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TMI Blog2022 (1) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 139 cannot mean only section 139(1) but it means all sub-sections of section 139. Under subsection (4) of section 139, any person who has not furnished a return within the time allowed to him under sub-section (1) of section 142, may furnish the return for any previous year at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier. Such being the situation, it was the case of the assessee that he could fulfil the requirement under section 54 for exemption of the capital gain from being charged to income-tax on the sale of property used for residence, could be furnished before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier, under sub-section (4) of section 139. When the assessee has deposited ₹ 15 lakhs of capital gain in purchasing the Bond of NHAI before due date of filing of return of income under section 139(4), his claim for exemption under section 54 F was not to be disallowed. Hence, we direct the AO to allow the entire capital gain earned by the assessee as exempted under section 54 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of AIR information that assessee sold property for ₹ 51,37,500/- and acquired bonds of ₹ 5.00 lakh, source of which is not proved by the assessee. On the basis of such information, the Assessing Officer was of the view that income of ₹ 56,37,500/- has escaped assessment for AY 2010-11 by reasons of failure of assessee to disclose fully and truly all material facts necessary in the return of income. 3. Notice under section 148 dated 21.03.2014 was issued and served upon the assessee. In response to notice under section 148, the assessee filed his reply and contended that return of income filed originally on 31.03.2011 be treated as return in response to notice under section 148 of the Act. The assessee demand it reasons of reopening. The reasons of reopening was supplied to the assessee. The assessee filed his objection vide dated 08.05.2014, objecting the reopening under section 148.The Assessing Officer nowhere mentioned in his order whether objection was decided / disposed or not. During the assessment, the assessee was confronted with the fact that as per AIR information, the assessee sold immovable property at a consideration of ₹ 51,37,500/- o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt on 11.08.2010.The assessee further submits that he purchased residential property in Ganga Sagar Co-Op Society, Adajan Road, Surat on 22.09.2011 for a consideration of ₹ 40,39,800/-, within two years from the date of sale of old asset. The entire sale consideration, which was received on sale of old asset was utilized by him in acquiring new residential house. The assessee also explained that all details of investment in capital gains and purchase of new residential house was shown in the return of income filed on 31.03.2011 and submitted that he assumed that return have been processed at CPC Bangalore. 6. The assessee also challenged the validity of reopening. On the validity of reopening, the assessee submitted that as per AIR information received by department, the assessee sold property of ₹ 51,37,000/- and acquired NHAI Bonds of ₹ 5 lakh. The source of which was not proved by the assessee. On the basis of which the AO had reasons to believe that income of ₹ 56,37,500/- as escaped assessment by reason on failure on the part of assessee, to disclosed fully and truly. The assessee objected that there was no question of escapement of income. The info ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the decision of Tribunal in the case of Sanjay K Rana in ITA No. 996/AHD/2014.No order on reopening on the validity of reopening was made Ld. CIT(A). Further, aggrieved, assessee filed present appeal before this Tribunal. 9. We have heard the submission of Ld. Authorized Representative (AR) for the assessee and Ld. Senior Departmental Representative (Sr.DR) for the Revenue and have gone through the orders of authorities below. The ld. AR of the assessee submits that assessee challenged the validity of reopening before Ld. CIT(A) and filed detailed written submission challenging the validity of reopening contending that there was no failure on the part of assessee in disclosing fully and truly all material while filing return of income. The reasons recorded by Assessing Officer was not valid reasons. The assessee objected the validity of reopening and no order on the objection was passed by Assessing Officer. The Ld. CIT(A) despite recording written submission of the assessee not decided the grounds of appeal related to the validity of reopening. The Ld. AR of the assessee submits that in absence of disposal of objection, the assessment order passed on reopening on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its of ₹ 15 lakh in capital gains account on 11.08.2010 was beyond the due date of filing return of income under section 139(1). Therefore, Ld. CIT(A) has rightly upheld the order passed by Assessing Officer. 13. We have considered the rival submissions of both the parties and have gone through the orders of authorities below. The Assessing Officer disallowed the exemption by taking view that held that ₹ 14,94,166/- was not deposited by assessee before due date of filing return of income under section 139(1). Due date for filing of return of income for assessment year 2011-12 was 31.07.2010. Therefore, the claim of exemption to the extent of ₹ 14,94,166/- is not allowable and disallowed and added to the income of the assessee. The Ld. CIT(A) upheld the action of Assessing Officer by taking view that assessee purchased asset under section 54-F on 22.09.2011. The assessee made deposit of ₹ 14,94,166/- in capital gains account beyond the due date as per section 139(1) and investment in purchase / construction of eligible asset is beyond the due date under section 139(4) of the Act. We find that there is no dispute that the assessee sold his asset on 26.02.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the date of furnishing the return of the Income Tax under Section 139 of the Act and that it would include extended period to file return in terms of Sub Section 4 of Section 139 of the Act. It was held as under:- From a plain reading of sub-section (2) of Section 54 of the Income-tax Act, 1961, it is clear that only section 139 of the Income-tax Act, 1961, is mentioned in section 54(2) in the context that the unutilized portion of the capital gain on the sale of property used for residence should be deposited before the date of furnishing the return of the Income-tax under section 139 of the Income-tax Act. Section 139 of the Income-tax Act, 1961, cannot be meant only section 139(1), but it means all sub-sections of section 139 of the Income-tax Act, 1961. Under sub-section (4) of section 139 of the Income-tax Act any person who has not furnished a return within the time allowed to him under sub-section (1) of Section 142 may furnish the return for any previous year at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment year whichever is earlier. 10. The said judgment was relied upon by a Divi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear or before the completion of the assessment whichever is earlier; Provided that where the return relates to a previous year relevant to the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year, the reference to one year aforesaid shall be construed as a reference to two years from the end of the relevant assessment year. 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-section (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 ever relevant Assessment Year. 12. In the present case, the assessee has proved the payment of substantial amount of sale consideration for purchase of a residential property on or before 31.3.2008, that is within extended period of limitation of filing of return. Only a sum of ₹ 24 lacs was paid out of total sale consideration of Rs. Two Crores on 23.4.2008, though possession was delivered to the assessee on execution of the power of attorney on 30.3.2008. Since the assessee, has acquired a residential house before the end ..... X X X X Extracts X X X X X X X X Extracts X X X X
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