TMI Blog1990 (4) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... m May 27, 1981, to July 1, 1983, the flat in Kalpana was let out to the Bank of Baroda, his employers. For the assessment year 1980-81, the petitioner claimed that the surplus of Rs. 75,860 arising on the sale of his flat in Suvarnadeep on October 24, 1979, was not taxable as he had invested more than the said amount in the purchase of a flat in Kalpana on July 26, 1980, for residence. The Income-tax Officer partly accepted the claim and held that the surplus was invested in the purchase of a flat in Priyadarshini, Khar on October 24, 1979, and not in the purchase of a flat in Kalpana, Santacruz, on July 26, 1980, as claimed. The petitioner filed a revision petition under section 264 of the Income-tax Act, 1961, which was rejected by the Commissioner of Income-tax, vide order dated February 5, 1985. It is pertinent to mention that two issues, viz., (i) whether the petitioner had a choice to choose the property against which the capital gains which had arisen on the transfer of a capital asset are to be adjusted ; and (ii) whether the property purchased but not actually used for residence for three years fulfils the requirement of section 54(1) of the Income-tax Act, 1961, were ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in revision was not appealable, Dr. Balasubramanian stated that it was due to a conscious provision made by the Legislature in this behalf. The petitioner had chosen not to go in appeal and to avail of a remedy which was available. In any event, that fact by itself would not entitle the petitioner to invoke the writ jurisdiction of this court as a matter of course. The contentions were repelled by Shri Sonde, learned counsel for the petitioner. It was pointed out that though extraordinary, the jurisdiction under article 226 was discretionary. When the petition has already been entertained, it may not be proper, or legal for the same court to consider the question of entertaining it once again at the time of final hearing. In my judgment, the petition having already been entertained and the jurisdiction being, though extraordinary, discretionary, I will prefer to dispose of the petition on merits. This was also the view taken by this court (Goa Bench) in Writ Petition No. 174/B/ 1981 decided on August 2, 1984. In order to appreciate the rival contentions on merits of the petition, it is desirable to refer to the provisions of section 54 of the Income-tax Act as they were in forc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner from 1973 to 1979 for his own residence and income from it, if any, would have been chargeable under the head "income from house property". The second condition for availing of the relief is that the assessee must within a period of one year before or after the date of transfer of such a capital asset, purchase or within period of two years after that date, construct a house property for his own residence. In this case, both the house properties, i.e., the flat in Priyadarshini and the flat in Kalpana, were purchased by the petitioner within one year of the date of the sale of the flat in Suvarnadeep and both the flats were purchased for the purpose of residence. In the absence of any provision to the contrary, in my judgment, the petitioner is entitled to avail of the relief in respect of the capital gain arising on the sale of his flat in 1979 against the flat purchased in that year as also against the flat purchased on July 26, 1980. It has, of course, to be adjusted against one of the flats only. The petitioner has chosen to seek that relief against the purchase of the flat on July 26, 1980, and, as held by the Commissioner in his order under section 264 of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e second decision in the case of CIT v. Natu Hansraj [1976] 105 ITR 43, the Gujarat High Court held that no single factor including whether or not the property newly acquired by the assessee was wholly or substantially acquired by him for the purpose of his own residence after purchase or construction, as the case may be, would be determinative of the matter. Even if the new property was not substantially put to use for his own residential purposes by the assessee within a reasonable time and if the failure to do so was without any fault on his part, that is, by reason of some unforeseen subsequent events or supervening circumstances, it might still be possible to hold in a given case, provided other circumstances point in that direction, that the real relief, intention or motive entertained by the assessee at or about the time of purchase or construction as regards the use of the newly acquired house property was to occupy it himself. From the above two decisions of the Gujarat High Court, it can fairly be inferred that the petitioner in the present case had purchased the new flat in Kalpana on July 26, 1990, for his own residence. He resided in that flat until his transfer to B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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