ITO, CHENNAI V. Prof.K.Radha Shanmugasundaram, CHENNAI

ITA 1243/CHNY/2009

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 77379 (ITAT-CHENNAI)
• Duration Of Justice: 4 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 03-06-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 04-08-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: S SRIDHAR
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 50C; 54F

Judgement Text

, , IN THE INCOME-TAX APPELLATE TRIBUNAL A BENCH, CH ENNAI. . , . !' !' !' !' , # # # # $ $ $ $ BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER & SHRI V. DURGA RAO, JUDICIAL MEMBER ./ I.T.A.NO.1243/MDS/2009 # ' %' / ASSESSMENT YEAR :2006-07 THE INCOME TAX OFFICER, SALARY WARD II(3), CHENNAI - 34. VS. PROF. K. RADHA SHANMUGASUNDARAM, NO.9, 2 ND CROSS STREET, SEETHAMMA EXTENSION, TEYNAMPET, CHENNA I 600 018. [PAN : AEJPR6424E] ( &' &' &' &' /APPELLANT ) ( ()&' ()&' ()&' ()&' / RESPONDENT ) &' * + / APPELLANT BY : SHRI SHAJI P. JACOB, ADDL. CIT ()&' * + / RESPONDENT BY : SHRI S. SRIDHAR, ADVOCATE * , / DATE OF HEARING : 03.06.2014 -% * , /DATE OF PRONOUNCEMENT : 04.07.2014 . . . . / O R D E R PER V. DURGA RAO, JUDICIAL MEMBER : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IV, CHENNA I, DATED 26.05.2009 RELEVANT TO THE ASSESSMENT YEAR 2006-07. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S AN INDIVIDUAL, FILED HER RETURN ADMITTING TOTAL INCOME OF ` . 1,89,442/-. THE RETURN FILED BY THE ASSESSEE WAS SELECTED FOR SCRUTINY AND A NOTICE UND ER SECTION 143(2) OF THE INCOME TAX ACT WAS ISSUED. AFTER DUE PROCESS, THE A SSESSING OFFICER HAS ASSESSED THE TOTAL INCOME OF THE ASSESSEE AT ` .1,52,27,380/-. IN THE I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1243 1243 1243 1243/M/ /M/ /M/ /M/09 0909 09 2 ASSESSMENT ORDER THE ASSESSING OFFICER HAS OBSERVED THAT THE ASSESSEE HAD ENTERED INTO A JOINT DEVELOPMENT AGREEMENT WITH M/S. CHETTINAD PROPERTY DEVELOPERS (P) LTD. ON 28.04.2005 AND AGRE ED TO TRANSFER 60% OF THE UNDIVIDED INTEREST IN THE VALUE OF THE LAND [TO TAL AREA MEASURING 43 CENTS I.E., 18763 SQ.FT.] TO THE DEVELOPER I.E. CHETTINAD PROPERTY DEVELOPERS P. LTD. ACCORDINGLY, THE ASSESSING OFFICER HAS CALCULATED C APITAL GAINS IN ACCORDANCE WITH THE UNREGISTERED JOINT VENTURE DEVE LOPMENT AGREEMENT ENTERED INTO ON 28.04.2005 BY THE ASSESSEE WITH CHE TTINAD PROPERTY DEVELOPERS P. LTD. 3. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFOR E THE LD. CIT(APPEALS) AND BY POINTING OUT BEFORE THE LD. CIT(APPEALS) THA T EVEN THE JOINT DEVELOPMENT AGREEMENT ENTERED INTO BY THE ASSESSEE WAS UNREGISTERED, THE ASSESSING OFFICER OUGHT TO HAVE BEEN CALCULATED CAP ITAL GAINS AS PER SECTION 50C OF THE ACT. THE LD. CIT(APPEALS), AFTER CONSIDE RING THE SUBMISSIONS OF THE ASSESSEE, HAS OBSERVED THAT THE ASSESSEE HAS TR ANSFERRED 60% OF THE UNDIVIDED SHARE OF THE LAND IN FAVOUR OF THE DEVELO PER ON 28.04.2005. THE GUIDELINE VALUE PER SQ.FT. WAS CONSIDERED FOR STAMP DUTY PURPOSES ON THE SAID DATE OUGHT TO HAVE BEEN CONSIDERED BY THE ASSE SSING OFFICER UNDER THE PROVISIONS OF SECTION 50C OF THE ACT, WHICH IS MAND ATORY IN APPLICATION IN RESPECT OF THE TRANSFER OF IMMOVABLE PROPERTY. 4. ON BEING AGGRIEVED, THE REVENUE CARRIED THE MAT TER IN APPEAL BEFORE THE TRIBUNAL. I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1243 1243 1243 1243/M/ /M/ /M/ /M/09 0909 09 3 5. THE LD. DR HAS SUBMITTED THAT AS ON 28.04.2005, THE ASSESSEE HAD TRANSFERRED 60% OF UNDIVIDED INTEREST IN THE VALUE OF THE LAND TO M/S. CHETTINAD PROPERTY DEVELOPERS (P) LTD. AND ACCORDIN GLY, THE ASSESSING OFFICER HAS CALCULATED CAPITAL GAINS. THE LD. CIT(A PPEALS) ALSO GAVE A CATEGORICAL FINDINGS THAT THE TRANSFER TO THE EXTEN T OF 60% OF UNDIVIDED AREA OF LAND IN FAVOUR OF THE DEVELOPER HAS BEEN TAKEN P LACE ON 28.04.2005. THIS FINDINGS OF THE LD. CIT(APPEALS) WAS NOT CHALLENGED BY THE ASSESSEE. THEREFORE, IT BECOME FINAL THAT TO THE EXTENT OF 60 % INTEREST IN THE SCHEDULE PROPERTY HAS BEEN TRANSFERRED TO THE DEVELOPER AS O N 28.04.2005 AND THE ASSESSEE IS LIABLE TO PAY THE CAPITAL GAINS, FOR TH AT HE RELIED ON THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SMT. SOWCAR JANAKI V. ITO [2013] 40 TAXMANN.COM 131 (CHENNAI TRIB.). 6. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSE SSEE HAS SUBMITTED THAT AS ON 28.04.2005, ONLY JOINT DEVELOPMENT AGREE MENT WAS ENTERED INTO BY THE ASSESSEE AND THERE IS NO TRANSFER OF CAPITAL ASSET AND THEREFORE, NO CAPITAL GAINS ARISE. HE RELIED ON THE DECISION OF T HE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF RANJIT NARANG V. CIT [2009] 31 7 ITR 332 (ALL). 7. IN SO FAR AS APPLICATION OF 50C OF THE ACT IS C ONCERNED, THE LD. DR HAS SUBMITTED THAT THE JOINT DEVELOPMENT AGREEMENT ENTE RED INTO WAS UNREGISTERED. THE AMENDMENT MADE BY THE FINANCE (NO .2) ACT, 2009 APPLIES FROM 01.10.2009 AND FOR THAT HE RELIED ON T HE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. R. SUGANTHA RAVINDRAN [2013] I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1243 1243 1243 1243/M/ /M/ /M/ /M/09 0909 09 4 90 DTR (MAD) 363 AND ALSO THE DECISION OF THE COORD INATE BENCH OF THE TRIBUNAL IN THE CASE OF ITO V. SHRI K.R. RAVI KUMAR IN I.T.A. NO. 1904/MDS/2008 FOR ASSESSMENT YEAR 2006-07 DATED 17. 07.2009. 8. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSE SSEE HAS SUBMITTED THAT SECTION 50C OF THE ACT APPLIES TO EVEN UNREGIS TERED SALE AGREEMENT ALSO AND STRONGLY SUPPORTED THE ORDER PASSED BY THE ASSE SSING OFFICER. 9. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE ASSESS EE HAD EXECUTED AN AGREEMENT WITH M/S. CHETTINAD PROPERTY DEVELOPERS ( P) LTD. ON 28.04.2005 FOR SALE OF 60% OF UNDIVIDED SHARE OF THE LAND IN A CONSIDERATION OF SELF CONTAINED HOUSES/FLATS OUT OF TOTAL BUILT UP AREA O F 24,000 SQ.FT. AS PER THE DEVELOPMENT AGREEMENT ENTERED INTO BY THE ASSESSEE DATED 28.04.2005, THE ASSESSEE HAS CONVEYED UNDIVIDED LAND AT 60% OF THE TOTAL LAND ADMEASURING 43 CENTS WHICH ACCORDING TO THE ASSESSING OFFICER I S TRANSFER OF PROPERTY AS PER SECTION 2(47)(V) OF THE ACT. THE ASSESSEE HAS A LSO RECEIVED ` .10.00 LAKHS AT THE TIME OF SIGNING OF DEVELOPMENT AGREEME NT, ` .5.00 LAKHS, 3 MONTHS AFTER THE APPROVAL OF THE BUILDING PLAN AND ` .6.00 LAKHS AT THE TIME OF HANDING OVER OF OWNERS SHARE OF FLATS. THEREFORE, THE ASSESSING OFFICER CAME TO A CONCLUSION THAT THE ASSESSEE HAD TRANSFER RED THE 60% INTEREST IN THE LAND AS ON 28.04.2005 AND ACCORDINGLY CALCULATE D THE CAPITAL GAINS. ON APPEAL, THE LD. CIT(APPEALS) GAVE A CATEGORICAL FIN DING THAT THE TRANSFER OF 60% OF THE UNDIVIDED AREA IN FAVOUR OF THE DEVELOPE R HAS BEEN TAKEN PLACE I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1243 1243 1243 1243/M/ /M/ /M/ /M/09 0909 09 5 ON 28.04.2005 TO THE EXTENT OF LAND ALONE. THIS FIN DING OF THE LD. CIT(APPEALS) WAS NOT CHALLENGED BY THE ASSESSEE. AF TER CAREFULLY CONSIDERING THE ASSESSMENT ORDER AND CIT(APPEALS)S ORDER, WE FIND THAT WHEN THE ASSESSEE HAD ENTERED INTO A JOINT DEVELOPM ENT AGREEMENT WITH M/S. CHETTINAD PROPERTY DEVELOPERS (P) LTD. ON 28.0 4.2005, THE ASSESSEE HAS TRANSFERRED 60% OF THE UNDIVIDED INTEREST IN TH E VALUE OF THE PROPERTY AND SHE ALSO RECEIVED CONSIDERATION OF ` .10.00 LAKHS, ` .5.00 LAKHS AND ` .6.00 LAKHS AND THE TOTAL CONSIDERATION IS ` .21.00 LAKHS. THEREFORE, THE ASSESSEE HAS TRANSFERRED THE LAND OF 60% TO M/S. CHETTINAD P ROPERTY DEVELOPERS (P) LTD. AS PER SECTION 2(47)(V) OF THE ACT AND APART F ROM THAT THE FINDINGS OF LD. CIT(APPEALS) THAT TRANSFER OF 60% OF UNDIVIDED LAND IN FAVOUR OF THE DEVELOPER HAS BEEN TAKEN PLACE ON 28.04.2005 HAS BE COME FINAL. IN THIS CONTEXT, THE COORDINATE BENCH OF THIS TRIBUNAL IN T HE CASE OF SMT. SOWCAR JANAKI V. ITO (SUPRA) HAS HELD THAT WHERE AS PER S ALE AND JOINT DEVELOPMENT AGREEMENT WAS TO HANDOVER VACANT POSSESSION OF PROP ERTY WITH TITLE DEEDS BEFORE 31.03.2003 AND FURTHER ASSESSEE ALSO GAVE PO WER OF ATTORNEY TO PROMOTER ON 30.12.2002 EMPOWERING PROMOTER TO SELL FLATS ON BEHALF OF ASSESSEE, THERE WAS A TRANSFER WITHIN MEANING OF SE CTION 2(47) IN RESPECT OF PROPERTY IN ASSESSMENT YEAR 2003-04. BY TAKING INTO CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO BY FOL LOWING THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL, WE HOLD THAT THE ASSESSEE HAS TRANSFERRED TO THE EXTENT OF 60% OF THE UNDIVIDED AREA OF LAND TO THE DEVELOPER AS ON I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1243 1243 1243 1243/M/ /M/ /M/ /M/09 0909 09 6 28.04.2005. THEREFORE, THE ASSESSING OFFICER HAS CO RRECTLY CALCULATED THE CAPITAL GAINS. THE CASE LAW RELIED ON BY THE LD. CO UNSEL FOR THE ASSESSEE HAS NO APPLICATION TO THE FACTS OF THE CASE. 10. SO FAR AS APPLICATION OF SECTION 50C OF THE AC T IS CONCERNED, IT IS NOT DISPUTED THAT THE JOINT DEVELOPMENT AGREEMENT ENTER ED INTO BY THE ASSESSEE WAS UNREGISTERED. THE CASE OF THE REVENUE IS THAT W HEN THE ASSESSEE HAD ENTERED INTO UNREGISTERED JOINT DEVELOPMENT AGREEME NT WITH THE DEVELOPER, SECTION 50C OF THE ACT HAS NO APPLICATION FOR THE A SSESSMENT YEAR UNDER CONSIDERATION. HOWEVER, THE LD. CIT(APPEALS) WAS OF THE OPINION THAT IT IS MANDATORY ON THE PART OF THE ASSESSING OFFICER TO A PPLY SECTION 50C AND DIRECTED THE ASSESSING OFFICER TO APPLY SECTION 50C . IN THIS CONTEXT, SO FAR AS APPLICATION OF SECTION 50C IS CONCERNED, THE HONBL E JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V. R. SUGANTHA RAVINDRAN [ 2013] 90 DTR (MAD) 363 HAS CONSIDERED SIMILAR ISSUE AND THE HEAD-NOTE OF I TS JUDGEMENT READS AS UNDER: CAPITAL GAINS COMPUTATION APPLICABILITY OF S.5 0C STAMP DUTY VALUATION VIS-A-VIS ABSENCE OF REGISTRATION AS PE R CIRCULAR NO. 5 OF 2010, DT. 3 RD JUNE, 2010, THE AMENDMENT MADE BY THE FINANCE (NO. 2) ACT, 2009 IS ONLY PROSPECTIVE IN NATURE AND CANNOT BE APPLIED RETROSPECTIVELY BEFORE INTRODUCING THE SAID AMEND MENT, ONLY THE TRANSFERS OF PROPERTIES WHERE THE VALUE ADOPTED OR ASSESSED BY THE STAMP VALUATION AUTHORITY WERE SUBJECTED TO S. 50C APPLICATION HOWEVER, AFTER INTRODUCTION OF THE WORDS OR ASSESS ABLE AFTER THE WORDS ADOPTED OR ASSESSED, SUCH TRANSFERS WHERE T HE VALUE ASSESSABLE BY THE STAMP VALUATION AUTHORITY ARE ALS O BROUGHT INTO THE AMBIT OF S. 50C ASSESSEES TRANSFER ADMITTEDLY MA DE EARLIER TO SUCH AMENDMENT CANNOT BE BROUGHT UNDER S. 50C. I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1243 1243 1243 1243/M/ /M/ /M/ /M/09 0909 09 7 11. IN ANOTHER CASE, THE COORDINATE BENCH OF THE T RIBUNAL IN I.T.A. NO. 1904/MDS/2008 IN THE CASE OF ITO V. SHRI K.R. RAVI KUMAR FOR THE ASSESSMENT YEAR 2006-07 VIDE ORDER DATED 17.07.2009 , THE TRIBUNAL HAS HELD THAT IT IS CLEAR THAT UNTIL AND UNLESS THERE IS A TRANSFER OF CAPITAL ASSET BEING LAND AND BUILDING BY WAY OF REGISTERED SALE D EED, THE DEEMING PROVISION OF SECTION 50C OF THE ACT WOULD NOT APPLY . MOREOVER, AS PER THE EXPLANATORY NOTE EXPLAINING THE PROVISIONS IN FINAN CE (NO.2) BILL, 2009 REPORTED IN INCOME TAX REPORTS (STATUTES), VOLUME 3 14, THE SCOPE OF THE EXISTING PROVISIONS OF SECTION 50C DOES NOT INCLUDE THE TRANSACTION WHICH ARE NOT REGISTERED WITH THE STAMP DUTY VALUATION AUTHOR ITY AND EXECUTED THROUGH AGREEMENT TO SELL OR POWER OF ATTORNEY AND THE AMEN DMENT PROPOSED WILL TAKE EFFECT ONLY FROM 1 ST OCTOBER, 2009, IF ANY AND HENCE, WE FIND NO ERROR OR ILLEGALITY IN THE ORDER OF THE LD. CIT(APPEALS) AND THE SAME IS UPHELD. IN THE PRESENT CASE, THE ASSESSEE HAD ENTERED INTO AN UNRE GISTERED JOINT DEVELOPMENT AGREEMENT ON 28.04.2005 AND THE ORDER P ASSED BY THE LD. CIT(APPEALS) WAS DATED 26.05.2009. THEREFORE, WE AR E UNABLE TO UNDERSTAND AS TO WHAT WAS THE BASIS FOR THE LD. CIT (APPEALS) TO COME TO A CONCLUSION THAT THE ASSESSING OFFICER OUGHT TO HAVE BEEN APPLIED SECTION 50C OF THE ACT. IN THIS CASE, THE LD. CIT(APPEALS), WITHOUT CONSIDERING THE APPLICATION OF PROVISIONS OF SECTION 50C, SIMPLY CA LCULATED THE CAPITAL GAINS BY APPLYING SECTION 50C OF THE ACT. IN VIEW OF THE ABOVE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CI T V. R. SUGANTHA I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1243 1243 1243 1243/M/ /M/ /M/ /M/09 0909 09 8 RAVINDRAN (SUPRA) AND ALSO BY CONSIDERING THE DECIS ION OF THE COORDINATE BENCH IN THE CASE OF ITO V. SHRI K.R. RAVI KUMAR (S UPRA), WE REVERSE THE FINDINGS OF THE LD. CIT(APPEALS) ON THIS ISSUE AND HOLD THAT SECTION 50C HAS NO APPLICATION TO ASSESSEES CASE. 12. IN SO FAR AS EXEMPTION UNDER SECTION 54F IS CO NCERNED, IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS OBSERVE D THAT THE ASSESSEE HAS MADE CONSTRUCTION OF FOUR SELF-CONTAINED FLATS APART FROM THE BUNGALOW CLAIMED AS EXEMPTION UNDER SECTION 54F OF THE ACT, EVEN THOUGH ALL SUCH FLATS ARE RECEIVED BY THE ASSESSEE ARE CONSIDERATIO N IN KIND WITH RESPECT TO SALE OF UNDIVIDED SHARE OF LAND, THE AVAILING OF EX EMPTION UNDER SECTION 54F IS BASED ON THE APPLICATION OF NET SALE CONSIDERATI ON RECEIVED OR RECEIVABLE. IN THIS ASSESSMENT, THE APPLICATION OF SALE CONSIDE RATION WAS DONE BY THE ASSESSEE IN VARIOUS RESIDENTIAL FLATS/HOUSES. HENCE , BY APPLYING THE PROVISO TO SECTION 54F, THE ASSESSING OFFICER DENIED EXEMPT ION UNDER SECTION 54F OF THE ACT IN RESPECT OF THE BUNGALOW ALSO. 13. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(APPEALS) AND THE LD. CIT(APPEALS), AFTER CONSID ERING THE WRITTEN SUBMISSION MADE BY THE AR OF THE ASSESSEE, HAS HELD AS UNDER: 6.3 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND RIVAL SUBMISSIONS. THE LEARNED ASSESSING OFFICER HAS NOT GRANTED EXEMPTION U/S 54F ON THE CAPITAL GAINS ARRIVED AT BY HIM. THE ARGUMENT OF THE LEARNED ASSESSING OFFICER IS THAT THE APPELLANT HAS MADE CONSTRUCTION OF FOUR SELF-CONTAINED FLATS APART FROM THE BUNGALOW C LAIMED AS EXEMPTION U/S. 54F OF THE IT ACT. IN VIEW OF THE ABOVE, THE L EARNED ASSESSING I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1243 1243 1243 1243/M/ /M/ /M/ /M/09 0909 09 9 OFFICER HAS ALSO QUOTED THE PROVISIONS CONTAINED SU B-SECTION (1) TO 54F. THE SAME IS REPRODUCED HEREUNDER: '54F(1): SUBJECT TO THE PROVISIONS OF SUB-SECTION ( 4), ...... THE CAPITAL GAIN ARISES FROM THE TRANSFER OF ANY LONG TERM CAPI TAL ASSET, NOT BEING A RESIDENTIAL HOUSE (HEREINAFTER IN THIS SECTION REFE RRED TO AS THE ORIGINAL ASSET), AND THE ASSESSEE HAS, WITHIN A PERIOD OF ON E YEAR BEFORE OR TWO YEARS AFTER THE DATE ON WHICH THE TRANSFER TOOK PLA CE PURCHASED, OR WITHIN A PERIOD OF THREE YEARS AFTER THAT DATE CONS TRUCTED, A RESIDENTIAL HOUSE (HEREINAFTER IN THIS SECTION REFERRED TO AS T HE NEW ASSET), THE CAPITAL GAIN ........ (A) .......... (B) .......... PROVIDED THAT NOTHING CONTAINED IN THIS SUB-SECTION SHALL APPLY WHERE-- --- (A) THE ASSESSEE, ...... . (I) OWNS MORE THAN ONE RESIDENTIAL HOUSE, OTHER TH AN THE NEW ASSET ON THE DATE OF TRANSFER OF THE ORIGINAL ASSET ; OR (II) PURCHASES ANY RESIDENTIAL HOUSE, OTHER THAN T HE NEW ASSET, WITHIN A PERIOD OF ONE YEAR AFTER THE DATE O F TRANSFER OF THIS ORIGINAL ASSET; OR (III) ..........' THE ARGUMENT OF THE LEARNED AR IS THAT, CONSTRUCTIO N OF THE NEW RESIDENTIAL HOUSE HAS TAKEN PLACE ONLY IN THE PREVI OUS YEAR 2008-09 AND ACCORDINGLY, THE EXEMPTION U/S. 54F CAN AT THE MOST BE ASSESSED TO CAPITAL GAIN IN THE ASSESSMENT YEAR 2009-2010 BY VI RTUE OF THE PROVISION OF SUB-SECTION 2 OF SECTION 54F. HOWEVER, IN THE ASSESSMENT YEAR 2006-07, IT IS SEEN THAT THE APPELLANT DOES NOT OWN MORE THAN ONE FLAT AND THE S AME HAS NOT BEEN DISPUTED BY THE ASSESSING OFFICER ALSO. HENCE, IT I S NOT FAIR TO REJECT THE EXEMPTION CLAIMED BY THE APPELLANT U/S. 54F ATLEAST FOR THE ASSESSMENT YEAR 2006-07. THE FINALITY OF OWNERSHIP OF FLATS OW NED BY THE APPELLANT IS CRYSTALLISED IN THE FINANCIAL YEAR 2008-09 RELEV ANT TO THE ASSESSMENT YEAR 2009-2010 ONLY IN VIEW OF THE HON'BLE DELHI HI GH COURT DECISION AS MENTIONED IN PARA 5.3.1 OF PAGE 5 OF THIS ORDER AND ACCORDINGLY, THE ACTION OF THE LEARNED ASSESSING OFFICER IN REJECTIN G THE EXEMPTION CLAIMED BY THE APPELLANT U/S. 54F IS NOT JUSTIFIED IN THE ASSESSMENT YEAR 2006-07. HENCE, THE LEARNED ASSESSING OFFICER IS DI RECTED TO ALLOW EXEMPTION U/S. 54F. HOWEVER, THE LEARNED ASSESSING OFFICER MAY I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1243 1243 1243 1243/M/ /M/ /M/ /M/09 0909 09 10 CONSIDER THIS ISSUE IN THE ASSESSMENT YEAR 2009-10. THEREFORE THE APPELLANT GETS RELIEF TO THIS EXTENT. THIS GROUND A PPEAL IS ALLOWED. 14. THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 15. THE LD. DR HAS RELIED ON THE ORDER PASSED BY T HE ASSESSING OFFICER. 16. THE LD. COUNSEL FOR THE ASSESSEE HAS STRONGLY SUPPORTED THE ORDER PASSED BY THE LD. CIT(APPEALS). 17. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIAL S ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS AN A DMITTED FACT THAT THE ASSESSMENT YEAR UNDER CONSIDERATION IS 2006-07 AND THE ASSESSEE DOES NOT OWN MORE THAN ONE FLAT. THE FINALITY OF OWNERSHIP O F THE FLAT WAS CRYSTALLIZED IN THE FINANCIAL YEAR 2008-09 RELEVANT TO THE ASSES SMENT YEAR 2009-10. THIS FINDING WAS GIVEN BY THE LD. CIT(APPEALS). THE LD. CIT(APPEALS), FURTHER OBSERVED THAT THE ASSESSING OFFICER WAS NOT JUSTIFI ED IN REJECTING EXEMPTION AS CLAIMED UNDER SECTION 54F FOR THE ASSESSMENT YEA R 2006-07 AND DIRECTED THE ASSESSING OFFICER TO ALLOW EXEMPTION UNDER SECT ION 54F OF THE ACT AND ALSO HELD THAT THE ASSESSING OFFICER MAY CONSIDER T HIS ISSUE IN THE ASSESSMENT YEAR 2009-10. AFTER CONSIDERING THE ENTI RE MATERIALS ON RECORD, WE FIND THAT THE ASSESSING OFFICER WAS NOT JUSTIFIE D IN REJECTING CLAIM OF EXEMPTION UNDER SECTION 54F WITHOUT GIVING PROPER R EASON. THE LD. CIT(APPEALS) HAS PASSED A BLANKET ORDER DIRECTING T HE ASSESSING OFFICER TO GRANT 54F OF THE ACT. IN THIS CONTEXT, THE COORDINA TE BENCH OF THE TRIBUNAL HAS CONSIDERED SIMILAR ISSUE IN THE CASE OF SMT. C. ANURADHA V. ITO IN I.T.A. I.T.A. I.T.A. I.T.A. I.T.A. NO. NO. NO. NO.1243 1243 1243 1243/M/ /M/ /M/ /M/09 0909 09 11 NO. 952/MDS/2012 FOR THE ASSESSMENT YEAR 2003-04 VI DE ORDER DATED 06.07.2012 AND HELD THAT THE BENEFIT OF SECTION 54F IS AVAILABLE ONLY TO SINGLE RESIDENTIAL UNIT AND ALSO WE MAKE IT CLEAR THAT THE ASSESSEE IS AT LIBERTY TO CHOOSE THE UNIT FOR BENEFIT UNDER SECTION 54F OF TH E ACT. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER OF THE LD. CIT(APPEAL S) AND MODIFY THE ORDER PASSED BY THE LD. CIT(APPEALS) BY DIRECTING THE ASS ESSING OFFICER THAT THE ISSUE OF 54F SHALL BE CONSIDERED AFRESH BY KEEPING IN VIEW OF THE DECISION OF THE COORDINATE BENCH IN THE CASE OF C. ANURADHA (SU PRA) AND DECIDE THE ISSUE AFTER ALLOWING SUFFICIENT OPPORTUNITY OF HEAR ING TO THE ASSESSEE. 18. IN THE RESULT, THE APPEAL OF THE REVENUE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON FRIDAY, THE 4 TH OF JULY, 2014 AT CHENNAI. SD/ - SD/ - (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER (V. DURGA RAO) JUDICIAL MEMBER CHENNAI, DATED, THE 04.07.2014 VM/- . * (#,/0 10%, /COPY TO: 1. &' / APPELLANT, 2. ()&' / RESPONDENT, 3. 2 ( ) /CIT(A), 4. 2 /CIT, 5. 03! (#,# /DR & 6. !4' 5 /GF.