TMI Blog2018 (4) TMI 1061X X X X Extracts X X X X X X X X Extracts X X X X ..... enue : Sh. S.S. Rana, CIT/DR And Sh. Kaushlendra Tiwari, Sr. DR ORDER Per L.P. Sahu, A.M.: This is an appeal filed by the assessee against the order of ld. CIT(A)-X dated 09.04.2015 for the assessment year 2012-13 on the following grounds : 1. That the order passed by the Ld. CIT (A) is illegal, invalid and bad in law and deserved to be set aside. 2. That upon the facts and circumstances of the case, the disallowance of ₹ 1,91,00,000/- u/s 54F by the AO and its confirmation by the Ld. CIT (A) is bad both in the eyes of law and on the facts as he has not considered the relevant material placed before them. 3. That on the facts and in the circumstances of the case and in law the AO and the CIT (A) have erred and are not justified in not allowing the deduction u/s 54 F of ₹ 3,82,00,000/- in respect of investment in Flat at Tower Tulip, Omaxe Forest, Faridabad against the long term capital gain on sale of residential plot. 4. That the AO and the Ld. CIT (A) were not correct and justified in not relying upon the case law of the jurisdictional Hon'ble High Court and other Hon'ble Courts while passing the order and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also separated from each other by common passage, lobby staircase etc. However, the appellant is claiming deduction u/s 54F of the Act in respect of investment made in two different residential house properties on the basis of certain judicial pronouncements mentioned in the grounds of appeal. Reliance has also been placed by the Id. AR on the decision of Hon'ble Delhi High Court in the case CIT Vs. Gita Duggal (2013) 84 DTR (Del) 346 and it is being claimed that the wordings a residential house should be understood in a sense that building should be of residential in nature and a should not be understood to indicate a singular number. 4.1.1 From the submissions of the Id. AR, it is clear that he is claiming the exemption u/s 54F of the Act on the basis of self-drawn conclusion of the section citing that no restriction has been provided in section 54F/54 of the Act while making investment in more than one property. It is being contended that restriction in respect of one property has been brought to the statute only w.e.f. AY 2015-16 only and prior to that assessee can make investment in more than one property. To substantiate his claim, Ld. AR has placed relianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case is concerned, the facts are entirely different. In this case, assessee has purchased from the builder two different units separated from each other by common passage, lobby staircase etc. AO, while passing the assessment order, has specifically mentioned that there is no agreement with the builder that the passage and staircase are to be exclusively used by the assessee and not by any other flat owners in the same building. Thus, it cannot be said that assessee owned one unit to enable her to claim deduction u/s 54F of the Act. 3. In support of these findings, the ld. CIT(A) has also relied on the decision of Special Bench, Mumbai (AIT-2007-205-ITAT), as reproduced in the impugned order. 4. Aggrieved by the impugned order, the assessee is in appeal before the ITAT. 5. The ld. AR of the assessee reiterated the submissions made before the ld. CIT(A) and submitted that the ld.CIT(A) has not considered the judicial precedents relied by assessee properly. He also submitted a small written synopsis and a paper book containing 91 pages which are placed on record. The ld. AR has also relied on the following decisions : (i). CIT vs. Gita Duggal, 357 ITR 153 (Del.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential house to be constructed in a particular manner. The only requirement is that it should be for the residential use and not for commercial use. If there is nothing in the section which requires that the residential house should be built in a particular manner, it seems to us that the income tax authorities cannot insist upon that requirement. A person may construct a house according to his plans and requirements. Most of the houses are constructed according to the needs and requirements and even compulsions. For instance, a person may construct a residential house in such a manner that 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. It is quite common to find such arrangements, particularly post-retirement. 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. He may even arrange for his children and family to stay there, so that they are nearby, an arrangement which can be mutually supportive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. CIT reported in 2011-TIOL-01-HC- P H-IT, it is pertinent to mention that the assessee in the said case, has claimed exemption in respect of two independent residential houses situated at different locations namely one in Dilshad Colony, Delhi and the other in Faridabad and the benefit has been restricted by the court to one house since two new houses were acquired in different locations. However, the facts are distinguishable in the case of the present assessee. It is relevant to point out that the High Court of Delhi in the case of CIT Vs Gita Duggal [2013] 257 CTR 208 (Del) has held that residential house consists of several independent units cannot be permitted to act as an impediment to allow the deduction under section 54/54F of the Act. In the case of CIT v. D. Anand Basappa [2009] 309 ITR 329 (Kar) the High Court of Karnataka has held that a residential house as mentioned in section 54(1) of the Act, has to be understood in a sense that the building should be of a residential nature and the word a should not be understood to indicate a singular number. This decision has been followed by the Karnataka High Court in the case of CIT v. Smt K.G. Rukminiamma (supra). The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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