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2005 (9) TMI 635 - ITAT MUMBAICapital gain on sale of shares - Investment in purchase of residential flats - Claimed exemption u/s 54F are available to co-owner? - interpretation of "Residential House" - Whether assessee can be said to be the owner of that residential house - HELD THAT:- In our opinion, it must mean a complete residential house and would not include shared interest in a residential house. Where the property is owned by more than one person, it cannot be said that any one of them is the owner of the property. In such case, no individual person of his own can sell the entire property. No doubt, he can sell his share of interest in the property but as far as the property is considered, it would continue to be owned by co-owners. Joint ownership is different from absolute ownership. In the case of residential unit, none of the co-owners can claim that he is the owner of residential house. Ownership of a residential house, in our opinion, means ownership to the exclusion of all others. Therefore, where a house is jointly owned by two or more persons, none of them can be said to be the owner of that house. Since, the Legislature has not amended the provisions of section 54F, it has to be held that the word "own" in section 54F would include only the case where a residential house is fully and wholly owned by assessee and consequently would not include a residential house owned by more than one person. In the present case, admittedly the house at Sion, Mumbai, was purchased jointly by assessee and his wife. It is nobody’s case that wife is benami of assessee. Therefore, the said house was jointly owned by assessee and his spouse. In view of the discussions made above, it has to be held that assessee was not the owner of a residential house on the date of transfer of original asset. Consequently, the exemption u/s 54F could not be denied to assessee. The order of the Learned CIT (Appeals) is, therefore, upheld. In the result, the appeal of the revenue stands dismissed.
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