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TMI Blog2020 (11) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of section 139(4) expires on 31/03/2012 but the actual return of income was filed on 29/09/2011 and, therefore, the Ld. CIT(A) restricted the deduction for the amount invested in purchase of the agriculture land till 29/09/2011. The coordinate bench in the case of Smt. Vatsala Asthana [ 2019 (10) TMI 1025 - ITAT DELHI] has allowed benefit of deduction under section 54 of the Act for the payment made towards purchase of the residential house up to the due date of the filing of the return of income prescribed under section 139(4) - The Section 54B is pari-materia with Section 54 of the Act. Also see SH. VIJAY CHAUDHARY C/O RAVI GUPTA, ADVOCATE VERSUS ITO, WARD 4 (4) GURGAON [ 2019 (7) TMI 857 - ITAT DELHI] Parties could not get verified the exact amount invested in purchase of agricultural land till the qualifying period, thus, we feel appropriate to set aside the finding of the Ld. CIT(A) and restore the issue in dispute of deduction under section 54B of the Act to the file of the Learned Assessing Officer for verifying the investment in purchase of agriculture land and decide the issue of deduction u/s 54B of the Act afresh in accordance with law after providing ade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see. Aggrieved, the assessee is in appeal before the Income-tax Appellate Tribunal (in short the Tribunal ) raising the grounds as reproduced above. 3. Before us, the parties appeared through Videoconferencing facility. The learned Counsel of the assessee also filed a written synopsis electronically. 4. The assessee has raised three grounds. The first ground is general in nature and ground No. 2 is in relation to disallowance of ₹ 17,28,000/- claim to have been incurred by the assessee on fencing of land and commission expenses. The ground No.3 is in respect of restriction of benefit of section 54B of the Act by the Learned CIT(A). 5. Firstly, we take ground No. 3 of the appeal. The brief facts qua the ground raised are that the assessee in the return of income claimed deduction of ₹ 5,53,52,300/- under section 54B of the Act against the long-term capital gain for following investments made for purchase of agriculture land: Date Area Amount (In Rs.) 19/08/2010 26K 8835000 30/03/2011 15K 19M 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al gains only if he satisfies the following two conditions:- 1. The unutilized portion is deposited in a an account in a specified bank or institution before actually furnishing the return of income and such return of income is accompanied by the proof of such deposit ( Reference : Hon'ble Kerala High Court decision in the case of CIT, Cochin V/s V.R. Desai (Supra)). 2. Such deposits being made not later not later than the extended date as applicable in the case of assessee for furnishing the income u/s 139(4) (Reference: The Hon ble Punjab Haryana Court decisions in the case of Suit. .Jugriti Aggnrwal (Supra) and Sh. Jagtar Singh Chawla (Supra). Thus the benefit of utilizing the capital gains upto the extended date as provided u/s 139(4) or depositing the unutilized part of capital gains in an account in a specified hank or institution upto the extended date as provided u/s 139(4) would be allowable only upto the date of actual filing of return by the asssessee. 5.4 Following the above principle, the Ld. CIT(A) restricted the deduction under section 54B of the Act till the date of filing of return of income by the assessee observing as under: 6.4 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... griculture land till the extended date of filing of the return of income as provided under section 139(4) of the Act. 5.6 On the other hand, the Learned DR relied on the order of the lower authorities and submitted that in view of the decision of the Hon ble Supreme Court in the case of the Prakash Nath Khanna Vs CIT (2004) 266 ITR 1, the due date of the filing of the return of income should be under section 139(1) of the Act and not under section 139(4) of the Act. 5.7 We have heard rival submission of the parties and perused the relevant material on record. We find that the Ld. CIT(A) in the case of Vijay Choudhary (supra) has discussed the decision of the Hon ble Supreme Court in the case of Prakash Nath Khanna(supra) and decision of the Hon ble Punjab and Haryana High Court in the case of Jagriti Agrawal (supra). The Ld. CIT(A) himself has admitted that decision of the Hon ble Supreme Court in the case of Prakash Nath Khanna (supra) is not with regard to the provision of section 54 of the Act. In the impugned order, Ld. CIT(A) has reproduced the relevant part of his decision in the case of Vijay Choudhary, which is reproduced as under: 6.15 However, keeping in vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one year aforesaid shall be construed as a reference to two years from the end of the relevant assessment year. 11. A reading of the aforesaid sub-section would show that if a person has not furnished the return of the previous year within the time allowed under sub-s. (1) i.e., before 31st day of July of the assessment year, the assessee can file return before the expiry of one year from the end of the relevant assessment year. 12. The sale of the asset having taken place on 13th Jan., 2006, falling in the previous (sic-assessment) year 2006-07, the return could be filed before the end of relevant asst. yr. 2007-08 (sic- 2006-07) i.e. 31st March, 2007. Thus, sub-s. (4) of s. 139 provides extended period of limitation as an exception to sub-s. (1) of s. 139 of the Act. Sub-s. (4) is in relation to the time allowed to an assessee under sub-s. (1) to file return. Therefore, such provision is not an independent provision, but relates to time contemplated under sub-s. (1) of s. 139. Therefore, such sub-s. (4) has to be read along with sub-s. (1). Similar is the view taken by the Division Bench of Karnataka and Gauhati High Courts in Fatima Bai and Rajesh Kumar Jalan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards purchase of residential house up to the due date of filing of the return of income prescribed under section 139(4) of the Act i.e. 31/03/2014 is allowable for considering deduction under section 54F of the Act. Respectfully, following the above decisions, we accordingly direct the Assessing Officer to consider amount utilized by the assessee for purchase of the house till 31/03/2014(which includes the payment of ₹ 50,36,422/- made up to 31/07/2012) for deduction under section 54F of the Act. 5.11 Further, the Ld. CIT(A) in the instant case has relied on his decision in the case of Vijay Choudhary(supra). The tribunal in the case of Vijay Choudhary(supra), reversed the decision of the Ld. CIT(A) observing as under: 7. We have heard both the parties and perused all the material available on record. The Hon ble Karnataka High Court in case of Shri K Ramchandra Rao (supra) held as under: 3 2) Whether the assessee invests the entire sales consideration in construction of a residential house within three years from the date of transfer can he be denied exemption under Section 54F on the ground that he did not deposit the said amount in capital gains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the exact amount invested in purchase of agricultural land till the qualifying period, thus, we feel appropriate to set aside the finding of the Ld. CIT(A) and restore the issue in dispute of deduction under section 54B of the Act to the file of the Learned Assessing Officer for verifying the investment in purchase of agriculture land and decide the issue of deduction u/s 54B of the Act afresh in accordance with law after providing adequate opportunity of being heard to the assessee. As per the record, we find that against the order of the Learned CIT(A), the Revenue is not in appeal, which means the Revenue has accepted the decision of the Ld CIT(A). In view of this factual position, the Learned Assessing Officer is further directed that he shall not withdraw the deduction already granted by learned CIT(A) and not put the assessee in a position worse than the position after the impugned order of the Learned CIT(A). The ground No. 3 of the appeal of the assessee is accordingly allowed for the statistical purposes. 6. The ground No. 3 relates to disallowance of ₹ 17,28,000/-on account of fencing and commission expenses. We have heard rival submission of the parties on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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