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TMI Blog2021 (8) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... ained by the Ld. CIT(A) is deleted. - Decided in favour of assessee. - ITA No. 218/Chd/2020 - - - Dated:- 23-7-2021 - N. K. Saini , Vice President And R. L. Negi , Member ( J ) For the Appellant : Gautam Jain , Advocate and Lalit Mohan , C. A. For the Respondents : Ashok Khanna , Addl. CIT ORDER Per N. K. Saini , Vice President This is an appeal by the assessee against the order dt. 03/01/2020 of Ld. CIT(A), Hisar. 2. Following grounds have been raised in this appeal: 1. That the learned Commissioner of Income Tax (Appeals)-Hisar has erred both in law and on facts in upholding the determination of total income of the appellant at ₹ 31,28,950/- as against declared income of ₹ 1,41,950/- in an order of assessment 14.11.2018 under section 147/143(3) of the Act. 2. That the learned Commissioner of Income Tax (Appeals) has further erred both in law and on facts in upholding the initiation of proceedings under section 147 of the Act and, completion of assessment under section 147/143(3) of the Act without appreciating that the same were without jurisdiction and hence deserved to be quashed as such. 2.1 That the learned Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order without granting fair and meaningful opportunity and, as such, the same is contrary to principles of natural justice, apart from being without jurisdiction. 4. That the learned Commissioner of Income Tax (Appeals) has also erred both in law and on facts in upholding the levy of interest of ₹ 5,35,330/- u/s. 234A of the Act, interest of ₹ 5,53,790/- u/s. 234B of the Act and interest of ₹ 6,050/- u/s. 234C of the Act which are not leviable on the facts of the instant case. Prayer: It is therefore, prayed that it be held that assessment made by the learned Assessing Officer and sustained by the learned Commissioner of Income Tax (Appeals) deserves to be quashed as such. It be further held disallowance made and upheld by the learned Commissioner of Income Tax (Appeals) be deleted and appeal of the appellant be allowed. 3. At the first instance the Ld. Counsel for the assessee argued Ground No. 2 to 2.4 relating to the sustenance of addition by denying the claim of deduction under section 54F of the Income Tax Act, 1961 (hereinafter referred to as 'Act') amounting to ₹ 29,87,000/- for the reasons that the assessee had not furnished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance 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. 4.2. The A.O. also observed that as the assessee was required to deposit the amount of net consideration in the capital gain account scheme before the date of furnishing the return of income under sub section (1) of section 139 of the Income Tax Act, 1961 (due date of filing return 31.07.2011) but the assessee has deposited the amount in capital gain account on 17.09.2011 i.e. after the due date of filing of return. 4.3. The A.O. asked the assessee to give the reasons for claiming entire capital gain as exempt. In response the assessee submitted as under: In the following judgements of various High Court, it was held that if the investment has-been made before the due date of filing of return u/s. 139(4), then deduction u/s. 54F can not be disallowed:- i) CIT. Rohtak Vs. Jagtar Singh Chawla) ITA No. 71 of 2012 (Punjab and Haryana High Court. ii) CIT-11, Chandigarh Vs. Miss Jagrity Aggarwal (15 Taxmann.Com 146) Punjab and Haryana High Court. iii) Fatimabai Vs. ITO (2009) 32 DTR 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the infraction in not furnishing return in due time as prescribed under subsection (1) of section 139. Otherwise, the use of the expression in due time' would lose its relevance and it cannot be said that the said expression was used without any purpose. vi) Reliance is also placed in the case of Rosamma Korah Vs. ITO, Wd-1 Kannur (ITA No. 646/Choch/2013) and ITO wd-1 Vs. Kannur Rosamma Korah ((ITA No. 663/Choch/2013) (ITAT Cochin) vii) In the case of the assessee, the assessee has purchased the residential house on 15.11.2011 i.e. within two years in which the transfer took place but failed to comply with the viii) procedure laid down by the law, of deposit in such an account, and also [ailed to file return of income as per provisions of section 139(I) of the Income-tax Act, I 1% therefore, the assessee is not entitled to tax exemption. ix) The assessee cannot be allowed to defeat the purpose of statutory provisions. If the assessee is allowed to enjoy such unreasonable benefit on the plea of the assessee that the assessee has deposited net consideration on 17.09.2011 and purchased the residential property on 15.11.2011, it would be an injustice to other i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions are not independent provisions, but related to time contemplated under sub-section (1) of section 139. Therefore, such sub-section (4) has been to be read alongwith sub-section (1). Consequently, the question of law was answered in favour of assessee. The submission made by the assessee alongwith case law has been perused and found that the fact in the case law relied by appellant in CIT Vs. Jagriti Aggarwal (2011) 15 Taxmann 146, P H High court and CIT Vs. Jagtar Singh Chawla reported in 259 CTR 388, the appellant filed his return u/s. 139(4) but in the instant case the assessee has not filed return under section 139(1) and 139(4) but filed the return in consequence to notice u/s. 148 on 16.10.2018 which does not support contention of assessee. The assessee did not comply with the provisions of section 54 of the Act. The submission made by the assessee is thus not accepted in view of the provisions of the Act and decision of jurisdictional Hon'ble P H High Court's in the above discussed case. Therefore, the ground of appeal of the assessee is dismissed. 6. Now the assessee is in appeal. 7. The Ld. Counsel for the assessee reiterated the submissions made befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11/2011. However, the A.O. denied the exemption claimed by the assessee. The main reason for denying the exemption claimed by the assessee was that the return of income was not furnished in accordance with the time allowed under section 139(1) of the Act. 9.1. On a similar issue the ITAT, SMC A Bench, Bangalore in the case of Smt. Tupel Raja Iyengar Shakuntala Vs. ITO, Ward-7(2)(4), Bangalore in ITA No. 64/Bang/2019 for the A.Y. 2009-10 vide order dt. 10/05/2019 held in para 5.2.3 as under: 5.2.3 Having held that the CIT(A) ought to have admitted the additional evidence filed by the assessee before him, U/r. 46A of the Rules, it is seen that the assessee had filed the computation of capital gains before the CIT(A). As per this computation, it is seen that the assessee had computed the long term capital gains (LTCC) at ₹ 19,54,873/- on the sale proceeds of the said property at ₹ 46,65,000/-, after claiming indexed cost of acquisition. It is also seen that the assessee had purchased a residential property for a consideration of ₹ 37,50,830/- on 22.05.2008, i.e., within 7 days from the sale of original property on 16.05.2008. I also find that the AO, after e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he CIT(A) that the purchase of property in the name of the son was acquired by the assessee himself through the consideration received from the sale deed of earlier old property. The bank statement and the cheque issued to the builder as well as the confirmation received from the builder demonstrated that the payment was made by the assessee for purchase of new property within the stipulated time as prescribed u/s. 54. Though, the assessee is not filed any return and at that stage never claimed Section 54, once the reopening u/s. 148 has been issued, the assessee cannot be denied his entitlement/claim for deduction or exemption under income tax statute on the sole ground that no return was filed. The benefit of income tax act and its provisions related to exemption and deduction has to be taken into account while computing the income of the assessee and it is the proper procedure on the part of the Assessing Officer to follow all the aspect of taxation within the corners of Income Tax Act. As regards the name under whom the property is purchased, it can be seen that the son of the assessee is a direct relation and as per the Hon'ble Delhi High Court decision in case of CIT(A) V ..... X X X X Extracts X X X X X X X X Extracts X X X X
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