Maduranthagam Selvaraj Ravi, CHENNAI V. DCIT Non Corporate Circle 2, CHENNAI

ITA 2489/CHNY/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1274 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 12-10-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS R ANITHA
• Assessee Lawyers: S KRISHNAN
• Keywords: Sale consideration of property below Jantri Value; Deduction for capital gain; Capital asset; Cost of acquisition; Wrong claim; Capital Gains
• Section: 143(3); 50C; 250; 201; 143(2); 43; 13; 148; 54; 263; 2

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: CHENNAI . . . , ' , ' BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA NO.2489/CHNY/2017 ( ( /ASSESSMENT YEAR: 2013-14 SHRI MADURANTHAGAM SELVARAJ RAVI, C/O. MR.S.KRISHNAN, FCA, NO.2, C.V.RAMAN ROAD, ALWARPET, CHENNAI-600 018. V . THE DY. COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE-2, CHENNAI. [PAN: AAJPR5892A ] ( + /APPELLANT) ( ,-+ /RESPONDENT) + . / APPELLANT BY : MR.S.KRISHNAN, FCA ,-+ . /RESPONDENT BY : MRS.R.ANITHA, JCIT . /DATE OF HEARING : 19.09.2019 . /DATE OF PRONOUNCEMENT : 17.12.2019 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER : THIS APPEAL FILED BY ASSESSEE IS DIRECTED AGAINST APPELLATE ORDER DATED 29.08.2017 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-2, CHENNAI (HEREINAFTER CALLED THE CIT(A )), IN ITA NO.30/CIT(A)-2/2016-17 FOR ASSESSMENT YEAR (AY) 201 3-14, THE APPELLATE PROCEEDINGS BEFORE LEARNED CIT(A) HAD ARISEN FROM A SSESSMENT ORDER DATED 17.03.2016 PASSED BY LEARNED ASSESSING OFFICE R (HEREINAFTER CALLED ITA NO.2489/CHNY/2017 :- 2 -: THE AO) U/S.143(3) OF THE INCOME-TAX ACT, 1961 ( HEREINAFTER CALLED THE ACT). 2. THE GROUNDS OF APPEAL RAISED BY ASSESSEE IN MEM O OF APPEAL FILED WITH THE INCOME-TAX APPELLATE TRIBUNAL, CHENNAI (HE REINAFTER CALLED THE TRIBUNAL) READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LEARNED COMMISSIONER (APPEALS) HAS ERRED IN CONFIRMING THE ADDITION OF RS.65,36,333/-, BEING THE DISALLOWANCE OF CAPITAL GAIN EXEMPTION CLAIMED UNDER SECTION 54 OF THE INCOME-TAX ACT IGNORI NG THE FACT THAT THE REQUIRED AMOUNT WAS INVESTED IN CONSTRUCTION OF A NEW CAPITAL ASSET IN THE FORM OF A RESIDENTIAL HOUSE AS REQUIRED UNDE R SECTION 54 OF THE INCOME-TAX ACT. 2. THE APPELLANT CRAVES LEAVE TO AMEND, ALTER OR DEL ETE ANY OF THE GROUNDS OF APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS DENTAL SURGEON AND IS PROFESSOR IN A MEDICAL COLLEGE. THE CASE OF THE ASSESSEE WAS SELECTED BY REVENUE FOR FRAMING SCRUTINY ASSESSMENT U/S 143(3) READ WITH SECTION 143(2) OF THE 1961 ACT. DURING THE COURSE OF ASSESS MENT PROCEEDINGS, THE AO OBSERVED THAT DURING THE PREVIOUS YEAR RELEVANT TO IMPUGNED AY: 2013-14, THE ASSESSEE HAS SOLD A FLAT AT ABHIRAMAPU RAM AND CAPITAL GAINS ARISING FROM SALE OF THE AFORESAID FLAT WAS CLAIMED AS AN EXEMPT U/S 54 OF THE 1961 ACT AND CONSEQUENTLY INCOME DECLARED BY AS SESSEE UNDER THE HEAD CAPITAL GAINS WAS DECLARED TO BE NIL IN THE RETURN OF INCOME FILED WITH REVENUE. THE AO OBSERVED THAT ASSESSEE HAS SOL D THE FLAT AT ABHIRAMAPURAM , CHENNAI FOR CONSIDERATION OF RS. 1, 20,00,000/- WHOSE GUIDELINE VALUE WAS RS. 1,44,52,000/- . THE AO OBSE RVED THAT AFTER DEDUCTING INDEXED COST OF ACQUISITION OF THE LAND A ND BUILDING OF RS. ITA NO.2489/CHNY/2017 :- 3 -: 40,98,673/-, THE LONG TERM CAPITAL GAINS WERE ARRIV ED AT RS. 1,03,53,327/. THE AO OBSERVED THAT IN RETURN OF INCOME FILED BY A SSESSEE WITH REVENUE, THE ASSESSEE HAS CLAIMED EXEMPTION U/S 54 OF THE 19 61 ACT TO THE TUNE OF ENTIRE LONG TERM CAPITAL GAINS OF RS. 1,03,53,327/- COMPUTED BY TAKING GUIDELINE VALUE OF THE PROPERTY SOLD AS SALE CONSID ERATION WAS LOWER THAN THE GUIDELINE VALUE AND HENCE KEEPING IN VIEW PROVI SIONS OF SECTION 50C OF THE 1961 ACT, THE GUIDELINE VALUE WAS ADOPTED AS FU LL VALUE OF SALE CONSIDERATION . THE AO ASKED ASSESSEE DURING THE CO URSE OF ASSESSMENT PROCEEDINGS TO JUSTIFY SAID CLAIM OF EXEMPTION U/S 54 OF THE 1961 ACT. THE ASSESSEE IN REPLY THEREOF SUBMITTED SALE DEED FOR P URCHASE OF LAND FOR RS. 1,24,00,000/- AT KANATHUR REDDY , KUPPAM VILLAGE. T HE AO OBSERVED FROM RECITAL OF SALE DEED THAT SAID LAND PURCHASED BY AS SESSEE WAS AN AGRICULTURAL LAND. THE ASSESSEE SUBMITTED BEFORE TH E AO THAT ALBEIT LAND IS DESCRIBED AS AN AGRICULTURAL LAND IN RECITAL OF SAL E DEED BUT INFACT THE SAID LAND IS RESIDENTIAL LAND. THE ASSESSEE IN SUPPORT O F ITS CONTENTIONS FILED AN ENCUMBRANCE CERTIFICATE ISSUED BY SUB-REGISTRAR WHE RE LAND IS SHOWN AS RESIDENTIAL AREA. THE ASSESSEE EXPLAINED BEFORE AO THAT ENTIRE SALE CONSIDERATION AND EVEN MORE THAN SALE CONSIDERATION RECEIVED ON SALE OF PROPERTY WAS INVESTED IN PURCHASE OF LAND AT KANAT HUR REDDY , KUPPAM VILLAGE AND A RESIDENTIAL PROPERTY HAS ALSO BEEN CO NSTRUCTED ON THE SAME. THE ASSESSEE ALSO ENCLOSED PHOTOGRAPH OF THE SAID N EW PROPERTY PURCHASED BY IT , WHICH PHOTOGRAPHS ARE EXHIBITED B Y AO IN ITS ASSESSMENT ORDER AT PAGE 3. THE AO REFERRED TO PROVISIONS OF S ECTION 54 OF THE 1961 ACT AND OBSERVED THAT MAIN REQUIREMENT OF PROVISION S OF SECTION 54 OF THE ITA NO.2489/CHNY/2017 :- 4 -: 1961 ACT ARE THAT THERE SHOULD BE A NEW RESIDENTIAL HOUSE PROPERTY ACQUIRED BY ASSESSEE. THE AO ALSO REFERRED TO CBDT CIRCULAR NO. 667 DATED 18.10.1993 WHEREIN IT WAS STIPULATED THAT BOTH COST OF LAND AND CONSTRUCTION IS TO BE CONSIDERED FOR GRANT OF DEDUC TION U/S 54 OF THE 1961 ACT PROVIDED THAT ACQUISITION OF THE PLOT OF LAND A ND CONSTRUCTION IS COMPLETED WITHIN SPECIFIED PERIOD. THE AO OBSERVED THAT FOR GRANT OF DEDUCTION U/S 54 OF THE 1961 ACT, IT IS ESSENTIAL T HERE SHOULD BE CONSTRUCTION OF A NEW RESIDENTIAL HOUSE OVER SAID L AND. THE AO IN ORDER TO VERIFY WHETHER ANY SUPER STRUCTURE EXISTED IN THE S AID LAND, DEPUTED INSPECTOR TO INSPECT THE PROPERTY AND SUBMIT ITS RE PORT. THE INSPECTOR AFTER CONDUCTING INSPECTION OF THE AFORESAID PROPERTY REP ORTED THAT ALLEGED PROPERTY PURCHASED WAS SURROUNDED BY A COMPOUND WAL L ON ALL FOUR SIDES WITH A GATE IN THE FRONT SIDE. FURTHER, THE INSPECT OR REPORTED THAT A SMALL AREA OF PLINTH AREA OF ABOUT 150 SQUARE FEET WITH A SBESTOS ROOFING HAS BEEN CONSTRUCTED IN THE LAND PURCHASED AND THERE WA S AN ATTACHED BATH AND TOILET IN THE ROOM. THE INSPECTOR ALSO REPORTED THAT THE SAID ROOM DID NOT HAD A SEPARATE KITCHEN UNIT, A GAS STOVE AND SO ME UTENSIL WERE PLACED ON A FOLDING TABLE IN THE ROOM. THE AO OBSERVED THA T LAND PURCHASED BY ASSESSEE WAS TO THE TUNE OF 4973.125 SQUARE FEET VA LUED AT RS. 1,24,00,000/- BUT THE ASSESSEE HAS CONSTRUCTED ONLY 150 SQUARE FEET, THE AO OBSERVED THAT DEDUCTION U/S 54 OF THE 1961 ACT I S ALLOWABLE TO THE EXTENT OF INVESTMENT MADE IN RESIDENTIAL PROPERTY O NLY WHICH SHOULD NATURALLY BE CONFINED TO VALUE OF THE BUILDING AND LAND APPURTENANT TO SUCH BUILDING. THE AO , THUS , HELD THAT ONLY 25% OF LAN D BEING 1243.28 SQUARE ITA NO.2489/CHNY/2017 :- 5 -: FEET CAN BE CONSIDERED TO BE LAND APPURTENANT TO TH E CONSTRUCTED AREA OF 150 SQUARE FEET FOR THE PURPOSES OF DEDUCTION CLAI MED BY ASSESSEE U/S 54 OF THE 1961 ACT WHICH LED TO THE DEDUCTION TO THE T UNE OF 38,16,994/- BEING ALLOWED BY THE AO U/S 54 OF THE 1961 ACT WHIL E COMPUTING LONG TERM CAPITAL GAINS CHARGEABLE TO INCOME-TAX, OUT OF TOTA L CLAIM TO THE TUNE OF RS. 1,03,53,327/- FILED BY ASSESSEE U/S 54 OF THE 1 961 ACT IN RETURN OF INCOME FILED WITH REVENUE . WHILE THE BALANCE OF L AND TO THE TUNE OF 3749.845 SQUARE FEET WAS HELD BY AO TO BE NOT APPUR TENANT TO THE CONSTRUCTED AREA AND WAS HELD TO BE INELIGIBLE FOR DEDUCTION U/S 54 OF THE 1961 ACT. THE AO RELIED UPON DECISION OF HONBLE KE RALA HIGH COURT IN THE CASE OF SMT. ASHA GEORGE REPORTED IN (2013) 30 TAXM ANN.COM 334(KER.) TO DISALLOW AFORESAID DEDUCTION U/S 54 OF THE 1961 ACT, VIDE ASSESSMENT ORDER DATED 17.03.2016 PASSED BY THE AO U/S 143(3) OF THE 1961 ACT. 4. AGGRIEVED BY AN ASSESSMENT FRAMED BY THE AO U/S 143(3) OF THE 1961 ACT VIDE ASSESSMENT ORDER DATED 17.03.2016, THE ASS ESSEE FILED FIRST APPEAL WITH LEARNED CIT(A) WHO WAS PLEASED TO DISMI SS APPEAL OF THE ASSESSEE , VIDE APPELLATE ORDER DATED 29.08.2017. 5.1 AGGRIEVED BY AN APPELLATE ORDER DATED 29.08.201 7 PASSED BY LEARNED CIT(A) , THE ASSESSEE HAS FILED AN APPEAL WITH TRIB UNAL. THE LEARNED COUNSEL FOR THE ASSESSEE OPENED ARGUMENT AND SUBMIT TED THAT DISPUTE BETWEEN RIVAL PARTIES IS WITH RESPECT TO COMPUTATIO N OF TAXATION OF LONG TERM CAPITAL GAINS AND TO THE ALLOWABLITY OF CLAIM OF DEDUCTION U/S 54 OF THE 1961 ACT. THE LEARNED COUNSEL FOR ASSESSEE SUBM ITTED THAT ASSESSEE ITA NO.2489/CHNY/2017 :- 6 -: HAS SOLD ONE PROPERTY AND INVESTED PROCEED IN PURCH ASE OF ONE RESIDENTIAL PLOT OF LAND ADMEASURING 4973.125 SQUARE FEET . IT IS SUBMITTED THAT CONSTRUCTED AREA AS PER REVENUE ON THE SAID PLOT OF LAND IS ONLY 150 SQUARE FEET WHILE FACT OF THE MATTER IS THAT CONSTR UCTED AREA IS AROUND 250 SQUARE FEET. OUR ATTENTION WAS DRAWN TO APPELLATE O RDER PASSED BY LEARNED CIT(A) AFFIRMING DISALLOWANCE OF DEDUCTION U/S 54 O F THE 1961 ACT. THE LEARNED COUNSEL FOR THE ASSESSEE FILED PROPERTY TAX RECEIPTS FOR THE YEAR 2015-16 TO 2017-18. ON BEING ASKED BY THE BENCH, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO PROPERTY TAX ASSESSM ENTS WERE FRAMED WITH RESPECT TO AFORESAID PROPERTY PURCHASED BY THE ASSESSE. THE SAID PROPERTY TAX RECEIPTS ARE PLACED IN FILE. THE ASSES SEE HAS ALSO NOT FILED PROPERTY TAX RECEIPT FOR THE PREVIOUS YEAR RELEVANT TO IMPUGNED AY: 2013- 14.OUR ATTENTION WAS DRAWN TO PAGE 4 OF THE PAPER B OOK FILED WITH TRIBUNAL WHICH ARE BUILDING PLANS FOR CONSTRUCTION OF RESIDE NTIAL BUILDING ON THE PLOT OF LAND, WHICH ENVISAGE CONSTRUCTED AREA OF 644 SQU ARE FEET AND CAR PARK OF 284 SQUARE FEET ON TOTAL PLOT OF LAND ADMEASURIN G 4973.125 SQUARE FEET. IT WAS SUBMITTED THAT NO BUILDING PLANS WERE APPROVED BY LOCAL AUTHORITIES AS NO APPROVAL WAS SOUGHT FROM LOCAL AU THORITIES FOR CONSTRUCTION ON THE SAID PLOT OF LAND. OUR ATTENTIO N WAS DRAWN TO PAGE 1 OF THE PAPER BOOK WHICH ARE TAMIL NADU VILLAGE PANCHAY AT (ASSESSMENT AND COLLECTION OF TAXES) RULES, 1999 ARE PLACED. IT WAS SUBMITTED THAT CLAIM OF DEDUCTION U/S 54 OF THE 1961 ACT WAS ALLOWED BY THE AO TO THE EXTENT OF 25% OF THE INVESTMENT IN LAND , CORRESPONDING STAMP DUTY AND COST OF CONSTRUCTION ON STRUCTURE EXISTING ON THE SAID LAND .IT WAS SUBMITTED THAT ITA NO.2489/CHNY/2017 :- 7 -: THE ENTIRE PURCHASE PRICE OF PLOT OF LAND, STAMP DU TY PAID AND CONSTRUCTION COST BE ALLOWED AS DEDUCTION U/S 54 OF THE 1961 ACT 5.2 THE LEARNED DR RELIED UPON DECISION OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF RAJESH SURANA V. CIT REPORTED IN (20 08) 306 ITR 368 (RAJ.). IT WAS SUBMITTED THAT LAND TO THE TUNE OF APPROX. 4 973 SQUARE FEET WAS PURCHASED BY ASSESSEE AND OUT OF IT MERELY 150 SQ. FEET OF LAND IS CONSTRUCTED WHICH IS LESS THAN 5% OF THE TOTAL AREA OF LAND. THE LEARNED DR DREW OUR ATTENTION TO ASSESSMENT ORDER PASSED BY AO AND SUBMITTED THAT IT IS ONLY LAND APPURTENANT TO BUILDING WHICH CAN BE ALLOWED WHILE COMPUTING DEDUCTION U/S 54 OF THE 1961 ACT. IT WAS SUBMITTED THAT THE ASSESSEE HAS SUBMITTED DUBIOUS CLAIM / IN-GENUINE C LAIM FOR DEDUCTION U/S 54 OF THE 1961 ACT. IT WAS SUBMITTED THAT THE ASSES SEE HAS SUBMITTED BUILDING PLAN FOR CONSTRUCTING BUILDING ON THE PLOT OF LAND WHICH CONDUCT OF THE ASSESSEE CLEARLY DEMONSTRATE THAT ENTIRE LAND W AS NOT APPURTENANT TO THE BUILDING OF 150 SQUARE FEET EXISTING ON THE LAN D. 5.3 THE LEARNED COUNSEL FOR ASSESSEE IN REJOINDER R ELIED UPON DECISION OF MUMBAI-TRIBUNAL IN THE CASE OF ITO V. P.B.RODRIQUES , DATED 24.04.1980 REPORTED IN (1980) 01 CCH 1840(MUM-TRIB.); (1981) 1 1 TTJ 0347. 6. WE HAVE CONSIDERED RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD INCLUDED CITED CASE LAWS. THE ASSESSEE IS DE NTAL SURGEON BY PROFESSION AND IS PROFESSOR IN MEDICAL COLLEGE. THE CASE OF THE ASSESSEE WAS SELECTED FOR FRAMING SCRUTINY ASSESSMENT BY REV ENUE U/S 143(3) READ ITA NO.2489/CHNY/2017 :- 8 -: WITH SECTION 143(2) OF THE 1961 ACT . IT WAS OBSERV ED BY AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS THAT ASSESSEE HAS SOLD A FLAT AT ABHIRAMAPURAM AND CAPITAL GAINS ARISING FROM SALE O F AFORESAID FLAT WAS CLAIMED AS EXEMPT U/S 54 OF THE 1961 ACT AND CONSEQ UENTLY INCOME DECLARED BY ASSESSEE UNDER THE HEAD CAPITAL GAINS W AS NIL AS PER RETURN OF INCOME FILED WITH REVENUE. THE ASSESSEE HAS SOLD THE FLAT AT ABHIRAMAPURAM , CHENNAI FOR CONSIDERATION OF RS. 1, 20,00,000/- WHOSE GUIDELINE VALUE WAS RS. 1,44,52,000/- . THE ASSESSE E DECLARED GUIDELINE VALUE OF THE SAID FLAT AS FULL VALUE OF CONSIDERATI ON AND AFTER DEDUCTING INDEXED COST OF ACQUISITION OF THE LAND AND BUILDIN G OF RS. 40,98,673/- ARRIVED AT CAPITAL GAINS TO THE TUNE OF RS. 1,03, 53,327/-. THE ASSESSEE HAS CLAIMED EXEMPTION U/S 54 OF THE 1961 ACT TO THE TUNE OF ENTIRE CAPITAL GAINS OF RS. 1,03,53,327/- . THE ASSESSEE PURCHASED A PLOT OF LAND ADMEASURING 4973.125 SQUARE FEET FOR RS. 1,24,00,00 0/- AT KANATHUR REDDY , KUPPAM VILLAGE, TIRUPORUR TALUK, KANCHIPURA M DISTRICT, TAMIL NADU. IT WAS OBSERVED BY AO FROM RECITAL OF SALE DE ED THAT SAID LAND PURCHASED BY ASSESSEE WAS AN AGRICULTURAL LAND. THE ASSESSEE SUBMITTED BEFORE AO THAT ALBEIT LAND IS DESCRIBED AS AN AGRIC ULTURAL LAND IN RECITAL OF SALE DEED BUT INFACT THE SAID LAND IS RESIDENTIAL L AND. THE ASSESSEE IN SUPPORT OF ITS CONTENTIONS FILED AN ENCUMBRANCE CER TIFICATE ISSUED BY SUB- REGISTRAR WHERE LAND IS SHOWN AS RESIDENTIAL AREA. THIS PLEA OF THE ASSESSEE TO TREAT THE SAID PLOT OF LAND AS RESIDENT IAL WAS ACCEPTED BY AO AS THE AO ITSELF ALLOWED DEDUCTION U/S 54 OF THE 19 61 ACT TO THE TUNE OF RS. 38,16,994/- AS AGAINST CLAIM OF DEDUCTION TO TH E TUNE OF RS. ITA NO.2489/CHNY/2017 :- 9 -: 1,03,53,327 MADE BY ASSESSEE U/S 54 OF THE 1961 ACT IN THE RETURN OF INCOME FILED WITH REVENUE .THUS, THIS CONTROVERSY AS TO CHARACTER OF LAND BEING RESIDENTIAL OR AGRICULTURE RESTED AT PEACE TH ERE ITSELF AT THE TIME OF FRAMING ASSESSMENT AND THE SAME ISSUE IS NOT BEFORE US AND WE SHALL PROCEED TO ADJUDICATE THIS APPEAL ON THAT BASIS ON LY. THE AO DEPUTED INSPECTOR TO CONDUCT FIELD ENQUIRY AND IT WAS SUBMI TTED BY INSPECTOR IN HER REPORT TO AO THAT SAID PLOT OF LAND WAS SURROUNDED BY A COMPOUND WALL ON ALL FOUR SIDES WITH A GATE IN THE FRONT SIDE. FURTH ER, INSPECTOR REPORTED THAT A SMALL AREA OF PLINTH AREA OF ABOUT 150 SQUARE FEE T WITH ASBESTOS ROOFING HAS BEEN CONSTRUCTED IN THE LAND PURCHASED AND THER E WAS AN ATTACHED BATH AND TOILET IN THE ROOM. THE INSPECTOR ALSO REP ORTED THAT SAID ROOM DID NOT HAD A SEPARATE KITCHEN UNIT AND IT WAS OBSERVED BY INSPECTOR THAT A GAS STOVE AND SOME UTENSIL WERE PLACED ON A FOLDING TABLE IN THE ROOM. THE ASSESSEE ON ITS PART IS CONTENDING THAT CONSTRU CTED AREA WAS 250 SQUARE FEET AND NOT 150 SQUARE FEET AS REPORTED BY THE INSPECTOR, BUT THE FACT REMAINS THAT THE CONSTRUCTED AREA WAS MINIMAL BETWEEN 3-5% OF THE TOTAL AREA OF PLOT OF LAND . THE ASSESSEE HAS FILED BUILDING PLAN BEFORE THE TRIBUNAL IN PAPER BOOK AT PAGE 4 WHICH THE ASSESSEE IS CONTENDING HAT THIS BUILDING PLAN ENVISAGES TO DEVELOP THE ENTIRE PLOT OF LAND , WHEREIN THE TOTAL CONSTRUCTED AREA ENVISAGED IS 424 SQUARE FEET FOR MAIN BUILDING , 220 SQUARE FEET FOR OUTHOUSE AND CAR PARK OF 284 SQUARE FEET. THERE IS PROVISION FOR SEPTIC TANK, CAR PARK AND BOREWELL AL SO IN THE SAID BUILDING PLAN FILED BY THE ASSESSEE. THIS EXISTING BUILDING ON THE SAID PLOT OF LAND WHICH WAS EXISTING WHEN INSPECTOR VISITED PLOT OF L AND IS CONSTRUCTED IN A ITA NO.2489/CHNY/2017 :- 10 -: CORNER OF PLOT , ABUTTED BY THE COMPOUND WALL ON TW O SIDES AND VERY CLOSE TO GATE(REFER PARA 5.3 OF CIT(A) ORDER) . IF THE L OCATION OF THIS EXISTING BUILDING WHICH WAS EXISTING IN THE SAID PLOT OF LA ND AS WAS REPORTED BY INSPECTOR IN ITS REPORT IS SEEN VIS-A-VIS BUILDING PLAN PREPARED BY ASSESSEE TO DEVELOP THE ENTIRE PLOT OF LAND, THE BUILDING WH ICH WAS EXISTING ON THE SAID PLOT OF LAND WAS INFACT AN OUTHOUSE OF 220 SQU ARE FEET AS IS REFLECTED IN THE BUILDING PLAN NOW FILED BY ASSESSEE . THERE WAS NO MAIN BUILDING EXISTING AT THAT TIME WHEN THE INSPECTOR VISITED TH E PLOT OF LAND, WHICH IS NOW ENVISAGED TO BE CONSTRUCTED BY ASSESSEE AS PER BUILDING PLAN FILED WITH TRIBUNAL . RATHER IT WAS MERELY AN OUTHOUSE WH ICH WAS EXISTING ON THE SAID PLOT OF LAND ON THE DATE OF INSPECTION BY INSP ECTOR. THE AO HAS ACCEPTED IT TO BE RESIDENTIAL HOUSE AND ACCORDINGLY ALLOWED DEDUCTION U/S 54 OF THE 1961 ACT TO THE TUNE OF RS. 38,16,994/- A S AGAINST ASSESSEE CLAIM FOR HIGHER AMOUNT OF DEDUCTION U/S 54 OF THE 1961 ACT. THE LOCATION OF OUTHOUSE IN BUILDING PLAN FILED BY ASSESSEE ALSO MATCHES WITH THE LOCATION OF THE EXISTING BUILDING AS REPORTED BY I NSPECTOR AND IN PHOTOGRAPHS REPRODUCED IN THE ASSESSMENT ORDER. THU S IN OUR CONSIDERED VIEW ON THE TOUCH STONE OF PREPONDERANCE OF PROBABI LITIES, THIS OUTHOUSE WAS EXISTING ON THE SAID PLOT OF LAND OF 220 SQUARE FEET WHEN INSPECTOR VISITED THE SITE BUT STILL THE AREA CONSTRUCTED VI DE THIS OUTHOUSE WAS LESS THAN 5% OF THE TOTAL PLOT OF LAND. IT IS OBSERVED T HAT THE AO HAS ACCEPTED THIS BUILDING WHICH WAS EXISTING ON PLOT OF THE LAN D TO BE A RESIDENTIAL HOUSE AND AO HAS ALLOWED DEDUCTION U/S 54 OF THE 19 61 ACT BY TAKING 25% OF COST OF PLOT OF LAND, PROPORTIONATE STAMP DU TY AND COST OF ITA NO.2489/CHNY/2017 :- 11 -: CONSTRUCTION ON THE SAID PLOT OF LAND AS WAS EXISTI NG ON THE SAID PLOT OF LAND . BEFORE WE PROCEED FURTHER, IT IS PERTINENT T O MENTION THAT THE LEARNED DR HAS STATED BEFORE US THAT THE ENTIRE CLA IM OF DEDUCTION U/S 54 OF THE 1961 ACT WAS A SHAM OR BOGUS CLAIM AS IN VIE W OF THE LEARNED DR THIS BUILDING WHICH WAS EXISTING IN THE SAID PLOT O F LAND COULD NOT BE CONSIDERED AS RESIDENTIAL HOUSE AS IS MANDATED U/S 54 OF THE 1961 ACT. THE LEARNED DR ALSO RELIED UPON JUDGMENT OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF RAJESH SURANA V. CIT REPORTED IN (20 08) 306 ITR 368(RAJ) . THIS CONTENTION OF THE LEARNED DR CANNOT BE ACCEPTE D AT THIS STAGE FIRSTLY BECAUSE THE AO HAS ITSELF ADMITTED THE SAID EXISTIN G BUILDING TO BE RESIDENTIAL HOUSE AND GRANTED PARTIAL DEDUCTION U./ S 54 OF THE 1961 ACT. SECONDLY, THIS IS AN APPEAL FILED BY ASSESSEE AND T HERE IS NO GRIEVANCE RAISED BY REVENUE BY FILING AN APPEAL OR CROSS OBJE CTIONS. EVEN, THE LEARNED CIT(A) WHO HAS POWERS COTERMINOUS WITH THE AO HAS ACCEPTED THE SAID EXISTING BUILDING AS RESIDENTIAL BUILDING. TH IRDLY, THE REVENUE HAS OTHER RECOURSES AVAILABLE UNDER THE 1961 ACT WHEREI N IT CAN INVOKE ITS POWERS U/S 148 OR 263 OF THE 1961 ACT , IF PERMITTE D OTHERWISE BY THE STATUTE SUCH AS TIME LIMITATION ETC. COMING BACK, THE ASSESSEE ON ITS PART IS SAYING THAT IN THE REST OF THE PLOT OF LAND , THERE WAS A CAR PARKING, PLATFORM FROM GATE TO CAR PARKING, GARDEN , SEPTIC TANK, PUMP HOUSE AND OTHER FEATURES FOR LIVING AND HENCE THE ENTIRE PLO T OF LAND ADMEASURING 4973.125 SQUARE FEET ALONG WITH EXISTING BUILDING C ONSTRUCTED THEREON IS TO BE CONSIDERED FOR ALLOWING DEDUCTION U/S 54 OF T HE 1961 ACT. THE SAID PROPERTY WAS NOT ASSESSED FOR PROPERTY TAX DURING T HE YEAR UNDER ITA NO.2489/CHNY/2017 :- 12 -: CONSIDERATION NOR ANY EVIDENCE OF PAYMENT OF PROPER TY TAX FOR THE RELEVANT PERIOD IS FILED BY THE ASSESSEE. THE ASSESSEE HAS H OWEVER FILED PROPERTY TAX RECEIPTS FROM FINANCIAL YEAR 2015-16 ONWARD WHI CH ARE PLACED IN FILE BUT THE SAME ARE NOT RELEVANT FOR US AS WE ARE SEIZ ED OF PREVIOUS YEAR 2012-13 RELEVANT TO AY: 2013-14. THE ASSESSEE HAS N OT FILED ANY EVIDENCE OF ANY PROPERTY TAX ASSESSMENT CONDUCTED BY GOVERNM ENT FOR ANY OF THE YEAR. THE AFORESAID BUILDING PLANS SUBMITTED BY AS SESSEE PROPOSING TO DEVELOP ENTIRE PLOT OF LAND WAS ALSO NOT APPROVED B Y LOCAL AUTHORITIES . THE BUILDING EXISTING ON THE SAID PLOT OF LAND WAS CONS TRUCTED WITHOUT TAKING ANY APPROVAL OF LOCAL AUTHORITIES. THE EXISTING BUI LDING WAS CONSTRUCTED IN A CORNER OF THE PLOT OF LAND , ABUTTED BY THE COMPO UND WALL ON TWO SIDES , VERY CLOSE TO GATE. THE SAID BUILDING WAS HAVING S MALL ROOM WITH ASBESTOS ROOFING AND THERE WAS ATTACHED BATH AND TOILET IN T HE ROOM. THERE WAS NO KITCHEN IN THE SAID BUILDING. WE HAVE ALSO SEEN T HAT CONSTRUCTED AREA WAS LESS THAN 5% OF THE TOTAL AREA OF PLOT OF LAND. THE AO HAS CONSIDERED LAND APPURTENANT TO EXISTING CONSTRUCTED AREA TO BE 25% AND ALLOWED DEDUCTION U/S 54 OF THE 1961 ACT TO THE EXTENT OF 2 5% OF COST OF PLOT OF LAND PURCHASED BY ASSESSEE, PROPORTIONATE STAMP DUT Y AND TOTAL COST OF CONSTRUCTION OF EXISTING STRUCTURE. THUS, BY ASSESS EES OWN VERSION THE PLOT OF LAND WAS NOT DEVELOPED FULLY WHEN INSPECTOR VISITED THE PROPERTY AND AS WE HAVE SEEN EARLIER ONLY SUPER STRUCTURE OF 220 SQUARE FEET BEING OUTHOUSE WAS EXISTING IN THE SAID PLOT OF LAND AT T HAT POINT OF TIME. IT WILL BE PROFITABLE AT THIS STAGE TO REFER TO PROVISIONS OF SECTION 54 OF THE 1961 ACT WHICH PROVIDES THAT FOR CLAIMING DEDUCTION U/S 54 OF THE 1961 ACT , THE ITA NO.2489/CHNY/2017 :- 13 -: INVESTMENTS ARE TO BE MADE FOR PURCHASE OR CONSTRUC TION OF RESIDENTIAL HOUSE TO GET BENEFIT OF DEDUCTION U/S 54 OF THE 196 1 ACT. PROVISIONS OF SECTION 54 OF THE 1961 ACT AS WERE APPLICABLE FOR R ELEVANT AY : 2013-14 ARE REPRODUCED AS HEREUNDER : PROFIT ON SALE OF PROPERTY USED FOR RESIDENCE. 54(1) SUBJECT TO THE PROVISIONS OF SUB-SECTION (2), W HERE, IN THE CASE OF AN ASSESSEE BEING AN INDIVIDUAL OR A HINDU UNDIVID ED FAMILY], THE CAPITAL GAIN ARISES FROM THE TRANSFER OF A LONG-TER M CAPITAL ASSET [***], BEING BUILDINGS OR LANDS APPURTENANT THERETO, AND B EING A RESIDENTIAL HOUSE, THE INCOME OF WHICH IS CHARGEABLE UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY' (HEREAFTER IN THIS SEC TION REFERRED TO AS THE ORIGINAL ASSET), AND THE ASSESSEE HAS WITHIN A PERIOD OF [ONE YEAR BEFORE OR TWO YEARS AFTER THE DATE ON WHICH THE TRA NSFER TOOK PLACE PURCHASED], OR HAS WITHIN A PERIOD OF THREE YEARS A FTER THAT DATE CONSTRUCTED, A RESIDENTIAL HOUSE , THEN], INSTEAD OF THE CAPITAL GAIN BEING CHARGED TO INCOME-TAX AS INCOME OF THE PREVIO US YEAR IN WHICH THE TRANSFER TOOK PLACE, IT SHALL BE DEALT WITH IN ACCORDANCE WITH THE FOLLOWING PROVISIONS OF THIS SECTION, THAT IS TO SA Y, (I) IF THE AMOUNT OF THE CAPITAL GAIN [IS GREATER T HAN THE COST OF [THE RESIDENTIAL HOUSE] SO PURCHASED OR CONSTRUCTED (HEREAFTER IN THIS SECTION REFERRED TO AS THE NEW ASSET)], THE DIFFERE NCE BETWEEN THE AMOUNT OF THE CAPITAL GAIN AND THE COST OF THE NEW ASSET SHALL BE CHARGED UNDER SECTION 45 AS THE INCOME OF THE PREVIOU S YEAR; AND FOR THE PURPOSE OF COMPUTING IN RESPECT OF THE NEW ASSE T ANY CAPITAL GAIN ARISING FROM ITS TRANSFER WITHIN A PERIOD OF THREE YEARS OF ITS PURCHASE OR CONSTRUCTION, AS THE CASE MAY BE, THE COST SHALL BE NIL; OR (II) IF THE AMOUNT OF THE CAPITAL GAIN IS EQUAL TO OR LESS THAN THE COST OF THE NEW ASSET, THE CAPITAL GAIN SHALL NOT BE CHARGE D UNDER SECTION 45; AND FOR THE PURPOSE OF COMPUTING IN RESPECT OF THE NEW ASSET ANY CAPITAL GAIN ARISING FROM ITS TRANSFER WITHIN A PER IOD OF THREE YEARS OF ITS PURCHASE OR CONSTRUCTION, AS THE CASE MAY BE, THE C OST SHALL BE REDUCED BY THE AMOUNT OF THE CAPITAL GAIN. [***] ITA NO.2489/CHNY/2017 :- 14 -: [(2) THE AMOUNT OF THE CAPITAL GAIN WHICH IS NOT AP PROPRIATED BY THE ASSESSEE TOWARDS THE PURCHASE OF THE NEW ASSET MADE WITHIN ONE YEAR BEFORE THE DATE ON WHICH THE TRANSFER OF THE ORIGIN AL ASSET TOOK PLACE, OR WHICH IS NOT UTILISED BY HIM FOR THE PURCHASE OR CONSTRUCTION OF THE NEW ASSET BEFORE THE DATE OF FURNISHING THE RETURN OF INCOME UNDER SECTION 139, SHALL BE DEPOSITED BY HIM BEFORE FURNISH ING SUCH RETURN [SUCH DEPOSIT BEING MADE IN ANY CASE NOT LATER THAN THE DUE DATE APPLICABLE IN THE CASE OF THE ASSESSEE FOR FURNISHI NG THE RETURN OF INCOME UNDER SUB-SECTION (1) OF SECTION 139] IN AN AC COUNT IN ANY SUCH BANK OR INSTITUTION AS MAY BE SPECIFIED IN, AND UTI LISED IN ACCORDANCE WITH, ANY SCHEME 30 WHICH THE CENTRAL GOVERNMENT MAY, BY NOTIFICATION IN THE OFFICIAL GAZETTE, FRAME IN THIS BEHALF AND SUCH RETURN SHALL BE ACCOMPANIED BY PROOF OF SUCH DEPOSIT; AND, FOR THE PURPOSES OF SUB-SECTION (1), THE AMOUNT, IF ANY, ALREADY UTILIS ED BY THE ASSESSEE FOR THE PURCHASE OR CONSTRUCTION OF THE NEW ASSET TOGET HER WITH THE AMOUNT SO DEPOSITED SHALL BE DEEMED TO BE THE COST OF THE NEW ASSET : PROVIDED THAT IF THE AMOUNT DEPOSITED UNDER THIS SU B-SECTION IS NOT UTILISED WHOLLY OR PARTLY FOR THE PURCHASE OR CONST RUCTION OF THE NEW ASSET WITHIN THE PERIOD SPECIFIED IN SUB-SECTION (1 ), THEN, (I) THE AMOUNT NOT SO UTILISED SHALL BE CHARGED UND ER SECTION 45 AS THE INCOME OF THE PREVIOUS YEAR IN WHICH THE PERIOD OF THREE YEARS FROM THE DATE OF THE TRANSFER OF THE ORIGINAL ASSET EXPIRES; AND (II) THE ASSESSEE SHALL BE ENTITLED TO WITHDRAW SUC H AMOUNT IN ACCORDANCE WITH THE SCHEME AFORESAID. THE CONCISE OXFORD ENGLISH DICTIONARY HAS DEFINED T HE WORD RESIDENTIAL AS DESIGNED FOR PEOPLE TO LIVE IN AND THE WORD HOUS E IS DEFINED IN THE SAID DICTIONARY AS A BUILDING FOR HUMAN HABITATION . T HUS, RESIDENTIAL HOUSE WILL CERTAINLY MEAN A BUILDING WHICH IS DESIGNED FO R PEOPLE TO LIVE IN AND IS FIT FOR HUMAN HABITATION. THE ASSESSEE IS DENTAL SU RGEON AND PROFESSOR IN A MEDICAL COLLEGE. IT IS ADMITTED BY ASSESSE BEFORE T HE AUTHORITIES BELOW THAT ASSESSEE IS HAVING A SOCIAL STANDING. THE ASSESSEE IS RUNNING ITS CLINIC FROM ONE OF THE BEST LOCALITIES OF CHENNAI NAMELY T .NAGAR. THUS, ASSESSEE IS A MAN OF MEANS HAVING HIGH SOCIAL STATUS AND STA NDING. THE ITA NO.2489/CHNY/2017 :- 15 -: INVESTMENTS U/S 54 OF THE 1961 ACT ARE REQUIRED TO BE MADE IN BUILDINGS OR LANDS APPURTENANT THERETO , BEING A RESIDENTIAL HOUSE AND WE HAVE ALREADY SEEN DEFINITION OF RESIDENTIAL HOUSE AS A BOVE IN THIS ORDER. THEREFORE , ONLY LAND WHICH IS APPURTENANT TO RESID ENTIAL HOUSE CAN BE CONSIDERED FOR CLAIMING DEDUCTION U/S 54 OF THE 196 1 ACT. THIS IS A QUESTION OF FACT WHICH REQUIRES INVESTIGATION INTO FACTS AND THE FACTS MAY DIFFER FROM CASE TO CASE. THE LAND MAY BE INTEGRAL PART BUT THE SAME MAY NOT NECESSARILY BE APPURTENANT TO THE BUILDING THER EON AS THE SAME MAY NOT BE REQUIRED FOR ENJOYMENT OF THE BUILDING SITUA TED ON THE LAND. WE ARE OF THE CONSIDERED VIEW THAT REVENUE HAS RIGHTLY PLA CED RELIANCE ON DECISION OF HONBLE KERALA HIGH COURT IN THE CASE O F SMT. ASHA GEORGE V. ITO REPORTED IN (2013) 30 TAXMANN.COM 334(KERALA) A ND DECISION OF HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF CI T V. ZAIBUNNISSA BEGUM (1985) 151 ITR 320(AP). OUR VIEW IS FURTHER S TRENGTHENED BY DECISION OF HONBLE SUPREME COURT IN THE CASE OF M AHARAJ SINGH V. STATE OF U.P. AND ORS. REPORTED IN AIR 1976 SC 2602 , WHE REIN HONBLE SUPREME COURT HAVE ELABORATELY EXPLAINED THE MEANING OF LA ND APPURTENANT TO BUILDING AS UNDER: 24. THE KEY TO THE SOLUTION OF THE DISPUTE LIES IN A SCERTAINING WHETHER LAND ON WHICH THE CATTLE FAIR WAS BEING HELD WAS AP PURTENANT TO THE BUILDINGS OR NOT ON THE STRENGTH OF ITS USE FOR THE HAT. THE SOLICITOR GENERAL MADE A TWO-PRONGED ATTACH ON THE DEFENDANT' S PROPOSITION. FIRSTLY, HE ARGUED THAT HATS, BAZARS AND MEALS WERE A DISTINCT INTEREST IN THE SCHEME OF INDIAN AGRESTIC LIFE AND AGRARIAN LAW . THIS RIGHT HAD BEEN VIRTUALLY NATIONLISED BY THE ACT AND ONLY THE STATE OR THE GAON SABHA, SAVE WHERE SECTION 18 (A) TO (C) OTHERWISE PROVIDED, COULD HOLD A FAIR. A RULING BY THIS COURT ON AN ANALOGOUS SUBJECT LEND S SUPPORT TO THIS ITA NO.2489/CHNY/2017 :- 16 -: CONTENTION (SEE STATE OF BIHAR V. DULHIN SHANTI DEV I, AIR 1967 SC 427 RELATING TO BIHAR LAND REFORMS ACT). 25. THE HEATED DEBATE AT THE BAR ON THIS AND ALLIED A SPECTS NEED NOT DETAIN US FURTHER ALSO BECAUSE OF OUR CONCURRENCE W ITH THE SECOND CONTENTION OF THE SOLICITOR GENERAL THAT THE LARGE OPEN SPACES CANNOT BE REGARDED AS APPURTENANT TO THE TERRACES, STANDS AND STRUCTURES. WHAT IS INTEGRAL IS NOT NECESSARILY APPURTENANT. A POSIT ION OF SUBORDINATION, SOMETHING INCIDENTAL OR ANCILLARY OR DEPENDENT IS I MPLIED IN APPURTENANCE. CAN WE SAY THAT THE LARGE SPACES ARE SUBSIDIARY OR ANCILLARY TO OR INEVITABLY INPLIED IN THE ENJOYMENT OF THE BUILDINGS QUA BUILDINGS? THAT MUCH OF SPACE REQUIRED FOR THE USE OF THE STRUCTURES AS SUCH HAS BEEN EXCLUDED BY THE HIGH COURT ITSELF. BE YOND THAT MAY OR MAY NOT BE NECESSARY FOR THE HAT OR MELA BUT NOT FO R THE ENJOYMENT OF THE CHABUTRAS AS SUCH. A HUNDRED ACRES MAY SPREAD O UT IN FRONT OF A CLUB HOUSE FOR VARIOUS GAMES LIKE GOLF. BUT ALL THE SE ABUNDANT ACRES ARE UNNECESSARY FOR NOR INDIDENTAL TO THE ENJOYMENT OF THE HOUSE IN ANY REASONABLE MANNER. IT IS CONFUSION TO MISS THE DIST INCTION, FINE BUT REAL. 26. 'APPURTENANCE' IN RELATION TO A DWELLING OR TO A SCHOOL, COLLEGE ....... INCLUDES ALL LAND OCCUPIED THEREWITH AND USED FORTH E PURPOSES THEREOF(WORDS AND PHRASES LEGALLY DEFINED - BUTTERW ORDS, 2ND EDN.). 'THE WORD 'APPURTENANCES' HAS A DISTINCT AND DEFINI TE MEANING ..... PRIMA FACIE IT IMPORTS NOTHING MORE THAN WHAT IS ST RICTLY APPERTAINING TO THE SUBJECT-MATTER OF THE DEVISE OR GRANT, AND WHIC H WOULD, IN TRUTH, PASS WITHOUT BEING SPECIALLY MENTIONED! ORDINARILY, WHAT IS NECESSARY FOR THE ENJOYMENT AND HAS BEEN USED FOR THE PURPOSE OF THE BUILDING, SUCH AS EASEMENTS, ALONE WILL BE APPURTENANT. THERE FORE, WHAT IS NECESSARY FOR THE ENJOYMENT OF THE BUILDING IS ALON E COVERED BY THE EXPRESSION 'APPURTENANCE'. IF SOME OTHER PURPOSE WA S BEING FULFILLED BY THE BUILDING AND THE LANDS, IT IS NOT POSIBLE TO CO NTENT THAT THOSE LANDS ARE COVERED BY THE EXPRESSION 'APPURTENANCES' INCLU DES ALL THE INCORPOREAL HEREDITAMENTS ATTACHED TO THE LAND GRAN TED OR DEMISED, SUCH AS RIGHTS OF WAY, OF COMMON.. .... BUT IT DOES NOT INCLUDE LANDS IN ADDITION TO THAT GRANTED'. (WORDS AND PHRASES, SUPR A) 27. IN SHORT, THE TOUCHSTONE OF 'APPURTENANCE' IS DEP ENDENCE OF THE BUILDING ON WHAT APPERTAINS TO IT FOR ITS USE AS A BUILDING. OBVIOUSLY, THE HAT, BAZAR OR MELA IS NOT AN APPURTENANCE TO TH E BUILDING. THE LAW THUS LEADS TO THE CLEAR CONCLUSION THAT EVEN IF THE BUILDINGS WERE USED AND ENJOYED IN THE PAST WITH THE WHOLE STRETCH OF V ACANT SPACE FOR A HAT OR MELA, THE LAND IS NOT APPURTENANT TO THE PRI CNIPAL SUBJECT GRANTED BY SECTION 9, VIZ. BUILDINGS. 28. THIS CONCLUSION IS INEVITABLE, ALTHOUGH THE CONTR ARY ARGUMENTS MAY BE INGENIOUS. WHAT THE HIGH COURT HAS GRANTED, VIZ. , 5 YARDS OF SURROUNDING SPACE, IS SOUND IN LAW ALTHOUGH BASED O N GUESS-WORK IN FACT. THE APPEAL FAILS AND IS DISMISED BUT, INT HE CIRCUMSTANCES, ITA NO.2489/CHNY/2017 :- 17 -: WITHOUTCOSTS. THUS, THE HONBLE SUPREME COURT HAS HELD THAT WHAT IS INTEGRAL IS NOT NECESSARILY APPURTENANT. A POSITION OF SUBORDINATIO N, SOMETHING INCIDENTAL OR ANCILLARY OR DEPENDENT IS IMPLIED IN APPURTENANC E. THE ASSESSEE HOLDS PLOT OF LAND OF 4973.125 SQUARE FEET. IT HAS BUILDI NG EXISTING OF 220 SQUARE FEET ON SAID PLOT OF LAND WHICH IS EVEN LESS THAN 5% OF THE TOTAL PLOT OF LAND . THUS, IT COULD NOT BE SAID THAT REST OF THE PLOT OF LAND IS APPURTENANT THERETO THE BUILDING OF 220 SQUARE FEET EXISTING ON SAID PLOT OF LAND FOR ENJOYMENT OF THE SAID BUILDING. THE ASSESS EE HAS CLAIMED THAT THERE IS OPEN SPACE WHICH IS USED FOR CAR PARK, SE PTIC TANK, GARDEN ETC. . NO DOUBT, THESE OPEN SPACES MAY BE INTEGRAL PART BU T CERTAINLY THESE ARE NOT REQUIRED TO ENJOY BUILDING EXISTING OF 220 SQUA RE FEET ON PLOT OF LAND OF 4973.125 SQUARE FEET. HOW MUCH LAND SHOULD BE TREAT ED AS APPURTENANT THERETO IS A QUESTION OF FACT AND DEPENDS UPON FACT S AND CIRCUMSTANCES OF THE CASE AND IN EACH CASE , THE FACTS MAY DIFFER . BOTH THE AUTHORITIES BELOW HAVE CONCURRED THAT 25% OF THE TOTAL PLOT ARE A TO BE CONSIDERED LAND APPURTENANT THERETO. THESE MAY REQUIRE ESTIMAT ION WHICH MAY INVOLVE GUESS WORK AND IT COULD NOT BE SAID THAT ES TIMATION DONE BY AUTHORITIES BELOW IN INSTANT CASE IS PERVERSE OR WI THOUT ANY REASONABLE BASIS. WE ARE NOT INCLINED TO INTERFERE WITH THE DE CISION TAKEN BY BOTH THE AUTHORITIES BELOW AS WE HAVE OBSERVED THAT ESTIMATI ON DONE BY AUTHORITIES BELOW IS HONEST AND REASONABLE ESTIMATES BASED ON F ACTS OF THE CASE AND COULD NOT BE SAID TO BE A PERVERSE VIEW TAKEN BY AU THORITIES BELOW. OUR ABOVE VIEW IS STRENGTHENED BY DECISION OF HONBLE S UPREME COURT IN THE ITA NO.2489/CHNY/2017 :- 18 -: CASE OF KACHWALA GEMS V. JCIT REPORTED IN (2007) 28 8 ITR 10(SC) ALTHOUGH THIS DECISION WAS GIVEN IN DIFFERENT CONTE XT OF BEST JUDGMENTS, WHEREIN HONBLE SUPREME COURT HELD AS UNDER: 11. IT IS WELL-SETTLED THAT IN A BEST JUDGMENT ASSESSM ENT, THERE IS ALWAYS A CERTAIN DEGREE OF GUESS WORK. NO DOUBT THE AUTHOR ITIES CONCERNED SHOULD TRY TO MAKE AN HONEST AND FAIR ESTIMATE OF THE INCO ME EVEN IN A BEST JUDGMENT ASSESSMENT, AND SHOULD NOT ACT TOTALLY ARB ITRARILY, BUT THERE IS NECESSARILY SOME AMOUNT OF GUESS WORK INVOLVED IN A BEST JUDGMENT ASSESSMENT, AND IT IS THE ASSESSEE HIMSELF WHO IS T O BLAME AS HE DID NOT SUBMIT PROPER ACCOUNTS. IN OUR OPINION, THERE WAS N O ARBITRARINESS IN THE PRESENT CASE ON THE PART OF THE INCOME-TAX AUTHORIT IES. THUS, THERE IS NO FORCE IN THIS APPEAL, AND IT IS DISMISSED ACCORDING LY. NO COSTS. THUS, KEEPING IN VIEW OUR ABOVE DETAILED DISCUSSION AND REASONING, WE DISMISS APPEAL FILED BY THE ASSESSEE. THE ASSESSEE FAILS IN ITS APPEAL IN ITA NO. 2489/CHNY/2017 FOR AY: 2013-14. WE ORDER ACCOR DINGLY. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO.2489/CHNY/2017 FOR AY: 2013-14 IS DISMISSED. ORDER PRONOUNCED ON THE 17 TH DAY OF DECEMBER, 2019 IN CHENNAI. SD/- SD/- ( . . . ) ( N.R.S. GANESAN ) /JUDICIAL MEMBER ( ' ) ( RAMIT KOCHAR ) /ACCOUNTANT MEMBER /CHENNAI, 2 /DATED: 17 TH DECEMBER, 2019. TLN . ,'3 43 /COPY TO: 1. + /APPELLANT 4. 5 /CIT 2. ,-+ /RESPONDENT 5. 3 , /DR 3. 5 ( ) /CIT(A) 6. ( /GF