TMI Blog2005 (12) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer was of the view that since the assessee was residing with his parents at 7/28, Roop Nagar, Delhi and not using the basement for residential purposes, the exemption claimed was not to be allowed. Apart from this reason, the Assessing Officer also gave the following reasons for denying the claim of the assessee under section 54F of the Act : ( a )that the basement was used for storing commercial goods by the assessee; ( b )that in the purchase deed of the basement, there was no mention about any bedroom, living room and kitchen. The basement was only a hall and not meant for use as a residential house; ( c )that for the above reasons the assessee had not purchased residential house out of the sale proceeds of the commercial property and, therefore, the claim for exemption under section 54F was not acceptable. 3. Before the CIT(A) the assessee contended ( a )that the property No. 3/27, Roop Nagar, Delhi the basement area of which was purchased by the assessee was located in a residential area as per the master plan of the Delhi; ( b )the whole property of 3/27, Roop Nagar, Delhi has been constructed after due approval of plan as a residential house; ( c )the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is alleged, it shall be stated clearly and consciously supported by a sworn affidavit. In the aforesaid affidavit filed before the Tribunal, it is stated that the observations of the Assessing Officer that the assessee used the basement portion for storing commercial goods is not correct as no such admission was made by the assessee before the Assessing Officer. Several instances where the assessee has asserted before the Assessing Officer as well as the CIT(A) about the basement being used as a residential house has also been highlighted in this affidavit. Apart from filing the aforesaid affidavit, it is contended by the learned counsel for the assessee that the basement had three entrances with an independent toilet in the ground floor with two gates one from the inside of the basement and another from the roadside. The basement also had water connection, kitchen, electricity connection and a telephone. The learned counsel reiterated the other facts as were submitted before the CIT(A) about the nature of the property being a residential property. The contention regarding the use of the property by the assessee was also reiterated. The learned counsel submitted that under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the basement area can be considered as residential area. Besides the above the learned DR also pointed out that the assessee in his written submissions filed before the CIT(A) has clearly accepted that there is no toilet in the basement and the toilet in the ground floor was being used by the occupant of the basement. He submitted that this use of the toilet in the ground floor was not the subject-matter of transfer in the sale deed under which the assessee purchased the basement of the property. He also relied on the decision of the Punjab Haryana High Court in the case of Dr. A.S. Atwal v. CIT [2005] 277 ITR 462 and submitted that the probability of a particular place being used as a residence should be considered as held in the aforesaid decision. He drew our attention to the provisions of section 54F(2) of the Act which provides that after purchase of a new asset and after claiming exemption under section 54F(1) of the Act, if the assessee purchases within a period of two years any residential house, the income of which is chargeable to tax under the head "Income from House Property", other than the new asset, the capital gain allowed as exemption will be brought to ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some rights to be enjoyed with the other co-owners of the building in property at No. 3/27, Roop Nagar, Delhi. The assessee had the right to install his water tank and TV Antenna on open terrace over the second floor of the property at 3/27, Roop Nagar, Delhi. A perusal of the order of the MCD determining the municipal tax for the property at 3/27, Roop Nagar, Delhi reveals that originally this property consisted of basement and ground floor owned by Smt. Amita Garg. The first floor owned by Shri Ramesh Kumar Gupta and second floor owned by Shri Kishan Chand Aggarwal. While completing the assessment for the purpose of municipal tax, this property has been considered as one meant for residential use. The building plans were also got sanctioned as one intended for residential use. The assessment have been made accordingly by the MCD. It is also been recorded in the said order that the purchasers are using it for residential use. Smt. Amita Garg had sold the basement of the property to the assessee. A perusal of the plan attached to the sale deed reveals that there were two separate entries to the basement area. In the submissions made by the assessee before the CIT(A), it has been m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case relied upon by the learned DR namely Dr. A.S. Atwal s case ( supra ) is again of no assistance to the case of the revenue. It was a case under section 54 of the Act where the user of the premises as a residence was a condition, whereas under section 54F the user as a residential house is not the requirement. The decision of the Hon ble High Court in the case of Poonen ( supra ) was a case where residence at a particular place to decide jurisdiction of Court in a matrimonial proceeding under the Indian Divorce Act, 1869. The consideration are different in such cases. The decision of the Hon ble Mysore High Court in the case of Globe Theatres Ltd. ( supra ) is in the context of Residence under the Rent Control Legislation where again the considerations are different. Apart from the above, we have already held that the property should be capable of being used as a residential house and need not be actually used as a residence. In view of the above conclusion, the above case laws are not of much relevance to decide the controversy in the present case. In the decision in the case of Sham Sunder Mukhija ( supra ), the Tribunal has taken a view that a farm house is also a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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