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TMI Blog2014 (11) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn of income u/s. 139(1). (c) Since sec. 54(2) is very specific that deposit of unutilized capital gain in specified bank accounts should be 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. The CIT(A) erred in deciding that the due date for furnishing the return of income contemplated in section 54(2) should also include sub-section (4) of sec. 139 of the I.T. Act inasmuch as sub-section (2) of sec. 54 mentions only section 139. 2. The brief facts of the case are that assessee sold a property for Rs. 23,00,000/- during the previous year relevant to the assessment year 2008-09 and claimed an amount of Rs. 16,63,166/- as exempt u/s. 54. The assessee had claimed this exemption in respect of a property purchased for Rs. 15,00,000/- on 10-11-2008. According to the Assessing officer, in order to claim exemption u/s. 54, the unutilized portion of capital gain should be deposited in a capital gain deposit account before the due date for filing of return of income u/s. 139(1) of the I.T. Act. Thus while completing the assessment, the Assessing officer allowed only an amount o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39(1) of the I.T. Act. Further, according to the Ld. DR, 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 sec. 139 of the I.T. Act. The Ld. DR relied on the order of the co-ordinate Bench of the Tribunal in the case of ITO vs. Smt. Rosamma Korah in I.T.A. No. 646 &663/Coch/2013 dated 07/03/2014. 6. On the other hand, the Ld. AR submitted that the assessee purchased the property for sale consideration of Rs. 15,00,000/- on 10th June, 2008 and the assessee has paid a sum of Rs. 1,00,000/- as advance on 10th June, 2008 and the balance of Rs. 14,00,000/- was paid by cheque dated 31/11/2008. Being so, it should be deemed that the assessee has completed the transaction within the due date of filing of return of income u/s. 139(1) of the I.T. Act. He relied on the order of the CIT(A). 7. We have heard both the parties and perused the record. We find that this issue has already been decided by the Co-ordinate Bench of this Tribunal in the case of K.K. Venugopal vs. Dy.CIT in I.T.A No. 278/Coch/2013 dated 10th January, 2014 (62 SOT 66) (Cochin) wherein it was held as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to the ld.DR, the assessee is not entitled for exemption of the entire amount of Rs. 33,33,805. Therefore, the CIT(A) has rightly confirmed the disallowance. 13. We have considered the rival submissions on either side and also perused the material available on record. Section 54(2) reads as follows: "(2) The amount of the capital gain which is not appropriated by the assessee towards the purchase of the new asset made within one year before the date on which the transfer of the original asset took place, or which is not utilized by him for the purchase or construction of the new asset before the date of furnishing the return of income under 139, shall be deposited by him before furnishing such return (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) in an account in any such bank or institution as may be specified in, and utilized in accordance with, any scheme which the Central Government may, by notification in the Official Gazette, frame in this behalf and such return shall be accompanied by proof of such deposit; and for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mentioned in section 54(2) of the Act would be the due date for filing of return of income u/s 139(1) or the date by which the assessee could files the return u/s 139(4) of the Act. We find that the Apex Court in the case of Prakash Nath Khanna & Ors vs CIT & another (2004) 266 ITR 1 (SC) had an occasion to consider the words "due date" as mentioned in section 139(1) and 139(4) of the Act. The case before the Apex Court is with regard to a criminal prosecution u/s 276CC of the Act. While interpreting section 139(1), 139(2) and 139(4) of the Act, the Apex Court found that due date certainly mean due date as prescribed in sub section (1) of section 139. In fact, the Apex Court observed as follows at pages 10 & 11 of the ITR: " One of the significant terms used in section 276CC is "in due time". The time within which the return is to be furnished is indicated only in sub-section (1) of section 139 and not in sub-section (4) of section 139. That being so, even if a return is filed in terms of sub-section (4) of section 139 that would not dilute the infraction in not furnishing the return in due time as prescribed under sub-section (1) of section 139. Otherwise, the use of the expr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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