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TMI Blog2014 (3) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... - When the Legislature specifically refers to section 139(1), it cannot be the intention to permit the assessee to file the return u/s 139(4) also - it cannot be said that the Legislature without any purpose or intent specified only the sub-sections (1) and (2) and the conspicuous omission of sub-section (4) has no meaning or purpose behind it - Sub-section (4) of section 139 cannot by any stretch of imagination control the operation of sub-section (1) wherein a fixed period for furnishing the return is stipulated. The judgment of the Apex Court was not considered by the CIT(A) - The assessee also had no occasion to bring this judgment to the notice of the CIT(A) - When Legislature specifically refers only section 139(1) and omitted to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale consideration has to be considered for the year under consideration. The unutilized portion of the sale consideration is not eligible for exemption in case it was not deposited in the capital gain account scheme within the due date for filing of return of income. The CIT(A) confused the investment made by the assessee with the transfer of the capital asset which was under construction. What was referred by CIT(A) is with regard to sale of the flat which was allotted to the share of the assessee for which the assessee is liable to pay short term capital gain separately. This fact was not considered properly by the CIT(A). According to the ld.DR, the CIT(A) has completely ignored the provisions of section 54F(4) of the Act. The ld.DR plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date for filing return of income u/s 139. The question arises for consideration is whether the due date mentioned in section 54F(4) is the due date for filing the return u/s 139(1) or the due date for filing the return of income u/s 139(4) of the Act. 6. We have carefully gone through the decision of this Tribunal in the case of Muthuyletchumi Janardanan (supra). This Tribunal, after referring to the judgment of the Punjab Haryana High Court in the case of CIT vs Ms. Jagriti Aggarwal 339 ITR 610 (P H) found that the assessee can deposit the amount within the time limit provided for filing the return u/s 139(4) of the Act. We find that the Apex Court had an occasion to interpret the provisions of Income-tax Act, more particularly, the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 255 ITR 147 (SC)). In D.R. Venkatachalam v. Deputy Transport Commissioner [1977] 2 SCC 273 it was observed that courts must avoid the danger of a priori determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the Legislature to amend, modify or repeal it, if deemed necessary. (see Rishabh Agro Industries Ltd v. P.N.B. Capital Services Ltd. [2005] 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (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. 8. The Apex Court further found that had the intentions of the Legislature was to permit the assessee to file the return u/s 139(4) also, the use of the expression section 139 alone would have been sufficed. The Legislature would not have said that it should be filed u/s 139(1). When the Legislature specifically refers to section 139(1), it cannot be the intention to permit the assessee to file the return u/s 139(4) also. The Supreme Court specifically ob ..... X X X X Extracts X X X X X X X X Extracts X X X X
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