SRI GOPAL BYRE GOWDA,BANGALORE vs. DEPUTY COMMISSIONER OF INCOME TAX, BANGALORE

Per Shri Jason P Boaz, A.M. : This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-5, Bangalore dt.21.7.2016 for Assessment Year 2013-14. 2. Briefly stated, the facts of the case are as under : 2.1 The assessee, an individual, filed his return of income for Assessment Year 2013-14 on 1.8.2013 declaring a total income of

2 ITA No.1771/Bang/2016 Rs.27,91,440 comprising salary, income from other sources and Long Term Capital Gains (LTCG) at Nil. The case was taken up for scrutiny and the assessment was completed under Section 143(3) of the Income Tax Act, 1961 (in short 'the Act') vide order dt.29.1.2016, wherein the assessee's income was determined at Rs.56,13,765, in view of disallowance of Rs.28,22,325 in respect of the assessee's claim for exemption under Section 54F of the Act. On appeal, the ld. CIT (Appeals) dismissed the assessee's appeal vide order dt.21.7.2016. 3.1 Aggrieved by the order of the CIT (Appeals) dt.21.7.2016 for Assessment Year 2013-14, the assessee has filed this appeal in which he has raised the following grounds :

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3.2 The main issue in this appeal, as raised in the grounds of appeal (supra), is the denial of exemption under Section 54F of the Act, in respect of a small portion of the investment made in acquiring a new residential property on the ground that this portion of the investment has been made after the due date of filing of the return of income under Section 139(1) of the Act. 3.3.1 The facts of the matter, as emanate from the record, is that in the year under consideration i.e. on 3.12.2012 the assessee sold a

4 ITA No.1771/Bang/2016 property site for Rs.3,60,00,000 which resulted in capital gain of Rs.3,44,00,000. The assessee computed the LTCG thereon at Nil after claiming exemption under Section 54F of the Act on the sale of the aforesaid property by virtue of his making investment of Rs.4.31 Crores in purchase of a residential property along with his wife in Villa NO.444, Adarsh Palm Retreat Villa, Bangalore along with his wife; of which the assessee's share was 82.67% of the new property. 3.3.2 In the course of assessment proceedings, the Assessing Officer called for details of the investment made and examined the same. According to the assessee, it had carried out certain improvements / modifications to the new property and submitted the details in the form of invoices for expenses incurred in this regard. The Assessing Officer on examination of the details filed, observed that the cost of improvement, as reflected in the following three invoices does not qualify for exemption under Section 54F of the Act for the reasons rendered in the order of assessment which are as under : Sl. Name of Vendor Amount Date of Reasons for No. (Rs.) Bill disallowance 1 Kevin Electricals 6,50,299 18.7.2014 Wrong address in bill. 2 Shree Vinayaka 9,42,925 15.4.2014 Incurred after due Building Material date for filing Supplier. return u/s. 139(1). 3 Z M Constructions 15,71,875 20.4.2014 -do-

3.3.3 Out of the above three invoices, the Assessing Officer rejected the invoice at Sl.No.1 (supra) on the ground that the place of work was

5 ITA No.1771/Bang/2016 wrongly mentioned. The other two bills were rejected for the stated reason that the bills / invoices pertained to construction work done in April, 2014, which is after the due date for filing the return of income under Section 139(1) of the Act. In that view of the matter, the Assessing Officer disallowed the assessee's claim for deduction under Section 54F of the Act to the extent of Rs.28,22,325; being the assessee's share of expenses (i.e. 82.67%). 3.4 On appeal by the assessee, the learned CIT (Appeals) upheld the above decision of the Assessing Officer, in disallowing the assessee's claim for exemption under Section 54F of the Act to the extent of Rs.28,22,325. According to the learned CIT (Appeals) as per the plain reading of Section 54F(4) of the Act, the Assessing Officer was right in not considering the investment made in the new property after the due date for filing the return under Section 139(1) of the Act. 3.5.1 Before us, the learned Authorised Representative of the assessee outlined the facts of the case and submitted that the assessee is entitled for exemption under Section 54F of the Act on the entire amount invested in purchase of the new property; including the improvement cost. In support of her contentions, the learned Authorised Representative placed reliance on various judicial pronouncements; including decisions of the Hon'ble Karnataka High Court, which are as under : (i) Fathima Bai Vs. ITO (2009) 32 DTR (Kar) 243; (ii) CIT Vs.Smt. B.S. Shanthakumari (ITA No.165/2014 dt.13.7.2015 of Karnataka High Court);

6 ITA No.1771/Bang/2016 (iii) CIT Vs. Sambandham Udaykumar (ITA No.175 of 2012 dt.15.2.2012 of Karnataka High Court) (iv) Kishore H Galaiya Vs. ITO (ITA No.7326/Mum/2010 dt.13.6.2012); (v) Smt. Selvi Venkatasubramani (ITA No.1052/Bang/2013 dt.7.10.2015).

3.5.2 According to the learned Authorised Representative, the issue before us in this appeal stands squarely covered by the decision of the Hon'ble High Court of Karnataka in the case of Fathima Bai (supra), wherein it has been held that the time limit for utilization of the capital gains can be made use of for investment before the due date for filing the return of income under Section 139(4) of the Act. 3.6 Per contra, the learned Departmental Representative for Revenue placed strong reliance on the orders of the authorities below, in disallowing the exemption claimed by the assessee under Section 54F of the Act to the extent of Rs.28,22,325, since the assessee has failed to utilize these investment in the new property before the due date for filing the return of income under Section 139(1) of the Act. It was submitted that this applies to the assessee; more so, as the return of income for the year under consideration was filed on 1.8.2013, the due date for filing the return under Section 139(1) of the Act. 3.7.1 We have heard the rival contentions, perused and carefully considered the material on record, including the judicial pronouncements cited and the orders of the authorities below. The facts of the case on this issue are not disputed. The assessee sold a vacant property site on 3.12.2012 for a consideration of Rs.3.60 Crores. After

7 ITA No.1771/Bang/2016 considering the indexed cost of acquisition, the net capital gain was Rs.3.44 Crores. The assessee, along with his wife, had made an investment totaling Rs.4.31 Crores in the new residential property. This included an amount of Rs.31.65 lakhs which was incurred towards improvements in the property. This amount of Rs.31.65 lakhs is under dispute in this appeal; with respect to the assessee's claim that this amount is also to be allowed as part of the exemption under Section 54F of the Act.

3.7.2 As can be seen from a perusal of the order of assessment, the Assessing Officer has no objection for the grant of deduction under Section 54F of the Act on the entire investment, including the cost of improvement. However, the investments in respect of one of the invoices listed at S.No.1 in the table in para 3.3.2 of this order (supra) was disallowed as the address was shown wrongly. The other two invoices listed at S.Nos.2 & 3 of the table at para 3.3.2 (supra) were disallowed for the reason that they were dated in the period after the due date of filing the return of income under Section 139(1) of the Act .

As regards the first invoice, it was submitted by the learned Authorised Representative that there was a mistake in the invoice submitted before the Assessing Officer. The correct invoice was submitted before the learned CIT (Appeals) as additional evidence with the request that it may be considered for adjudication of the matter. However, it was submitted that the learned CIT (Appeals) has not adjudicated on the issue at all.

8 ITA No.1771/Bang/2016 As regards the other two invoices, they were disallowed only because the dates of these invoices pertained to the period after the due date for filing the return of income under Section 139(1) of the Act and therefore the investment is made after the due date for filing the return of income under Section 139(1) of the Act for the year under consideration.

3.7.3 The learned CIT (Appeals) concurred with the decision of the Assessing Officer by merely stating that a plain reading of the provisions of Section 54F(4) of the Act supports the stand taken by the Assessing Officer. We are unable to agree with the observation of the learned CIT (Appeals). A plain reading of Section 54F(4) indicates that the provision talks of two time periods. The relevant provisions of Sectin 54F(4) of the Act are as under :-

“ 54 F (4) The amount of the net consideration which is not appropriated by the assessee towards the purchase of the new asset made within one year before the date on which the transfer of the original asset took place, or which is not utilised by him for the purchase or construction of the new asset before the date of furnishing the return of income under section 139, shall be deposited by him before furnishing such return [such deposit being made in any case not later than the due date applicable in the case of the assessee for furnishing the return of income under sub-section (1) of section 139] in an account in any such bank or institution as may be specified in, and utilised in accordance with, any scheme96which the Central Government may, by notification in the Official Gazette, frame in this behalf and such return shall be accompanied by proof of such deposit ; and, for the purposes of sub-section (1), the amount, if any, already utilised by the assessee for the purchase or construction of the new asset together with the amount so deposited shall be deemed to be the cost of the new asset.”

9 ITA No.1771/Bang/2016 3.7.4 There are two different dates specified for the investments under Section 54F(4) of the Act. In the first situation where the investments are made before the due date of filing the return of income, it is mentioned as “before the date for furnishing the return of income u/s.139.” In the second situation, where the investments are not so made and the amounts are to be deposited in the specified modes, it is mentioned as “such deposits being made in any case not later than the due date applicable in the case of the assessee for furnishing the return of income under sub-section (1) of Section 139.”

From the above it is evidently clear that the time limits for the purpose of making investments before the due date of filing of return and the purpose of making deposits in the specified modes are totally different. In the former case, it was the date of filing of the return u/s. 139 of the Act. In the latter situation, it was the due date for filing the return under Section 139(1) of the Act.

3.7.5 As regards the time limit for making investment of capital gains in the new property, we find that this issue is no longer res integra and is now settled by the decision of the Hon'ble High Court of Karnataka in the cae of Fathima Bai Vs. ITO (supra); wherein at pages 9 to 12 thereof the Hon'ble High Court has held as under :

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3.7.6 From the finding rendered by Hon'ble High Court of Karnataka in the case of Fathima Bai (supra), it is clear that if the assessee has utilized the entire capital gain by purchase of a house or construction of the new house within the period specified under Section 139(4) of the Act, the benefit of Section 54F of the Act cannot be denied. In the case on hand, the original property was sold on 3.12.2012 for consideration of Rs.3.60 Crores and the new property was purchased on 1.7.2013 for an aggregate amount of Rs.4 Crores; i.e. with a period of seven months form the sale of the original property. The due date for filing of the return of income under Section 139(4) of the Act was 31.3.2015 for the year under consideration. In view of the aforesaid decision of the Hon'ble High Court of Karnataka in the case of Fathima Bai (supra), the assessee in the

13 ITA No.1771/Bang/2016 case on hand had time up to 31.3.2015 to make investments in the residential property to claim exemption under Section 54F of the Act. As per the facts recorded by the Assessing Officer in the order of assessment, the last date of investment in the new property by the assessee was 20.1.2014, which is well within the time limit of 31.3.2015 as per section 139(4) of the Act.

3.7.7 In view of the factual and legal matrix of the case, as discussed above, and respectfully following the decision of the Hon'ble High Court of Karnataka in the case of Fathima Bai (supra), we are of the considered opinion and hold that the assessee in the case on hand was entitled to make investments in acquisition of the new property till the due date for filing the return of income under Section 139(4) of the Act. In view of the facts of the case, as laid out above, since the assessee has made the investments as per the two invoices at S.Nos.2 & 3 in Table at para 3.3.2 of this order (supra) before the said due date for filing the return of income under Section 139(4) of the Act, the assessee is entitled for exemption under Section 54F of the Act thereon.

3.7.8 As regards the first invoice mentioned at Sl.No.1 in the table in para 3.3.2 of this order (supra), we find that though the assessee has filed additional evidence in the form of correct invoice before the learned CIT (Appeals); in the impugned order the learned CIT (Appeals) is silent on this matter. As per the submissions of the assessee himself, this being an additional evidence, the learned CIT (Appeals) as per Rule 46A(3) of the IT Rules was required to call for a report of the Assessing

14 ITA No.1771/Bang/2016 Officer in the matter even if he had admitted the additional evidence. In the factual and legal matrix of this matter, as discussed above, we deem it appropriate to remand this issue to the file of the Assessing Officer for verification. If the first invoice is in order, then the Assessing Officer shall allow exemption under Section 54F of the Act in respect of the amount in this invoice as it is any how within the due date under Section 139(4) of the Act.

Order pronounced in the open court on the 3rd day of Nov.,2017.

Sd/- Sd/- (GEORGE GEORGE K) (JASON P BOAZ) Accountant Member Judicial Member Bangalore, Dt.3.11.2017.

*Reddy gp

Copy to : 1 Appellant 4 CIT(A) 2 Respondent 5 DR. ITAT, Bangalore 3 CIT 6 Guard File

Senior Private Secretary Income Tax Appellate Tribunal Bangalore.