Shri A. Asraf Ali, CHENNAI V. ITO, Kumbakonam

ITA 169/CHNY/2014

• Counselvise Citation: 16921714 RSA 2014
• Duration Of Justice: 1 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 12-05-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 17-01-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: PHILIP GEORGE
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Gift; Cost of acquisition
• Section: 54; 11; 50C; 54F

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . . . , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.169/MDS/2014 ' (' / ASSESSMENT YEAR : 2008-09 SHRI A. ASRAF ALI, # 1/44, SOUTH STREET, THERALANDUR, MAYILADUTHURAI. PAN : AJSPS 0850 H V. THE INCOME TAX OFFICER, WARD I(2), KUMBAKONAM. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : SH.PHILIP GEORGE, ADVOCATE ,-*+ . / / RESPONDENT BY : SHRI A.V. SREEKANTH, JCIT 0 . 1$ / DATE OF HEARING : 12.05.2015 2!( . 1$ / DATE OF PRONOUNCEMENT : 29.05.2015 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), TIRUCHIRA PPALLI, DATED 05.09.2013 AND PERTAINS TO ASSESSMENT YEAR 2008-09. 2 I.T.A. NO.169/MDS/14 2. THE FIRST ISSUE ARISES FOR CONSIDERATION IS REGA RDING INDEXATION OF THE COST OF LAND FOR THE PURPOSE OF C OMPUTING CAPITAL GAIN. 3. SHRI PHILIP GEORGE, THE LD.COUNSEL FOR THE ASSES SEE, SUBMITTED THAT THE LAND AND BUILDING AT T.S.R. BIG STREET, KUMBAKONAM, BELONGED TO THE ASSESSEES WIFE. HIS W IFE PURCHASED THE PROPERTY IN THE YEAR 1978. AFTER THE DEATH OF HIS WIFE ON 30.06.2003, THE ASSESSEE WAS IN POSSESSION OF THE P ROPERTY. THIS PROPERTY INHERITED BY THE ASSESSEE ON THE DEATH OF HIS WIFE ON 30.06.2003 WAS SOLD ON 13.09.2007. FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAIN, ACCORDING TO THE LD.CO UNSEL, THE ASSESSEE TOOK THE COST OF INDEXATION AS ON 01.04.19 81. HOWEVER, THE ASSESSING OFFICER FOUND THAT THE PROPERTY WAS I NHERITED BY THE ASSESSEE ONLY ON 30.06.2003 ON THE DEATH OF HIS WIF E. THEREFORE, HE COMPUTED THE COST OF INDEXATION FROM 30.06.2003. PLACING RELIANCE ON THE JUDGMENT OF BOMBAY HIGH COURT IN CI T V. MANJULA J. SHAH (2013) (355 ITR 474), THE LD.COUNSEL SUBMITTED THAT ON AN IDENTICAL SET OF FACTS, THE BOMBAY HIGH COURT FOUND THAT THE COST OF INDEXATION HAS TO BE COMPUTED FROM 01.04.1981. 3 I.T.A. NO.169/MDS/14 4. ON THE CONTRARY, SHRI A.V. SREEKANTH, THE LD. DE PARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSEE INHERIT ED THE PROPERTY ON THE DEATH OF HIS WIFE ON 30.06.2003. THEREFORE, IN VIEW OF EXPLANATION TO SECTION 48 OF THE INCOME-TAX ACT, 19 61 (IN SHORT 'THE ACT'), THE COST OF INDEXATION HAS TO BE COMPUTED ON LY FROM 30.06.2003 AND NOT FROM 01.04.1981. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. ADMITTEDL Y, THE PROPERTY WAS PURCHASED BY THE ASSESSEES WIFE IN THE YEAR 19 78. THE ASSESSEES WIFE DIED ON 30.06.2003 AND THE ASSESSEE INHERITED THE PROPERTY. THE QUESTION ARISES FOR CONSIDERATION IS WHEN THE ASSESSEE INHERITED THE PROPERTY FROM HIS WIFE ON HE R DEATH, WHETHER THE COST OF INDEXATION HAS TO BE COMPUTED FROM 30.0 6.2003 OR FROM 01.04.1981? THE BOMBAY HIGH COURT IN THE CASE OF M ANJULA J. SHAH (SUPRA) HAD AN OCCASION TO CONSIDER AN IDENTIC AL ISSUE. THE BOMBAY HIGH COURT OBSERVED IN PARAGRAPHS 19, 20, 21 & 22 AS FOLLOWS:- 19. IT IS TRUE THAT THE WORDS OF A STATUTE ARE TO BE UNDERSTOOD IN THEIR NATURAL AND ORDINARY SENSE UNLE SS THE OBJECT OF THE STATUTE SUGGESTS TO THE CONTRARY. THU S, IN CONSTRUING THE WORDS 'ASSET WAS HELD BY THE ASSESSE E' IN CL. (III) OF EXPLN. TO S. 48 OF THE ACT, ONE HAS TO SEE T HE OBJECT WITH WHICH THE SAID WORDS ARE USED IN THE STATUTE. IF ONE READS EXPLN. 1(I)(B) TO S. 2(42A) TOGETHER WITH SS. 48 AN D 49 4 I.T.A. NO.169/MDS/14 OF THE ACT, IT BECOMES ABSOLUTELY CLEAR THAT THE OB JECT OF THE STATUTE IS NOT MERELY TO TAX THE CAPITAL GAINS A RISING ON TRANSFER OF A CAPITAL ASSET ACQUIRED BY AN ASSESSEE BY INCURRING THE COST OF ACQUISITION, BUT ALSO TO TAX T HE GAINS ARISING ON TRANSFER OF A CAPITAL ASSET INTER ALIA A CQUIRED BY AN ASSESSEE UNDER A GIFT OR WILL AS PROVIDED UNDER S. 49 OF THE ACT WHERE THE ASSESSEE IS DEEMED TO HAVE INCURR ED THE COST OF ACQUISITION. THEREFORE, IF THE OBJECT OF TH E LEGISLATURE IS TO TAX THE GAINS ARISING ON TRANSFER OF A CAPITAL ASSET ACQUIRED UNDER A GIFT OR WILL BY INCLUDING TH E PERIOD FOR WHICH THE SAID ASSET WAS HELD BY THE PREVIOUS O WNER IN DETERMINING THE PERIOD FOR WHICH THE SAID ASSET WAS HELD BY THE ASSESSEE, THEN THAT OBJECT CANNOT BE DEFEATED B Y EXCLUDING THE PERIOD FOR WHICH THE SAID ASSET WAS HE LD BY THE PREVIOUS OWNER WHILE DETERMINING THE INDEXED COS T OF ACQUISITION OF THAT ASSET TO THE ASSESSEE. IN OTHER WORDS, IN THE ABSENCE OF ANY INDICATION IN CL. (III) OF THE E XPLANATION TO S. 48 OF THE ACT THAT THE WORDS 'ASSET WAS HELD BY TH E ASSESSEE' HAS TO BE CONSTRUED DIFFERENTLY, THE SAID WORDS SHOULD BE CONSTRUED IN ACCORDANCE WITH THE OBJECT O F THE STATUTE, THAT IS, IN THE MANNER SET OUT IN EXPLN. 1( I)(B) TO S. 2(42A) OF THE ACT. 20. TO ACCEPT THE CONTENTION OF THE REVENUE THAT THE WORDS USED IN CL. (III) OF THE EXPLN. TO S. 48 OF THE ACT H AS TO BE READ BY IGNORING THE PROVISIONS CONTAINED IN S. 2 OF THE ACT RUNS COUNTER TO THE ENTIRE SCHEME OF THE ACT. SEC. 2 OF THE ACT EXPRESSLY PROVIDES THAT UNLESS THE CONTEXT OTHERW ISE REQUIRES, THE PROVISIONS OF THE ACT HAVE TO BE CONS TRUED AS PROVIDED UNDER S. 2 OF THE ACT. IN S. 48 OF THE ACT, THE EXPRESSION 'ASSET HELD BY THE ASSESSEE' IS NOT DEFIN ED AND, THEREFORE, IN THE ABSENCE OF ANY INTENTION TO THE C ONTRARY THE EXPRESSION 'ASSET HELD BY THE ASSESSEE' IN CL. ( III) OF THE EXPLANATION TO S. 48 OF THE ACT HAS TO BE CONSTRUED I N CONSONANCE WITH THE MEANING GIVEN IN S. 2(42A) OF THE ACT. IF THE MEANING GIVEN IN S. 2(42A) IS NOT ADOPTED IN CONSTRUING THE WORDS USED IN S. 48 OF THE ACT, THEN T HE GAINS ARISING ON TRANSFER OF A CAPITAL ASSET ACQUIR ED UNDER A GIFT OR WILL WILL BE OUTSIDE THE PURVIEW OF THE CAP ITAL GAINS TAX WHICH IS NOT INTENDED BY THE LEGISLATURE. THEREF ORE, THE ARGUMENT OF THE REVENUE WHICH RUNS COUNTER TO THE LEGISLATIVE INTENT CANNOT BE ACCEPTED. 5 I.T.A. NO.169/MDS/14 21. APART FROM THE ABOVE, S. 55(1)(B)(2)(II) OF THE ACT PROVIDES THAT WHERE THE CAPITAL ASSET BECAME THE PR OPERTY OF THE ASSESSEE BY ANY OF THE MODES SPECIFIED UNDER S. 49(1) OF THE ACT, NOT ONLY THE COST OF IMPROVEMENT INCURR ED BY THE ASSESSEE BUT ALSO THE COST OF IMPROVEMENT INCUR RED BY THE PREVIOUS OWNER SHALL BE DEDUCTED FROM THE TOTAL CONSIDERATION RECEIVED BY THE ASSESSEE WHILE COMPUT ING THE CAPITAL GAINS UNDER S. 48 OF THE ACT. THE QUESTION OF DEDUCTING THE COST OF IMPROVEMENT INCURRED BY THE P REVIOUS OWNER IN THE CASE OF AN ASSESSEE COVERED UNDER S. 49( 1) OF THE ACT WOULD ARISE ONLY IF THE PERIOD FOR WHICH TH E ASSET WAS HELD BY THE PREVIOUS OWNER IS INCLUDED IN DETER MINING THE PERIOD FOR WHICH THE ASSET WAS HELD BY THE ASSE SSEE. THEREFORE, IT IS REASONABLE TO HOLD THAT IN THE CAS E OF AN ASSESSEE COVERED UNDER S. 49(1) OF THE ACT, THE CAPI TAL GAINS LIABILITY HAS TO BE COMPUTED BY CONSIDERING THAT TH E ASSESSEE HELD THE SAID ASSET FROM THE DATE IT WAS H ELD BY THE PREVIOUS OWNER AND THE SAME ANALOGY HAS ALSO TO BE APPLIED IN DETERMINING THE INDEXED COST OF ACQUISITI ON. 22. THE OBJECT OF GIVING RELIEF TO AN ASSESSEE BY ALL OWING INDEXATION IS WITH A VIEW TO OFFSET THE EFFECT OF IN FLATION. AS PER THE CBDT CIRCULAR NO. 636 DT. 31ST AUG., 1992 [(1992) 107 CTR (ST) 1 : (1992) 198 ITR (ST) 1] A FAIR METHOD OF ALLOWING RELIEF BY WAY OF INDEXATION IS TO LINK IT TO THE PERIOD OF HOLDING THE ASSET. THE SAID CIRCULAR FURTHER PROVIDES THAT THE COST OF ACQUISITION AND THE COST OF IMPROVEMENT HAVE TO BE INFLATED TO ARRIVE AT THE IN DEXED COST OF ACQUISITION AND THE INDEXED COST OF IMPROVEM ENT AND THEN DEDUCT THE SAME FROM THE SALE CONSIDERATION TO ARRIVE AT THE LONG-TERM CAPITAL GAINS. IF INDEXATION IS LIN KED TO THE PERIOD OF HOLDING THE ASSET AND IN THE CASE OF AN A SSESSEE COVERED UNDER S. 49(1) OF THE ACT, THE PERIOD OF HOLD ING THE ASSET HAS TO BE DETERMINED BY INCLUDING THE PERIOD FOR WHICH THE SAID ASSET WAS HELD BY THE PREVIOUS OWNER , THEN OBVIOUSLY IN ARRIVING AT THE INDEXATION, THE FIRST Y EAR IN WHICH THE SAID ASSET WAS HELD BY THE PREVIOUS OWNER WOULD BE THE FIRST YEAR FOR WHICH THE SAID ASSET WAS HELD BY THE ASSESSEE. 6 I.T.A. NO.169/MDS/14 6. IN VIEW OF THE ABOVE JUDGMENT OF THE BOMBAY HIGH COURT, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE COST OF INDEXATION HAS TO BE COMPUTED ONLY FROM 01.04.1981. THEREFORE , WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES. THE ASSESSING OFFICER IS DIRECTED TO COMPUTE THE COST OF INDEXATION FROM 01. 04.1981. 7. THE NEXT GROUND OF APPEAL IS WITH REGARD TO COST OF CONSTRUCTION. 8. SHRI PHILIP GEORGE, THE LD.COUNSEL FOR THE ASSES SEE, SUBMITTED THAT THE ASSESSEE HAS INCURRED COST OF CO NSTRUCTION FOR ` 14,65,500/- IN THE ASSESSMENT YEAR 2003-04. THIS C OST OF CONSTRUCTION WAS CLAIMED AS IMPROVEMENTS FOR COMPUT ATION OF CAPITAL GAIN. HOWEVER, THE ASSESSING OFFICER ALLOW ED THE COST OF CONSTRUCTION TO THE EXTENT OF ` 6,00,000/-. THE BALANCE AMOUNT WAS DISALLOWED. ACCORDING TO THE LD.COUNSEL, THE ASSES SEE HAD BORROWED ` 6,00,000/- FROM INDIAN BANK AND THE ASSESSEE HAD TO SPEND MORE MONEY FOR IMPROVEMENT OF THE HOUSE. THE REFORE, RESTRICTING THE CLAIM TO THE EXTENT OF ` 6,00,000/- TO BE BORROWED FUNDS IS NOT JUSTIFIED. 9. ON THE CONTRARY, SHRI A.V. SREEKANTH, THE LD. DE PARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE AGREEMENT FOR CO NSTRUCTION WAS 7 I.T.A. NO.169/MDS/14 SIGNED ONLY BY A CIVIL ENGINEER AND NOT BY THE ASSE SSEE. THE ASSESSEE HAS NOT FILED ANY EVIDENCE FOR THE CONSTRU CTION. THEREFORE, THE ASSESSING OFFICER HAS TAKEN THE COST OF CONSTRUCTION OF THE FIRST FLOOR IN THE ABSENCE OF ANY MATERIAL A VAILABLE ON RECORD. THE ASSESSEE HIMSELF ADMITTED THAT THE IMPROVEMENT WAS TO THE EXTENT OF ` 6,00,000/- WITH THE BANK LIABILITY OF ` 6,01,172/- IN THE RETURN OF INCOME FILED BY HIM FOR ASSESSMENT YEAR 2 006-07. THEREFORE, THE ASSESSING OFFICER HAS RIGHTLY RESTRI CTED THE IMPROVEMENT COST TO ` 6,00,000/-. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE ASSES SEE HIMSELF FILED A RETURN OF INCOME FOR ASSESSMENT YEAR 2006-07 ON 1 4.11.2007 ADMITTING THE COST OF IMPROVEMENTS TO THE TUNE OF ` 6,00,000/- AND THE BANK LIABILITY OF ` 6,01,172/-. WHEN THE ASSESSEE HIMSELF ADMITS THE COST OF IMPROVEMENTS TO THE EXTENT OF ` 6,00,000/- ONLY, HE IS NOT JUSTIFIED TO CLAIM THE IMPROVEMENTS TO THE TUNE OF ` 14,65,500/-. THEREFORE, THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE CIT(APPEALS) AND THE SAME IS CONFIRMED . 11. THE NEXT GROUND OF APPEAL IS WITH REGARD TO APP LICATION OF SECTION 50C OF THE ACT. 8 I.T.A. NO.169/MDS/14 12. DURING THE COURSE OF HEARING, THE LD.COUNSEL FO R THE ASSESSEE SUBMITTED THAT THIS GROUND IS NOT PRESSED. ACCORDINGLY, THE GROUND RELATING TO APPLICATION OF SECTION 50C O F THE ACT IS DISMISSED AS NOT PRESSED. 13. THE NEXT GROUND OF APPEAL IS WITH REGARD TO GRA NT OF EXEMPTION UNDER SECTION 54F OF THE ACT. 14. SHRI PHILIP GEORGE, THE LD.COUNSEL FOR THE ASSE SSEE, SUBMITTED THAT FOR THE PURPOSE OF EXEMPTION UNDER S ECTION 54F OF THE ACT, THE VALUE SHOWN AS SALE CONSIDERATION HAS TO BE TAKEN. HOWEVER, THE ASSESSING OFFICER HAS TAKEN THE VALUE DETERMINED UNDER SECTION 50C OF THE ACT. THE LD.COUNSEL PLACE D RELIANCE ON THE DECISION OF JAIPUR BENCH OF THIS TRIBUNAL IN GY AN CHAND BATRA V. ITO (2010) 6 ITR 147. 15. WE HAVE HEARD LD. DEPARTMENTAL REPRESENTATIVE A LSO. THE VALUE ADOPTED UNDER SECTION 50C OF THE ACT IS ONLY FOR THE PURPOSE OF COMPUTING CAPITAL GAIN BECAUSE OF THE STATUTORY PROVISIONS. HOWEVER, FOR THE PURPOSE OF EXEMPTION UNDER SECTION 54F OF THE ACT, THE ACTUAL SALE CONSIDERATION RECEIVED BY THE ASSESSEE HAS TO BE TAKEN. THEREFORE, THIS TRIBUNAL IS OF THE CONSI DERED OPINION THAT AS RIGHTLY CONTENDED BY THE LD.COUNSEL, THE VALUE S HOWN IN THE SALE 9 I.T.A. NO.169/MDS/14 DEED AS SALE CONSIDERATION HAS TO BE TAKEN FOR THE PURPOSE OF COMPUTING EXEMPTION UNDER SECTION 54F OF THE ACT. 16. THE NEXT GROUND OF APPEAL IS REGARDING CLAIM OF THE ASSESSEE FOR EXEMPTION UNDER SECTION 54F OF THE ACT. 17. SHRI PHILIP GEORGE, THE LD.COUNSEL FOR THE ASSE SSEE, SUBMITTED THAT THE ASSESSEE PURCHASED A HOUSE PROPE RTY AND FILED A REVISED WORKING OF THE CAPITAL GAIN. AFTER PURCHASE OF THE PROPERTY, THE EXISTING HOUSE WAS DEMOLISHED AND THE ASSESSEE CONSTRUCTED A COMMERCIAL BUILDING AND THE BUILDING WITH LAND APPU RTENANT THERETO RENTED OUT TO INDIAN BANK. ACCORDING TO THE LD.COU NSEL, THE RESIDENTIAL HOUSE PURCHASED BY THE ASSESSEE IS ELIG IBLE FOR EXEMPTION UNDER SECTION 54 OF THE ACT. HOWEVER, TH E ASSESSING OFFICER DISALLOWED ON THE GROUND THAT WHAT WAS PURC HASED BY THE ASSESSEE WAS COMMERCIAL BUILDING. ACCORDING TO THE LD.COUNSEL, THE ASSESSEE PURCHASED ONLY A RESIDENTIAL HOUSE. 18. ON THE CONTRARY, SHRI A.V. SREEKANTH, THE LD. D EPARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSEE HAS NOT PURCHASED THE HOUSE IN HIS NAME. IN FACT, THE BUILDING WAS PURCH ASED BY HIS WIFE. THE ASSESSEE HAD GIFTED ` 44,00,000/- TO HER WIFE FOR THE PURCHASE OF THE PROPERTY. THEREFORE, THE ASSESSEE IS NOT EL IGIBLE FOR 10 I.T.A. NO.169/MDS/14 EXEMPTION UNDER SECTION 54 OF THE ACT. REFERRING T O THE ASSESSMENT ORDER, THE LD. D.R. SUBMITTED THAT THE A SSESSEE HAD NOT MADE ANY CLAIM OF DEDUCTION UNDER SECTION 54 OF THE ACT. A FRESH CLAIM WAS MADE UNDER SECTION 54 OF THE ACT COULD NO T BE ENTERTAINED. WHAT WAS PURCHASED BY THE ASSESSEE IS COMMERCIAL BUILDING AND LAND APPURTENANT THERETO AND THAT WAS LET OUT TO INDIAN BANK. THEREFORE, NO ASSET WAS PURCHASED BY THE ASS ESSEE. IN FACT, IT WAS PURCHASED BY HIS WIFE AND APPARENTLY IT IS A COMMERCIAL BUILDING. THEREFORE, THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION EITHER UNDER SECTION 54C OR UNDER SECTION 54F OF THE ACT. 19. IN HIS REJOINDER, THE LD.COUNSEL FOR THE ASSESS EE SUBMITTED THAT HUSBAND AND WIFE ARE ONE AND THE SAME IN THE E YES OF INCOME- TAX ACT. WHETHER THE ASSESSEE PURCHASED A HOUSE IN THE NAME OF HIS WIFE OR THE WIFE HAS PURCHASED A PROPERTY BY IN VESTING THE MONEY GIFTED BY HIS HUSBAND, THE PROPERTY HAS TO BE TREATED AS HIS PROPERTY FOR ALL PRACTICAL PURPOSE. THEREFORE, ACC ORDING TO THE LD.COUNSEL, THE ASSESSEE IS ENTITLED FOR EXEMPTION UNDER SECTION 54F OF THE ACT. MERELY BECAUSE THE ASSESSEE CLAIMS DEDUCTION UNDER SECTION 54 BEFORE THE ASSESSING OFFICER, IT I S THE DUTY OF THE ASSESSING OFFICER TO ALLOW EXEMPTION UNDER SECTION 54F OF THE ACT. EVEN THOUGH THE ASSESSEE CLAIMS EXEMPTION UNDER SEC TION 54 11 I.T.A. NO.169/MDS/14 WRONGLY, THAT CANNOT BE A REASON TO DISALLOW THE CL AIM OF THE ASSESSEE. 20. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE ASSES SEE CLAIMS THAT HE PURCHASED A RESIDENTIAL HOUSE IN THE NAME OF HIS WIFE AND THE EXISTING HOUSE WAS DEMOLISHED AND COMMERCIAL BUILDI NG WAS CONSTRUCTED. AFTER CONSTRUCTION OF THE BUILDING, T HE ASSESSEE CLAIMS THAT THE SAME WAS LET OUT TO INDIAN BANK. HOWEVER, THE MATERIAL AVAILABLE ON RECORD DOES NOT SAY WHETHER THE BUILDI NG PURCHASED BY THE ASSESSEE IS A RESIDENTIAL BUILDING OR A COMMERC IAL BUILDING. THE ASSESSEE HAS FILED A COPY OF THE SALE DEED. HOWEVE R, IT DOES NOT THROW ANY LIGHT WITH REGARD TO NATURE OF THE BUILDI NG. HOWEVER, IT APPEARS THAT THERE WAS ELECTRICITY CONNECTION IN TH E BUILDING AS REFERRED IN THE SCHEDULE TO THE SALE DEED. IT IS N OT KNOWN WHETHER THE ELECTRICITY CONNECTION AVAILABLE AT THE TIME OF PURCHASE OF PROPERTY WAS FOR COMMERCIAL PURPOSE OR FOR RESIDENT IAL HOUSE. IF IT IS FOR COMMERCIAL PURPOSE, THEN WE CAN SAFELY CONCLUDE THAT THE BUILDING IS A COMMERCIAL BUILDING. IT IS ALSO NOT KNOWN HOW THE BUILDING WAS ASSESSED BY THE LOCAL AUTHORITY. IF T HE BUILDING WAS ASSESSED BY THE LOCAL AUTHORITY AS COMMERCIAL BUILD ING, THEN ALSO IT CAN BE SAID THAT WHAT WAS PURCHASED BY THE ASSESSEE IS A 12 I.T.A. NO.169/MDS/14 COMMERCIAL BUILDING. IN THE ABSENCE OF ANY MATERIA L, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ASSESSING OFFICE R HAS TO RECONSIDER THE MATTER AFRESH. ACCORDINGLY, WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND THE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RECONSIDER THE MATTER AND FIND OUT WHETHER THE BUILDING PURCHASED BY THE ASSESSEE IS A COMMERCIAL BUILDING OR RESIDENTIAL BUILDING AN D THEREAFTER, THE ASSESSING OFFICER SHALL INDEPENDENTLY DECIDE THE IS SUE AFRESH IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTU NITY TO THE ASSESSEE. IT IS MADE CLEAR THAT WE ARE NOT EXPRESS ING ANY OPINION ON THE ISSUE. 21. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 29 TH MAY, 2015 AT CHENNAI. SD/- SD/- (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) (. !' ) ( . . . ) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 29 TH MAY, 2015. KRI. 13 I.T.A. NO.169/MDS/14 . ,156 76(1 /COPY TO: 1. *+ /APPELLANT 2. ,-*+ /RESPONDENT 3. 0 81 () /CIT(A), TIRUCHIRAPPALLI 4. 0 81 /CIT-II, TRICHY 5. 69 ,1 /DR 6. :' ; /GF.