Mrs Hemalata Suresh Patil, Pune V. ACIT, Pune

ITA 1546/PUN/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 66993 (ITAT-PUNE)
• Duration Of Justice: 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 12-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Keywords: Capital asset; Question of law; Cost of acquisition
• Section: 54B; 54F; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO.1544/PN/2012 (ASSESSMENT YEAR: 2008-09) SHRI NARSING GOPAL PATIL GANESHNAGAR, THERGAON, CHINCHWAD, PUNE 411 033 PAN : AAYPP5422H . APPELLANT VS. ASST. COMMISSIONER OF INCOME TAX CIRCLE 9, PUNE. . RESPONDENT ITA NO.1815/PN/2012 (ASSESSMENT YEAR: 2008-09) ASST. COMMISSIONER OF INCOME TAX CIRCLE 9, PUNE . APPELLANT VS. SHRI NARSING GOPAL PATIL SUNHERA PALACE, GANESHNAGAR, THERGAON, CHINCHWAD, PUNE 411 033 PAN : AAYPP5422H . RESPONDENT ITA NO.1545/PN/2012 (ASSESSMENT YEAR: 2008-09) MRS. RAJSHREE IRAPPA PATIL SUNEHERA PALACE, GANESHNAGAR, THERGAON, CHINCHWAD, PUNE 411 033 PAN : APMPP8822L . APPELLANT VS. ASST. COMMISSIONER OF INCOME TAX CIRCLE 9, PUNE. . RESPONDENT ITA NO.1814/PN/2012 (ASSESSMENT YEAR: 2008-09) ASST. COMMISSIONER OF INCOME TAX CIRCLE 9, PUNE . APPELLANT VS. SMT. RAJSHREE IRAPPA PATIL SUNEHERA PALACE, GANESHNAGAR, THERGAON, CHINCHWAD, PUNE 411 033 PAN : APMPP8822L . RESPONDENT ITA NOS.1544 TO 1546/PN/2012 ITA NOS.1813 TO 1815/PN/2012 ITA NO.1546/PN/2012 (ASSESSMENT YEAR: 2008-09) MRS. HEMALATA SURESH PATIL SUNEHERA PALACE, GANESHNAGAR, THERGAON, CHINCHWAD, PUNE 411 033 PAN : APMPP8714R . APPELLANT VS. ASST. COMMISSIONER OF INCOME TAX CIRCLE 9, PUNE. . RESPONDENT ITA NO.1813/PN/2012 (ASSESSMENT YEAR: 2008-09) ASST. COMMISSIONER OF INCOME TAX CIRCLE 9, PUNE . APPELLANT VS. SMT. HEMALATA SURESH PATIL SUNEHERA PALACE, GANESHNAGAR, THERGAON, CHINCHWAD, PUNE 411 033 PAN : APMPP8714R . RESPONDENT APPELLANT BY : MR. SUNIL GANOO RESPONDENT BY : MS. ANN KAPTHUAMA DATE OF HEARING : 03-05-2013 DATE OF PRONOUNCEMENT : 31-05-2013 ORDER PER G. S. PANNU, AM THE CAPTIONED SIX APPEALS COMPRISE OF THREE APPEALS FILED BY THE ASSESSEE AND EQUIVALENT CROSS-APPEALS BY THE REVENU E FOR THE ASSESSMENT YEAR 2008-09. THE APPEALS RELATE TO THREE DIFFERENT ASSESSEES BELONGING TO THE SAME FAMILY AND INVOLVE A COMMON ISSUE, THEREFORE T HEY HAVE BEEN CLUBBED AND HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEIN G PASSED FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. THE CAPTIONED THREE ASSESSEES ARE CO-OWNERS OF A PROPERTY, WHICH HAS BEEN SOLD DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER ITA NOS.1544 TO 1546/PN/2012 ITA NOS.1813 TO 1815/PN/2012 CONSIDERATION, AND TAXATION OF THE RESULTANT CAPITA L GAIN IS THE SUBJECT MATTER OF THE DISPUTE IN THE CAPTIONED APPEALS. 3. THE FACTS AND CIRCUMSTANCES IN THE CASE OF ALL T HE THREE ASSESSEES ARE COMMON THEREFORE THE CROSS-APPEALS IN THE CASE OF S HRI NARSING GOPAL PATIL I.E. ITA NO. 1544/PN/2012 FILED BY THE ASSESSEE AND ITA NO. 1815/PN/2012 FILED BY THE REVENUE ARE TAKEN UP AS LEAD CASE. 4. THE RELEVANT BACKGROUND TO APPRECIATE THE CONTRO VERSY RAISED BY THE ASSESSEE IN ITS APPEAL VIDE ITA NO. 1544/PN/2012 AN D BY THE REVENUE IN ITS CROSS-APPEAL VIDE ITA NO. 1815/PN/2012 IS AS FOLLOW S. THE ASSESSES IS AN INDIVIDUAL WHO FILED HIS RETURN OF INCOME FOR THE A SSESSMENT YEAR 2008-09 DECLARING TOTAL INCOME OF RS.12,44,720/-, WHICH WAS SUBJECT TO SCRUTINY ASSESSMENT WHEREBY THE TOTAL INCOME WAS ASSESSED AT RS.3,55,35,574/-. DURING THE YEAR UNDER CONSIDERATION, ASSESSEE SOLD HIS LAND SITUATED AT SURVEY NO. 100, TATHAWADE, ADMEASURING 5 HECTARES FOR A CO NSIDERATION OF RS.5,31,40,000/- TO M/S BROADWAY INTEGRATED PARK PV T. LTD. VIDE SALE DEED DATED 23.05.2007. THE ASSESSEE DECLARED LONG TERM C APITAL GAIN OF RS.3,48,70,434/- AND THE ASSESSING OFFICER COMPUTED THE SAME AT RS.3,49,34,327/- AFTER MAKING AN ADDITION OF RS.63, 893/- ON ACCOUNT OF VARIATION IN THE COMPUTATION OF COST OF ACQUISITION , AND THE SAID ADDITION HAS SINCE BEEN DELETED BY THE CIT(A) AND ON THIS ASPECT NO FURTHER DISPUTE HAS BEEN RAISED BY THE REVENUE. 5. THE DISPUTE BEFORE US IS WITH REGARD TO THE CLAI M OF THE ASSESSEE FOR EXEMPTIONS UNDER SECTION 54B AND SECTION 54F OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AMOUNTING TO RS.1,59,09,583/- AND RS.1,83,17,378/- RESPECTIVELY. THE ASSESSEE HAD CLAIMED THE AFORESAI D EXEMPTIONS WITH RESPECT TO THE LONG TERM CAPITAL GAIN AND ASSESSING OFFICER DENIED BOTH THE CLAIMS. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE TH E CIT(A) WHO ALLOWED THE CLAIM OF THE ASSESSEE FOR EXEMPTION UNDER SECTION 5 4B OF THE ACT AMOUNTING ITA NOS.1544 TO 1546/PN/2012 ITA NOS.1813 TO 1815/PN/2012 TO RS. 1,59,09,583/- WHEREAS THE OTHER CLAIM OF THE ASSESSEE FOR EXEMPTION UNDER SECTION 54F OF THE ACT WAS DENIED BY THE CIT( A) AMOUNTING TO RS.1,83,17,378/-. THE ASSESSEE IS IN APPEAL BEFORE US WITH REGARD TO THE ACTION OF THE CIT(A) IN DENYING THE EXEMPTION UNDER SECTION 54F OF THE ACT WHEREAS THE REVENUE IS IN APPEAL DISPUTING THE ACTI ON OF THE CIT(A) ALLOWING EXEMPTION UNDER SECTION 54B OF THE ACT. 6. IN THIS BACKGROUND, THE CROSS-APPEALS HAVE BEEN HEARD. WITH REGARD TO THE APPEAL OF THE REVENUE, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS CONTENDED THAT THE CIT(A) HAS UNJUSTLY ALLOWED THE EXEMPTION UNDER SECTION 54B OF THE ACT BY MERELY RELYING ON THE ENTRIES IN THE 7/12 EXTRACT WHEREAS THE ASSESSEE HAD OTHERWISE FAILED TO SUBSTANTIATE THAT THE LAND IN QUESTION WAS ACTUALLY USED FOR AGRICULTURAL ACTIVITIES IN THE TW O YEARS PRIOR TO THE DATE OF TRANSFER. ACCORDING TO THE LEARNED DEPARTMENTAL REP RESENTATIVE, IT WAS A PRE- CONDITION FOR ALLOWING EXEMPTION UNDER SECTION 54B OF THE ACT THAT THE LAND SOLD BY THE ASSESSEE IS USED FOR AGRICULTURAL ACTIV ITIES IN THE TWO YEARS PRIOR TO THE DATE OF TRANSFER AND IN THE PRESENT CASE THE AS SESSING OFFICER ESTABLISHED THAT THE ASSESSEE COULD NOT DEMONSTRATE THAT THE LA ND WAS USED FOR AGRICULTURAL ACTIVITIES, AND IN THIS REGARD REFEREN CE HAS BEEN MADE TO THE DISCUSSION IN THE ASSESSMENT ORDER. 7. ON THE OTHER HAND, THE LEARNED REPRESENTATIVE FO R THE ASSESSEE WHILE DEFENDING THE ACTION OF THE CIT(A) IN ALLOWING EXEM PTION UNDER SECTION 54B OF THE ACT POINTED OUT THAT THE ENTRIES IN THE 7/12 EX TRACTS CLEARLY ESTABLISHED THAT THE IMPUGNED LAND WAS NOT ONLY AGRICULTURAL LAND BU T IN THE PERIOD OF TWO YEARS BEFORE THE DATE OF TRANSFER, AGRICULTURAL ACTIVITIE S WERE BEING CARRIED OUT. IT HAS ALSO BEEN POINTED OUT BY THE LEARNED COUNSEL THAT T HE COPIES OF THE 7/12 EXTRACT ARE ANNEXED IN THE PAPER BOOK FILED AT PAGE S 50 TO 53 AND IT IS ALSO ASSERTED THAT IN THE RETURNS OF INCOME FILED FOR TH E EARLIER YEARS, THE ASSESSEE WAS DECLARING AGRICULTURAL INCOME. IT HAS BEEN SUBM ITTED THAT THE CIT(A) CORRECTLY ANALYZED THE POSITION BY OBSERVING THAT T HERE WAS A PRESUMPTION OF ITA NOS.1544 TO 1546/PN/2012 ITA NOS.1813 TO 1815/PN/2012 CORRECTNESS OF THE ENTRIES MADE IN THE LAND REVENUE RECORDS IN TERMS OF SECTION 157 OF THE MAHARASHTRA LAND REVENUE CODE, 1 966 AND THAT THERE WAS NO MATERIAL WITH THE ASSESSING OFFICER TO REBUT SUC H PRESUMPTION AND AS A RESULT THE CIT(A) WAS JUSTIFIED IN HOLDING THAT THE TEST OF THE LAND BEING USED FOR AGRICULTURAL ACTIVITIES FOR TWO YEARS PRIOR TO THE DATE OF TRANSFER, STANDS FULFILLED. 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. SECTION 54B PRESCRIBES THAT WHERE THE CAPITAL GAIN ARISES FROM THE TRANSFER OF A CAPITAL ASSET BEING LAND WHICH, IN THE TWO YEARS IMMEDIATEL Y PRECEDING THE DATE ON WHICH THE TRANSFER TOOK PLACE, WAS BEING USED BY TH E ASSESSEE OR A PARENT OF HIS FOR AGRICULTURAL PURPOSES, AND THE ASSESSEE HAS , WITHIN A PERIOD OF TWO YEARS AFTER THAT DATE, PURCHASED ANY OTHER LAND FOR BEING USED FOR AGRICULTURAL PURPOSES, THE SAID CAPITAL GAIN SHALL NOT BE CHARGE D TO INCOME TAX AND SHALL BE EXEMPT FROM TAX. IN TERMS OF SECTION 54B OF THE ACT , ASSESSEE CLAIMED EXEMPTION IN RELATION TO THE LONG TERM CAPITAL GAIN EARNED ON THE SALE OF AGRICULTURAL LAND SITUATED AT VILLAGE TATHAVADE, TA LUKA MULSHI, DISTRICT- PUNE. THE ASSESSING OFFICER WHILE SCRUTINIZING ASSESSEES CLAIM FOR EXEMPTION UNDER SECTION 54B OF THE ACT REQUIRED THE ASSESSEE TO FUR NISH PROOF THAT AGRICULTURAL ACTIVITY WAS BEING CARRIED OUT BY HIM ON THE SAID L AND FOR TWO YEARS PRIOR TO THE DATE OF TRANSFER. THE ASSESSEE MADE TWO-FOLD SUBMIS SIONS. FIRSTLY, AS PER THE ASSESSEE THE SAID LAND WAS AGRICULTURAL LAND AND WA S SITUATED IN NO DEVELOPMENT ZONE AND HE ALSO FILED THE COPY OF THE LAND REVENUE RECORDS, NAMELY, 7/12 EXTRACT OF THE LAND PERTAINING TO THE FINANCIAL YEARS 2001-02 TO 2008-09 TO SUBSTANTIATE THAT CROPS WERE GROWN ON SU CH LAND. SECONDLY, ASSESSEE SUBMITTED THAT HE HAS BEEN DECLARING AGRIC ULTURAL INCOME IN HIS INCOME-TAX RETURNS FILED FOR THE ASSESSMENT YEARS 2 002-03 TO 2007-08. IN THIS MANNER, THE ASSESSEE SOUGHT TO JUSTIFY THAT THE LAN D IN QUESTION WAS BEING USED FOR AGRICULTURAL PURPOSES DURING THE PERIOD OF TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRANSFER. THE ASSESSING OFFIC ER WAS NOT SATISFIED WITH THE EXPLANATION FURNISHED BY THE ASSESSEE. ACCORDING TO HIM THE ASSESSEE DID NOT DISCHARGE HIS ONUS OF PROVING BEYOND REASONABLE DOU BT THAT ASSESSEE WAS ITA NOS.1544 TO 1546/PN/2012 ITA NOS.1813 TO 1815/PN/2012 ACTUALLY CARRYING OUT AGRICULTURE ON THE SAID LAND FOR TWO YEARS PRIOR TO THE DATE OF TRANSFER. ACCORDINGLY, THE CLAIM OF EXEMPTION UN DER SECTION 54B OF THE ACT AMOUNTING TO RS.1,59,09,583/- WAS DISALLOWED. THE C IT(A) HAS SINCE ALLOWED THE CLAIM OF THE ASSESSEE AS PER THE FOLLOWING DISC USSION IN PARA 11 OF HIS ORDER :- I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AS WELL AS REPLY OF THE APPELLANT. IN THIS CASE IT IS SEEN THAT THE LAND IN QUESTION HAS BEEN SHOWN AS AGRICULTURAL IN REVENUE RECORDS. COPIES OF 7/12 EXT RACT ALSO EVIDENCES THAT AGRICULTURAL OPERATIONS WAS CARRIED OUT IN THE SAID LAND. THE PRESUMPTION IS THAT THE ENTRIES IN REVENUE RECORDS ARE TO BE ACCEP TED AS TRUE UNLESS PROVED CONTRARY. THE A.O. HAS RELIED ON THE LANGUAGE OF SE CTION 54B TO TEST THE ADMISSIBILITY OF EXEMPTION U/S 54B. THE PRESUMPTIO N IS THAT ENTRIES IN REVENUE RECORDS ARE REBUTTABLE BUT THE A.O. HAS NOT DONE THIS. THE APPELLANT TOO HAS NOT DEMONSTRATED THAT AGRICULTURAL ACTIVITI ES WERE CARRIED OUT IN THE SAID LAND FOR TWO YEARS PRIOR TO DATE OF SALE. IN T HIS SITUATION, THE QUESTION IS WHETHER ENTRIES IN 7.12 EXTRACTS ARE SUFFICIENT TO MEET THE REQUIREMENTS OF SECTION 54B OF INCOME-TAX ACT. IN MY OPINION ENTRIE S IN 7/12 EXTRACTS WHICH REMAINS UNCONTROVERTED BY THE A.O. ARE SUFFICIENT E NOUGH TO MEET THE REQUIREMENTS OF SECTION 54B OF I.T. ACT. ACCORDINGL Y, THE A.O. IS DIRECTED TO DELETE THE ADDITION OF RS.1,59,09,583/- AND ALLOW T HE CLAIM U/S 54B OF I.T. ACT. THE GROUND IS THUS ALLOWED. 9. OSTENSIBLY, AS PER THE CIT(A) THE ENTRIES IN 7/1 2 EXTRACT, WHICH SHOW GROWING OF CROPS DURING THE RELEVANT PERIOD, HAVE N OT BEEN CONTROVERTED BY THE ASSESSING OFFICER AND THEREFORE THERE WAS NO JUSTIF ICATION TO DENY ASSESSEES CLAIM FOR EXEMPTION UNDER SECTION 54B OF THE ACT. T HE AFORESAID POSITION ARTICULATED BY THE CIT(A) IN THE IMPUGNED ORDER IS THE SUBJECT-MATTER OF CONSIDERATION BEFORE US. ADMITTEDLY, ONE OF THE PRE -CONDITIONS FOR AVAILING OF EXEMPTION UNDER SECTION 54B REQUIRES THAT THE LAND WHICH IS THE SUBJECT MATTER OF TRANSFER OUGHT TO HAVE BEEN USED BY THE A SSESSEE OR A PARENT OF HIS FOR AGRICULTURAL PURPOSES DURING THE PERIOD OF TWO YEARS FROM THE DATE OF TRANSFER. IN THE PRESENT CASE, THE ASSESSEE PUTFORT H THE 7/12 EXTRACT AS PER THE LAND REVENUE RECORDS FOR THE FINANCIAL YEARS 2001-0 2 TO 2008-09 TO ESTABLISH THAT THE LAND WAS BEING CULTIVATED AND WAS ALSO CLA SSIFIED AS AN AGRICULTURAL LAND. COPIES OF 7/12 EXTRACT HAVE ALSO BEEN PLACED BEFORE US BY THE ASSESSEE AT PAGES 50 TO 53 OF THE PAPER BOOK. A PERUSAL OF T HE SAME DOES GIVE A ITA NOS.1544 TO 1546/PN/2012 ITA NOS.1813 TO 1815/PN/2012 REFLECTION THAT THE CROPS WERE BEING GROWN ON SUCH LAND NAMELY, RABBI, JAWAR, RICE ETC. AS CORRECTLY NOTED BY THE CIT(A) THERE IS A PRESUMPTION OF CORRECTNESS OF ENTRIES IN THE LAND REVENUE RECORDS IN TERMS OF SECTION 157 OF THE MAHARASHTRA LAND REVENUE CODE, 1966, THE RELEVA NT EXTRACT OF WHICH HAS BEEN NOTED BY THE ASSESSING OFFICER ALSO IN HIS ASS ESSMENT ORDER, THOUGH SUCH PRESUMPTION IS NOT ABSOLUTE BUT IS A REBUTTABL E PRESUMPTION. THE AFORESAID PRESUMPTION COUPLED WITH THE FACT THAT TH E ASSESSEE HAD DECLARED AGRICULTURAL INCOME IN ITS RETURN OF INCOME FOR ASS ESSMENT YEARS 2005-06 TO 2007-08 DO LEND WEIGHT TO THE ASSERTION OF THE ASSE SSEE THAT THE LAND WAS BEING USED FOR AGRICULTURAL PURPOSES IN THE TWO YEA RS IMMEDIATELY PRECEDING THE DATE OF TRANSFER. IN THIS BACKGROUND WE NOTICE THAT THE CIT(A) CORRECTLY CAME TO THE CONCLUSION THAT THE ASSESSING OFFICER H AS NOT SATISFACTORILY REBUTTED THE PRESUMPTION ATTACHED TO THE ENTRIES IN THE 7/12 EXTRACT I.E. THE LAND REVENUE RECORDS. AS PER THE ASSESSING OFFICER THE DECLARATION OF AGRICULTURAL INCOME FOR ASSESSMENT YEARS 2005-06 TO 2007-08 BY THE ASSESSEE WERE NOT SCRUTINIZED BY THE DEPARTMENT AND THEREFOR E, THE GENUINENESS OF THE CLAIM OF AGRICULTURAL INCOME FOR THOSE YEARS WAS NO T PROVED AND THEREFORE HE WAS NOT SATISFIED WITH THE EXPLANATION. IN OUR CONS IDERED OPINION, ASSESSEE HAD DULY DISCHARGED THE INITIAL ONUS CAST ON HIM TO ESTABLISH HIS CASE THAT THE SAID LAND WAS BEING USED FOR AGRICULTURAL PURPOSES BASED ON THE ENTRIES IN THE 7/12 EXTRACT AND THE DECLARATION OF AGRICULTURAL IN COME IN THE RETURNS FILED FOR ASSESSMENT YEARS 2005-06 TO 2007-08. THEREAFTER, TH E BURDEN WAS ON THE ASSESSING OFFICER TO REBUT THE STAND OF THE ASSESSE E, WHICH WAS BACKED BY THE PRESUMPTION ATTACHED TO THE LAND REVENUE RECORDS AS PER SECTION 157 OF THE MAHARASHTRA LAND REVENUE CODE, 1966 AND ALSO THE FA CTUM OF DECLARATION OF AGRICULTURAL INCOME BY THE ASSESSEE IN THE RESPECTI VE ASSESSMENT YEARS. THE ASSESSING OFFICER HAS MERELY DISBELIEVED THE EXPLAN ATION FURNISHED BY THE ASSESSEE WITHOUT ANY CREDIBLE MATERIAL TO NEGATE TH E SAME. HAVING REGARD TO THE MATERIAL AND EVIDENCE ON RECORD AND THE LEGAL P OSITION, IN OUR VIEW, THE CIT(A) WAS JUSTIFIED IN HOLDING THAT THE ASSESSEE D ISCHARGED THE BURDEN CAST ON HIM TO ESTABLISH THAT THE LAND WAS BEING USED FO R AGRICULTURAL PURPOSES IN ITA NOS.1544 TO 1546/PN/2012 ITA NOS.1813 TO 1815/PN/2012 THE TWO YEARS IMMEDIATELY PRECEDING THE DATE OF TRA NSFER. WE HEREBY AFFIRM THE SAME AND ACCORDINGLY THE REVENUE HAS TO FAIL ON THI S ASPECT. 10. IN THE RESULT, APPEAL OF THE REVENUE IN ITA NO. 1815/PN/2012 IN THE CASE OF SHRI NARSING GOPAL PATIL IS DISMISSED. 11. NOW WE MAY TAKE UP ASSESSEES CLAIM FOR EXEMPTI ON UNDER SECTION 54F OF THE ACT, WHICH HAS SINCE BEEN DENIED BY THE ASSESSING OFFICER AS WELL AS BY THE CIT(A). IN THIS REGARD, BRIEF FACTS, ARE THAT IN THE RETURN OF INCOME, ASSESSEE CLAIMED EXEMPTION UNDER SECTION 54F OF THE ACT AMOUNTING TO RS.1,83,17,378/- ON THE GROUND OF HAVING INVESTED T HE REQUISITE SALE CONSIDERATION FOR CONSTRUCTION OF HIS RESIDENTIAL H OUSE AT THERGAON. THE ASSESSING OFFICER HAS DENIED THE CLAIM OF THE ASSES SEE ON TWO GROUNDS AND IN THE ALTERNATIVE, AS PER THE ASSESSING OFFICER EVEN IF ASSESSEE IS TO BE HELD ELIGIBLE FOR THE EXEMPTION UNDER SECTION 54F, THE S AME WAS LIABLE TO BE ALLOWED ONLY TO THE EXTENT OF RS.10,80,123/- AND NO T AS CLAIMED BY THE ASSESSEE. 12. FIRSTLY, AS PER THE ASSESSING OFFICER, THE ASSE SSEE DOES NOT FULFILL A BASIC PRE-REQUISITE FOR CLAIMING EXEMPTION UNDER SE CTION 54F OF THE ACT, WHICH IS TO THE EFFECT THAT THE CONSTRUCTION OF THE NEW R ESIDENTIAL HOUSE IS TO BE COMPLETED WITHIN 3 YEARS FROM THE DATE OF TRANSFER OF OLD ASSET. AS PER THE ASSESSING OFFICER CONSTRUCTION OF THE NEW RESIDENTI AL HOUSE WAS TO BE COMPLETED BY 23.05.2010 WHEREAS IN THE PRESENT CASE WHEN THE ASSESSEE WAS ASKED TO FURNISH THE NECESSARY COMPLETION CERTI FICATE FROM THE MUNICIPAL AUTHORITIES, THE ASSESSEE FAILED TO FURNISH THE SAM E AND MERELY A COPY OF APPLICATION MADE TO THE MUNICIPAL AUTHORITIES FOR O BTAINING COMPLETION CERTIFICATE WAS FURNISHED. AS PER THE ASSESSING OFF ICER CLAIM COULD NOT BE ALLOWED FOR THE AFORESAID REASON. ITA NOS.1544 TO 1546/PN/2012 ITA NOS.1813 TO 1815/PN/2012 13. IN SO FAR AS THE AFORESAID OBJECTION OF THE ASS ESSING OFFICER IS CONCERNED, THE CIT(A) HAS DISCUSSED IT IN PARA 17 O F HIS ORDER, WHICH IS AS UNDER : - I HAVE CAREFULLY CONSIDERED THE FACTS THE CASE AS WELL AS REPLY OF THE ASSESSEE. AS REGARDS THE FIRST GROUND IN WHICH EXEM PTION U/S 54 OF I.T. ACT HAS BEEN DENIED BY THE A.O., IT IS SEEN THAT THERE IS NO SUCH CONDITION IN THE SECTION THAT THE RESIDENTIAL HOUSE IS TO BE COMPLET ED WITHIN 3 YEARS OF THE DATE OF TRANSFER OF ORIGINAL ASSET. WHAT IS REQUIRED IS INVESTMENT OF THE SALE CONSIDERATION WITHIN 3 YEARS FROM THE DATE OF TRANS FER IN ORDER TO QUALIFY FOR EXEMPTION U/S 54 OF I.T. ACT. THERE MAY BE MANY SIT UATIONS DUE TO WHICH THE RESIDENTIAL HOUSE CANNOT BE COMPLETED. FOR THAT MAT TER IF THE APPELLANT INTENDS TO CONSTRUCT HIGH VALUE RESIDENTIAL HOUSE WHICH IS LIKELY TO COST MORE THAN THE SALE CONSIDERATION OF THE OLD ASSET, THE NEW HOUSE CANNOT BE COMPLETED FOR WANT OF ADDITIONAL FUND ETC. THEREFORE, COMPLETION OF RESIDENTIAL HOUSE CANNOT BE SAID TO BE CRITERIA FOR CLAIMING EXEMPTION U/S 5 4F OF I.T. ACT. IN MY OPINION THE CONDITIONS OF SECTION 54F CAN BE SAID TO BE MET IF THE SALE CONSIDERATION FOR CLAIMING EXEMPTION U/S 54F OF I.T. ACT HAS BEEN INVESTED IN THE RESIDENTIAL HOUSE WITHIN 3 YEARS FROM THE DATE OF TRANSFER OF T HE OLD ASSET. THEREFORE, A.O. WAS NOT JUSTIFIED IN HOLDING THAT EXEMPTION U/S54F CANNOT BE ALLOWED IF CONSTRUCTION OF RESIDENTIAL HOUSE WAS NOT COMPLETED WITHIN 3 YEARS OF DATE OF TRANSFER OF OLD ASSET. THEREFORE DENIAL OF EXEMPTIO N U/S 54F ON THIS ACCOUNT CANNOT BE UPHELD. HOWEVER, CLAIM OF THE APPELLANT I S SERIOUSLY HIT BY ALTERNATIVE FINDING OF THE AO WHICH IS DISCUSSED IN SUBSEQUENT PARAS. AS PER THE CIT(A), THE OBJECTION TAKEN BY THE ASSES SING OFFICER ON THE COMPLETION OF CONSTRUCTION WAS NOT JUSTIFIED. THE A FORESAID ASPECT EMERGING FROM THE ORDER OF THE CIT(A) IS NOT CHALLENGED BY T HE REVENUE IN ITS APPEAL BEFORE US, AND THEREFORE WE DO NOT ELABORATE ANY FU RTHER ON THE SAME AS WE ARE PRESENTLY DEALING WITH ONLY THE APPEAL OF THE A SSESSEE AGAINST THE ULTIMATE DENIAL OF EXEMPTION UNDER SECTION 54F OF THE ACT. 14. THE OTHER OBJECTION OF THE ASSESSING OFFICER, A ND WHICH HAS BEEN UPHELD BY THE CIT(A) TO SUSTAIN THE DISALLOWANCE OF EXEMPTION UNDER SECTION 54F OF THE ACT IS TO THE FOLLOWING EFFECT. AS PER T HE ASSESSING OFFICER, ASSESSEE HAD INVESTED THE SALE CONSIDERATION IN A COMMERCIAL-CUM-HOUSING COMPLEX AND NOT IN RESIDENTIAL HOUSE AS MANDATED B Y SECTION 54F OF THE ACT. THE ASSESSING OFFICER NOTICED THAT ASSESSEE HAD ENT ERED INTO A CONTRACT WITH ITA NOS.1544 TO 1546/PN/2012 ITA NOS.1813 TO 1815/PN/2012 ONE SHRI S.D. DAGREKAR, FOR CONSTRUCTION OF A COMM ERCIAL-CUM-HOUSING COMPLEX, WHICH COMPRISED OF CONSTRUCTION OF TWO BU ILDINGS ONE, HAVING 18- ONE BHK FLATS AND OTHER HAVING 18 TWO BHK FLA TS ALONG WITH 9 SHOPS. AS PER THE ASSESSING OFFICER SINCE THE INVESTMENT WAS FOR A COMMERCIAL-CUM- HOUSING COMPLEX AND NOT IN A RESIDENTIAL HOUSE AS REQUIRED BY SECTION 54F OF THE ACT, THE EXEMPTION WAS NOT ALLOWABLE. 15. IN APPEAL BEFORE THE CIT(A), ON THIS ASPECT ASS ESSEE SUBMITTED THAT THE ENTIRE BUILDING WAS OWNED BY THE ASSESSEE AND HIS T WO DAUGHTERS AND THAT THE BUILDINGS WERE NOT SUBMITTED EITHER TO THE PROVISIO NS OF MAHARASHTRA APARTMENT OWNERSHIP ACT, 1970 OR THE MAHARASHTRA CO -OPERATIVE SOCIETIES ACT AND THEREFORE EACH DWELLING UNIT IN THE BUILDIN G COULD NOT BE TERMED AS A SEPARATE RESIDENTIAL IMMOVABLE PROPERTY. IT WAS ALS O CONTENDED THAT THE BUILDING WAS NOT STRUCTURALLY DIVIDED AND THEREFORE EACH INDEPENDENT UNIT COULD NOT BE TERMED AS SEPARATE RESIDENTIAL IMMOVABLE PRO PERTY. THE CIT(A) HAS EXAMINED THE PLEAS SET-UP BY THE ASSESSEE BUT WAS N OT SATISFIED. THE CIT(A) UPHELD THE STAND OF THE ASSESSING OFFICER THAT IN T HE PRESENT CASE ASSESSEE HAD CONSTRUCTED TWO BUILDINGS WHICH COMPRISED OF C OMMERCIAL-CUM-HOUSING COMPLEX, AND THE SAME DID NOT QUALIFY FOR EXEMPTIO N UNDER SECTION 54F OF THE ACT BECAUSE WHAT IS REQUIRED AS PER THE SECTION 54F OF THE ACT WAS TO CONSTRUCT A RESIDENTIAL HOUSE . SECONDLY, THE CLAIM OF THE ASSESSEE THAT EACH DWELLING UNIT IN THE BUILDING COULD NOT BE TERMED A S A SEPARATE RESIDENTIAL PROPERTY WAS ALSO NOT ACCEPTED BY THE CIT(A). ACCOR DING TO THE CIT(A) THE REQUIREMENT OF SECTION 54F WAS TO CONSTRUCT OR PURC HASE A RESIDENTIAL HOUSE. AS PER THE CIT(A) THE USED OF THE PHRASE A BEFORE THE EXPRESSION RESIDENTIAL HOUSE CLEARLY SIGNIFIED THE LEGISLATIVE INTENT THA T THE EXEMPTION IS TO BE ALLOWED IN RESPECT OF THE CONSTRUCTION OF A SINGLE RESIDENTIAL HOUSE AND NOT MULTIPLE DWELLING UNITS. FOR THE AFORESAID REASONS, CIT(A) UPHELD THE DENIAL OF ASSESSEES CLAIM FOR EXEMPTION UNDER SECTION 54F OF THE ACT. ITA NOS.1544 TO 1546/PN/2012 ITA NOS.1813 TO 1815/PN/2012 16. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE HAS VEHEMENTLY POINTED OUT THAT THE CLAIM OF EXEMPTION UNDER SECTI ON 54F OF THE ACT BASED ON THE INVESTMENT IN CONSTRUCTION OF THE NEW BUILDING WAS LIMITED TO THE INVESTMENT MADE IN THE CONSTRUCTION OF RESIDENTIAL PORTION OF THE NEW BUILDING. FURTHER WITH REGARD TO THE PLEA OF THE REVENUE THAT THE BUILDING CONSTRUCTED BY THE ASSESSEE CONSISTED OF SEVERAL RESIDENTIAL UNITS , IT WAS POINTED OUT THAT THE SAME WOULD NOT ACT AS A BAR FOR ALLOWANCE OF EXEMPT ION UNDER SECTION 54F OF THE ACT AND RELIANCE WAS PLACED ON THE JUDGEMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. GITA DUGGAL (2013) 257 CTR 208 (DELHI) IN THIS REGARD. RELIANCE HAS ALSO BEEN PLACED ON THE JUDGEM ENT OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. D. ANAN DA BASAPPA (2009) 309 ITR 329 (KAR.), WHICH HAS FURTHER BEEN APPROVED BY THE HONBLE SUPREME COURT VIDE ITS ORDER DATED 10.08.2009 WHEREBY SLP ( CC) 1046/2009 PREFERRED BY THE REVENUE WAS DISMISSED. 17. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REP RESENTATIVE HAS DEFENDED THE CASE OF THE REVENUE BY RELYING ON THE REASONING ADVANCED BY THE ASSESSING OFFICER AND THE CIT(A) TO DENY THE AS SESSEES CLAIM FOR EXEMPTION UNDER SECTION 54F OF THE ACT, WHICH WE HA VE ALREADY NOTED IN PARA 14 ABOVE, AND IS NOT BEING REPEATED FOR THE SAKE OF BREVITY. 18. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. SECTION 54F OF THE ACT PRESCRIBES EXEMPTION OF CAPITAL GAIN ARISING FR OM THE TRANSFER OF ANY LONG TERM CAPITAL ASSET, NOT BEING A RESIDENTIAL HOUSE; THE EXEMPTION IS PROVIDED IN CASE, WITHIN A PERIOD OF ONE YEAR BEFORE OR TWO YEA RS AFTER THE DATE OF WHICH THE TRANSFER TOOK PLACE ASSESSEE PURCHASES OR WITHI N A PERIOD OF THREE YEARS AFTER THAT DATE CONSTRUCTS A RESIDENTIAL HOUSE, AND IF THE COST OF THE NEW ASSET IS NOT LESS THAN THE NET CONSIDERATION IN RESPECT O F THE ORIGINAL ASSET THE WHOLE OF SUCH CAPITAL GAIN IS EXEMPTED AND IF THE COST OF THE NEW ASSET IS LESS THAN THE NET CONSIDERATION IN RESPECT OF THE ORIGINAL AS SET, SO MUCH OF THE CAPITAL GAIN AS BEARS TO THE WHOLE OF THE CAPITAL GAIN, THE SAME PROPORTION AS THE COST ITA NOS.1544 TO 1546/PN/2012 ITA NOS.1813 TO 1815/PN/2012 OF THE NEW ASSET BEARS TO THE NET CONSIDERATION, SH ALL BE EXEMPTED FROM TAX. THE CASE MADE OUT BY THE ASSESSEE IS THAT HE HAS UN DERTAKEN CONSTRUCTION OF COMMERCIAL-CUM-HOUSING COMPLEX ON HIS LAND AT THE RGAON WHICH INVOLVED CONSTRUCTION OF TWO BUILDINGS. ONE BUILDING COMPRIS ED OF 18 ONE BHK FLATS AND OTHER 18 TWO BKH FLATS ALONG WITH 9 SHOPS WIT H SHUTTERS. THE OBJECTION TAKEN BY THE REVENUE IS TO THE EFFECT THAT THE BUIL DING CONSTRUCTED BY THE ASSESSEE, APART FROM CONTAINING A COMMERCIAL AREA, WAS COMPRISING OF MORE THAN ONE SEPARATE AND INDEPENDENT RESIDENTIAL UNITS AND THEREFORE IT CANNOT BE CONSIDERED AS ONE UNIT TO ENABLE THE ASSESSEE TO CL AIM EXEMPTION UNDER SECTION 54F OF THE ACT. THE SAID OBJECTION OF THE R EVENUE IS BASED ON THE UNDERSTANDING OF SECTION 54F OF THE ACT THAT IT REQ UIRES CONSTRUCTION OF A RESIDENTIAL HOUSE. IN OTHER WORDS, AS PER THE R EVENUE PRESENCE OF THE PHRASE A RESIDENTIAL HOUSE MEANS ONE RESIDENTIAL HOUSE AND NOT A RESIDENTIAL PROPERTY WITH MULTIPLE RESIDENTIAL UNITS. 19. A SIMILAR OBJECTION HAS BEEN DEALT WITH BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. GITA DUGGAL (SUPRA) IN THE C ONTEXT OF SECTIONS 54/54F OF THE ACT, AND THE FOLLOWING DISCUSSION IN THE ORDER OF THE HONBLE DELHI HIGH IS WORTHY OF NOTICE :- WHAT IN EFFECT THE ASSESSING OFFICER HAD DONE WAS TO REJECT THE ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 54/54F OF THE ACT IN RESPECT OF THE HOUSE/UNITS IN THE FIRST AND SECOND FLOORS HOLD ING THAT THEY WERE SEPARATE AND INDEPENDENT RESIDENTIAL UNITS HAVING SEPARATE E NTRANCES AND CANNOT BE CONSIDERED AS ONE UNIT TO ENABLE THE ASSESSEE TO CL AIM THE DEDUCTION. THIS WAS DISAPPROVED BY THE CIT(APPEALS) ON THE BASIS OF THE JUDGEMENT OF THE KARNATAKA HIGH COURT (SUPRA) AND HIS DECISION WAS A PPROVED BY THE TRIBUNAL. THE TRIBUNAL EXPRESSED THE VIEW THAT THE WORDS A R ESIDENTIAL HOUSE APPEARING IN SECTION 54/54F OF THE ACT CANNOT BE CO NSTRUED TO MEAN A SINGLE RESIDENTIAL HOUSE SINCE UNDER SECTION 13(2) OF THE GENERAL CLAUSES ACT, A SINGLE INCLUDES PLURAL. IT IS THE CORRECTNESS OF THE ABOVE THAT IS QUESTION ED BY THE REVENUE AND IT IS CONTENDED THAT THE INTERPRETATION PLACED BY T HE TRIBUNAL GIVES RISE TO A SUBSTANTIAL QUESTION OF LAW. THE ASSESSEE STRONGLY RELIES UPON THE JUDGEMENT OF THE KARNATAKA HIGH COURT (SUPRA) WHICH, IT IS ST ATED, HAS BECOME FINAL, THE SPECIAL LEAVE PETITION FILED BY THE REVENUE AGAINST THE SAID DECISION HAVING ITA NOS.1544 TO 1546/PN/2012 ITA NOS.1813 TO 1815/PN/2012 BEEN DISMISSED BY THE SUPREME COURT AS REPORTED IN THE ANNUAL DIGEST OF TAXMAN PUBLICATION. THE JUDGEMENT OF THE KARNATAKA HIGH COURT SUPPORTS THE CONTENTION OF THE ASSESSEE. AN IDENTICAL CONTENTION RAISED BY THE REVENUE BEFORE THAT COURTS WAS REJECTED IN THE FOLLOWING TE RMS : A PLAIN READING OF THE PROVISION OF SECTION 54(1) OF THE INCOME-TAX ACT DISCLOSES THAT WHEN AN INDIVIDUAL-ASSESSEE OR HINDU UNDIVIDED FAMILY- ASSESSEE SELLS A RESIDENTIAL BUILDING OR LANDS APPU RTENANT THERETO, HE CAN INVEST CAPITAL GAINS FOR PURCHASE OF RESIDENTIA L BUILDING TO SEEK EXEMPTION OF THE CAPITAL GAINS TAX. SECTION 13 OF T HE GENERAL CLAUSES ACT DECLARES THAT WHENEVER THE SINGULAR IS USED FOR A WORD, IT IS PERMISSIBLE TO INCLUDE THE PLURAL. THE CONTENTION OF THE REVENUE IS THAT THE PHRASE A RESIDENTIAL HOUSE WOULD MEAN ONE RESIDENTIAL HOUSE AND IT DOES NOT AP PEAR TO THE CORRECT UNDERSTANDING. THE EXPRESSION A RESIDENTI AL HOUSE SHOULD BE UNDERSTOOD IN A SENSE THAT BUILDING SHOULD BE OF RE SIDENTIAL IN NATURE AND A SHOULD NOT BE UNDERSTOOD TO INDICATE A SING ULAR NUMBER. THE COMBINED READING OF SECTIONS 54(1) AND 54F OF THE I NCOME-TAX ACT DISCLOSES THAT, A NON RESIDENTIAL BUILDING CAN BE S OLD, THE CAPITAL GAIN OF WHICH CAN BE INVESTED IN A RESIDENTIAL BUILDING TO SEEK EXEMPTION OF CAPITAL GAIN TAX. HOWEVER, THE PROVISO TO SECTION 5 4 OF THE INCOME-TAX ACT, LAYS DOWN THAT IF THE ASSESSEE HAS ALREADY ONE RESIDENTIAL BUILDING, HE IS NOT ENTITLED TO EXEMPTION OF CAPITA L GAINS TAX, WHEN HE INVESTS THE CAPITAL GAIN IN PURCHASE OF ADDITIONAL RESIDENTIAL BUILDING. THIS JUDGEMENT WAS FOLLOWED BY THE SAME HIGH COURT IN THE DECISION IN CIT V. SMT. K. G. RUKMINIAMMA [2010] 196 TAXMAN/[2010] 8 T AXMANN.COM 121 (KAR.). THERE COULD ALSO BE ANOTHER ANGLE. SECTION 54/54F U SES THE EXPRESSION A RESIDENTIAL HOUSE. THE EXPRESSION US ED IS NOT A RESIDENTIAL UNIT. THIS IS A NEW CONCEPT INTRODUCED BY THE ASSE SSING OFFICER INTO THE SECTION. SECTION 54/54F REQUIRES THE ASSESSEE TO AC QUIRE A RESIDENTIAL HOUSE AND SO LONG AS THE ASSESSEE ACQUIRES A BUILDING, WH ICH MAY BE CONSTRUCTED, FOR THE SAKE OF CONVENIENCE, IN SUCH A MANNER AS TO CONSIST OF SEVERAL UNITS WHICH CAN, IF THE NEED ARISES, BE CONVENIENTLY AND INDEPENDENTLY USED AS AN INDEPENDENT RESIDENCE, THE REQUIREMENT OF THE SECTI ON SHOULD BE TAKEN TO HAVE BEEN SATISFIED. THERE IS NOTHING IN THESE SECTIONS WHICH REQUIRE TH E RESIDENTIAL HOUSE TO BE CONSTRUCTED IN A PARTICULAR MANNER. THE ONLY REQUIREMENT IS THAT IT SHOULD BE FOR THE RESIDENTIA L USE AND NOT FOR COMMERCIAL USE. IF THERE IS NOTHING IN THE SECTION WHICH REQUI RES THAT THE RESIDENTIAL HOUSE SHOULD BE BUILT IN A PARTICULAR MANNER, IT SEEMS TO US THAT THE INCOME TAX AUTHORITIES CANNOT INSIST UPON THAT REQUIREMENT. A PERSON MAY CONSTRUCT A HOUSE ACCORDING TO HIS PLANS AND REQUIREMENTS. MOST OF THE HOUSES ARE CONSTRUCTED ACCORDING TO NEEDS AND REQUIREMENTS AND EVEN COMPULSIONS. FOR INSTANCE, A PERSON MAY CONSTRUCT A RESIDENTIAL HOUS E IN SUCH A MANNER THAT HE ITA NOS.1544 TO 1546/PN/2012 ITA NOS.1813 TO 1815/PN/2012 MAY USE THE GROUND FLOOR FOR HIS OWN RESIDENCE AND LET OUT THE FIRST FLOOR HAVING AN INDEPENDENT ENTRY SO THAT HIS INCOME IS A UGMENTED. IT IS QUITE COMMON TO FIND SUCH ARRANGEMENTS, PARTICULARLY POST -REQUIREMENT. ONE MAY BUILD A HOUSE CONSISTING OF FOUR BEDROOMS (ALL IN T HE SAME OR DIFFERENT FLOORS) IN SUCH A MANNER THAT AN INDEPENDENT RESIDENTIAL UN IT CONSISTING OF TWO OR THREE BEDROOMS MAY BE CARVED OUT WITH AN INDEPENDEN T ENTRANCE SO THAT IT CAN BE LET OUT. HE MAY EVEN ARRANGE FOR HIS CHILDRE N AND FAMILY TO STAY THERE, SO THAT THEY ARE NEARBY, AN ARRANGEMENT WHICH CAN B E MUTUALLY SUPPORTIVE. HE MAY CONSTRUCT HIS RESIDENCE IN SUCH A MANNER THAT I N CASE OF A FUTURE NEED HE MAY BE ABLE TO DISPOSE OF A PART THEREOF AS AN INDE PENDENT HOUSE. THERE MAY BE SEVERAL SUCH CONSIDERATIONS FOR A PERSON WHILE C ONSTRUCTING A RESIDENTIAL HOUSE. WE ARE THEREFORE, UNABLE TO SEE HOW OR WHY THE PHYSICAL STRUCTURING OF THE NEW RESIDENTIAL HOUSE, WHETHER IT IS LATERAL OR VERTICAL, SHOULD COME IN THE WAY OF CONSIDERING THE BUILDING AS A RESIDENTIAL HO USE. WE DO NOT THINK THAT THE FACT THAT THE RESIDENTIAL HOUSE CONSIST OF SEVE RAL INDEPENDENT UNITS CAN BE PERMITTED TO ACT AS AN IMPEDIMENT TO THE ALLOWANCE OF THE DEDUCTION UNDER SECTION 54/54F. IT IS NEITHER EXPRESSLY NOR BY NECE SSARY IMPLICATION PROHIBITED. [UNDERLINED FOR EMPHASIS BY US] 20. FROM THE AFORESAID DISCUSSION, IT IS TO BE UNDE RSTOOD THAT THE PRESENCE OF THE EXPRESSION A RESIDENTIAL HOUSE UNDER SECTI ON 54F OF THE ACT IS NOT TO BE UNDERSTOOD TO MEAN THAT THE ASSESSEE IS TO ACQUI RE A SINGLE RESIDENTIAL UNIT. SECTION 54F REQUIRES THE ASSESSEE IS TO ACQUIRE A RESIDENTIAL HOUSE AND SO LONG AS THE ASSESSEE ACQUIRES A BUILDING, WHICH MAY BE CONSTRUCTED IN A MANNER SO AS TO CONSIST OF SEVERAL UNITS WHICH CAN, IF THE NEED ARISES BE USED AS INDEPENDENT UNITS AS RESIDENCES THE REQUIREMENT OF SECTION 54F SHOULD BE TAKEN TO HAVE BEEN SATISFIED. IN OUR CONSIDERED OPI NION, THE AFORESAID DECISION OF THE HONBLE DELHI HIGH COURT SUPPORTS THE PROPOS ITION CANVASSED BY THE ASSESSEE AND NEGATES THE OBJECTION RAISED BY THE RE VENUE. ON THIS POINT, IT WOULD ALSO BE WORTHWHILE TO NOTICE THAT THE HONBLE DELHI HIGH COURT HAS REFERRED WITH APPROVAL TO AN EARLIER JUDGEMENT OF T HE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. D. ANANDA BASAPPA (SUP RA) WHEREIN THE SIMILAR PROPOSITION WAS DEALT WITH. THE JUDGEMENT OF THE HO NBLE KARNATAKA HIGH COURT HAS THE IMPLIED APPROVAL OF THE HONBLE SUPRE ME COURT, WHEN THE SLP FILED BY THE REVENUE WAS DISMISSED ON 10.08.2009 (S UPRA). ITA NOS.1544 TO 1546/PN/2012 ITA NOS.1813 TO 1815/PN/2012 21. IN THIS VIEW OF THE MATTER, WE DO NOT FIND ANY JUSTIFICATION ON THE PART OF THE REVENUE TO DENY EXEMPTION UNDER SECTION 54F OF THE ACT MERELY ON THE GROUND THAT THE RESIDENTIAL BUILDING CONSTRUCTED BY THE ASSESSEE CONSISTED OF SEVERAL INDEPENDENT RESIDENTIAL UNITS. 22. THE OTHER POINT MADE BY THE REVENUE IS THAT THE CONSTRUCTION UNDERTAKEN BY THE ASSESSEE INVOLVED CONSTRUCTION OF COMMERCIAL AREA ALSO BY WAY OF SHOPS AND THE SAME DOES NOT FALL WITHIN THE PURVIEW OF SECTION 54F OF THE ACT. ON THIS ASPECT, THE LEARNED COUNSEL FOR TH E ASSESSEE STATED AT THE TIME OF HEARING THAT THE ASSESSEE HAD CLAIMED EXEMP TION ONLY WITH REGARD TO THE INVESTMENT MADE TOWARDS CONSTRUCTION OF THE RES IDENTIAL AREA AND NOT IN RELATION TO THE SHOPS, ETC.. IN THIS CONNECTION, TH E LEARNED COUNSEL HAS REFERRED TO PAGES 10 TO 15 OF THE SUPPLEMENTARY PAPER BOOK D ATED 03.05.2013 FILED BEFORE US, WHICH SHOWS THE CALCULATION OF COST OF C ONSTRUCTION OF THE RESIDENTIAL PORTION OF THE NEW BUILDING, AND IT ALSO ASSERTED T HAT SUCH DETAILS WERE PLACED BEFORE THE ASSESSING OFFICER. THE LEARNED DEPARTMEN TAL REPRESENTATIVE HAS NOT NEGATED THE AFORESAID PLEA AND THERE IS NO ADVE RSE DISCUSSION EMERGING FROM THE ORDER OF THE LOWER AUTHORITIES ON THIS ASP ECT. THEREFORE, SO LONG AS THE ASSESSEES CLAIM OF EXEMPTION IS LIMITED TO THE INV ESTMENT IN THE CONSTRUCTION OF THE RESIDENTIAL PORTION OF THE BUILDING, THE SAM E IS HELD TO BE ALLOWABLE. THUS, ON THIS ASPECT, ASSESSEE SUCCEEDS, AND HIS CL AIM FOR EXEMPTION UNDER SECTION 54F OF THE ACT IS UPHELD. 23. IN THE RESULT, THE CROSS-APPEAL OF THE ASSESSEE IN ITA NO. 1544/PN/2012 IN THE CASE OF SHRI NARSING GOPAL PATI L IS ALLOWED. 24. SINCE IT WAS A COMMON POINT BETWEEN THE PARTIES THAT THE OTHER APPEALS ARE IN THE CASE OF CO-OWNERS AND INVOLVE IDENTICAL ISSUES COVERED IN THE CROSS-APPEALS IN THE CASE OF SHRI NARSING GOPAL PAT IL, OUR DECISION IN THE CROSS-APPEALS OF SHRI NARSING GOPAL PATIL (SUPRA) W OULD APPLY MUTATIS-MUTANDIS IN THE OTHER SET OF APPEALS ALSO. ITA NOS.1544 TO 1546/PN/2012 ITA NOS.1813 TO 1815/PN/2012 25. RESULTANTLY, WHEREAS THE CAPTIONED APPEALS OF T HE REVENUE ARE DISMISSED THOSE OF ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST MAY, 2013. SD/- SD/- (SHAILENDRA KUMAR YADAV) (G . S. PANNU) JUDICIAL MEMBER ACCOUNT ANT MEMBER PUNE, DATED: 31 ST MAY, 2013 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-V, PUNE; 4) THE CIT-V, PUNE; 5) THE DR, A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY I.T.A.T., PUNE