TMI Blog2013 (4) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... d registration expenses is not verifiable, we deem it proper to restore the issue to the file of the AO with a direction to verify the details and allow the deduction accordingly in respect of the flat purchased by the assessee in the name of his wife instead of the flat purchased in his name. We hold & direct accordingly. - ITA NO. 1320/PN/2010 - - - Dated:- 13-2-2013 - Shri Shailendra Kumar Yadav And Shri R. K. Panda,JJ. For the Appellant : Sri Sunil Pathak For the Respondent : Sri Rajib Jain ORDER Per R. K. Panda, AM :- This appeal filed by the assessee is directed against the order dated 31-08- 2010 of the CIT(A)-II, Pune relating to Assessment Year 2007-08. 2. This appeal was earlier dismissed by the Tribunal for non-appearance. Subsequently, the Tribunal vide order dated 20-01-2012 recalled the earlier order. Therefore, this is a recalled matter. 3. Facts of the case, in brief, are that the assessee, an individual, filed his return of income declaring total income of Rs. 4,71,923. During the course of assessment proceedings the Assessing Officer noted that the assessee has sold the property situated at Survey No.33/10, Plot No.10/31, Santan Cooperativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A) the assessee filed a copy of the agreement of sale and relied on the following decisions :- 1. CIT Vs. Shakuntala Kantilal reported in 190 ITR 56 (Bombay) 2. CIT Vs. Abrar Ali reported in 247 ITR 312 I(Bom.) 3. Hardiallia Chemicals Ltd. Vs. CIT reported in 218 ITR 598 (Bom.) 4. CIT Vs. Miss Proja C. Patel reported in 242 ITR 582 (Bom.) 5. Sitalpur Sugar Works Ltd. Vs. CIT reported in 49 ITR 160 (SC) 7. However, the learned CIT(A) also was not convinced with the arguments advanced by the assessee. He noted that the various decisions relied on by the assessee are distinguishable and not applicable to the facts of the present case. Further, nothing has been brought on record to prove that the assessee had purchased a separate flat for his wife and daughter due to some legal battle going on. He noted that the dispute between the husband and wife is entirely a family matter and cannot be treated akin to encroachment or suit filed by wife to stop the sale etc. He noted that the assessee has claimed deduction u/s.54 for a residential house purchased for himself and in effect he has also claimed deduction separately for another flat bought for his wife and daughter for an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he court. The assessee sold the house property for a consideration of Rs. 50 lakhs and purchased a small flat for himself for a consideration of Rs. 10 lakhs and another flat for the residence of his wife and daughter for a consideration of Rs. 29,60,000. 12. Referring to the provisions of section 18 of Hindu Adoptions and Maintenance Act, 1956 he submitted that a Hindu wife shall be entitled to be maintained by her husband till her life time. He submitted that without agreeing to purchase a residence for the wife and daughter the assessee would not have been able to sell the property in question. Therefore, the amount of Rs. 29,60,000 spent by the assessee towards purchase of the flat for the residence of separated wife is an allowable expenditure being compensation to her. In his second alternate contention he submitted that the assessee can purchase two flats and will get the benefit u/s.54 of the Income Tax Act. For this proposition, he relied on CBDT Letter F.No.207/24/76-IT(A-II) dated 25-03-1977. In his third alternate contention, the learned counsel for the assessee submitted that the property purchased in the name of the wife of the assessee being higher in value should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n expenditure being encumbrance on the property. The alternate contention of the learned counsel for the assessee that since the property is purchased in the name of the wife, therefore, in view of the decision of Hon'ble Karnataka High Court in the case of DIT (International Taxation) Vs. Mrs. Jennifer Bhide (Supra), benefit of deduction u/s.54(2) should be allowed to the assessee in respect of the said flat instead of the flat purchased in the name of the assessee. 15.2 Since the flat purchased in the name of the wife is higher and it is beneficial to the assessee we find the alternate contention of the learned counsel for the assessee is acceptable. 15.3 The Hon'ble Karnataka High Court in the case of DIT (International Taxation) Vs. Mrs. Jennifer Bhide (Supra) at Para 7 of the order observed as under: "7. On careful reading of s. 54 as well as s. 54EC on which reliance is placed makes it clear that when capital gains arise from the transfer of long term capital asset to an assessee and the assessee has within the period of one year before or two years after the date on which the transfer took place purchase or has within the period of three years after the date of constru ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
