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TMI Blog2012 (7) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment year 2000-01? (ii) Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal is correct in law in holding that the appellant owned a residential property as on the date of transfer i.e., September 1999 and that therefore she is disqualified to claim exemption under Section 54F of the Income Tax Act, 1961? 2. The assessee is an individual, a doctor by profession. It is an admitted fact that the assessee owns a property situate in 828 and 828A, Poonamallee High Road, along with her husband. The said property consists of a clinic in the ground floor and a residential portion in the first floor. Even as early as 1989-90, in the wealth tax assessment as well as in her income tax assessment, the assessee had declared 50% of the share in the property, as owned by her. 3. It is seen from the facts pleaded before this Court as well as before the authorities below, that the assessee entered into an agreement for joint development of construction of 8 apartments in the property owned by the assessee situate at 45, M.G. Road, Sastri Nagar, with M/s.Ceebros Hotels Pvt. Ltd., Chennai, on 27th January 1999. As per the terms of the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the possession of the property to the developer on 26.5.1999, the capital gains arising out of the transfer should be assessed for the assessment year 2000-01 and not 2001-02, as shown by the assessee. The assessee contended that going by the terms of the agreement, when the constructed flats were handed over to the assessee only in June 2000, the date of transfer should be taken and the claim considered in the assessment for the assessment year 2001-02 only. The Assessing Officer rejected this contention and made the assessment that the receipt of Rs.10,00,000/- was not invested as per the provision under Section 54E. Thus, the Assessee Authority held that since the assessee had used the property at 828, Poonamallee High Road and 828A, Poonamallee High Road, as residence and hospital, the conditions prescribed under Section 54F thus not being satisfied, she was not eligible for exemption. 5. Aggrieved by these assessments, the assessee went on appeal before the Commissioner of Income Tax (Appeals), who, once again, confirmed the view of the Assessing Authority that as far as the assessment for the assessment year 2000-01 was concerned, the assessee had handed over posse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (47)(v) is not relevant, is not pressed. Recording the said statement, the present case is considered from the angle of applicability of the exemption provision contained in Section 54F, as it then stood prior to the amendment under the Finance Act of 2000, effective from 1.4.2001. Learned senior counsel submitted that irrespective of the amendment, the assessee would be entitled to exemption under Section 54F, she having satisfied the conditions under Section 54F. Secondly, the proviso disentitled the exemption contained in the parent provision only if and when the assessee had the exclusive ownership of a residential house as on the date of transfer of the asset. 7. Pointing out to the fact that the assessee is a joint owner, along with her husband, of the property situated in 828 and 828A, Poonamallee High Road, learned senior counsel submitted that it is an admitted fact that the assessee holds 50% undivided share alone in the property housing the clinic in the ground floor and the residential portion in the first floor. Under her wealth tax assessment, she had offered her 50% undivided share and the clinic and that she had also claimed depreciation on the clinic portio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011] 331 ITR 211 (Commissioner of Income-tax Vs. Smt.K.G.Rukminiamma) and [2009] 309 ITR 329 (Commissioner of Income-tax Vs. D. Ananda Basappa); the Special Leave Petition in S.L.P. (C) No. 20867 of 2009, filed against the decision reported in [2009] 309 ITR 329 (Commissioner of Income-tax Vs. D. Ananda Basappa) was also rejected, vide order dated 10.08.2009. In the background of the facts thus shown on the provision of law, she submitted that the assessee is entitled to succeed in this case. She further pointed out that the said position is accepted even in the amendment brought out to the provisions under the Finance Act of 2000 with effect from 01.04.2001. 9. Per contra, learned Standing Counsel appearing for the Revenue countered the submission of the assessee herein and pointed out that when the property in Poonamallee High Court is owned by the assessee's husband as well as by the assessee in equal share and the sale deed dated 25.1.1974 showed that the assessee had purchased the said property along with her husband, there was no determination of separate share of husband and wife. Thus, the assessee having a residential property as on the date of possession, even if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constructing the residential house within the time stipulated therein. Proviso to sub section (1) states that the exemption contemplated under sub section (1) would not be available where an assessee owns a residential house as on the date of the transfer and that the income from the residential house is chargeable under the head "income from house property". The Finance Act, 2001 amended the proviso with effect from 2001-02 to permit exemption under Section 54F, even if the asessee has owned one residential house as on the date of transfer, other than the new asset, or purchase in investments any residential house other than the new asset within a period of one year or three years as the case may be, but after the date of transfer of the original asset and the income from such residential house other than the one owned on the date of transfer of the original asset is chargeable under the head "income from house property". 13. As far as the present case is concerned, contrary to the contention of the assessee, the assessee as well as her husband had offered 50% share each in the clinic in the income tax assessment and had claimed depreciation thereon. So too 50% share in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he agricultural land; hence, the assessee could not be granted the benefit of exemption. Further, the assessee could not be said to have constructed a residential house within three years from the sale of the agricultural land, since the amount received from the sale of the land was not utilised for the purchase of the flat. Leaving this, the Delhi High Court further pointed out that the flat purchased was not in the name of HUF, but was in the individual name of Vipin Malik, along with his mother. The Delhi High Court pointed out that there was nothing to indicate the involvement of Hindu Undivided Family in membership of the Society or Vipin Malik holding membership as the Karta of Hindu Undivided Family. Thus, to claim the benefit under Section 54F, the Delhi High Court pointed out that the residential house, which is purchased or constructed, has to be of the name of the same assessee whose agricultural land was sold. In the light of the above, the assessee's case therein was rejected. 15. As far as the decision of the Bombay High Court reported in [2009] 312 ITR 40 (Prakash S/o Timaji Dhanjode Vs. Income Tax Officer) is concerned, the facts were that the assessee sold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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