9911796707
TMI Blog2014 (1) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the name of the assessee's wife Smt. K.S. Beena and the same was also admitted by the assessee by a letter dated 18-09-2009, the CIT(A) was justified in making addition - Decided against assessee. Exemption u/s 54EC - Held that:- Following Jagriti Agarwal [2011 (10) TMI 279 - PUNJAB AND HARYANA HIGH COURT] - After referring to sub clause (2) of section 54 and section 139(1) of the Act, the Punjab & Haryana High Court found that sub section 139(4) provides the extended period of limitation for filing of return of income which is an exception to sub section (1) of section 139 - Due date for furnishing of return of income as per section 139(1) is subject to extended period provided u/s 139(4) of the Act - In view of section 54 of the Act it is obvious that if the assessee could not utilize the amount within one year either for purchase of a new asset or for construction of a new asset, the capital gain shall be deposited in the appropriate account before the due date for filing of return of income u/s 139(1). Following Prakash Nath Khanna & Ors vs CIT & another [2004 (2) TMI 3 - SUPREME Court] - While interpreting section 139(1), 139(2) and 139(4) of the Act, the Apex Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions on either side and also perused the material available on record. From the notes of arguments submitted by the assessee before this Tribunal it shows that the assessee has sold 5.5 cents of land along with the residential building having a plinth area of 1,250 sq.ft. in Maradu Grama Panchayat on 08-03-2007. The assessee claims that 1,250 sq.ft. of building was constructed by investing Rs.6 lakhs and another sum of Rs.3,05,000 was spent during the year 2006-07 for improvement. The assessee claims that the original construction was made in the year 1991-92. If that is so, then there would have been some kind of improvement / maintenance after elapse of so many years. Therefore, we may not be able to reject the claim of the assessee in toto. This Tribunal is of the considered opinion that the original construction was made in 1991-92, therefore, the assessee would have spent considerable amount during the assessment year 2006-07 atleast for maintenance of the building, if not for improvement. Therefore, this Tribunal is of the considered opinion that this amount of Rs.3.5 lakhs shall be taken as cost of improvement. The only objection of the department is that what was bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 18-09-2009, the assessee admitted the receipt of Rs.9 lakhs over and above the sale consideration disclosed in the sale deed. The assessing officer has also found that this Rs.9 lakhs was credited in the account of the assessee's wife Smt. K.S. Beena. Since the amount was received by cheque and it was credited in the name of the assessee's wife Smt. K.S. Beena and the same was also admitted by the assessee by a letter dated 18-09-2009, this Tribunal is of the considered opinion that the CIT(A) has rightly confirmed the addition. Accordingly, this Tribunal do not any merit in the order of the CIT(A). 10. The next ground of appeal is with regard to claim of exemption u/s 54 of the Act. 11. Shri T.M. Sreedharan, the ld.senior counsel submitted that the assessee claimed exemption of Rs.33,33,805. However, the assessing officer allowed only Rs.14,11,428 on the ground that the amount spent on the due date for filing the return of income is only Rs.14,11,428. Referring to the order of this Tribunal in Muthuletchumi Janardanan in ITA No.372/Coch/2011 dated 07-12-2012, the ld.senior counsel pointed out that this Tribunal, after placing reliance on the judgment of the Punjab Harya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deemed to be the cost of the new asset: Provided that if the amount deposited under this sub-section is not utilized wholly or partly for the purchase or construction f the new asset within the period specified in sub-section (1), then, - (i) The amount not so utilized shall be charged under section 45 as the income of the previous year in which the period of three years from the date of the transfer of the original asset expires; and (ii) The assessee shall be entitled to withdraw such amount in accordance with the scheme aforesaid." 14. In view of the above provision, if the amount of capital gain is not appropriated by the assessee towards the purchase of a new asset within one year before the date on which the transfer of the original asset took place or which has not been utilized for the purpose of construction of the new asset before the date of furnishing the return of income u/s 139(1), then the same shall be deposited before furnishing such return. In this case, admittedly, the assessee has not utilised the entire amount before expiry of one year. Moreover, it was also not deposited in the prescribed account before due date for furnishing the return of income u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re substitution of the expression "clause (i) of sub-section (1) of section 142" by the Direct Tax Laws (Amendment) Act, 1987, with effect from April 1, 1989, the expression used was "sub-section (2) of section 139". At the relevant point of time the Assessing Officer was empowered to issue a notice requiring furnishing of a return within the time indicated therein. That means the infractions which are covered by section 276CC relate to non-furnishing of return within the time in terms of sub-section (1) or indicated in the notice given under sub-section (2) of section 139. There is no condonation of the said infraction, even if a return is filed in terms of sub-section (4). Accepting such a plea would mean that a person who has not filed a return within the due time as prescribed under sub-section (1) or (2) of section 139 would get benefit by filing the return under section 139(4) much later. This cannot certainly be the legislative intent." This judgment of the Apex Court was not brought to the notice of the CIT(A) as well as the assessing officer. The assessee also had no occasion to explain the consequence of the judgment of the Apex Court before the lower authorities. There ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
