TMI Blog2004 (3) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... . (b) In doing so, the Ld. CIT(A) relied upon facts that were extraneous to the issue under consideration." 2. Brief facts are that the assessee is an individual. She sold a property called Barry Villa for Rs. 11 crores, against which the assessee purchased a flat No. H-132, Maker Towers, for Rs. 6,08,15,750. The Assessing Officer found that in the conveyance the number of purchasers were three, i.e., assessee, her mother and father. Assessing Officer was of the view that the word 'purchase' is not defined in the Income-tax Act and, relying on various observations, held that there were three purchasers of the property. Consequently, the assessee was only 1/3rd purchaser. Benefit of section 54 was worked out accordingly. The assessee pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's ground was allowed. Aggrieved, the revenue is before us. 3. The learned departmental representative relied on the order of Assessing Officer. 4. The learned counsel for the assessee reiterated the arguments and contended that merely because the second and third name of mother and father were incorporated for the sake of convenience, will not detract from the fact that the assessee had purchased the property. In common practice, it is so done in movable and immovable properties, more so when a lady is the purchaser for the reason that if the property stands in a single name, the heirs and executors cannot deal with such a property in the absence of probate from the High Court in the event of unfortunate demise of the concerned person. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty Act and the commentary about co-owners' interest, which is as under: "45. Joint transfer for consideration.- Where immovable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence Act would not come in the way [Mohan Lal v. Board of Revenue AIR 1982 All. 273, 275]." The learned counsel emphasized that section 45 of T.P. Act clearly spells out that in the absence of contract to contrary the respective owners will be entitled to interest in such property in proportion to the share of money advanced, whereas in this case no monies have been advanced by the mother and father, besides by a sworn affidavit they have solemnly stated that they have no right, title or interest in the property. Consequently, there is no escape from the fact that mother and father cannot be considered as purchasers of the property having any right, title or interest therein. Order of CIT(A) was relied on. Further reliance was placed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Cement (P.) Ltd. for the proposition that the concept of "constructive ownership" to be applied to income-tax proceedings. The issue before Hon'ble Supreme Court was of depreciation. Nevertheless, it lays down a general proposition of law that in income-tax proceedings the concept of "constructive ownership" can be applied considering the facts of the case. We are of the view that the facts of the present case conform to be seen from the gloss of the Hon'ble Supreme Court judgment in the case of Podar Cement (P.) Ltd., which also helps the case of the assessee. In consideration of all the above facts, observations and case laws, we hold that the assessee is purchaser of the flat and the entire amount spent by her has to be considered tow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chitect. The residential house was in a state of general disrepair and was unhabitable. Consequently, the necessary repairs carried out to make the same habitable would constitute part of the cost of new house. The Commissioner (Appeals) was not justified in enhancing the assessment by excluding the amount of Rs. 14,94,359 while working out deduction under section 54. The enhancement, was, therefore, deleted." It was contended that the assessee furnished all the details about the repairs of the new flat before occupation to the lower authorities contending that the flat purchased was not occupied by the previous owner but was let out from time to time, due to which the same was left in a bad condition. The assessee had to carry out extens ..... X X X X Extracts X X X X X X X X Extracts X X X X
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