TMI Blog2005 (9) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee contended that he was not an independent owner of the house and exemption can be denied only where assessee is absolute owner of the house. He also filed details of purchase of the house which showed that he along with his wife had purchased the house on 13-4-1994 for a total consideration of ₹ 3,05,000 out of which assessee had invested ₹ 1,60,000 and balance amount was invested by his wife. The copy of sale deed also showed that it was being purchased in joint ownership. However, the Assessing Officer did not accept the contention of assessee since in his view, assessee could be said to be the owner of house at Sion (Mumbai) on the date of sale of original asset. Accordingly, he denied the claim of assessee under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Mad.), B.B. Sarkar v. CIT [1981] 132 ITR 150 2 (Cal.) and CIT v. Laxmidas Devidas [1937] 5 ITR 584 (Bom.). On the other hand, the Learned Departmental Representative has relied on the order of the Assessing Officer. 6. Rival submissions have been considered carefully. The question for our consideration is whether, on facts, assessee can be said to be the owner of the residential house vis-a-vis flat at Sion, Mumbai. The case law referred to by the assessee s Counsel is not on the point of issue before us and, therefore, we proceed on the basis of language employed by the Legislature. The word residence , as per Stroud s Judicial Dictionary, means a place where an individual or his family eat, drink and sleep. So a residential house would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in the case of Seth Banarsi Dass Gupta v. CIT [1987] 166 ITR 7833, wherein, it was held that a fractional ownership was not sufficient for claiming even fractional depreciation under section 32 of the Act. Because of this judgment, the Legislature had to amend the provisions of section 32 with effect from 1-4-1997 by using the expression owned wholly or partly . So, the word own would not include a case where a residential house is partly owned by one person or partly owned by other person(s). After the judgment of Supreme Court in the case of Seth Banarsi Dass Gupta (supra), the Legislature could also amend the provisions of section 54F so as to include part ownership. Since, the Legislature has not amended the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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