PUSUPATI JAANNATH VENKATESH,DOMBIVALI vs. ACIT CIR 1, THANE

This is an appeal filed by the assessee against the order of CIT(A)- II, Thane dated 18/02/2013 for A.Y.2009-10 in the matter of order passed u/s.143(3) of the IT Act.

First grievance of assessee relates to disallowance of long term capital gains.

Facts in brief are that the assessee has shown income from salary and other sources. During the year under consideration, he has sold a residential property where from the long term capital gain after claiming Indexed Cost of Acquisition worked out to Rs. 65,98,740/- being 50% Shri Pisupati Jagannath Venkatesh share therein. The assessee has claimed entire capital gain as exempted u/s. 54 on the ground that he has invested capital gains to the extent of Rs. 67,27,087/- in a residential property purchased from Mahindra Life Spaces. On verification from the material available on record as also submission made by the assessee during the course assessment proceedings, the A.O noticed that a flat bearing No. B-901 at Mahindra Life Spaces had been allotted to the assessee wherein investment till the date of filing of return i.e. 31st July, 2009 was only Rs. 44,35,738/-. Since the capital gain has been utilized to the extent of Rs. 44,36,7387- out of total Long Term Capital Gain of Rs. 65,98,740/-, the A.O treated the balance amount of Long Term Capital Gain at Rs. 21,59,002/- as taxable and accordingly, the taxed the same.

Learned AR placed on record the order of the Tribunal in the case of wife of the assessee, Meena Pisupati Jagannath in dated 25/04/2017, who was holding 50% share in the very residential property, where the Tribunal have directed for computing capital gain after taking into account investment made till date of filing return u/s.139(4). The precise observation of the Tribunal was as under:- 3. At the outset in this case Ld. Counsel of the assessee submitted that the total amount of investment in the new residential house was paid within the due date for filing of return u/s. 139(4) of the I.T. Act. He further submitted that Hon’ble Guwahati High Court in the case of CIT vs Rajesh Kumar Jalan in ITA no. 127 of 2007 vide order dated 09.08.2006 has held that while granting exemption u/s.54, investment of capital gain up to the date of furnishing return is eligible and for this purpose return file u/s. 139(4)

Upon careful consideration we find that in this case authorities below have granted benefit to the assessee for the sums paid up to the date of filing of return u/s.139(1). However now it is the plea of the Ld. Counsel of the assessee that as per the aforesaid Hon’ble Guwahati High Court decision benefits for payment up to the date specified u/s. 139(4) should be given. No jurisdictional High Court decision contrary to this proposition has been shown before us. Hence in the interest of justice we remit this issue to the file of the assessing officer. The assessing officer shall examine the amounts paid in this case for the investment of new property in accordance with the decision of Hon’ble Guwahati High Court above and grant deduction u/s.54 accordingly. In the result, this appeal by the assessee stands allowed for statistical purposes.

As the facts and circumstances in the case of assessee are same, respectfully following the order of the Tribunal in the case of assessee’s wife, we direct the AO to recompute capital gain after taking into account investment made till date of filing return u/s. 139(4). We direct accordingly.

Ground No. 2 & 3 were not pressed, the same are therefore dismissed in limini.