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12-04-2019, Ashok G. Chauhan, Section 54F, 27(i), 147, Tribunal Mumbai

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2 months 1 week ago #9166 by amit
Section - 54F, 27(i), 147, 32
Order Date - 12-04-2019
Favouring - Assessee Partly
Court - Tribunal Mumbai
Appellant - Ashok G. Chauhan
Respondent - ACIT
Justice - SHAMIM YAHYA, AM & SANDEEP GOSAIN, JM
Citation - 419Taxpundit201
Appeal No. - I.T.A. No. 1309/Mum/2016
Asstt. Year - 2010-11

Order

PER : Sandeep Gosain

The Present Appeal has been filed by the assessee against the order of Commissioner of Income Tax (Appeals)-32, Mumbai dated 20.01.16 for AY 2010-11 on the grounds of appeal mentioned herein below.

1 On the facts and circumstances the case The Learned Commissioner of income Tax (Appeals)-32 ought not to have considered Long Term Capital Gain Of Rs.8,50,00,000/= on Surrender of Tenancy Right in the Assessment year 2010-11.

2 The Learned Commissioner of income Tax (Appeals) 32 ought to have allowed exemption Under Section 54 F of The Income Tax Act 1961.

3 The Learned Commissioner of Income Tax (Appeals ) 32 failed to appreciate the fact that theFlat in Goa was gifted to his daughter in absolute ownership and possession he ought not to have considered the appellant as deemed owner by invoking Section 27 ( i ) of the Income Tax Act 1961 which decides deemed income under House Property.

4 The Learned Commissioner of income Tax (Appeals) 32 ought not to have accepted the additional evidence produce before him as it was relevant to decide date of transfer as in case of tenancy holding of property in possession is the most crucial evidence of tenancy right.

5 The Appellant Craves leave to add, to alter or to amend any one or more of Grounds as mentioned herein above, as and when necessary.

2. The brief facts of the case are that the assessee filed its return of income on 27.09.10 declaring total income at Rs. 1,26,99,467/- Subsequently the case was selected for scrutiny and after serving notice, the order of assessment was passed by AO u/s 143(3) r.w.s 147 of the I.T. Act thereby making additions by
invoking the provisions of section 147 of the I.T. Act. 3. Aggrieved by the order of the AO, assessee filed the appeal before Ld. CIT(A) and the Ld. CIT(A) after considering the case, partly allowed the appeal of the assessee.

4. Aggrieved by the order of CIT(A), assessee filed the present appeal before us on the grounds mentioned herein above.

Ground No. 2 & 3.

5. Since these grounds raised by the assessee are interconnected and inter related and relates to challenging the order of Ld. CIT(A) in denying the exemption u/s 54F of the I.T. Act on the ground that assessee was owner of more than one residential house, therefore we thought it fit to dispose of the same by this common order. Since these grounds goes to the roots of the case and have impact on the other grounds, therefore we dispose of the same firstly.

6. At the outset, Ld. AR appearing on behalf of the assessee reiterated the same arguments as were raised by him before Ld. CIT(A) and submitted that AO disallowed the claim of the assessee u/s 54F of the Act on the ground that the assessee was owner of two flats on the date of transfer of capital assets. AO took the view that assessee was owing two residential houses i.e. one at Holy Park CHS Ltd, Goa purchased in Dec 2003 and another at Panch Tantara-1, Versova, Andheri (west), Mumbai purchased in July, 1998. Therefore, in view of the above facts, the assessee was denied exemption u/s 54F of the Act.

6.1 It was submitted that in fact the residential flat situated at Goa was actually purchases jointly in the name of assessee as well as his wife. In this respect, Ld. AR drawn our attention to page no. 37 to 60 of the paper book, which is an agreement of Goa flat jointly purchased in the name of assessee and his wife, which prima facie reflects that the said flat was not fully and wholly owned by one person.

6.2 It was submitted that after the purchase of the said property, the share of the assessee was transferred /gifted to his daughter Ms Alisha Ashok Chauhan by way of gift deed dated 15.04.04, which is at page no. 61 to 66 of the paper book. By virtue of the above gift deed, the assessee had already relinquished his 50% share out of love and affection to his daughter Ms. Alisha Ashok Chauhan i.e. Donee and in this way, the assessee was not left with any right of ownership in t he said property, which was already transferred in the name of his daughter by way of gift deed.

6.3 Ld. AR relied upon this time to the decision of the coordinate Bench of ITAT in the case of ITO vrs. Rasiklal N. Satra (2006) 98 ITD 335 (Mum)/(2006) 100 TTJ 1039 (Mum), wherein it was held that Section 54F of the Income-tax Act, 1961- Capital Gains - Exemption of, in case of investment in residential house - Assessment year 1998-99 - Whether word 'own' appearing in section 54F includes only such residential house which is fully and wholly owned by one person and not a residential house owned by more than one person - Held, yes - Assessee claimed exemption under section 54F by investing capital gains in purchase of residential flat - Assessing Officer denied assessee's claim on ground that assessee was already a co-owner of another flat - Whether assessee not being absolute

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