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आयकर आयकर अपीलीय अपीलीय अिधकरण अिधकरण, “ई ” खंडपीठ खंडपीठ मुंबई मुंबई आयकर आयकर अपीलीय अपीलीय अिधकरण अिधकरण खंडपीठ खंडपीठ मुंबई मुंबई INCOME TAX APPELLATE TRIBUNAL,MUMBAI-“E”,BENCH सव"ी राजे"", लेखा सद"य एवं एवं संदीप गोसांई, "याियक सद"य एवं एवं Before S/Sh. Rajendra,Accountant Member & Sandeep Gosain,Judicial Member आयकर अपील अपील संसंसंसं/.ITA No.2498/Mum/2012 िनधा"रण िनधा"रण वष" वष"/Assessment Year-2007-08 आयकर आयकर आयकर अपील अपील िनधा"रण िनधा"रण वष" वष" Sh.Sunil Vishnu Mehta Income tax Officer-11(1)(4) 3, Deluxe Apartment Vs. Aayakar Bhavan, M.K. Marg Altamount Road New Marine Lines Mumbi-400 026. Mumbai. PAN:ADYPM 6720 E (अपीलाथ" /Assessee ) (""यथ" / Respondent) िनधा"रती िनधा"रती ओर ओर सेसेसेसे/Assessee by :Sh. R. Prasad Rao (AR) िनधा"रती िनधा"रती ओर ओर राज"व क" ओर से/ Revenue by :Sh. Pramod Nikhalje (DR) सुनवाई सुनवाई क" क" तारीख तारीख / Date of Hearing :23- 11 -2015 सुनवाई सुनवाई क" क" तारीख तारीख घोषणा क" तारीख / Date of Pronouncement :01.01.2016 आयकर आयकर अिधिनयम अिधिनयम,1961 क" क" धारा धारा 254(1)केकेकेके अ"तग"त अ"तग"त आदे आदेश आयकर आयकर अिधिनयम अिधिनयम क" क" धारा धारा अ"तग"त अ"तग"त आदे आदे Order u/s.254(1)of the Income-tax Act,1961(Act) लेखा सद"य सद"य राजे"" राजे"" केकेकेके अनुसार अनुसार PER RAJENDRA, AM- लेखा लेखा लेखा सद"य सद"य राजे"" राजे"" अनुसार अनुसार Challenging the order 27.02.2012 of CIT(A)-3,Mumbai the assessee has filed the present appeal. Assessee,an individual,filed his return of income on 01.08.2007,declaring total income at Rs.7, 72,193/-.The Assessing Officer(AO)completed the assessment on 21.12.2009,u/s.143(3)of the Act,determining her income at Rs.18,35,420/-. 2.Effective ground of appeal is about denial of benefit of Exemption claimed u/s.54 of the Act.During the assessment proceedings,the AO found that the assessee had sold a house property on 02.02.2007 for a consideration of Rs.1.70 Crores,that he had invested part of the capital gain in purchase of another residential unit,that he had purchased the new property for Rs.72.96 lakhs,that payment was made up to 27.07.2007,that he had computed capital gain at Rs.80.87 lakhs and had claimed exemption u/s.54 of the Act,that the assessee had not invested total capital gain in purchasing the new house property,that he had not deposited Rs.7.91 lakhs in the specified scheme i.e.Capital Gains Accounts Scheme,1988,that money was to be deposited in the account on or before due date of filing of return of income i.e.31.07.2007,that he had violated the provisions of section 54(2)of the Act. 3.Aggrieved by the order of the AO,the assessee preferred an appeal before the First Appellate Authority (FAA).After considering the submissions of the assessee and the assessment order,he held that the assessee had invested Rs.72.96 lakhs for purchasing new house property till 27.07.2007,that he had filed his return of income on 01.08.2007,that balance amount of Rs.7.16 lakhs was invested in the months of June and July 2008,that he was not entitled to claim exemption in respect of said amount,that unutilized amount of capital gain for purchase of new asset had to be deposited in the specified scheme of capital gains,that he had neither invested the amount in question in purchasing new asset nor had deposited it in the specified scheme,that the AO was right in restricting the claim to Rs.72.96 lakhs.He further held that society charges were 2498/12-Sunil Vishnu.M
rightly restricted to Rs.12,500/- as against Rs.1.25 lakhs by the AO,that the assessee had not produced any documentary evidence in that regard.In short,he upheld the order of the AO. 4.Before us,the Authorised Representative(AR)argued that the assessee had invested Rs.72.96 lakhs for purchasing new house property,that the balance amount was deposited in the specified scheme before the due date of filing of return as per the provisions of section 139(4)of the Act.He relied upon the cases of Jagriti Agarwal(339ITR610),Kishore H Galaiya (24 Taxmann. com.11)R Srinivas(63Taxmann.com.101).Departmental Representative(DR)left the issue to the discretion of the Bench.
We have heard the rival submissions and perused the material before us.We find that out of the Capital gains of Rs.80 lakhs the assessee had invested Rs.72.96 lakhs by 27.07.2007,that balance amount was deposited in the specified scheme in the months of June and July,2008,that the due date of filing of return as per the provisions of section 139(4) was 31.03.2009.We find that the Hon’ble P & H High Court in the case of Jagriti Agarwal(supra),has dealt with the issue of due date of filing of returns of income with regard to section 54 of the Act.Facts of the case were that the assessee had sold her house property for Rs. 45 lakhs on 13.01.2006, and having purchased a new residential property on 02.01.2007, claimed deduction under section 54 of the Act.The AO declined the claim holding that the assessee failed to deposit the amount in the capital gains account scheme and also failed to purchase house property before the due date of filing the return of income.The FAA held that the assessee had purchased a new residential property on 02.01.2007,that the due date according to section 139(4) was March 31, 2007, and, thus, the assessee had complied with the provisions of section 54 of the Act.This order was affirmed by the Tribunal.The Hon’ble High Court dismissed the appeal filed by the department and held as under: “…the sale of the asset had taken place on January 13, 2006, falling in the previous year 2006- 07, the return could be filed before the end of the relevant assessment year 2007-08, i.e., March 31, 2007. Thus, sub-section (4) of section 139 provides the extended period of limitation as an exception to sub-section (1) of section 139 of the Act. Sub-section (4) was in relation to the time allowed to an assessee under sub-section (1) to file the return. Therefore, such provision was not an independent provision, but relates to the time contemplated under sub-section (1) of section 139 . Therefore, sub-section (4) had to be read along with sub-section (1). Therefore, the due date for furnishing the return of income according to section 139(1) of the Act was subject to the extended period provided under sub-section (4) of section 139 of the Act.” Respectfully,following the above judgment,we decide the effective ground in favour of the assessee,as he had invested the balance amount in specified scheme before the due date as envisaged by the section 139(4)of the Act. As a result,appeal filed by the Assessee stands allowed. फलतः िनधा"रती "ारा दािखल अपील मंजूर क" जाती है. Order pronounced in the open court on 1st January, 2016. आदेश क" घोषणा खुले "यायालय म" "दनांक 01 जनवरी, 2016 को क" गई । (संदीप गोसांई/Sandeep Gosain ) (राजे"" / Rajendra) "याियक सद"य/Judicial Member लेखा सद"य/Accountant Member मुंबई Mumbai, "दनांक Date: 01.01.2016 व.िन.स.Jv.Sr.PS. 2
2498/12-Sunil Vishnu.M
आदेश क" क" "ितिलिप "ितिलिप अ"ेिषत अ"ेिषत/Copy of the Order forwarded to : आदेश आदेश आदेश क" क" "ितिलिप "ितिलिप अ"ेिषत अ"ेिषत
Assessee /अपीलाथ"
Respondent /""यथ" 3.The concerned CIT(A)/संब" अपीलीय आयकर आयु", 4.The concerned CIT /संब" आयकर आयु"
DR “ E” Bench, ITAT, Mumbai /िवभागीय "ितिनिध ई खंडपीठ,आ.अ.अिध.मुंबई
Guard File/गाड" फाईल स"यािपत "ित //// आदेशानुसार/ BY ORDER, उप/सहायक पंजीकार Dy./Asst.