9911796707
TMI Blog2017 (9) TMI 1513X X X X Extracts X X X X X X X X Extracts X X X X ..... is differential treatment between two assessees for the same financial year with the same nature of transaction and same head of income with only the difference in date of transaction during the financial year. 4. The learned Commissioner of Income-tax (Appeals) erred in not considering the fact that the decision of the hon'ble Income-tax Appellate Tribunal (Bang 'C' Trib) dated December 14, 2012 in the case of Vivek Jairazbhoy v. Dy. CIT in I. T. A. No. 236/Bang/2012 is pending in the High Court of Karnataka, Bengaluru in I. T. A. No. 166 of 2013." 3. Brief facts of the case are that the respondent-assessee is an individual and is engaged in the business of retail trade of IMFL, HPCL dealer and also runs business of commission agency. Return of income for the assessment year 2012-13 was filed on September 28, 2012 declaring a total income of Rs. 78,98,020. The return of income was processed under section 143(1) (hereinafter referred to as "the Act" for short) (hereinafter referred to as "the Act" for short and subsequently the case was selected for scrutiny assessment under CASS. Against the said return of income, the assessment was completed by the Income-tax Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and has quoted Tribunal decisions from Panaji (ITAT) Tribunal in the case of ITO v. Ms. Rania Faleiro I. T. A. No. 9/Pnj/2013 for the assessment year 2008-09. However, the Panaji Income-tax Appellate Tribunal decision has not been accepted by the Department and it has further appealed before the hon'ble High Court of Bombay at Goa against of this order which was admit ted by the High Court of Bombay at Goa vide Tax Appeal No. 16 of 2013 on the following substantial question of law : '9.(i) Whether the Income tax Appellate Tribunal erred in interpreting the provisions of section 54EC which clearly provides that the amount allowable for the financial year is Rs. 50,00,000 only and accordingly the amount allowable for the corresponding to the relevant financial year is 2007-08 is Rs. 50,00,000 and therefore the Income-tax Appellate Tribunal could not have granted relief thereby allowing deduction under section 54EC of Rs. 1,00,00,000.' Hence, the assessee's objection to the proposal for disallowance a sum of Rs. 49,09,181 is not acceptable. Therefore, the excess deduction claimed for a sum of Rs. 49,09,181 is disallowed and treated as capital gain and added back t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer) and decided that the assessee is entitled to total deduction under section 54EC of the Act spread over a period of two financial years at Rs. 50 lakhs each on investments made in specified instruments within a period of six months from the date of sale of the property. The hon'ble Madras High Court in paragraph 11 of the order held that from a reading of section 54EC(1) and the first proviso, it is clear that the time limit for investment is six months from the date of transfer and even if such investment falls under two financial years, the benefit claimed by the assessee cannot be denied. 5.6. The following conditions should be satisfied for the purpose of 54EC : (a) The assessee may be an individual, firm, company or any other person. (b) The asset transferred should be a long-term capital asset. (c) The assessee should invest the whole or any part of the capital gain in long-term specified asset (bonds issued by NHAI and REC) within six months from the date of transfer of the asset. 5.7 In the instant case, during the previous year the appellant sold two capital assets on October 3, 2011 and March 20, 2012. The appellant derived long-term capital gains from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transfer, invested the whole or any part of capital gains in the long-term specified asset, the capital gain shall be dealt with in accordance with the following provisions of this section, that is to say,- (a) if the cost of the long-term specified asset is not less than the capital gain arising from the transfer of the original asset, the whole of such capital gain shall not be charged under section 45 ; (b) if the cost of the long-term specified asset is less than the capital gain arising from the transfer of the original asset, so much of the capital gain as bears to the whole of the capital gain the same proportion as the cost of acquisition of the long-term specified asset bears to the whole of the capital gain, shall not be charged under section 45 : Provided that the investment made on or after the 1st day of April, 2007 in the long-term specified asset by an assessee during any financial year does not exceed fifty lakh rupees." From a bare reading of the above provisions, it is clear that assessee is entitled to deduction where he makes investment of Rs. 50 lakhs in specified assets within a period of six months in one financial year. The issue then crops up is in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] 71 taxmann.com 219 (Pune-Trib). Paragraph 9 of the above decision reads as under : "9. The issue arising in the present appeal is against the claim of deduction under section 54EC of the Act, under which deduction is provided against the income from long-term capital gains in case the investment is made in specified assets within time frame of six months from the date of sale of asset. The said section also provides a cap on the investment to be made in the bonds to the extent of Rs. 50 lakhs in any financial year. As per the mandate of the said section and the proviso thereunder, where the assessee makes an investment of Rs. 50 lakhs in the specified bonds within time frame of six months from the date of sale, in any financial year, then the benefit of said section is to be allowed to the assessee. In case, the period of six months falls within two financial years, then the question which arises for adjudication is whether the assessee can claim the aforesaid deduction under section 54EC of the Act to the extent of Rs. 50 lakhs in each of the financial year totalling Rs. 1 crore, where the investment is made in the aforesaid bonds in two financial years separately but within p ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
