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TMI Blog2017 (4) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... he course of hearing. The authorities cited by the learned counsel for the assessee related to the situation where the assessee made the investment within the due date prescribed under section 139(4) and it was held that section 54 or section 54F for that reason uses the word "section 139", which meant not only section 139(1) but also section 139(4). Therefore, a larger time-limit was available to the assessee. The appellant was fully entitled to the deduction as claimed under section 54F, there was no justifiable reason to deny the same by the authorities below. - Decided in favour of assessee Addition u/s 68 - unexplained deposits in bank account - Held that:- Before invoking section 68, maintenance of the accounts by the assessee itself and finding credit of the subjected amount therein, are the conditions precedents, and without satisfying them, the Assessing Officer could not have invoked section 68. Having a bearing over the issue in hand, not denied, are that it was a joint bank account where in the husband was first named. In answer to question No. 6 of his written statement placed in the assessee's paper book he clearly admitted having opened the said bank account. He a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. The addition so made and confirmed by the learned Commissioner of Income-tax (Appeals), is contrary to the provisions of law and facts hence, kindly be deleted in full. 3. The learned Assessing Officer further erred in law as well as on the facts of the case in charging interest under section 234B and section 234D of the Act and as also in withdrawing of interest under section 244A of the Act. The appellant totally denies its liability of charging and withdrawal of any such interest. The interest so charged/withdrawn, being contrary to the provisions of law and facts, kindly be deleted in full. 4. The appellant prays your honour indulgences to add, amend or alter of or any of the grounds of the appeal on or before the date of hearing. 3. In this case, the registry has informed that the appeal has been filed late by 63 days. The authorised representative appearing for the assessee, drew my attention towards the prayer for condonation of delay filed on July 20, 2016 along with the affidavit of the assessee and the employee Shri Suresh Kumar in the office of the chartered accountant Shri Ashok Agarwal. It was submitted that the order of the Commissioner of Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his remand report and the assessee filed rejoinder thereon. The learned Commissioner of Income-tax (Appeals) held that the assessee sold the property on February 10, 2010 in four parts for ₹ 13 lakhs, valued at ₹ 16,14,400 by the Registering Authority and the entire amount of sale consideration was invested in the purchase of new property at ₹ 23 lakhs on July 28, 2010 before the due date of the filing of return, i.e., July 31, 2010, however, the amount was not deposited in the scheme notified by the Government and the investment was not made in the manner provided under section 54F(4) and that the assessee should have filed a revised return under section 139(5). Finally, the learned Commissioner of Income- tax (Appeals) upheld the order of the Assessing Officer and confirmed the disallowance of the claim made under section 54F. 5. Before me, the counsel for the assessee Shri Mahendra Gargieya, advocate vehemently objected to the disallowance so made by the Assessing Officer and confirmed by the Commissioner of Income-tax (Appeals) by stating that the issue involved is fully covered by the various decisions rendered by different honourable High Courts and Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that firstly this was not the case made out by the Assessing Officer originally in the assessment order but was an objection raised only during the course of the remand proceedings by the successor Assessing Officer which, was not permissible and also submitted that since the appellant was contending that there was no capital gain as it had already intended and also rather acted accordingly by making investment in the new residential house, hence there was no capital gain tax liability in her hand and since there was no omission on wrong statement made in the originally filed return of income hence, she was not required to file a revised return. Otherwise also this technical plea could not come in the way once she has complied with the law in substance which was not found wrong. He also argued that an incentive provisions should be interpreted liberally. Lastly, he submitted that in case of any contrary decision brought by the Revenue, the view favourable to the assessee may be adopted. 7. On the other hand, the learned Departmental representative appearing for the Revenue, heavily relied upon the orders of the Assessing Officer and the Commissioner of Income-tax (Appeals). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned counsel for the assessee related to the situation where the assessee made the investment within the due date prescribed under section 139(4) and it was held that section 54 or section 54F for that reason uses the word section 139 , which meant not only section 139(1) but also section 139(4). Therefore, a larger time-limit was available to the assessee. The following decisions are relied upon : 1. Jagan Nath Singh Lodha v. ITO [2004] 85 TTJ (Jodhpur) 173 (DPB 8-13), wherein it was held that : Intention of the assessee from the very beginning being to purchase residential house and he having done so within two years of sale of plot, he was entitled to exemption under section 54F in respect of the amount invested even though he failed to deposit the amount in capital gain account scheme during the interregnum. 2. Ajay Goyal v. ITO [2006] 99 TTJ (Jodhpur) 164, wherein it was held that : . . . There seems to be no dispute with regard to the fact that the sale proceeds of plot in question were utilised by the assessee within three years as required, but what is in dispute is the time of completion of the house in question . . . . . When the assessee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olony, Bikaner being operated jointly by the appellant with her husband Shri Ramesh Chand Yadav, the detail of which are reproduced at page 2 of the assessment order. As per the Assessing Officer, the assessee could explain the deposits mentioned at S. Nos. 3, 4 and 6 however, there was no satisfactory explanation with respect to deposit at S. Nos. 1, 2 and 5 totalling to ₹ 3,80,000 (Rs. 1,00,000 at S. No. 1, ₹ 30,000 at S. No. 2 and ₹ 2,50,000 at S. No. 5). When asked the assessee submitted that such amount belonged to her husband who deposited the same. Her relation with the husband was strenuous since last several months because of the family disputes and therefore, she had to open another bank account in her single name. She being a lady and wife, always co-operated with his husband but in any case, these amounts belonged to the husband only. The Assessing Officer however relying upon the written statement of the husband, rejected the contention and finally, added the entire amount of ₹ 3,80,000 as unexplained cash credit under section 68 of the Act. 11. In the first appeal, before the learned Commissioner of Income-tax (Appeals) detailed submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer made out his case under those provisions. The authorised representative also tried to explain that there were sufficient withdrawals available made from the same very bank account in the preceding dates which was available to be deposited on the later dates and therefore, prayed that the entire addition be deleted. 14. The learned Departmental representative, on the other hand, relied upon the orders of the authorities below and also stated that the assessee did not avail the opportunity of cross-examination of the husband though, provided. In the rejoined the learned authorised representative submitted that simply from that fact, the necessity of the burden lay upon the Assessing Officer to prove the investment made by the assessee only, cannot be said to have been discharged and the Assessing Officer proceeded on merely suspicions relying upon certain decisions. 15. I have heard the rival contentions and perused the facts of the case. Firstly, I may deal with the legal contention of the assessee that the impugned addition was beyond the scope of section 68. I fully agree with the contention of the learned authorised representative that before invoking ..... X X X X Extracts X X X X X X X X Extracts X X X X
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