Shri Bansilal Laxmimal Kanjani, Ahmedabad V. The ACIT.,Circle-3, Ahmedabad

ITA 2647/AHD/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67679 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 29-01-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 21-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ADDI TION MADE A O CARRIED MAT
• Keywords: Cost of acquisition; Corroborative evidences; Avoidance of tax; Revised return
• Section: 143(3); 54F; 12A; 139(5); 27

Judgement Text

ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 1 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AH MEDABAD (BEFORE SHRI MUKUL KR.SHRAWAT JM & SHRI ANIL CHATUR VEDI A.M.) I.T.A. NO. 2647/AHD/2011. (ASSESSMENT YEAR: 2008-09) SHRI BANSILAL L.KANJANI PROP OF M/S. GERMAN CHEMICALS, PLOT NO.139, PHASE-II, G.I.D.C.,NARODA, AHMEDABAD-380 025. (APPELLANT) VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-3, AHMEDABAD. (RESPONDENT) ON BEHALF OF REVENUE : MR. T.SHANKAR, SR. D.R. & MR. O.P. BHATEJA, SR. D.R. O BEHALF OF ASSESSEE : MR. A.C.SHAH. ( )/ ORDER DATE OF HEARING : 5 -07 -2013 DATE OF PRONOUNCEMENT : 20-09-2013 PER: SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF LD. CIT(A)-VI, AHMEDABAD DATED 26-09-2011 FOR THE ASSESSMENT YEAR 2008-09. 1. THE FACTS AS CULLED OUT FROM THE ORDERS OF THE L OWER AUTHORITIES ARE AS UNDER. PAN: ACYPK 5537 C ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 2 2. THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUS INESS OF DYES AND HOLY LIME COLORS. ASSESSEE FILED HIS RETURN OF INC OME FOR A.Y. 2008-09 ON 23-09-2008 DECLARING TOTAL INCOME AT RS.82,36,11 0/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE ASSESS MENT WAS FRAMED U/S. 143(3) VIDE ORDER DATED 28-12-2010 AND THE TOT AL INCOME WAS DETERMINED AT RS.2,69,74,190. AGGRIEVED BY THE ADDI TION MADE BY THE A.O. ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A). CIT(A) VIDE HIS ORDER DATED 26-9-2011 DISMISSED THE APPEAL OF THE A SSESSEE. 3. AGGRIEVED BY THE ORDER OF CIT(A) THE ASSESSEE IS NOW IN APPEAL BEFORE US. 4. BEFORE US THE ASSESSEE HAS FILED CONCISE GROUND AND ACCORDING TO IT THE ONLY DISPUTE IS WITH RESPECT TO THE DEDUCTION U /S. 54F. 5. DURING THE COURSE OF ASSESSMENT PROCEEDINGS A.O. NOTICED THAT ASSESSEE HAD SOLD A PLOT OF LAND ON 17-9-2007 FOR A CONSIDERATION OF RS.3,20,00,000/- THE SAID PLOT WAS PURCHASED AT THE COST OF RS.22,88,284/- IN JUNE, 2001. ASSESSEE WORKED OUT L ONG TERM CAPITAL GAIN ON THE SALE OF LAND AT RS.2,91,17,877/- AND CL AIMED EXEMPTION U/S. 54F ON ACCOUNT OF INVESTMENT IN RESIDENTIAL HO USES AMOUNTING TO RS.1,82,87,774/- AND INVESTMENT IN REC BOND OF RS.5 0,00,000/- AND THUS OFFERED RS.58,30,103/- AS CAPITAL GAIN FOR TAX . ASSESSEE WAS ASKED TO FURNISH THE DETAILS OF INVESTMENTS TOWARDS PURCHASE OF NEW RESIDENTIAL PROPERTY. ASSESSEE SUBMITTED THE DETAIL S AS UNDER:- ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 3 COST OF CONSTRUCTION OF NEW RESIDENTIAL PROPERTY AT BALAJI KUTIR. PARTICULAR PLOT NO.11B IN THE NAME OF MANOHARLAL BANSILAL KANJANI AND RESHMA MANOHARLAL KANJANI PLOT NO.12A IN THE NAME OF JAGDISH BANSILAL KANJANI AND VANITA JAGDISH KANJANI PLOT NO.12B IN THE NAME OF ASHOK BANSILAL KANJANI AND MANISHA A.KANJANI. TOTAL.(RS) AREA OF PLOT 1291.80 PLUS 380.43 SQ.MT. 1056.70 PLUS 311.20 SQ.MT. 1020.53 PLUS 300.54 SQ.MT. CONSTRUCTED AREA 625 SQ.YD. 560 SQ.YD. 560 SQ.YD. COST OF PLOT 37,09,085 29,43,438 28,84,610 95 ,37,133 LOAN 22,50,000 22,50,000 22,50,000 67,50,000 TOTAL AMOUNT 59,59,085 51,93,438 51,34,610 1,62,87,133 LIFE TIME MAINTENANCE PAID BY THE ASSESSEE. 3,13,400 3,03,600 2,98,000 9,15,000 CONSTRUCTION EXPENSES TILL 30/9/2008 3,41,071 3,41,071 3,41,071 10,23,213 TOTAL 66,13,556 58,38,109 57,73,681 1,82,2 5,346 6. FROM THE DETAILS AND THE DOCUMENTS SUBMITTED BY THE ASSESSEE, A.O. NOTICED, THAT THE ABOVE 3 PLOTS ALONG WITH THE CONS TRUCTION WAS PURCHASED BY HIS 3 SONS AND SONS WIVES ON 28-7-200 6. THE SAID PURCHASES WERE MADE THROUGH 3 SEPARATE SALE DEEDS F ROM 3 DIFFERENT PERSONS AND THE PURCHASE CONSIDERATION WAS ALSO PAI D BY THEM SEPARATELY. (IT IS WORTH TO MENTION AT THIS JUNCTUR E THAT THE ASSESSEE HAS NOT MADE ANY INVESTMENT TOWARDS PURCHASING OF T HE AFORESAID PLOTS). THUS ACCORDING TO THE AO, THERE WERE 3 DIFF ERENT PROPERTIES WHICH THE ASSESSEE HAS ALLEGED TO HAVE PURCHASED. H E FURTHER NOTICED THAT THE AGREEMENT OF SALE WAS NOT REGISTER ED WITH THE SUB- REGISTRAR. A.O. ISSUED A SHOW CAUSE NOTICE TO THE A SSESSEE AS HE WAS OF THE VIEW THAT THE ASSESSEE HAD ENTERED ONLY THE AGREEMENT FOR SALE AND SINCE NO REGISTRATION HAS BEEN MADE WITH S UB-REGISTRAR, THE ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 4 ASSESSEE WAS NOT ENTITLED TO EXEMPTION U/S. 54F. IN RESPONSE TO THE SHOW CAUSE NOTICE, THE ASSESSEE INTERALIA SUBMITTED THAT FOR THE PURPOSE OF CLAIMING EXEMPTION U/S. 54F, THE REQUIRE MENT WAS TO PURCHASE THE PROPERTY AND REGISTRATION OF THE PROPE RTY WAS NOT ESSENTIAL. IT WAS FURTHER SUBMITTED THAT SINCE THE ASSESSEE HAS PAID FULL CONSIDERATION AND HAD TAKEN OVER THE POSSESSIO N OF THE RESIDENTIAL HOUSE AND SINCE IT HAD TAKEN OVER THE O UTSTANDING LIABILITY OF THE LOAN, THE INGREDIENT OF PURCHASE WERE FULFIL LED. IT WAS FURTHER SUBMITTED THAT ASSESSEE HAS BEEN GIVEN GENERAL POWE R OF ATTORNEY BY THE SELLERS (I.E. MANOHARLAL B. KANJANI, RESHMA M. KANJANI, JAGDISH KANJANI, VANITA B. KANJANI, ASHOK B. KANJAN I & MANISHA A. KANJANI) SO THAT THE PROPERTY CAN BE REGISTERED IN THE NAME OF PURCHASER WITHOUT ANY DIFFICULTY. IT WAS FURTHER SU BMITTED THAT THE ASSESSEE HAS ALLEGEDLY PURCHASED 3 ADJOINING PROPER TIES AS A COMPOSITE TRANSACTION AS IT WAS ALWAYS HIS INTENTIO N TO USE IT AS ONE RESIDENTIAL HOUSE. THE ASSESSEE FURTHER SUBMITTED T HAT ON PURCHASE OF PROPERTY THE REGISTRATION WAS NOT ESSENTIAL AND FOR THIS PROPOSITION HE RELIED ON THE DECISION OF DELHI HIGH COURT IN TH E CASE OF BALRAJ VS. CIT 254 ITR 22 (DEL) AND THE DECISION OF CIT VS. R. L. SOOD (2000) 245 ITR 727 (DEL) APART FROM OTHER DECISIONS. THE S UBMISSIONS OF THE ASSESSEE WERE NOT FOUND ACCEPTABLE TO THE A.O. AS H E WAS OF THE VIEW THAT THE ASSESSEE IS NOT ENTITLED TO DEDUCTION U/S. 54F, INTER ALIA FOR THE REASONS THAT, THE TRANSFER HAS BEEN MADE TH ROUGH AGREEMENTS FOR SALE AND NOT THROUGH PURCHASE DEED, THE AGREEME NT FOR SALE WAS EXECUTED ON RS.100 STAMP PAPER AND WAS NOTARIZED ON LY ON THE LAST DAY OF THE FINANCIAL YEAR, THE SALE HAS NOT BEEN RE GISTERED WITH THE SUB-REGISTRAR OF THE PROPERTIES. HE FURTHER OBSERVE D THAT THE ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 5 ASSESSEE HAS NOT SUBMITTED ANY EVIDENCE WITH RESPEC T TO THE TRANSFER OF PROPERTY IN HIS NAME AS A MEMBER OF THE CO-OPERA TIVE SOCIETY AND THAT THERE WAS NO EVIDENCE OF THE PROPERTY BEEN TRA NSFERRED IN THE NAME OF THE ASSESSEE IN THE RECORDS OF AHMEDABAD MU NICIPAL CORPORATION OR AUDA. HE THEREFORE HELD THAT SINCE S ALE OF THE PROPERTY WAS NOT ENTERED, ALL THE 3 PROPERTIES WERE NOT VALI D TRANSFER. A.O. FURTHER OBSERVED THAT THE SONS HAD OBTAINED LOAN FO R THE PURCHASE OF THE PROPERTY AND THE PROPERTY WAS MORTGAGED WITH KO TAK MAHINDRA BANK AND THE BANK HAD NOT TRANSFERRED THE LOAN IN T HE NAME OF THE ASSESSEE. A.O. ALSO ISSUED SUMMONS TO THE 3 SONS NA MELY ASHOK KANJANI, MANOHARLAL KANJANI AND JAGDISH KANJANI REQ UIRING THEM TO FURNISH THE DETAILS OF BANK LOAN AND THE CALCULATIO N OF CAPITAL GAIN AND WHETHER THE CAPITAL GAIN FOR THE SALE OF PROPERTY H AS BEEN SHOWN IN THEIR RESPECTIVE RETURN OF INCOME FOR A.Y. 2008-09. FROM THE REPLY SUBMITTED A.O. NOTICED THAT SHRI ASHOK & MANISHA KA NJANI HAD SHOWN SHORT TERM CAPITAL GAIN OF RS.59,253/- IN THE REVISED RETURN WHICH WAS FILED ON 21-12-2010 I.E. ONLY AFTER THE RECEIPT OF SUMMONS DATED 16-12-2010. HE ALSO NOTICED THAT THE REVISED RETURN WAS FILED BEYOND THE PRESCRIBED TIME LIMIT U/S. 139(5) OF THE ACT AND THEREFORE NO COGNIZANCE OF SUCH RETURN COULD BE ACCEPTED AND THE BELATED RETURNS HAD NO VALUE IN THE EYES OF LAW. FROM THE R EPLY FILED ON 21.12.2010 BY SHRI JAGDISH KANJANI AND SHRI MANOHA RLAL KANJANI, HE NOTICED THAT THOUGH THE REVISED COMPUTATION OF INCO ME WAS FILED, BUT NO COPIES OF RETURNS WERE GIVEN OR REVISED RETURNS WERE SUBMITTED AND THEREFORE THE A.O. WAS OF THE VIEW THAT IT WAS NOT VERIFIABLE AS TO WHETHER THE CAPITAL GAIN HAS BEEN INCLUDED IN THE R ETURN OF INCOME OR NOT. FROM THE COPY OF THE SUMMARY SUBMITTED, HE NOT ICED THAT THE ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 6 LOAN FROM KOTAK MAHINDRA BANK WAS STILL IN THE NAME OF HIS 3 SONS. HE THUS CONCLUDED THAT THE TRANSACTION WAS IN THE N ATURE OF FAMILY SETTLEMENT AND THE AGREEMENTS HAVE BEEN MADE ONLY F OR THE SOLE PURPOSE OF AVOIDANCE OF CAPITAL GAINS. HE ALSO NOTI CED THAT THE EXPENSE WHICH THE ASSESSEE HAS CLAIMED TO HAVE BEEN MADE FOR THE FIRST FLOOR OF BALCONY WAS INCURRED DURING THE PERI OD 1-4-2008 TO 30-9- 2008. THUS ACCORDING TO THE A.O. THERE WAS NO COMPO SITE UNIT BUT ONLY TO SAVE THE CAPITAL GAIN, THE EXPENSES WERE CL AIMED TO HAVE BEEN INCURRED. HE THEREFORE CONCLUDED THAT THE ASSE SSEE HAS ADOPTED DUBIOUS METHOD AND COLOURFUL DEVICE FOR AVO IDANCE OF TAX WHICH WAS NOT PERMISSIBLE IN VIEW OF THE DECISION O F THE APEX COURT IN THE CASE OF MCDOWELL. HE ALSO OBSERVED THAT THE INV ESTMENTS HAVE BEEN MADE IN THREE DIFFERENT PROPERTIES AND AS PER THE PROVISIONS OF SEC. 54F THE ASSESSEE IS ENTITLED FOR EXEMPTION ONL Y IN RESPECT OF ONE HOUSE. HE FURTHER NOTED THAT THE ADJUSTMENT OF PURC HASE CONSIDERATION TOWARDS THE LOAN CANNOT BE ALLOWED AS THE LOAN HAS BEEN SANCTIONED IN THE NAME OF 3 SONS AND THE LIABI LITY OF REPAYMENT OF LOAN WILL ARISE OVER A PERIOD OF TIME. HE ALSO C ONSIDERED LIFE TIME MAINTENANCE CHARGES PAID BY THE ASSESSEE AS BEING N OT ELIGIBLE FOR DEDUCTION U/S. 54F AND IN THE ABSENCE OF THE DETAIL S OF CONSTRUCTION EXPENSES INCURRED BY THE ASSESSEE TILL 30 TH SEPTEMBER, THE SAID EXPENSES ALSO COULD NOT BE CONSIDERED FOR DEDUCTION . HE THUS CONCLUDED THAT THE ASSESSEE HAS NOT UTILIZED THE SA LE CONSIDERATION FOR PURCHASE OF NEW RESIDENTIAL HOUSE AND THEREFORE THE EXEMPTION UNDER 54F OF RS.1,82,87,774/- CLAIMED BY THE ASSESS EE WAS NOT ALLOWABLE. HE THUS WORKED OUT THE CHARGEABLE LONG T ERM CAPITAL GAIN ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 7 AT RS.2,45,68,189/- AS AGAINST RS.58,30,103/- WORKE D OUT BY THE ASSESSEE. 7. AGGRIEVED BY THE ACTION OF THE A.O., ASSESSEE CA RRIED THE MATTER BEFORE THE CIT(A). CIT(A) AFTER CONSIDERING THE SUB MISSIONS MADE BY THE ASSESSEE UPHELD THE ORDER OF THE A.O. BY HOLDIN G AS UNDER:- 23 . I HAVE CONSIDERED THE FACTS OF THE CASE; ASSESS MENT ORDER AND APPELLANTS SUBMISSION. APPELLANT CLAIMED DEDUCTION UNDER SECTION 54F FOR P URCHASE OF RESIDENTIAL HOUSE. A.O. FOUND THAT APPELLANT ENTERED INTO AGREEMENT WITH HIS THREE SON S AND DAUGHTER IN LAWS FOR PURCHASE OF THEIR INDEPENDENT RESIDENTIAL HOUSES. THE AGREEMENTS ENT ERED INTO BY THE APPELLANT WERE NOT REGISTERED WITH REGISTRATION AUTHORITIES. APPELLANT S SONS PURCHASED THESE HOUSE PROPERTIES BY OBTAINING LOANS FROM BANK AND AT THE TIME OF AGREEM ENTS ON 19-3-2008, MAJOR PARTS OF LOANS WERE STILL OUTSTANDING. A.O. DID NOT ALLOW DEDUCTION U/ S. 54F ON THE GROUND THAT THE TRANSACTIONS WERE ONLY ON PAPER AND NO REGISTRATION OR TRANSFER OF PR OPERTIES TOOK PLACE. APART FROM THIS APPELLANT PURCHASED THREE HOUSE PROPERTIES WHEREAS THIS DEDUC TION IS ALLOWABLE ONLY IN RESPECT OF ONE PROPERTY PROVIDED NO OTHER HOUSE PROPERTY IS OWNED. TO THESE ARGUMENTS, APPELLANT SUBMITTED THAT REGISTRATION IS NOT REQUIRED IN VIEW OF JUDICI AL DECISION FOR CLAIMING DEDUCTION U/S. 54. AS REGARDS THREE HOUSE PROPERTIES, APPELLANT CLAIMED T HAT THESE HOUSES WERE MADE SINGLE HOUSE BY REMOVING BOUNDARY WALLS AND THE DECISION OF KARNATA KA HIGH COURT IS APPLICABLE. IT IS NOT IN DISPUTE THAT THE APPELLANTS SONS PURC HASED THESE INDEPENDENT BUNGALOWS BY OBTAINING FINANCE FROM BANK AND THEY WERE STAYING IN THESE BU NGALOWS ALONG WITH THEIR FAMILY MEMBERS. EVEN AFTER ENTERING INTO AGREEMENTS FOR SALE WITH T HE APPELLANT, THESE SONS AND THEIR FAMILY CONTINUE TO STAY IN THESE BUNGALOWS WITHOUT ANY CHA NGE. THIS ASPECT WAS SPECIFICALLY ASKED DURING THE COURSE OF APPEAL HEARING AND IT WAS CONF IRMED THAT APPELLANTS SONS ARE STAYING IN THESE BUNGALOWS EVEN TILL DATE. AS PER LOAN AGREEM ENT WITH THE BANK, APPELLANTS SONS WERE BARRED FROM TRANSFERRING OR SELLING THESE BUNGALOWS TILL LOANS WERE FULLY PAID. THEREFORE, THESE BUNGALOWS COULD NOT HAVE BEEN SOLD AS PER MORTGAGE AGREEMENTS WITH THE BANK. IN VIEW OF THESE FACTS, APPELLANT ONLY PREPARED DOCUMENTS REFLECTING PURCHASES OF THESE BUNGALOWS WHICH COULD NOT BE SOLD OR TRANSFERRED. ANY PROPERTY WHICH IS N OT SALABLE BECAUSE OF MORTGAGE AGREEMENT CANNOT BE PURCHASED BY THE APPELLANT. SINCE IT WAS THE FAMILY ARRANGEMENT BETWEEN FATHER AND SONS, THE AGREEMENTS ENTERED INTO WERE ONLY USED FO R CLAIMING DEDUCTION U/S.54F WITHOUT CHANGING ANYTHING INCLUDING LOAN AGREEMENTS WITH TH E BANK. SINCE APPELLANT COULD NOT HAVE LEGALLY PURCHASED THE PROPERTIES BELONGING TO HIS S ONS TILL LOANS WERE REPAID, THE UNREGISTERED PURCHASE DEEDS PREPARED CANNOT BE ENFORCED IN COURT OF LAW AND APPELLANT DID NOT GET DOMINION AND CONTROL OVER THESE PROPERTIES IN VIEW OF THE FA CTS MENTIONED EARLIER. THEREFORE IT IS NOT AN ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 8 ISSUE OF MERE REGISTRATION OF THESE PROPERTIES IN T HE APPELLANTS NAME BUT THE OWNERS OF THE PROPERTY WERE NOT LEGALLY AUTHORIZED TO SALE THEIR PROPERTIES. AS PER CLAUSE K ON PARA 5.2 OF THE LOAN AGREEMENTS, OWNERS OF THE PROPERTY WERE BARRED TO SALE, CHARGE, LEASE, SURRENDER OR OTHERWISE HOWSOEVER ALI ENATE OR TRANSFER OR CREATE INTEREST IN FAVOUR OF PERSONS IN THE SECURITY OR ANY PART THEREOF OR P ERMIT AY CHANGE, ENCUMBRANCE OR LIEN OF ANY KIND WHATSOEVER OVER SUCH SECURITY. FROM THIS, IT I S CLEAR THAT APPELLANT COULD NOT HAVE PURCHASED THE PROPERTIES FROM HIS SONS TILL THE LOAN AGREEMEN TS WERE IN FORCE. PAYMENT OF LOAN INSTALMENTS OR MENTION OF TRANSFER OF LOAN IN THE SALE AGREEMEN TS CANNOT OVERRIDE THE TERMS OF LOAN AGREEMENT, IT IS NOT OUT OF PLACE TO MENTION THAT A PPELLANT HAS NOT INFORMED THE FACT THAT HE HAD ENTERED INTO PURCHASES AGREEMENTS WITH HIS SONS TO THE BANK. ALL THESE FACTS CLEARLY GO AGAINST THE APPELLANTS CLAIM OF PURCHASING THE PROPERTIES AND CLAIM OF DEDUCTION U/S. 54F. APART FROM THE ABOVE, APPELLANT ENTERED INTO AGREEM ENT OF PURCHASE OF THESE PROPERTIES ON 19-3- 2008 AS MENTIONED IN THE APPELLANTS SUBMISSION BUT IN THE POWER OF ATTORNEY ISSUED BY APPELLANTS SONS ON 31ST OF MARCH, 2008, IT IS CLEA RLY MENTIONED THAT WE ARE SOLE AND ABSOLUTE OWNER OF ALL THAT PIECE OR PARCEL OF IMMOVABLE PROP ERTY BEING SAID UNFINISHED CONSTRUCTION OF PLOT NUMBER. FROM THIS IT IS VERY CLEAR THAT EVEN ON 3 1ST OF MARCH 2008, APPELLANT SONS WERE OWNER OF THE PROPERTY AND ONLY ON THE BASIS OF SUCH OWNER SHIP, POWER OF ATTORNEY WAS GIVEN TO THE APPELLANT. THIS CLEARLY SHOWS THAT APPELLANT DID NO T PURCHASE THE THREE PROPERTIES BUT ONLY MADE AGREEMENT ON PAPER. SUCH ARRANGEMENT ON PAPER WITHO UT ACTUALLY PURCHASING THE HOUSE PROPERTY WILL NOT ENTITLE APPELLANT TO CLAIM DEDUCTION UNDER SEC. 54F. ASSUMING THAT EVERYTHING MENTIONED ABOVE ARE NOT AG AINST THE APPELLANT, STILL APPELLANT IS NOT ENTITLED TO CLAIM DEDUCTION UNDER SEC. 54F BECAUSE APPELLANT PURCHASED THREE PROPERTIES AND NOT ONE HOUSE PROPERTY AS REQUIRED IN THE SECTION. THES E THREE HOUSE PROPERTIES ARE INDEPENDENT BUNGALOWS WITH SEPARATE ENTRANCE AND SELF-CONTAINED UNITS. AFTER PURCHASING THESE THREE INDEPENDENT BUNGALOWS, JUST BY REMOVING PARTITION W ALLS AND CONSTRUCTING A BRIDGE, THE THREE INDEPENDENT HOUSES WILL NOT BECOME ONE HOUSE. IT IS DIFFERENT THAN MAKING TWO FLATS AS ONE HOUSE. IF APPELLANTS ARGUMENT IS ACCEPTED THEN THE ENTIRE HOUSING SOCIETY CAN BE TREATED AS ONE HOUSE. THE INTENTION OF LEGISLATURE WHILE FRAMING S EC. 54F WAS TO ALLOW DEDUCTION IN RESPECT OF ONE DWELLING UNIT AND NOT IN RESPECT OF THREE DWELL ING HOUSES COMBINED TOGETHER. IN VIEW OF THIS THE DECISION RELIED UPON BY THE APPELLANT IS NOT AP PLICABLE TO THE FACTS OF THE CASE AND APPELLANT CANNOT GET DEDUCTION U/S.54F BY PURCHASING THREE BU NGALOWS. IN NUTSHELL, APPELLANTS CLAIM UNDER SECTION 54F IS NOT SUSTAINABLE ON FOLLOWING COUNTS 1. APPELLANT COULD NOT HAVE PURCHASED THE PROPERTIE S IN VIEW OF THE LOAN AGREEMENT ENTERED INTO BY HIS SONS WITH THE BANK. SINCE SALE OF THE P ROPERTY WAS PROHIBITED TILL THE FINAL PAYMENT OF LOAN AMOUNT, THE PROPERTY COULD NOT HAVE BEEN SOLD LEGALLY. IN VIEW OF THIS, THE DOCUMENTS FOR PROPERTY PURCHASE PREPARED BY THE APPELLANT HAS NO LEGAL FORCE AND THE SAME IS PREPARED CLEARLY WITH AN INTENTION TO CLAIM DEDUCTION NOT AVAILABLE IN THESE FACTS. ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 9 2. APPELLANTS SONS AND THEIR FAMILY MEMBERS WERE S TAYING IN THE HOUSES BEFORE PURCHASES BY APPELLANT AND THE SAME STATUS CONTINUED AFTER PU RCHASE ALSO THEREFORE APPELLANT DID NOT HAVE ANY DOMINION OR CONTROL. JUST BY MENTIONING ON PAPE R THAT POSSESSION OF THE PROPERTY IS GIVEN TO THE APPELLANT, APPELLANT DID NOT GET ANY DOMINION O R CONTROL. 3. EVEN AFTER ENTERING INTO SALE AGREEMENT, APPELLA NTS SONS CLAIMED OWNERSHIP OVER THE PROPERTIES IN NOTARIZED POWER OF ATTORNEY WHICH MEA NS APPELLANT NEVER BECAME OWNER OF THE PROPERTY. 4. APPELLANT PURCHASED THREE BUNGALOWS WHICH ARE SE LF-CONTAINED AND INDEPENDENT DWELLING UNITS. THE SAME CANNOT BE CONVERTED INTO ONE HOUSE JUST BY DISMANTLING PARTITION WALLS. THE THREE BUNGALOWS WILL REMAIN THREE INDEPENDENT RESIDENTIAL HOUSES AND ACCORDINGLY APPELLANT WILL NOT BE ELIGIBLE FOR DEDUCTION UNDER SEC. 54F.THE DECISION OF KARNATAKA HIGH COURT WHEREIN THE RESIDENTIAL FLATS COMBINED WERE TREATED AS ONE UNIT , DOES NOT APPLY IN THE CASE OF APPELLANT. IN VIEW OF THE ABOVE, I AGREE WITH THE A.O. THAT AP PELLANT MADE UNSUCCESSFUL ATTEMPT BY CREATING PAPERWORK TO CLAIM DEDUCTION UNDER SEC. 54F.THE DED UCTION CLAIMED IS NOT ALLOWABLE AND HENCE THE DISALLOWANCE IS CONFIRMED. 8. AGGRIEVED BY THE AFORESAID ORDER OF CIT(A), ASSE SSEE IS NOW IN APPEAL BEFORE US. HE HAS RAISED FOLLOWING CONCISE G ROUND. THE LD. CIT(A) HAS ERRED IN CONFIRMING DISALLOWANC E OF CLAIM OF RS.1,82,87,774 UNDER SEC. 54F IN AS MUCH AS THE ASSESSEE HAS COMPLIED WITH THE CO NDITIONS UNDER SEC. 54F AND THEREFORE THE ASSESSEE IS ENTITLED TO DEDUCTION UNDER SEC. 54F. 9. BEFORE US THE LD. A.R. SUBMITTED THAT THE ASSESS EE HAS EARNED LONG TERM CAPITAL GAIN OF RS.2,91,17,877/- ON SALE OF LA ND WHICH HE HAD PURCHASED IN JUNE,2001. LONG TERM CAPITAL GAIN HAS BEEN USED TO PURCHASE RESIDENTIAL BUILDING CONSISTING OF 3 UNITS ADJOININ G TO EACH OTHER ON 19-3- 2008. THE COST OF PURCHASE WAS RS.1,18,87,774/- WHI CH COMPRISED PURCHASE OF RS.1,62,89,133/-,MAINTENANCE CHARGES OF RS.9,15,000/- AND RS.10,85,641/- BEING THE EXPENDITURE INCURRED TO MA KE THE BUILDING COMPOSITE AND CONTIGUOUS. HE FURTHER SUBMITTED THAT THE ASSESSEE HAD ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 10 TAKEN OVER THE LOANS TAKEN BY HIS SONS FOR PURCHASE OF PLOT AND THE INTEREST ON LOAN IS PAID BY THE ASSESSEE AFTER THE DATE OF P URCHASE. HE SUBMITTED THAT SEC. 54F REQUIRES THE PURCHASE OF RESIDENTIAL HOUSE AND FOR CLAIMING DEDUCTION U/S 54F, IT IS NOT NECESSARY THAT THE HOU SE SHOULD BE TRANSFERRED OR REGISTERED IN THE NAME OF THE ASSESSEE. HE FURTH ER SUBMITTED THAT SINCE THE ASSESSEE HAD PURCHASED THE PROPERTY FOR A CONSI DERATION AND HAD TAKEN THE POSSESSION AND WAS IN ENJOYMENT OF THE PR OPERTY AS PER THE AGREEMENT OF SALE, THE ASSESSEE HAD PURCHASED A PRO PERTY AND WAS THEREFORE ENTITLED TO DEDUCTION U/S. 54F. HE FURT HER SUBMITTED THAT THOUGH THE PURCHASE DEED WAS NOT REGISTERED UNDER THE INDI AN STAMP ACT BUT THE REGISTRATION IS NOT NECESSARY FOR THE PURPOSE OF RE SIDENTIAL HOUSE. FOR THIS PROPOSITION HE RELIED ON THE DECISION OF DELHI HIGH COURT IN THE CASE OF BALRAJ VS. CIT 254 ITR 22 (DEL) AND THE DECISION OF MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS. AJITSINGH KHAAJANCHI 2 97 ITR 95 (MP) AND SUBMITTED THAT SINCE THE ASSESSEE MADE PURCHASE, PA ID CONSIDERATION AND HAD ALSO TAKEN THE POSSESSION, THE ASSESSEE HAD PUR CHASED THE RESIDENTIAL HOUSE WITHIN THE MEANING OF SEC. 54F WITHIN THE TIM E LIMIT PRESCRIBED. LD. A.R. FURTHER SUBMITTED THAT AFTER PURCHASE OF RESID ENTIAL BUILDING ON 19-3- 2008 THE ASSESSEE HAD INCURRED EXPENDITURE BY MAKIN G THREE UNITS AS ONE COMPOSITE UNIT BY REMOVING THE COMPOUND WALL, CONST RUCTED PASSAGE FOR GOING FROM BUNGALOW NO.11B TO 12B & 12B. HE THUS SU BMITTED THAT THE 3 BUNGLOWS WAS THEREFORE A SINGLE UNIT. IT WAS FURTHE R SUBMITTED THAT ASSESSEE WANTED TO STAY WITH HIS 3 SONS AND THEREFO RE EVEN IF THERE ARE MORE THAN ONE UNIT BUT IT IS COMPOSITE AND DIVIDED RESIDENTIAL UNIT THEN ALSO ASSESSEE IS ELIGIBLE FOR EXEMPTION U/S. 54F. FOR TH IS PROPOSITION HE RELIED ON THE DECISION OF KARNATAKA HIGH COURT IN THE CASE OF CIT VS. ANANDA BASAPPA 309 ITR 329 (KAR.). HE FURTHER SUBMITTED TH AT THE ACT OF THE ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 11 ASSESSEE IN BUYING AND MAKING THE 3 UNITS AS ONE UN IT WAS AS PER THE LAW AND BY FOLLOWING THIS METHOD, ASSESSEE HAS NOT VIOL ATED ANY PROVISIONS OF ACT NOR HAS DEVISED THE TRANSACTION AS ONE TO AVOID CAPITAL GAINS. HE FURTHER SUBMITTED THAT ASSESSEE HAD TAKEN OVER THE LOAN AND PAID INSTALMENTS THEREAFTER. ASSESSEE HAD ALSO PAID LONG TERM CAPIT AL GAIN, MAINTENANCE CHARGES. HE FURTHER SUBMITTED THAT ASSESSEE HAS IN CURRED CONSTRUCTION OF RS.10,85,641/- TO MAKE THE BUILDING ONE COMPOSITE U NIT. ASSESSEE WAS THEREFORE ENTITLED TO EXEMPTION UNDER SEC. 54F. TH E LD. A.R. ALSO PLACED ON RECORD THE COPIES OF THE AGREEMENTS IT HAD ENTER ED INTO WITH THE THREE SELLERS. FROM THE COPIES OF THE AGREEMENT HE POINTE D OUT TO THE FACT THAT THE ASSESSEE HAS PURCHASED THE PROPERTY AND PAID CONSID ERATION FOR THE PURCHASE OF PROPERTY. FURTHER HE ALSO POINTED OUT T HAT THE POSSESSION HAS ALSO BEEN GIVE TO THE ASSESSEE. LD.A.R. FURTHER SUB MITTED THAT AS PER THE LOAN AGREEMENT ENTERED INTO BY ORIGINAL OWNERS (BEI NG HIS SONS) HE WAS ONE OF THE CO-OWNER AND THEREFORE IT WAS NOT NECESS ARY FOR OBTAINING ANY PRIOR APPROVAL OR NON OBJECTION CERTIFICATE FROM TH E BANK. HE PLACED ON RECORD COPY OF THE SCHEDULE A AT PAGE-81 OF THE PAP ER BOOK WHEREIN HIS NAME WAS SHOWN AS ONE OF THE OWNER. HE FURTHER SUB MITTED THAT THE PERMISSION FROM THE BANK IS REQUIRED ONLY IN CASE O F TRANSFER IS MADE TO ANY OUTSIDER. HE ALSO PLACED RELIANCE ON THE DECISION IN THE CASE OF CIT VS. SMT. SUNITA AGGARWAL 284 ITR 20 (DEL.) AND VARIOUS OTHER DECISIONS. HE ALSO PLACED ON RECORD THE COPY OF THE LAY-OUT OF TH E BUILDING TO POINT OUT THAT ALL THE THREE UNITS ARE ADJACENT AND CONTIGUOUS TO EACH OTHER. HE ALSO PLACED ON RECORD THE COST OF CONSTRUCTION INCURRED ON THE THREE BUNGALOWS. HE FURTHER SUBMITTED THAT THE CASE-LAWS RELIED BY T HE CIT(A) ARE DISTINGUISHABLE ON FACTS. HE ALSO PLACED RELIANCE O N THE DECISION IN THE CASE OF UNION OF INDIA V/S. AZADI BACHO ANDOLAN 263 ITR 706 (SC). HE ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 12 THUS URGED THAT THE ACTION OF AO IN NOT GIVING DEDU CTION U/S. 54F BE DELETED. HE ALSO RELIED ON THE VARIOUS OTHER DECISI ONS. 10. THE LD. D.R. ON THE OTHER HAND SUBMITTED THAT T HE ASSESSEE WAS NOT ENTITLED TO DEDUCTION U/S. 54F IN VIEW OF THE FACT THAT THE UNITS WHICH HAS BEEN PURCHASED BY THE ASSESSEE HAS NOT BEEN REGISTE RED WITH THE SUB- REGISTRAR OFFICE AND THE ASSESSEE HAS NOT PAID THE REQUIRED STAMP DUTY AND IN THE RECORDS OF THE SOCIETY OR THE MUNICIPAL CORPORATION THE PROPERTY HAS NOT BEEN TRANSFERRED IN THE NAME OF THE ASSESSE E. LD. D.R. FURTHER SUBMITTED THAT THERE IS NOTHING ON RECORD TO PROVE THAT THE LOAN TAKEN FROM BANK HAS BEEN TRANSFERRED IN THE NAME OF THE ASSESS EE AND FURTHER THAT NO PRIOR APPROVAL OF THE BANK WAS TAKEN BEFORE ITS TRA NSFER. HE FURTHER SUBMITTED THAT THE A.O. HAD ISSUED SUMMONS U/S. 131 OF THE ACT TO THE PROPRIETOR OF BALAJI CONSTRUCTION AND IN RESPONSE T O WHICH IT WAS SUBMITTED THAT THE 3 BUNGALOWS WHICH HAVE BEEN ALLOTTED TO JA GDISH KANJANI, MANHARLAL KANJANI AND ASHOK KANJANI WERE SEPARATE A ND INDEPENDENT UNITS. LD. D.R. FURTHER SUBMITTED THAT THAT THE A. O. HAD CALLED FOR THE DETAILS OF SHORT TERM CAPITAL GAINS FROM HIS 3 SONS. HE FU RTHER SUBMITTED THAT HIS 3 SONS HAD NOT DISCLOSED THE CAPITAL GAINS ARISING FR OM SALE OF TRANSFER BUT THE SAME WAS SUBMITTED IN THE REVISED RETURN. FURTHER T HE REVISED RETURN WAS ONLY FILED AFTER THE ISSUE OF SUMMONS. HE FURTHER S UBMITTED THAT THE REVISED RETURN WAS FILED BEYOND THE PRESCRIBED TIME LIMIT U /S. 139(5) AND THEREFORE NO COGNIZANCE COULD BE TAKEN OF SUCH BELATED RETURN . HE FURTHER SUBMITTED THAT JAGDISH & MANISHA KANJANI HAS NOT FILED REVISE D RETURN AND THEREFORE WHETHER THE CAPITAL GAIN HAVE BEEN INCLUDED IN THEI R RETURNS OF INCOME WAS NOT KNOWN. LD. D.R. FURTHER POINTED OUT TO THE NEG ATIVE COVENANTS OF THE LOAN AGREEMENT AND POINTED OUT THAT NO SALE, SURREN DER OR TRANSFER COULD BE ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 13 CREATED OF THE PROPERTY IN FAVOUR OF ANY PERSON UNL ESS AND UNTIL PRIOR APPROVAL OF THE BANK IN WRITING HAS BEEN OBTAINED. HE FURTHER POINTED OUT TO THE FINDING OF THE AO WHEREIN HE HAS HELD THE AGREE MENTS HAVE BEEN MADE ONLY WITH THE MOTIVE FOR AVOIDANCE OF CAPITAL GAINS AND THE AGREEMENT WAS A CASE OF FAMILY SETTLEMENT. THE ASSESSEE HAS ADOPT ED DUBIOUS METHOD AND COLOURABLE DEVISE FOR AVOIDANCE OF TAX. HE THUS SUPPORTED THE ORDER OF AO AND CIT(A). 11. ON HEARING THE SUBMISSION OF BOTH THE SIDES AND AFTER DUE CONSIDERATION OF THE FACTS AS EMERGED FROM THE ORDE R OF THE AUTHORITIES BELOW THE BASIC QUESTION TO BE ANSWERED IS THAT WHE THER THE ALLEGED CLAIM OF INVESTMENT IN THE HOUSE PROPERTIES AND IN CONSEQ UENCE THEREOF THE CLAIM OF DEDUCTION U/S 54F WAS A COLOURABLE DEVICE OR NOT . AN ANOTHER INTERESTING FEATURE OF THIS CASE IS THAT NO THIRD PARTY OR OUTS IDE PARTY IS INVOLVED IN THE ALLEGED TRANSACTION BECAUSE THE TRANSACTIONS HAVE B EEN MADE WITHIN THE FAMILY MEMBERS HENCE PRIMA FACIE CASTING A DOUBT AB OUT THE GENUINENESS OF THE CLAIM. 12. IT IS AN UNDISPUTED FACT THAT ASSESSEE HAD SOLD LAND ON 17-9-2007 FOR A CONSIDERATION OF RS.3,20,00,000/- AND THE COST OF I TS PURCHASE WAS RS.22,18,284/- AND THEREBY EARNED LONG TERM CAPITAL GAIN OF RS.2,91,17,877/- AFTER CONSIDERING THE INDEXED COST OF ACQUISITION. FURTHER IT IS ALSO AN UNDISPUTED FACT THAT IN JULY, 2006 AS SESSEES 3 SONS AND THEIR WIVES HAD PURCHASED PROPERTIES. PLOT NO.11B WAS PUR CHASED BY SHRI MANOHARLAL KANJANI ALONG WITH WIFE RESHMA, PLOT NO 12A WAS PURCHASED BY SHRI JAGDISH AND VANITA KAJANI AND PLOT NO 12B W AS PURCHASED BY SHRI ASHOK KAJANI WITH MANISHA KANJANI. THESE 3 PROPERTI ES WERE PURCHASED BY ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 14 3 SEPARATE SALE DEEDS DATED 31 ST MARCH 2008. ASSESSEE IS ALLEGED TO HAVE PURCHASED THESE 3 DIFFERENT PROPERTIES FROM HIS SON AND THEIR WIVES AND HAS CLAIMED DEDUCTION U/S. 54F. ASSESSEES IMPUGNED PUR CHASE OF ALL THE ABOVE 3 PROPERTIES WAS SIMPLY BY ENTERING INTO AN A GREEMENT DATED 31-3- 2008, THE COPIES OF THE AGREEMENTS ARE PLACED AT PA GES 16 TO 42 OF THE PAPER BOOK. 13. ON THE ALLEGED SALE DATED 31.03.2008 OF THE PRO PERTIES BY THE SON TO THE ASSESSEE, SONS AND THEIR WIVES HAVE EARNED SHOR T TERM CAPITAL GAINS (SINCE THE SELLERS HAD PURCHASED THE PROPERTIES IN 2006) BUT NOT DISCLOSED BY ALL OF THEM. ON THIS AGREEMENT FOR SALE WHICH HA S BEEN ENTERED BETWEEN THE ASSESSEE AND THE SON, IT IS SEEN THAT NEITHER S TAMP DUTY HAS BEEN PAID NOR THE AGREEMENT HAS BEEN REGISTERED WITH THE OFFI CE OF THE SUB-REGISTRAR. FURTHER, THERE IS NOTHING ON RECORD TO PROVE THAT T HE AFORESAID PROPERTIES HAVE BEEN TRANSFERRED IN THE NAME OF ASSESSEE EITHE R IN THE SOCIETYS RECORD OR IN THE MUNICIPAL RECORDS. FURTHER, ON SAL E OF THE AFORESAID PROPERTY BY THE SON AND THEIR WIVES, IMPUGNED CAPIT AL GAINS HAVE BEEN EARNED BY THEM AS SELLERS BUT THAT WAS SERIOUSLY DO UBTED BY THE AO. A.O. HAD ISSUED SUMMONS DATED 16-12-2010 TO HIS 3 SONS R EQUIRING THEM TO FURNISH THE CALCULATION OF CAPITAL GAINS AND ALSO W HETHER THE CAPITAL GAINS ON SALE OF PROPERTY WAS SHOW IN THE RETURN OF INCOME F OR A.Y. 2008-09. A.O. HAS GIVEN A FINDING THAT SHRI ASHOK AND MANISHA KAN JANI HAVE FURNISHED COPY OF THE REVISED RETURN IN WHICH SHORT TERM CAPI TAL GAINS HAVE BEEN INCLUDED HOWEVER, HE HAS NOTICED THAT THE REVISED R ETURNS WERE FILED BEYOND THE STATUTORY TIME LIMIT PRESCRIBED U/S. 139 (5) OF THE ACT AND HE WAS THEREFORE OF THE VIEW THAT THE RETURNS WERE FILED B ELATEDLY AND THEREFORE THE BELATED RETURNS FILED BY THE SELLERS HAVE NO EVIDEN TIARY VALUE IN THE EYES OF ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 15 LAW. SHRI JAGDISH AND SHRI MANHARLAL HAD FURNISHED REVISED COMPUTATION OF INCOME BUT DID NOT SUBMIT THE COPY OF THE RETURN AN D THUS A.O. HAS STATED THAT THE SAME WAS NOT VERIFIABLE AS TO WHETHER CAPI TAL GAINS WERE INCLUDED IN THE COMPUTATION OF INCOME OR NOT. AS PER THE SUB MISSIONS OF THE ASSESSEE SHORT TERM CAPITAL GAINS (STCG) EARNED BY THE VARIOUS MEMBERS OF THE FAMILY ARE AS UNDER:- NAME COST OF PURCHASE SALE PRICE TO BANSILAL KANJANI STCG (RS.) MANOHARLAL B. KAJANI. 29,93,168 30,33,896 40,728 RESHMABEN M. KANJANI. 29,06,632 29,25,189 18,557 JAGDISHBHAI B. KANJANI 25,84,746 26,43,999 59,253 VINITA J. KAJANI 25,12,357 25,49,439 37,082 ASHOK B. KANJANI 25,53,918 26,13,171 59,253 MANISHA A.KANJANI 24,84,357 25,21,439 37,082 TOTAL 1,60,35,178 1,62,87,133 2,51,955 14. ABOVE TABLE REVEALS THAT SMT RESHMABEN MANOHARL AL KANJANI HAS EARNED SHORT TERM CAPITAL GAINS OF RS.18,557/-. HOW EVER, FROM THE COPY OF THE COMPUTATION OF INCOME FILED AT PAGE 53 OF THE P APER BOOK IT IS SEEN THAT CAPITAL GAINS EARNED FROM SALE OF SECURITIES HAVE B EEN SHOWN BUT THE CAPITAL GAINS EARNED ON SALE OF PROPERTY HAS NOT BE EN DISCLOSED BY HER. ASSESSEES SUBMISSION THAT THE PROFIT ON SALE HAS B EEN SHOWN AS BUSINESS PROFITS IS ALSO NOT DISCERNABLE FROM RECORDS MORESO FOR THE REASON THAT THE ASSESSEE HAS SHOWN LOSS OF RS 79,725 UNDER THE HEAD PROFIT AND GAINS FROM BUSINESS AND PROFESSION. SIMILARLY, IN THE CA SE OF VINITA KANJANI, SHE HAS EARNED SHORT TERM CAPITAL GAIN OF RS.37,082/- B UT IN THE COMPUTATION OF INCOME FILED IN THE PAPER BOOK AT PAGE 61, IT IS SE EN THAT THE SHORT TERM CAPITAL GAINS EARNED FROM SALE OF SECURITIES (RS 84 ,048/-) HAS BEEN REFLECTED AND IT DOES NOT INCLUDE THE SHORT TERM GA INS FROM SALE OF PROPERTY. ASSESSEES SUBMISSION THAT THE PROFIT ON SALE OF PR OPERTY HAS BEEN SHOWN ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 16 AS BUSINESS PROFITS IS ALSO NOT DISCERNABLE FROM RE CORDS MORESO FOR THE REASON THAT THE ASSESSEE HAS SHOWN LOSS OF RS 61,20 0/- UNDER THE HEAD PROFIT AND GAINS FROM BUSINESS AND PROFESSION. TH US FROM THE ABOVE DETAILS IT CAN BE SEEN THAT OUT OF THE 6 SELLERS, I N THE CASE OF 2 SELLERS THE SHORT TERM CAPITAL GAINS EARNED FROM SALE OF PROPER TY HAS NOT AT ALL BEEN SHOWN IN THE COMPUTATION OF INCOME AND IN CASE OF O THER 4 SELLERS COPY OF THE ACKNOWLEDGEMENT OF THE RETURN IS NOT AVAILABLE ON RECORD AND THEREFORE THE FINDING OF THE A.O. THAT THE ASSESSEE HAS NOT F ILED THE RETURN WITHIN THE STIPULATED TIME PRESCRIBED U/S. 139(5) HENCE IS NOT A VALID RETURN HAS NOT BEEN CONTROVERTED BY THE ASSESSEE BY BRINGING ANY M ATERIAL ON RECORD. 15. THE LD. D.R. HAD PLACED RELIANCE AT PAGE 8 & 9 OF THE WRITTEN SUBMISSION, BEING COPY OF THE LETTER OF SHRI ASHOK KANJANI AND MANISHA KANJANI, WHEREIN THEY HAVE STATED THAT SHORT TERM C APITAL GAIN EARNED BY THEM ON SALE PROCEEDS OF BALAJI KUTIR HAS NOT BEEN DISCLOSED AS A SHORT TERM CAPITAL GAIN DUE TO OVERSIGHT. WE ARE ALSO OF THE VIEW THAT THE NON- DISCLOSURE OF GAINS BY THEM HAS WEAKENED THE STAND OF THE ASSESSEE. RATHER SURROUNDING CIRCUMSTANCES INDICATE THAT THE ENTIRE ARRANGEMENT WAS NOTHING BUT AN AFTER THOUGHT. 16. ASSESSEE HAS PLACED ON RECORD THE COPY OF THE L OAN AGREEMENT ENTERED BY HIS 3 SONS WITH KOTAK MAHINDRA BANK FOR TAKE-OVER OF LOAN AND THE SAME HAS BEEN PLACED AT PAGES 72 TO 86 OF THE P APER BOOK. FROM ARTICLE 5.2 OF THE AFORESAID AGREEMENT WHICH IS PLA CED AT PAGE 76 OF THE PAPER BOOK THE COVENANTS READS AS UNDER:- 5.2. NEGATIVE COVENANTS ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 17 WITHOUT PREJUDICE TO THE OTHER COVENANTS PROVIDED B Y THE BORROWED UNDER THIS AGREEMENT, THE BORROWED FURTHER COVENANTS WITH THE BANK THAT UNLES S THE BANK SHALL OTHERWISE PREVIOUSLY APPROVE IN WRITING, THE BORROWER SHALL NOT (A) CHANGE THE USE OF THE PROPERTY PURCHASED BY THE LOAN AMOUNT PROVIDED THAT IF SUCH PROPERTY IS USED FOR ANY PURPOSE OTHER THAN THE PUR POSE WHICH IS DISCLOSED FOR OBTAINING THE LOAN, IN ADDITION TO ANY OTHER ACTION WHICH THE BANK MIGHT TAKE, THE BANK SHALL BE ENTITLED TO CHARGE, IN ITS SOLE DISCRETION, SUCH HI GHER RATE OF INTEREST AS IT MIGHT FIX IN THE CIRCUMSTANCES OF THE CASE. (B) AMALGAMATE OR MERGE THE PROPERTY WITH ANY OTHER ADJACENT PROPERTY NOR SHALL THE BORROWER CREATE ANY RIGHT OF WAY OR ANY OTHER EASEM ENT ON SUCH PROPERTY. (C) STAND SURETY FOR ANYBODY OR GUARANTEE THE REPAY MENT OF ANY LOAN OR OVERDRAFT OR THE PURCHASE PRICE OF ANY ASSET WITHOUT WRITTEN PERMISS ION OF THE BANK. (D) LEAVE INDIA FOR EMPLOYMENT OR BUSINESS OR FOR L ONG TERM STAY ABROAD WITHOUT FULLY REPAYING THE DUES. WHETHER THE STAY IS LONG TERM OR NOT SHALL BE DECIDED SOLELY BY THE BANK. (E) IN CASE THE BORROWER BEING A COMPANY, PERMIT AN Y CHANGE IN THE OWNERSHIP OR CONTROL OF THE BORROWER WHEREBY THE EFFECTIVE BENEFICIAL OWNER SHIP OR CONTROL OF THE BORROWER SHALL CHANGE IN ANY MANNER WHATSOEVER, WITHOUT THE PRIOR WRITTEN CONSENT OF THE BANK; (F) IN CASE THE BORROWER BEING A COMPANY, DECIDE OR ENTER INTO ANY SCHEME OF MERGER, AMALGAMATION, COMPROMISE OR RECONSTRUCTION WITHOUT THE PRIOR WRITTEN CONSENT OF THE BANK; (G) IN CASE THE BORROWER BEING A COMPANY, MAKE ANY AMENDMENTS IN THE BORROWERS MEMORANDUM AND ARTICLES WITHOUT THE PRIOR WRITTEN C ONSENT OF THE BANK; (H) IN CASE THE BORROWER BEING A COMPANY, DECLARE A NY DIVIDEND IF ANY INSTALLMENT TOWARDS PRINCIPAL OR INTEREST REMAINS UNPAID ON ITS DUE DAT E. (I) UTILISE THE LOAN OR THE SECURITY FOR ANY SPECUL ATIVE OR ANTI-SOCIAL OR ILLEGAL PURPOSE. (J) LET OUT, LEASE OR GIVE ON LEAVE AND LICENSE OR OTHERWISE HOWSOEVER PART WITH THE POSSESSION/USE OF THE SECURITY OR ANY PART THEREOF. (K) SELL, CHARGE, LEASE, SURRENDER OR OTHERWISE HOW SOEVER ALIENATE OR TRANSFER OR CREATE INTEREST IN FAVOUR OF OTHER PERSON IN THE SECURITY OR ANY PART THEREOF OR PERMIT ANY CHARGE, ENCUMBRANCE OR LIEN OF ANY KIND WHATSOEVER OVER THE SUCH SECURITY. (L) ENTER INTO ANY AGREEMENT OR ARRANGEMENT WITH AN Y PERSON INSTITUTION OR LOCAL OR GOVERNMENT BODY FOR THE USE, OCCUPATION OR DISPOSAL OF THE SECURITY OR ANY PART THEREOF. (M) SUBJECT THE SECURITY OR ANY PART THEREOF TO ANY FAMILY ARRANGEMENT OR PARTITION OR CONVERT THE SECURITY AS PART OF HUF PROPERTY OR EXECUTE AN Y POWER OF ATTORNEY OR OTHER SIMILAR DEED IN FAVOUR OF ANY OTHER PERSON TO DEAL WITH SUC H SECURITY IN ANY MANNER. 17. FROM THE NEGATIVE COVENANTS LISTED ABOVE, IT IS SEEN THAT AS PER CLAUSE (B) AND CLAUSE (K), THE BORROWER IS REQUIRED TO TAKE PRIOR PERMISSION FROM THE BANK FOR AMALGAMATION OR MERGING PROPERTY FOR CHANGE IN OWNERSHIP OR CONTROL OF THE BORROWER OR HAVE ENTERE D INTO FAMILY ARRANGEMENTS OR PARTITION OR EXECUTE ANY POWER OF A TTORNEY TO DEAL WITH THE COMPOSITE PROPERTIES. NOTHING HAS BEEN BROUGHT ON R ECORD BY THE LD. A.R. TO SUBSTANTIATE OR PROVE THAT THE ASSESSEE HAD OBTA INED THE BANKS PRIOR ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 18 PERMISSION FOR THE DISCHARGE OF LOAN OR FOR THE TRA NSFER OF LOAN FROM THE SON TO ASSESSEES NAME. 18. A.O. HAS DENIED BENEFIT OF CAPITAL GAIN FOR THE REASON THAT ACCORDING TO HIM THE PURCHASE OF PROPERTIES WAS NOTHING BUT A FA MILY ARRANGEMENT AND THE AGREEMENT WAS MADE ONLY WITH THE SOLE MOTIVE OF AVOIDANCE OF CAPITAL GAINS. SECONDLY AT THE TIME OF PURCHASE OF PROPERTY , THE PROPERTY WAS NOT A COMPOSITE UNIT AS THE EXPENSES WERE INCURRED AFTER THE CLOSE OF YEAR BUT BEFORE FILING OF RETURN. HE HAD FURTHER OBSERVED TH AT THE LOAN TAKEN BY THE SONS OF THE ASSESSEE FOR PURCHASE OF PROPERTY CONTI NUED TO BE IN THEIR NAME. IN VIEW OF THESE FACTS HE CONCLUDED THAT THE ASSESSEE HAS ADOPTED DUBIOUS METHOD AND COLOURFUL DEVICE FOR AVOIDANCE O F TAX. HE THEREFORE, HELD THAT THE SALE CONSIDERATION HAS NOT BEEN UTILI ZED FOR THE PURCHASE OF RESIDENTIAL HOUSE AS THE ASSESSEE WAS NOT THE REAL OWNER IN THE EYES OF LAW. APART FROM THE AFORESAID FACTS A.O. HAS ALSO NOTICED THAT THE ASSESSEE HAD MADE INVESTMENTS IN 3 DIFFERENT PROPERTIES BUT AS PER THE PROVISIONS OF SEC. 54F ASSESSEE IS ENTITLED TO EXEMPTION IN RESPE CT OF ONLY ONE RESIDENTIAL HOUSE. HE FURTHER OBSERVED THAT THE ADJ USTMENT OF PURCHASE CONSIDERATION TOWARDS LOAN WAS ALSO NOT PERMISSIBLE AS LOANS HAVE BEEN SANCTIONED IN THE NAME OF HIS 3 SONS AND THE LIABIL ITY OF REPAYMENT OF LOAN WILL ARISE IN YEAR TO YEAR. HE ALSO CONSIDERED THE LIFE TIME MAINTENANCE CHARGES PAID BY THE ASSESSEE TO BE NOT LIABLE FOR D EDUCTION U/S. 54F AND IN THE ABSENCE OF DETAILS OF CONSTRUCTION EXPENSES INC URRED TILL 30-9-2008 HE HAS NOT CONSIDERED IT TO BE AN APPROVED PURCHASE CO NSIDERATION. SO ACCORDING TO US THE VIEW EXPRESSED BY THE ASSESSING OFFICER HAD IN FACT DULY SUPPORTED BY SEVERAL CORROBORATIVE EVIDENCES. ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 19 19. THE LD. D.R. HAS PLACED AT PAGE A-4 OF THE WRIT TEN SUBMISSION THE COPY OF THE REPLY RECEIVED FROM SHRI ASHISH J.SHAH, PROP. OF BALAJI CONSTRUCTION WHEREIN IN RESPONSE TO THE SUMMONS ISS UED U/S. 131 HE HAS STATED TO HAVE DEVELOPED BALAJI SCHEME CALLED BALA JI KUTIR AND ALLOTTED BUNGALOW NO.12A TO SHRI JAGDISH KANJANI AND VINITA J. KANJANI, BUNGALOW NO.11B TO MANHARLAL B. KANJANI AND RESHMA M. KANJA NI AND BUNGALOW NO.12B TO ASHOK B. KANJANI AND MANISHA A. KANJANI. HE HAS FURTHER STATED THAT ALL THE UNITS ARE SEPARATE AND INDEPENDENT. AS SESSEE HAS PLACED BEFORE US PHOTOGRAPHS OF THE PROPERTIES TO DEMONSTR ATE THAT THE PROPERTY WAS CONSTRUCTED TO MAKE THE DIFFERENT UNITS AS ONE. HOWEVER, THE PHOTOGRAPH REVEALS THAT A SMALL CONNECTING PASSAGE HAS BEEN BUILT BETWEEN THE COMPOUND WALL. ASSESSEE HAS PLACED AT P AGE 48 & 49 OF THE PAPER BOOK THE EXPENSES IT HAS INCURRED AND WHICH H AS BEEN CLAIMED FOR THE PURPOSE OF 54F. FROM THE DETAILS OF THE CONSTRU CTION EXPENSES IT CAN BE SEEN THAT OUT OF THE TOTAL EXPENSES OF RS.10,23,213 /- WHICH IT HAS CLAIMED TO HAVE BEEN INCURRED, AN AMOUNT OF RS.2,39,230/- H AS BEEN INCURRED IN CASH AND FOR THE BALANCE OF RS.7,83,983/-, THE EXPE NSES HAVE BEEN BOOKED BY WAY OF JOURNAL ENTRY ON VARIOUS DATES. THIS FACT HAS CASTED DOUBT, AS WELL, ALONG WITH OTHER FACTS. ASSESSEE HAS ALSO PLA CED ON RECORD AT PAGE 86 OF THE PAPER BOOK A CERTIFICATE DATED 6-9-2011 ISSU ED BY THE KOTAK MAHINDRA BANK WHEREIN IT IS STATED THAT THE HOME LO AN ACCOUNTS HAVE BEEN FORECLOSED. HOWEVER THERE IS NOTHING ON RECORD TO S HOW THE DATE OF FORECLOSURE OF THE ABOVE LOAN AND FURTHER AS TO WHE THER THE LOANS WERE FORECLOSED PRIOR TO THE DATE OF FILING OF THE RETUR N OR LATER. BEFORE US THE LD. A.R. HAS RELIED ON THE VARIOUS DECISIONS OF HIGH CO URTS AND APEX COURT. ALL THE DECISIONS RELIED BY THEM ARE DISTINGUISHABLE ON FACTS MORE SO FOR THE REASON THAT IN NONE OF THE AFORESTATED CASES, THE P URCHASE OF PROPERTY HAS ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 20 BEEN HELD BY THE A.O. TO BE THE CASE OF NOT GENUINE PURCHASE AND THE TRANSACTIONS IN THOSE CASES WERE BETWEEN THE UNRELA TED PARTIES. HOWEVER, IN THE PRESENT CASE, A.O. HAS HELD THE TRANSACTION TO BE A FAMILY ARRANGEMENT AND THE IMPUGNED ARRANGEMENT WAS FOR TH E PURPOSE OF AVOIDANCE OF CAPITAL GAINS. THUS THE FACTS OF THE P RESENT CASE ARE DISTINGUISHABLE THAN THAT RELIED BY THE LD.A.R AND THEREFORE THE RATIO OF THE CASES RELIED BY A.R. CANNOT BE APPLIED TO THE FACTS OF THE PRESET CASE. 20. LD.A.R. HAS RELIED ON THE DECISION IN THE CASE OF CIT VS. AJITSINGH KHAJANCHI (2008) 297 ITR 95 (MP). IN THAT CASE, THE REVENUE WAS NOT REPRESENTED BY ANY COUNSEL. THE LD. A.R. HAS ALSO R ELIED ON THE DECISION IN THE CASE OF CIT VS. D. ANANDA BASAPA 309 ITR 329 (KAR), HOWEVER RATIO IN THE SAID CASE CANNOT BE APPLIED TO THE FACTS OF THE ASSESSEE FOR THE REASON THAT IN THAT CASE TWO HOUSES PURCHASED BY TH E ASSESSEE WERE NOT INDEPENDENT PROPERTIES AND THE FACTUAL FINDING HAS BEEN RECORDED THAT THE TWO APARTMENTS WHICH WERE CLAIMED TO BE EXEMPTED AG AINST THE SALE CONSIDERATION WERE SITUATED SIDE BY SIDE AND IT WAS ALSO STATED BY THE BUILDER IN THAT CASE THAT HE HAS EFFECTED MODIFICAT ION OF THE FLATS TO MAKE IT AS ONE UNIT BY OPENING THE DOORS IN BETWEEN THE TWO APARTMENTS. 21. IN THE CASE OF PRAKASH VS. ITO 312 ITR 40 IT HA S BEEN HELD AS UNDER: 12. THE THAT THE CONDITIONS OF SEC. 54F IS TO GIVE BENEFIT ON THE OWNER OF ONE RESIDENTIAL HOUSE ONLY BY THE ASSESSEE AND TO ENCOURAGE TO CONCEPTS O F THE ASSESSEE, OWN, OWNED, OWNER, OWNERSHIP, CO-OWNER, OWNER OF HOUSE PROPERTY OR OWNERSHIP OF PROPERTY AS ELABORATED IN SECTION 22 TO 27 AND 32 OF THE INCOME TAX ACT ARE VERY MUCH IN TERLINKED AND CONNECTED FOR GRANTING THE BENEFIT UN DER THE INCOME TAX ACT. THE WORD AND PHRASE OWNER IN THE CONTEXT OF SECTION 22 HAS BEEN ELABORATED IN CI T VS PODAR CEMENT P. LTD (1997) 226 ITR 625 (SC) AND MYSORE MINERALS LTD VS CIT (1999) 239 ITR 775 (SC). AN ASSESSEE MUST HAVE VALID TITLE LEGALLY CON VEYED TO HIM AFTER COMPLYING WITH THE REQUIREMENT O F LAW OR AT LEAST ENTITLED TO RECEIVE INCOME FROM THE PROPERTY IN HIS OWN RIGHT AND HAVE CONTROL AND DOM AIN ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 21 OVER THE SAID PROPERTY FOR ALL THE LEGAL PURPOSES, WHICH BASICALLY EXCLUDES THIRD PERSON OF ANY RIGHT OVER THE SAID PROPERTY. NO SUCH BENEFIT IS AVAILABLE TO A PERSON OTHER THAN THE ASSESSEE. IT ALSO MEANS THA T ASSESSEE MUST COMPLY WITH THE CONDITIONS STRICTLY A S PER THIS PROVISION IN ALL RESPECTS 22. IN THE CASE OF ITO VS. MS. SUSHILA M. JHAVERI ( 2007) 107 ITD 327 (MUM.)(SB) IT HAS BEEN HELD THAT WHETHER MORE THAN ONE UNIT IS PURCHASED WHICH ARE ADJACENT TO EACH OTHER AND THE SAME ARE C ONVERTED INTO ONE HOUSED FOR THE PURPOSE OF RESIDENCE HAVING COMMON P ASSAGE, COMMON KITCHEN ETC., THEN IT WOULD BE A CASE OF INVESTMENT IN ONE UNIT AND CONSEQUENTLY THE ASSESSEE WOULD BE ENTITLED TO EXEM PTION. HOWEVER, IN THE PRESENT CASE ASSESSEE HAS PURCHASED 3 SEPARATE UNIT S UNDER 3 SEPARATE AGREEMENTS OF THE 3 UNITS ARE SEPARATED FROM EACH O THER BY COMPOUND WALL OF THE 3 SEPARATE UNITS HAVE SEPARATE ENTRANCE AND PASSAGE. THESE 3 UNITS THEREFORE CANNOT BE HELD TO BE A SINGLE UNIT. 23. ASSESSEE HAS STRONGLY RELIED IN THE CASE OF BAL RAJ VS. CIT 254 ITR 22 (DEL.). HOWEVER, WE FIND THAT THE FACTS OF THE CASE ARE DISTINGUISHABLE AND CANNOT BE APPLIED TO THE FACTS OF THE PRESENT CASE FOR THE REASON THAT IN THAT CASE, A.O. HAD NOT TREATED THE TRANSACTION AS A SHA M. FURTHER, FINDING WAS GIVEN THAT ASSESSEE HAD ENTERED INTO AN AGREEMENT F OR SALE AND ALSO TAKEN POSSESSION. HOWEVER, IN THE PRESENT CASE, THE STATU S-QUO PREVAILING BEFORE THE DATE OF PURCHASE CONTINUES TO REMAIN AS THE SON AND DAUGHTER IN LAW CONTINUE TO OCCUPY THE PREMISES TILL DATE AND FURTH ER NO EFFORTS HAVE BEEN MADE TO MAKE THE CHANGE IN THE RECORDS OR REGISTER THE DOCUMENTS TILL DATE. 24. IN THE CASE OF RASIKLAL M.PARIKH VS. ACIT (2012 ) 28 TAXMAN.COM 195 (MUM) IT HAS BEEN HELD THAT IN THE ABSENCE OF RESID ENTIAL UNIT, ONE ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 22 ELECTRICITY METER AND ONE MUNICIPAL CORPORATION NUM BER IT COULD NOT BE HELD THAT THE 3 OWNERS HAVE ONE RESIDENTIAL UNIT. 25. IN THE CASE OF KRISHNAGOPAL NAGPAL VS. DCIT (20 04) 82 TTJ (PUNE) 481 IT HAS BEEN HELD EXEMPTION U/S. 54 IS AVAILABLE ONLY IN RESPECT OF INVESTMENT MADE FOR PURCHASE/CONSTRUCTION OF ONE HO USE; SEVEN ROW HOUSES CANNOT BE TREATED AS A RESIDENTIAL HOUSE. 26. FURTHER, IT IS A SETTLED LAW THAT NO REVISED RE TURN COULD BE FILED U/S 139(5) IN A CASE WHERE THE RETURN OF INCOME WAS FIL ED U/S 139(4) AND IN SUCH CASE THE REVISED RETURN IS INVALID. REFERENCE CAN BE MADE TO THE DECISION IN THE CASE OF SMT. SOBHARANI VS. CIT (198 5) 160 ITR 453 (RAJ). 27. BEFORE WE CONCLUDE WE DEEM IT NECESSARY TO COMM ENT THAT THE BENEFICIAL SECTIONS OF I.T. ACT HAS TO BE INTERPRET ED IN MOST JUSTIFIABLE MANNER, SO THAT THE INTENTION OF THE LEGISLATURE MU ST NOT BE DILUTED. AN OBSERVATION IN A JUDGMENT WAS, THOSE WHO SEEK AN E XEMPTION FROM TAX IMPOSED MUST REST IT ON MORE THAN A DOUBT OR AMBIGU ITY. EXEMPTION FROM TAXATION CANNOT REST UPON MERE IMPLICATION. ACCOR DING TO US THE EXEMPTIONS GRANTED IN I.T. ACT ARE AT THE COST OF T HE EXCHEQUER, THEREFORE THE ENACTED LAW HAS TO BE APPLIED CAREFULLY. IN TH IS CASE, AS A FIRST STEP, WE HAVE EXAMINED THE CORRECTNESS OF THE INVESTMENT. A N INVESTMENT IN AN IMMOVABLE PROPERTY CAN BE CHECKED IN THE LIGHT OF T HE TRANSFER OF PROPERTY ACT AND OTHER ALLIED ACTS. WHAT WE HAVE NOTED THAT THE IMPUGNED TRANSACTIONS OF ALLEGED PURCHASE OF HOUSES FROM THE ASSESSEES SONS HAVE NOT PASSED THE SAID TEST, LAID-DOWN UNDER APPLICABL E ACTS. THE PROVISIONS OF THE I.T. ACT GRANTING BENEFIT TO A TAX PAYER MUS T NOT BE USED TO TAKE SOME ITA NO 2647 /AHD/2011 ASSESSMENT YEAR 2008-09 23 UNDUE BENEFIT. THE APPELLANT HAS NOT PASSED THE FIR ST TEST OF GENUINE INVESTMENT TOWARDS PURCHASE OF HOUSE THEREFORE, THE NEXT OBJECTION OF INVESTMENT IN MORE THAN ONE HOUSE HAS AUTOMATICALLY GONE AGAINST THE ASSESSEE. THEREFORE IN THE RESULT, CONSIDERING THE TOTALITY OF THE CIRCUMSTANCES, THE LEGAL POSITION AND THE PECULIAR FACTS OF THE CASE, WE ARE OF THE VIEW THAT NO INTERFERENCE IS CALLED FOR IN T HE ORDER OF THE A.O AND CIT(A). THUS WE DISMISS THE APPEAL OF THE ASSESSEE. 28. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. SD/- SD/- (MUKUL KUMAR SHRAWAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-VI, AHMEDABAD. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AH MEDABAD. ORDER PRONOUNCED IN OPEN COURT ON 20 -09 -2013.