TMI Blog2005 (7) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... led, it is found that the assessee has purchased two residential flats from M/s. Rajasthan Builders as B-I and B-II as per agreement dated 24-10-1986 for Rs. 3,00,000 and Rs. 2,50,000 respectively. The assessee was conducting a beauty parlour in the name of M/s. Top Model in the above premises i.e. B-I and the same was closed in December 1993 as per letter dated 3-12-1997. The above premises was sold by the assessee in February 1994 for a consideration of Rs. 19,10,000. The capital gain received in the above transaction has been reinvested in a new residential property in Bldg. No. B, Krishna Bldg., Vishal Nagar, Marve Road, Malad (W) amounting to Rs. 9,15,000 as per copy of agreement filed. In the present case, assessee has invested capital gains arising out of the same proceeds in house properties as per two separate agreements entered into between her and the New Rajasthan Builders, a Regd. Partnership firm on 24-10-1986. One agreement i.e. for flat B-II on the 1st floor of Vishal Nagar Krishna Co.-op. Hsg. Soc. Ltd., the cost of Rs. 2,65,000 is for flat B-I is in the name of M/s. Top Model, M/s. Top Model was a beauty parlour in which Miss Sandhya Sexena was a proprietor. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince both B-1 and B-2 were residential flats, society is not aware of any price difference between the two. Information as per record for purchase and sale of premises by Miss Sandhya Saxena. 1.Date of agreement of flat No. B-I/B-II was 24th October, 1986 between Ms. Sandhya Saxena and M/s. New Rajasthan Builder. Purchase value in the hand of Sandhya Saxena. For B-I Rs. 3,00,000 For B-II Rs. 2,65,000 2.Date of sale of agreement by Miss Sandhya Saxena with Mr. Vijendra Mittal (President occupier was 24th Feb., 1994. Sake vakye ub gabd if Ms. Sandhya Saxena with Mr. Vijendra Mittal (President occupier was 24th Feb., 1994. Sale value in hand of Ms. Sandhya Saxena. For B-I Rs. 9,60,000 For B-II Rs. 9,50,000 Thus from the replies of the society also, it is clear that Miss Sandhya Saxena was running a Beauty Parlour at B-I Vishal Nagar Krishna Co.-op Hsg. Scy. Ltd. She had obtained licence from the Municipality and the same has been renewed from time-to-time as per the Municipal rules. Beauty Parlour was conducted with all the equipments. Agreement for B-I flats was made separately in the name of Top ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 1-4-1987 to 31-3-1993. The maximum part of the ground floor and the entire first floor were used by the appellant for the purpose of her residence. The appellant had made one additional door in the hall of the ground floor as beauty parlour as that the customers can enter the beauty parlour through the garden of the premises without disturbing her personal life. Although part of the ground floor was used as beauty parlour by the appellant but she has not claimed by depreciation for the same in her return of income for any of the assessment years. The appellant had sold the above duplex house bungalow to Shri Vijendra Mittal 24-2-1994 as residential house through two different agreements since she had purchased vide two separate agreements. The Assessing Officer, in her reply, has constantly harped on the fact that the appellant has purchase the above house through two different agreements and also sold the same through different agreements and the ground floor was used for commercial purpose. The Assessing Officer in her reply has totally ignored, and has completely failed to apply, the clear principles laid down, the various judicial precedents (including those of the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the detailed submissions made on behalf of the assessee, the CIT(A) held as under : "I have carefully considered the facts of the case as contained in the order of the assessment as well as in the submissions of the appellant. I am inclined to agree with the learned A.R. of the appellant that the house property B-I and B-II, though purchased by two separate agreements on the same day, is one house property despite the fact that a part of this house property was used by the appellant for running a beauty parlour for sometime. The beauty parlour was already closed at the time of sale of the property and this fact is clear from the assessment order itself and even if it was used for commercial purpose in the past, it cannot change the character of the house property in view of the reasoning that no depreciation was claimed thereon in the past and the society s secretary has certified the same as being a residential house property all along. The facts of this case are supported by the recent judgment of the Hon ble I.T.A.T. in the case of Gulshan Banoo R. Mukhi v. J. CIT, S.R.7, Mumbai [ITA. No. 3369/Mum./(2000) dated 16-1-2002]. In view of the fact that both the units B-I and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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