I.t.a v. Cit(2004)266 Itr 1 (Sc). Aggrieved By The Said Order Of Thetribunal, The Appellant Is Before Us

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE THURSDAY, THE 20TH DAY OF FEBRUARY 2014/1ST PHALGUNA, 1935 ITA.No. 10 of 2014 -------------------------- [AGAINST THE ORDR IN I.T.A.NO. 270/COCH/2012 FOR THE YEAR 2007/08 DTD. 16/08/2013 OF THE INCOME TAX APPELLATE TRIBUNAL,COCHIN BENCH] ............ APPELLANT/RESPONDENT: ---------------------------------------- DR. XAVIER J. PULIKKAL, PALLIMUKKU, KOCHI-682 016. PULICKAL HOUSE, OPP.MEDICAL TRUST, BY ADVS.SRI.ANIL D. NAIR, SRI.R.SREEJITH, SMT.NIVEDITA A.KAMATH, SRI. SULEKHA BEEVI.C.S, SRI.ROSIE ATHULYA JOSEPH. RESPONDENT/APPELLANT:---------------------------------------- DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, ERNAKULAM-682 018. BY SRI.JOSE JOSEPH, S.C. THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 20-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Prv. I.T.A. NO.10/2014: APPENDIX PETITIONER'S ANNEXURES: ANNEXURE-A: TRUE COPY OF THE ASSESSMENT ORDER DTD. 30/12/2010 OF THE DEPUTY COMMISSIONER OF INCOME TAX, ERNAKULAM.ANNEXURE-B: TRUE COPY OF ORDER DATED 12/07/2012 OF THE COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, ERNAKULAM.ANNEXURE-C: TRUE COPY OF THE ORDER DTD. 16/08/2013 OF THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH. RESPONDENT'S ANNEXURES: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. MANJULA CHELLUR,C.J. & A.M.SHAFFIQUE, J. = = = = = = = = = = = = = = = = I.T.A. No.10 of 2014 = = = = = = = = = = = = = = = = = = = = = Dated this the 20[th] day of February, 2014 JUDGMENT Manjula Chellur,CJ The admitted facts that arise for consideration in the aboveappeal are as under:- The appellant assessee had sold his property on 16.03.2007and purchased land along with a house which alleged to havebeen renovated by him on 05.09.2007. When he claimeddeduction under Section 54F of the Income Tax Act (hereinafterreferred to as the Act) on the premise that he had spent moneyfor construction of residential premises before the due datementioned in Section 139(4) of the Act, the same came to bedisallowed on the ground that the due date referred to was theone falling under Section 139(1) of the Act and not Section 139(4) of the Act. 2. Aggrieved by the said opinion of the assessingauthority, an appeal came to be filed before the Commissioner of Income Tax (Appeals) (CIT(A) for short) and the same came to beallowed in favour of the appellant-assessee. Revenue preferredappeal before the Tribunal challenging the orders of the CIT(A).Tribunal remanded back the matter placing reliance on judgmentof the Apex Court inPrakash Nath Khanna & another vs CIT(2004)266 ITR 1 (SC). Aggrieved by the said order of theTribunal, the appellant is before us. 3. The substantial questions of law arises for considerationof this Court are as under:- “(i) in the facts and circumstances of the case, ought not theTribunal have dismissed the appeal filed by the revenue? (ii) In the facts and circumstances of the case, ought not theTribunal have held that the time limit for filing of returns to claimbenefit under Section 54F was the time limit prescribed under Section139(4) of the Act? (iii)In the facts and circumstances of the case, ought not theTribunal have held that the appellant was entitled to exemption underSection 54F since the appellant had invested the consideration inpurchase of a new house before the time contemplated in Section 139(4) i.e. 31.03.2009? “ I.T.A. No.10 of 2014 3. The substantial questions of law arises for considerationof this Court are as under:- “(i) in the facts and circumstances of the case, ought not theTribunal have dismissed the appeal filed by the revenue? (ii) In the facts and circumstances of the case, ought not theTribunal have held that the time limit for filing of returns to claimbenefit under Section 54F was the time limit prescribed under Section139(4) of the Act? (iii)In the facts and circumstances of the case, ought not theTribunal have held that the appellant was entitled to exemption underSection 54F since the appellant had invested the consideration inpurchase of a new house before the time contemplated in Section 139(4) i.e. 31.03.2009? “ I.T.A. No.10 of 2014 4. It is not in dispute that the Appellate Tribunal disposedof appeal of the assessee in ITA No.249 of 2012 pertaining toassessment year 2007-08 along with other appeals in ITA Nos.154/12 and 166/2012. According to learned counsel appearingfor appellant, there was no justification to treat the facts of thecase pertaining to the appellant on par with the facts of the casein the other two connected appeals. Those two appeals werefiled, one by the Revenue and another by the assessee. 5. Then second argument is, placing reliance on the case ofPrakash NathKhanna supra is unjustified as the facts in thesaid case are totally different from the facts of the present case.In other words, according to him, the question that arose beforeApex Court in Prakash NathKhanna supra was with referenceto Section 276CC and not Section 54F of the Act. Therefore,when the issue was with reference to prosecution of non filing ofreturns, it cannot be the same situation when returns were filedin accordance with Section 139(1) of the Act. 6. As against this, learned Standing Counsel for Revenuesubmits, the entire issue has to be considered with reference toprovisions of Section 54F(4) read with Section 139(1) of the Act. According to him, Section 139(4) of the Act has no application,so far as Section 54F of the Act, as reading of 54F(4)clearlyindicates, filing of return would mean filing of returns in duetime as per Section 139(1) of the Act and not under Section 139(4) of the Act. Learned Standing Counsel further submits, thedecision in Prakash Nath Khanna supra though was withreference to Section 276CC, Section 139 was discussed withreference to the word ‘due time’. Therefore, placing reliance onthe said judgment is justified. 7. So far as the facts of the present case, we have alreadystated above, it is possible that facts of the other appealconsidered by the Appellate Tribunal along with appeal of therevenue may be different. The scheme for depositing capitalgain is contemplated under Section 54F(4) and it depends uponwhen the property of the assessee is sold and when exactly theamounts were invested, whether it was invested in a residentialhouse or otherwise. All these facts have to be considered withreference to provisions of Section 54F(4) along with Section 139(1) of the Act, as the due time would be under Section 139(1)only not under Section 139(4) of the Act. I.T.A. No.10 of 2014 8. Tribunal, as a matter of fact, has accorded one moreopportunity to the appellant assessee to place on record relevantfacts for consideration and if his case were to be different fromthe facts of the other case and makes a vast differencealtogether. So far as provisions of law is concerned, it is alwaysopen to him to place such facts before the Assessing Officer forconsideration. However, Assessing Officer while applying theprovisions of law to facts of a case without interdependent onfacts of the other case has to consider the same. With these modifications, we dispose of the appealdirecting the Assessing Officer to dispose of the matter in thelight of the above observations. MANJULA CHELLUR,CHIEF JUSTICE A.M.SHAFFIQUE, JUDGE. sj 21/2