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Income Tax Appellate Tribunal, MUMBAI BENCHES “SMC”, MUMBAI
Before: Shri Shamim Yahya
O R D E R This appeal by the assessee is directed against order of learned CIT(A) dated 23.01.2017 and pertains to assessment year 2011-2012.
Grounds of appeal
read as under:- “The Commissioner of Income-tax (A) 44, Mumbai in his order dated 23.01.2017 in Appeal No.CIT(A)44/ITO-32(1)(2)/ ITA – 59/14-15 has erred in –
1. On the facts and in the circumstances of the case and in law the Commissioner of Income-tax (Appeals) 44 has erred in not appreciating that for the purpose new house or for depositing the amount in capital gain account scheme, Section 54(2) refers only to the time limit for the Return under section 139 of the Income Tax Act which, includes the Return files under section 139(1) of the Act as well as a belated return under section 139(4) of the Act.
. Shri Arvind B.Sardhara 2. On the facts and in the circumstances of the case and in law the Commissioner of Income-tax (Appeals) 44 has erred in not appreciating that the investment in new has been made before the due date of the return under section 139(4) of the Act and consequently eligible for the exemption of Rs.8,83,991/- under section 54 of the Act.
3. The above grounds are independent of the other. The appellant craves leave to add, alter or delete any of the other grounds on or before the completion of the appellate proceedings.”
I have heard the learned Departmental Representative. None appeared on behalf of the assessee. However, in my considered opinion the issue can be disposed of by hearing the learned DR and perusing the records.
The solitary issue needing adjudication in this case is whether for obtaining the benefit of section 54(2) time limit is to be reckoned as the time for filing of return under section 139(1) of the Act or that mentioned under section 139(4) of the Act. I find that there is no jurisdictional High Court decision on the subject. However, there are decisions of other Hon’ble High Courts. However, learned CIT(A) has referred to ITAT Mumbai Bench decision and decided the issue against the assessee. I find that it is settled law that in the judiciary hierarchy decision of the Hon’ble High Court take precedence over that of the Tribunal. In this regard I note that Hon’ble Punjab & Haryana High Court in the case of CIT v. Jagriti Aggarwal [(2011) 339 ITR 610 (P&H)] has held that time limit for investment obtain the benefit under section 54 should be that of section 139(4).
. Shri Arvind B.Sardhara 5. Accordingly, respectfully following the Hon’ble High Court decision as above, I set aside the order of learned CIT(A). I hold that the assessee having made the deposits upto the period for filing of return under section 139(4), the assessee deserves to get the deduction under section 54. Accordingly I decide the same in favour of the assessee.
In the result, the appeal filed by the assessee stands dismissed.