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TMI Blog2013 (11) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... Ms. Jagriti Aggarwal [ 2011 (10) TMI 279 - PUNJAB AND HARYANA HIGH COURT] and Mrs. Esther Christopher Mascarenhas v. ITO [2010 (12) TMI 217 - ITAT, MUMBAI ] - due date for furnishing return of income as per section 139( 1) was subject to extended period provided under sub-section (4) of section 139 and, if a person had not furnished return of previous year within time allowed under sub-section (1), assessee could file return under sub-section (4) before expiry of one year from end of relevant assessment year - section 54 deduction could not be denied to assessee on this count. The date of filing the return u/s.139 of the Act has wide scope - The return can be filed u/s.139(1) or u/s.139(4) of the Act - Both the returns i.e. either filed u/s.139(1) or u/s.139(4) of the Act were legally valid and accepted returns - There was no difference between these two returns (except for charging interest u/s 234B and allowing certain deductions or carrying forward of losses) – Decided against Revenue. - ITA No.1472/Mds/2012 - - - Dated:- 24-1-2013 - N S Saini and Challa Nagendra Prasad, JJ. For the Appellant : Shri T N Betgiri, Jt. CIT For the Respondent : None ORDER:- Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITAT I Bench), allowed the claim for deduction u/s 54 of the balance amount of Rs.40 lakhs observing that the said amount was utilized for purchase of new asset before filing of the return of income u/s 139(4) of the Act on 30.11.2007. He submitted that the due date of filing of return of income means the due date prescribed u/s 139(1) of the Act and therefore, the CIT(A) was not justified in allowing the claim for deduction u/s 54 for Rs. 40 lakhs to the assessee observing that the same was allowable deduction as the amount was utilized in purchase of a new asset by the assessee on 24.8.2007 which was prior to the date of filing of return of income by the assessee u/s 139(4) of the Act on 30.11.2007. 5. None appeared on behalf of the respondent-assessee inspite of notice sent through RPAD by the Registry on 26.10.2012 which was received by the assessee on 6.11.2012 as evidenced by the Acknowledgement Card of the Post Office placed on record. No adjournment application was also filed. The Bench was of the view that the appeal can be decided in the absence of the respondent-assessee and hence, the appeal was heard ex-parte qua the respondent-assessee and disposed of after consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the original asset), and the assessee has within a period of one year before or two years after the date on which the transfer took place purchased, or has within a period of three years after that date constructed, a residential house, then}, instead of the capital gain being charged to income-tax as income of the previous year in which the transfer took place, it shall be dealt with in accordance with the following provisions of this section, that is to say,- (i) if the amount of the capital gain is greater than the cost of the residential house so purchased or constructed (hereafter in this section referred to as the new asset)}, the difference between the amount of the capital gain and the cost of the new asset shall be charged under section 45 as the income of the previous year; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase or construction, as the case may be, the cost shall be nil; or (ii) if the amount of the capital gain is equal to or less than the cost of the new asset, the capital gain shall not be charged under section 45; and for the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount so deposited shall be deemed to be the cost of the new asset: Thus, there are two different dates specified for the investments u/s 54(2) of the Act. In the first situation where the investments are made before the date of filing the return, it was mentioned as "before the date of furnishing the return of income under section 139' .In the second situation, where the investments are not so made and the amounts are to be deposited in the specified modes it was mentioned as " 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". ** Thus from the above it is clear that the time limits for the purpose of making investments before the date of filing and for the purpose of making deposits in the specified modes are totally different. In the former case, it was the date of filing the return u/s.139. In the later situation it was the due date to file the return u/s.139(1) of the Act. The date of filing the return u/s.139 of the Act has wide scope. The return can be filed u/s.139(1) or u/s.139(4) of the Act. Both the returns i.e. either filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Assessing Officer rejected assessee's claim on the grounds, firstly, return of income was not filed under section 139(1)but was filed under section 139(4), secondly, return of income was not accompanied by proof of deposit of amount made in Capital Gains Scheme and, finally, property in respect of which exemption was claimed, was not a residential house.. Held- it was noted that assessee had deposited amount in question in specified bank account before due date prescribed for furnishing return of income under section 139(1) - Moreover, there was no requirement that assessee should file her return of income before due date prescribed under section 139(1) - As regards second objection, it was found that requirement of attaching proof with return of income, is only directory - Even otherwise, assessee produced proof during course of assessment proceedings - So far as last objection was concerned, it was noticed that Municipal Corporation levied municipal taxes on ground that this was a residential property on facts, assessee had complied with all requirements of section 54 and, thus, Assessing Officer was to be directed to allow assessee's claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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