commissioner of Income Tax vs. Thana Electricity Supply Ltd. 206 ITR 727 has observed that a decision of one High Court is not binding as a precedent on another High Court unlike a decision of the Apex Court. In support, reliance-was placed in the above order upon the decision o....
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....9] 8 SCC 667 has observed as under :- "The intention of the Legislature in a taxation statute is to be gathered from the language of the provisions particularly where the language is plain and unambiguous. In a taxing Act it is not possible to assume any intention or governing purpose of the statute more than what is stated in the plain language. It is not the economic results sought to be obtained by making the provision which is relevant in interpreting a fiscal statute. Equally impermissible is an interpretation which does not follow from the plain, unambiguous language of the statute. Words cannot be added to or substituted so as to give a meaning to the statute which will serve the spiritand intention of the Legislature....." (emphasis supplied) Similarly this Court in Thana Electricity (Supra) had observed as under : "If the provision of a taxing statute can be reasonably interpreted in two ways, that interpretation which is favourable to the assessee has got to be accepted. This is a well accepted view of law. It is the satisfaction of the court interpreting the law that the language of the taxing statute is ambiguous or reasonably capable of more meanings than one, which is....
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....ital asset) and utilization (purchase/construction after the sale of capital asset). Therefore the word "appropriated" would have no application in cases of purchase / construction of a house after the sale of capital asset with which we are concerned. (v) Lastly and in the alternative, it is submitted by Mr. Chatterji, that as the entire amount has been paid to the developer/builder before the last date to file the return of Income under Section 139 of the Act, the exemption is available to the appellant under section 54F(4) of the Act. In support, the decision of Gauhati High Court in Rajesh Kumarjalan (Supra) is relied upon. The Gauhati High Court in the above case was concerned with the interpretation of Section 54 of the Act It construed the provision of sub Section (2) of Section 54 of the Act which is identically worded to sub section (4) of Section 54Fofthe Act The Court in the aforesaid decision held that the requirement of depositing before the date of furnishing of return of Income under Section 139 of the Act has not to be restricted only to the date specified in Section 139(1) of the Act but would include all sub section of Section 139 including sub section (4) of th....
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....d be construed liberally. Further, he placed reliance on various judicial precedents to the effect that section 54F benefit can be claimed till date of filing of return of income u/s. 139(4) of the Act. In response, the ld. Departmental Representative relied on the observations made by ld. CIT(A) and Assessing Officer. 7. We have heard the rival contentions and perused the material on record. In our considered view, it is a fit case for allowing deduction under section 54F of the Act in the instant set of facts. Various Courts and Tribunals have on numerous occasions held that 54F is a beneficial provision and the same date should be construed liberally. Further, from the plain language of section 54F of the Act, it is seen that only section 139 is mentioned in the context of the unutilised portion of the capital gain on sale of property and therefore investment in new property under section 139 cannot be confined only to provisions of section 139(1) of the Act, but includes all the subsections of section 139 of the Act. In the case of Dipal Sureshbhai Patel v ITO in ITA number 387/Ahd/2018, the Ahmedabad Tribunal on similar set of facts allowed the appeal of the assessee with the....
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....n (2) of section 54, it is clear that only section 139 is mentioned in section 54(2) in the context that the unutilised portion of the capital gain on the sale of property used for residence should be deposited before the date of furnishing the return of the income-tax under section 139. Section 139 cannot mean only section 139(1) but it means all sub-sections of section 139. Under subsection (4) of section 139, any person who has not furnished a return within the time allowed to him 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, whichever is earlier. Such being the situation, it was the case of the assessee that he could fulfil the requirement under section 54 for exemption of the capital gain from being charged to income-tax on the sale of property used for residence up to 30-3-1998, inasmuch as the return of income-tax for the assessment year 1996-97, 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 ....