TMI Blog2013 (12) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... o that his income is augmented – Following Malabar Industrial Co. Ltd. v. CIT 2000 (2) TMI 10 - SUPREME Court] - Where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income-tax Officer is unsustainable in law – Decided in favour of assessee. - ITA No.3226/Mum/2010 - - - Dated:- 26-3-2013 - R S Syal and Vijay Pal Rao, JJ. For the Appellant : Dr K Shivaram For the Respondent : Shri A C Tejpal ORDER:- Per: R S Syal: This appeal by the assessee is directed against the order passed on 30.03.2010 by the Commissioner of Income-tax u/s 263 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copy of which is placed at page 101 onwards of the paper book, furnished the details by stating that the said amount was duly declared. Once again a new notice dated 18th March, 2010, a copy of which is placed at page 105 of the paper book, was issued by the CIT on the ground that exemption u/s 54 which was claimed by the assessee for an amount of Rs.59.17 lakh towards new flats purchased was in respect of five floors namely 1 to 4 and 9 (initially it was taken as 11th subsequently accepted as 9th). In the opinion of the learned CIT, the assessee was entitled to exemption u/s 54 in respect of only one of the floors and not all the five. The assessee contended before the learned CIT that similar exemption u/s 54 was allowed to his wife by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing with the same property has been duly recognized. After considering the rival submissions, the Tribunal finally upheld the CIT(A) s order granting exemption u/s 54 and 54EC. It is a matter of record that the Revenue filed a Miscellaneous Application against such order, which was registered as MA No.417/Mum/2010. Vide this M/A, the Revenue urged that when the appeal was originally heard the Revenue did not raise any argument as to why exemption u/s 54 could not be allowed to the assessee. The Tribunal vide para 9 of its order dated 04.11.2010 passed against the miscellaneous application filed by the Revenue noticed that it was for the first time by this Miscellaneous Application that the Revenue has sought to raise a plea that the conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Thereafter, the miscellaneous application was dismissed as it cannot be entertained on a debatable issue. 3.2 Coming to the scope of section 263, we find that similar to section 254(2), this section also talks of vesting jurisdiction in respect of issues which are not debatable. The Hon ble Summit Court in Malabar Industrial Co. Ltd. v. CIT [(2000) 243 ITR 83 (SC)] has held that : 'Where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income-tax Officer is unsustainable in law. The same view has been reiterated by several Hon ble High Courts including the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use according to his plans and requirements. He may use the ground floor for his own residence and let out the first floor having an independent entry so that his income is augmented. One may build a house consisting of four bedrooms (all in the same or different floors) in such a manner that an independent residential unit consisting of two or three bedrooms may be carved out with an independent entrance so that it can be let out. Finally the Hon ble Delhi High Court has held that : We do not think that the fact that the residential house consists of several independent units can be permitted to act as an impediment to the allowance of the deduction under Section 54/54F . 3.5 In view of the afore-noted judgment of the Hon ble Delhi High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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