Xavier J. Pulikkal vs Dy. CIT

Dr. Manjula Chellur, C.J.—The admitted facts that arise for consideration in the above appeal are as under:--

"The appellant assessee had sold his property on 16-3-2007 and purchased land along with a house which alleged to have been renovated by him on 5-9-2007. When he claimed deduction under section 54F of the Income Tax Act (hereinafter referred to as the Act) on the premise that he had spent money for construction of residential premises before the due date mentioned in section 139(4) of the Act, the same came to be disallowed on the ground that the due date referred to was the one falling under section 139(1) of the Act and not section 139(4) of the Act."

Aggrieved by the said opinion of the assessing authority, an appeal came to be filed before the Commissioner (Appeals) and the same came to be allowed in favour of the appellant-assessee. Revenue preferred appeal before the Tribunal challenging the orders of the Commissioner (Appeals). Tribunal remanded back the matter placing reliance on judgment of the apex Court in Prakash Nath Khanna and Another Vs. Commissioner of Income Tax and Another, . Aggrieved by the said order of the Tribunal, the appellant is before us.

The substantial questions of law arise for consideration of this Court are as under :

"(i) In the facts and circumstances of the case, ought not the Tribunal have dismissed the appeal filed by the Revenue?

(ii) In the facts and circumstances of the case, ought not the Tribunal have held that the time-limit for filing of returns to claim benefit under section 54F was the time-limit prescribed under section 139(4) of the Act?

(iii) In the facts and circumstances of the case, ought not the Tribunal have held that the appellant was entitled to exemption under section 54F since the appellant had invested the consideration in purchase of a new house before the time contemplated in section 139(4) i.e., 31-3-2009?"

It is not in dispute that the Tribunal disposed of appeal of the assessee in IT Appeal No. 249 of 2012 pertaining to assessment year 2007-08 along with other appeals in IT Appeal Nos. 154 of 2012 and 166 of 2012. According to learned counsel appearing for appellant, there was no justification to treat the facts of the case pertaining to the appellant on par with the facts of the case in the other two connected appeals. Those two appeals were filed, one by the Revenue and another by the assessee.

Then second argument is, placing reliance on the case of Prakash Nath Khanna (supra) is unjustified as the facts in the said case are totally different from the facts of the present case. In other words, according to him, the question that arose before apex Court in Prakash Nath Khanna (supra) was with reference to section 276CC and not section 54F of the Act. Therefore, when the issue was with reference to prosecution of non-filing of returns, it cannot be the same situation when returns were filed in accordance with section 139(1) of the Act.

As against this, learned standing counsel for Revenue submits, the entire issue has to be considered with reference to provisions 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 section 54F(4) clearly indicates, filing of return would mean filing of returns in due time as per section 139(1) of the Act and not under section 139(4) of the Act. Learned standing counsel further submits, the decision in Prakash Nath Khanna (supra) though was with reference to section 276CC, section 139 was discussed with reference to the words due time. Therefore, placing reliance on the said judgment is justified.

So far as the facts of the present case, we have already stated above, it is possible that facts of the other appeal considered by the Tribunal along with appeal of the Revenue may be different. The scheme for depositing capital gain is contemplated under section 54F(4) and it depends upon when the property of the assessee is sold and when exactly the amounts were invested, whether it was invested in a residential house or otherwise. All these facts have to be considered with reference 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 and not under section 139(4) of the Act.

Tribunal, as a matter of fact, has accorded one more opportunity to the appellant assessee to place on record relevant facts for consideration and if his case were to be different from the facts of the other case and makes a vast difference altogether. So far as provisions of law are concerned, it is always open to him to place such facts before the assessing officer for consideration. However, assessing officer while applying the provisions of law to facts of a case without interdependent on facts of the other case has to consider the same.

With these modifications, we dispose of the appeal directing the assessing officer to dispose of the matter in the light of the above observations.