TMI Blog2018 (5) TMI 1583X X X X Extracts X X X X X X X X Extracts X X X X ..... the ssessee arise out of the order for the Asst Year 2012-13 of the Learned Commissioner of Income Tax (Appeals)-10, Kolkata [in short the Ld. ITA] in Appeal No. 34/CIT(A)-10/Cir-36/2015-16/Kol dated 02.05.2016 against the order passed by the D.C.I.T- Circle-36, Kolkata [ in short the ld AO] under section 143(3) of the Act dated 27.03.2015 for the Asst Year 2012-13. First let us take up the revenue appeal 2. Though the revenue had raised several grounds before us, the only effective issue to be decided in this appeal is as to whether the ld CITA was justified in granting exemption u/s 54 of the Act in respect of reinvestment made by the assessee in three houses, in the facts and circumstances of the case. 3. The brief facts of this issue are that the assessee is a lady senior citizen. The assessee on 08.07.1988, along with her two sister-In-laws purchased a piece of land for construction of residential house property at 7, Gulmohar Avenue, Rajpkari, New Delhil10038 and constructed a house along with her two sister-in-laws on the said purchased land. On 11.09.1997, a family settlement with other two sister-In-laws released their share in respect of the land and build ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of Loyalkas having common entry and exit gate and Common outer boundary walls. Letters and documents are delivered at one place, and the reception area is common. Common worship place is used by the family members. Common kitchen and dining space is used by all family members. Common garden and greenery lanes are used by family members. Common garden and greenery lanes are there for the common use for the family members. Common car parking lot, common facility for guest, guest room for family guest, common generator and, common Drainage and Rainwater harvesting, common and combined rainwater harvesting water pipes for the group of three buildings, common facility for the domestic helps, connectivity through common passage and arrangements on Ground floor, first floor, terrace. Communication connectivity through common phone lines in the three buildings and common Garbage disposal area. The assessee submitted that though there are 3 residential buildings, it is actually one residential house serving the same purpose as the old house did, that is being the residence of the Loyalkas. The assessee claimed exemption u/s 54 of the Act in respect of reinvestment made in 3 new resid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... buildings or flats at different locations. The zeal and desire of living together in one residence was important factor to have residence at the same location. 5. The ld AO on perusal of the various documents filed before him observed that a) Payment receipt given by District Town Planner, Gurgaon and various correspondences / receipts made by DLF Ltd in respect of any action / intimation are given separately for each plot ; b) The electricity bills were issued separately by the local Electricity Board / Nigam for each of the residential houses constructed on the three separate plots; c) Even for the construction or other materials required for construction of your house on the said plots and / or services have been taken of the interior designer, the supplier / designer raised bill separately for each of the plots ; d) From the copy of occupation certificate, it is seen that the competent authority has granted permission for the occupation of the residential houses constructed on each of the plots vide separate occupation certificate. 5.1. The ld AO also observed that the legislature in its wisdom had provided exemption u/s 54 of the Act only in respect of reinv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 33,45,47,636/- as against ₹ 33,50,00,000/- claimed originally. Accordingly, the difference of ₹ 4,52,364/- was added to the total income of the assessee. Based on the aforesaid observations, the ld AO held that the assessee is allwoed to claim exemption u/s 54 of the Act to the tune of ₹ 11,68,03,844/- in respect of one residential house constructed at Plot 4/5, which bears the highest cost amongst the three houses, and balance claim of ₹ 21,77,43,792/- was disallowed and added to the total income of the assessee. 6. The ld CITA observed that during the course of appeal hearing, the asseseee filed documents which partook the nature of additional evidences, as the same was not filed before the ld AO. This document was a copy of an order from the Directorate General, Town Country Planning, Haryana to the effect confirming that all the three plots on which 3 row houses have been constructed is a combined single plot. The said evidence was not filed before the ld AO, the same was admitted and treated as additional evidence and accordingly the ld AO was requested to forward a remand report in the matter in terms of Rule 46A of the Income Tax Rules, af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allow movement within the houses and by having the following common infrastructure. Stating these facts, the District Town Planner, Gurgaon (Planning), Department of Town and Country Planning, HUDA Office Complex, Sector -14, Gurgaon, had addressed a letter in Memo No. DTP(G)/2015/1923 dated 14.8.2015 addressed to The Director General, Town Country Planning, Haryana, Chandigarh with a request for permission of clubbing the plots G-4/5, G-4/6 and 6/6, DLF Phase-I. Gurgaon as a combined plot and consequentially issuing a combined occupancy certificate. This letter is enclosed in page 30 of the paper book. We find that in this letter, it has been specifically mentioned by the District Town Planner, Gurgaon, that the ownership of the 3 plots pertain to the same applicant and their family is living together having common electrical, common water, common storage, common guard room, common boundary wall, common garden, common pathways and inter connected the building using steel bridges to allow movement within the houses and connect them. We find that the combined zoning plan also has been submitted before the Directorate General, DTCP, Haryana, Chandigarh. On perusal of al the relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion certificate well within time. The approval was issued by Municipal Authority on 10.10.2008 . The revenue disallowed the claim of deduction u/s 80IB(10) of the Act on the ground that the completion certificate was not obtained on or before 31.3.2008. The Hon ble Bombay High Court held that the assessee is entitled for deduction u/s 80IB(10) of the Act as the assessee had preferred an application within time for seeking completion certificate and the delay in issuance of the same by the Municipal Authority is not attributable to the assessee. We hold that the modified occupancy certificate as a combined single plot would relate back to the original date of certificate issued by the competent authority. We also hold that the principle of Doctrine of Relation Back would certainly come to the rescue for the assessee herein. The Black Law s Dictionary defines relation back as :- The doctrine that an act done at a later time is, under certain circumstances, treated as though it occurred at an earlier time . The Hon ble Supreme Court in the case of Delhi Jal Board vs Mahinder Singh reported in (2000) 7 SCC 210 in the context of Service Jurisprudence had applied this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing common entry and exit gate and Common outer boundary walls. Letters and documents are delivered at one place, and the reception area is common. Common worship place is used by the family members. Common kitchen and dining space is used by all family members. Common garden and greenery lanes are used by family members. Common garden and greenery lanes are there for the common use for the family members. Common car parking lot, common facility for guest, guest room for family guest, common generator and, common Drainage and Rainwater harvesting, common and combined rainwater harvesting water pipes for the group of three buildings, common facility for the domestic helps, connectivity through common passage and arrangements on Ground floor, first floor, terrace. Communication connectivity through common phone lines in the three buildings and common Garbage disposal area. We have already stated hereinabove that the modified occupancy certificate has been issued to the assessee considering the entire building as a combined single building. Hence even as per the ld AO s own analogy, the ratio laid down by various high courts in the aforesaid decisions would be squarely applicable t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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