Sri Sitalakshmi, Visakhapatnam V. THE ITO, WARD - 1(4), Visakhapatnam

ITA 446/VIZ/2012

• Counselvise Citation: [2016] 130 COUNSELVISE.COM (IT) 9935 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-09-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 10-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 07-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Capital asset; Gift
• Section: 143(3); 54F; 54

Judgement Text

ITA NO.446/VIZAG/2012 T. SITALAKSHMI, VISAKHAPATNAM 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM SMC BENCH, VISAKHAPATNAM . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER ./I.T.A.NO.446/VIZAG/2012 ( / ASSESSMENT YEAR: 2009-10) T. SITALAKSHMI VISAKHAPATNAM VS. ITO, WARD - 1(4), VISAKHAPATNAM [PAN: ACRPT3789L ] ( / APPELLANT) ( ! / RESPONDENT) / APPELLANT BY : SHRI G.V.N. HARI, AR / RESPONDENT BY : SHRI M.N. MURTHY NAIK, DR / DATE OF HEARING : 21.06.2016 / DATE OF PRONOUNCEMENT : 01.09.2016 / O R D E R PER V. DURGA RAO, JUDICIAL MEMBER: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF CIT(A), VISAKHAPATNAM DATED 31.10.2012 FOR THE ASSE SSMENT YEAR 2009- 10. 2. FACTS ARE IN BRIEF THAT THE ASSESSEE, AN INDIVID UAL FILED HER RETURN OF INCOME BY ADMITTING TOTAL INCOME OF ` 87,09,690/-. THE RETURN FILED ITA NO.446/VIZAG/2012 T. SITALAKSHMI, VISAKHAPATNAM 2 BY THE ASSESSEE WAS INITIALLY PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS 'THE ACT') AND THE REAFTER, AFTER DUE PROCESS, ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE A.O. HAS NOTE D THAT THE ASSESSEE PURCHASED A VACANT SITE ADMEASURING 229.16 SQ.YDS. IN SEETHAMMADHARA, VISAKHAPATNAM IN APRIL, 2004 AND LA TER CONSTRUCTED A HOUSE PROPERTY CONSISTING OF GROUND FLOOR, FIRST FL OOR AND DUPLEX PORTION IN THE SECOND AND THE THIRD FLOORS DURING FINANCIAL YEARS 2004-05 TO 2007-08. THE ASSESSEE ALSO OWNS ANOTHER HOUSE AT D .NO.50-50-14/A, GURUDWARA JN., VISAKHAPATNAM. THE A.O. FURTHER NOT ICED THAT THE ASSESSEE, DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2009-10 HAS SOLD THE ABOVE MENTIONED PROPERTY AT SE ETHAMMADHARA TO TWO SEPARATE PERSONS NAMELY SHRI CH. SURYA RAO & SH RI P. PARMESWARA RAO ON 18.9.2008 & 10.10.2008 RESPECTIVELY OUT OF W HICH, DUPLEX PORTION IN 2 ND & 3 RD FLOORS WAS SOLD TO SRI CH. SURYA RAO AND GROUND & FIRST FLOOR WAS SOLD TO SRI P. PARMESWARA RAO. THE ASSESSEE HAS CLAIMED EXEMPTION U/S 54F OF THE ACT AS THE SALE PROCEEDS W ERE INVESTED IN PURCHASE OF A HOUSE PROPERTY AT DABAGARDENS, VISAKH APATNAM FOR ` 81 LAKHS. ITA NO.446/VIZAG/2012 T. SITALAKSHMI, VISAKHAPATNAM 3 3. THE A.O. BY CONSIDERING THE ABOVE IS OF THE OPIN ION THAT THE ASSESSEE OWNS MORE THAN 1 HOUSE WHEN SHE SOLD DUPLE X PORTION IN THE SECOND & THIRD FLOORS OF SEETHAMMADHARA HOUSE TO SH RI CH. SURYA RAO ON 18.9.2008 AND ACCORDINGLY, A.O. HAS REJECTED THE CLAIM MADE BY THE ASSESSEE U/S 54F OF THE ACT. THE RELEVANT PORTION OF THE ASSESSMENT ORDER IS EXTRACTED BELOW: THE ASSESSEE HAS CLAIMED THE ENTIRE CAPITAL GAIN A S EXEMPT AS THE CAPITAL GAIN PROCEEDS HAVE BEEN INVESTED IN ACQUISITION OF A NEW ASSET. HOWEVER, THERE IS ONE PROVISO TO THE ABOVE SECTION WHICH READS THAT NOTHING CONTAINED IN THIS SUB- SECTION SHALL APPLY WHERE THE ASSESSEE: (I) OWNS MORE THAN ONE RESIDENTIAL HOUSE, OTHER THA N THE NEW ASSET, ON THE DATE OF TRANSFER OF THE ORIGINAL ASSET. THE WORDS 'ON THE DATE OF TRANSFER OF THE ORIGINAL ASSET' PLAYS A PIVOTAL ROLE 11 IN THIS CASE. THE ASSESSEE SOLD THE PROPERTY IN TWO UNITS TO TWO DIFFERENT PERSONS ON DIFFERENT DATES. THE CLAIM OF EXEMPTION U/S,54F CAN BE ALLOWED ONLY IF THE DOES NOT OWN MORE THAN ONE RESIDENTIAL PROPERTY AS ON THE DA TE OF TRANSFER AN THE NEW ASSET . HOWEVER, IN THIS CASE, SINCE THE ASSESSEE DOES NOT FULFILL 0EABOVE CONDITION AS SHE HAS HELD MORE THAN ONE RESIDENTIAL HOUSE AS ON THE DATE OF TRANSFER I.E., ONE PROPERTY AT D. NO. 50-121-27/2, BALAYYA SASTRY LAYO UT, SEETHAMMADHARA, VISAKHAPATNAM BEING SECOND AND THIRD FLOORS OF THE ENTIRE DUPLEX PORTION WHICH WAS SOLD AFTER A MONTH LATER I.E., 10.10.2008 AND THE O THER PROPERTY SITUATED AT 0. NO. 50-50-14/A, NEAR GURUDWARA JN., VISAKHAPATNAM. THEREFORE, THE GAIN IN RESPECT OF SALE OF FIRST PROPERTY CANNOT BE ALLOWED AS EXEMPT U/S.54F AS THE ASSESSEE OWNED ON THE DATE OF TRANSFER OF THE ORIGINAL ASSET, MORE THAN ONE RESIDENTIAL HOUSE I.E., ONE HOUSE AT 0.NO.50-121-27/2 AND THE OTHER HOUSE I S AT D. NO. 50-50-14/A. FOR THESE REASONS, THE CLAIM OF EXEMPTION TO THE EXTENT OF AMOUNT ATTRIBUTABLE TO NET CONSIDERATION OF CAPITAL GAIN ON ACCOUNT OF SALE OF GROUND AND FIRST FLOOR OF THE ABOVE PROPERTY DESERVES TO BE REJECTED. 6. THE ASSESSEE'S AR HAS BEEN ASKED TO FILE HIS OBJ ECTIONS IF ANY TO THE ABOVE PROPOSED REJECTION. IN RESPONSE THE ASSESSEE FILED A DETAILED EXPLANATION OBJECTING TO THE ABOVE PROPOSAL. THE ASSESSEE'S AR CONTENDED THAT THE ENTIRE HOUSE IS A SINGLE UNIT BEARING A SINGLE DOOR NUMBER I.E., 50-121-27/2 AND A SINGLE MUNICIPAL ASSESSMENT NUMBER I.E., 100003/7 0593. THE DELAY IN REGISTRATION OF THE HOUSE PROPERTY IS ONLY FOR THE SAKE OF CONVE YANCE OF THE PURCHASERS. SINCE THE SECOND PARTY I.E., KANCHERLA PARAMESWARA RAO HAS OR ALLY REQUESTED FOR A FURTHER PERIOD OF 30 DAYS TO ARRANGE FUNDS FOR SALE CONSIDE RATION THERE WAS A GAP OF 22 DAYS ITA NO.446/VIZAG/2012 T. SITALAKSHMI, VISAKHAPATNAM 4 BETWEEN THE TWO REGISTRATIONS. THE GAP IN THE REGIS TRATION IS ONLY IN DAYS AND TECHNICAL IN NATURE. IF THE SECOND PARTY IS ALSO REA DY WITH THE SALE CONSIDERATION ON 18' SEPTEMBER, 2009, I WOULD HAVE REGISTERED THE ENT IRE HOUSE ON THE SAME DATE AVOIDING THE TECHNICAL LAPS. HENCE, I REQUEST YOUR GOOD SELF TO CONSIDER THE ISSUE AND DROP THE PROPOSED ACTION.' THE ASSESSEE'S AR HAS ALSO RELIED UPON CERTAIN DECI SIONS DELIVERED BY VARIOUS HONBLE HIGH COURTS AND APPELLATE TRIBUNALS, WHICH ARE NOT SQUARELY APPLICABLE TO THE FACTS OF THE CASE, WHICH THE ASSESSEES AR HAS ALSO CATEG ORICALLY ADMITTED. THEREFORE, I HAVE NOT DEALT SUCH CASE LAWS IN DETAIL WHICH ARE N OT SQUARELY APPLICABLE TO THE FACTS OF THE CASE. ACCORDINGLY, THE CLAIM OF THE ASSESSEE U/S.54F IS REJECTED. UNDER NORMAL CIRCUMSTANCES, THE CLAIM OUGHT TO HAVE BEEN ALLOWED IN PART. HOWEVER FOR THE FOLLOWING REASONS THE ENTIRE CLAIM OF EXEMPTION U/S . 54F IS DISALLOWED. 7. THE ASSESSEES CLAIM OF EXEMPTION U/S 54F CANNO T BE ALLOWED EVEN IN RESPECT OF BALANCE CLAIM ALSO FOR THE REASON THAT THE ASSES SEE OWNED MORE THAN ONE RESIDENTIAL HOUSE (AS ON THE DATE OF TRANSFER OF TH E ORIGINAL ASSET I.E., HOUSE SITUATED AT BALAYYA SASTRY LAY OUT) SITUATED AT GURUDWARA IN ., WHICH CONSISTS OF MULTIPLE UNITS BEING USED BY NUMBER OF TENANTS AS SEPARATE UNITS. THE ASSESSEE HAS BEEN ADMITTING RENTAL INCOME AS SEPARATE UNITS INDEPENDE NT EACH OTHERS. 8. IN THE ABOVE CIRCUMSTANCES, THE ENTIRE CLAIM OF E XEMPTION U/S 54F OF ` 33,06,151/- IS REJECTED AND BROUGHT TO TAX AS LONG TERM CAPITAL GAIN OF THE ASSESSEE, AS SHE HAS NOT FULFILLED THE CONDITIONS LAID DOWN I N THE PROVISO TO SECTION 54F OF THE ACT. 4. ON BEING AGGRIEVED, ASSESSEE CARRIED MATTER IN A PPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) AFTER CONSIDERING THE D ETAILED SUBMISSIONS MADE BY THE ASSESSEE HAS HELD THAT THE ASSESSEE IS NOT ELIGIBLE FOR THE CLAIM U/S 54F OF THE ACT AND CONFIRMED THE ORDER OF THE A.O. THE RELEVANT PORTION OF THE ORDER IS EXTRACTED AS UNDER : I FIND THAT THERE IS NO DISPUTE THAT THERE EXISTED ONLY ONE HOUSE PROPERTY WITH D.NO.50-121-27/2 AT SEETHAMMADHARA, VISAKHAPATNAM. HOWEVER, IT IS ALSO UNDISPUTED FACT THAT THERE EXISTED TWO RESIDENTIAL UNITS COMPRISING OF GROUND AND FIRST FLOORS AND A DUPLEX PORTION IN SECOND AND THI RD FLOORS. EACH RESIDENTIAL UNIT HAS A SEPARATE KITCHEN, SEPARATE ENTRANCE AND ALL OTHER AMENITIES FOR USING EACH ONE AS A RESIDENTIAL UNIT. THERE IS ALSO NO DISPUTE REGAR DING THE FACT THAT THE PROPERTY WAS SOLD TO TWO INDIVIDUALS ON TO DIFFERENT DATES. RES IDENTIAL HOUSE AS REFERRED TO IN SECTION 54F(1) AND THE PROVISO THERETO OF THE INCOM E-TAX ACT CLEARLY MEANS A DWELLING UNIT. IN THE INSTANT CASE BOTH THE PORTIO NS OF THE HOUSE I.E. GROUND FLOOR AND FIRST FLOOR ONE UNIT AND THE DUPLEX PORTION IN THE SECOND AND THE THIRD FLOOR ARE ITA NO.446/VIZAG/2012 T. SITALAKSHMI, VISAKHAPATNAM 5 TWO SEPARATE DWELLING UNITS, HAVING INDEPENDENT KIT CHEN, ENTRANCE AND THEREBY ENABLING TWO PERSONS TO RESIDE INDEPENDENTLY. 14. IN THIS REGARD, THE DECISIONS OF HONBLE HIGH CO URTS AND ITAT RELIED ON BY A.R. ARE DISCUSSED BELOW. 15. IN THE CASE OF CIT VS. SMT. C. JAYALAKSHMI 132 I TR 82 (MAD.), THE HONBLE HIGH COURT OF MADRAS WAS CONCERNED WITH THE ISSUE O F ALLOWABILITY OF EXEMPTION U/S 54 OF THE ACT. WHEN THE CAPITAL ASSET SOLD WAS PAR TLY LET-OUT TO THE U.S. EMBASSY AND PARTLY USED FOR THE ASSESSEES MOTHER. THE HON BLE COURT HELD THAT THE ASSESSEE WAS NOT ELIGIBLE FOR EXEMPTION U/S.54F OF THE INCOME -TAX ACT SINCE HALF OF THE HOUSE WAS NOT USED FOR RESIDENTIAL PURPOSE (LET-OUT TO U. S.EMBASSY). 15.1 CLEARLY THIS DECISION DOES NOT SUPPORT THE ASS ESSEE'S CASE. 16. IN THE CASE OF SMT. HANSA BAI SANGHI (SUPRA), TH E HON'BLE ITAT, 'B' BENCH, HYDERABAD HELD THAT THE CAPITAL ASSET I.E., GROUND FLOOR AND FIRST FLOOR OF THE HOUSE PROPERTY WAS SOLD IN TWO SEPARATE SALE DEEDS. THE B ENCH IN THIS REGARD NOTED THAT THE FIRST FLOOR DID NOT HAVE A SEPARATE ACCESS AND THAT THERE WAS NO KITCHEN IN THE FIRST FLOOR. CONSIDERING ALL THE FACTS, THE HON'BLE BENCH TOOK THE VIEW THAT THE FIRST FLOOR WAS ONLY AN EXTENSION TO THE GROUND FLOOR AND THEREFORE IT WAS NOT A SEPARATE RESIDENTIAL HOUSE AND ACCORDINGLY IT WAS HELD THAT THE ASSESSEE WAS ELIGIBLE FOR EXEMPTION. 16.1 AS CAN BE SEEN FROM THE ABOVE, THIS CASE DECIS ION ALSO DOES NOT SUPPORT THE APPELLANT'S CASE. 17. IN THE CASE OF SMT. K.G.RUKMINIAMMA (SUPRA), THE HON'BLE HIGH COURT OF KARNATAKA NOTED THAT THE ASSESSEE ENTERED INTO A JO INT DEVELOPMENT AGREEMENT WITH A BUILDER TO DEVELOP HER PROPERTY AS PER WHICH THE BUILDER AGREED TO CONSTRUCT AND DELIVER 48 PER CENT OF THE SUPER BUILT-UP AREA TO T HE ASSESSEE IN THE FORM OF RESIDENTIAL APARTMENTS. BUILDER CONSTRUCTED EIGHT F LATS AND HANDED OVER FOUR FLATS TO THE ASSESSEE HO IN TURN GIFTED THREE FLATS TO HER C HILDREN AND RETAINED ONE FOR HER RESIDENCE, THE HONBLE HIGH COURT HELD THAT FOUR FL ATS CANNOT BE CONSTRUED AS FOUR RESIDENTIAL HOUSES FOR THE PURPOSE OF SECTION 54F O F INCOME-TAX ACT. 17.1 SINCE THE ASSESSEE IN THE ABOVE CASE DID NOT S ELL ANY OF THE FLATS, THIS CASE HAS NO APPLICATION TO THE PRESENT CASE ON HAND. 18. IN THE CASE OF SRI D. ANANDA BASAPPA (SUPRA), TH E HON'BLE HIGH COURT FOUND THAT THE ASSESSEE PURCHASED TWO RESIDENTIAL FLATS S IDE BY SIDE AND THE BUILDER HAS EFFECTED MODIFICATIONS TO THE FLATS TO MAKE IT AS O NE RESIDENTIAL UNIT. THE HON'BLE HIGH COURT HELD THAT BOTH THE FLATS SHOULD BE TREAT ED AS ONE RESIDENTIAL HOUSE PARTICULARLY WHEN THESE FLATS ARE SIDE BY SIDE AND THE BUILDER HAS MADE IT AS ONE FLAT. 19. AS CAN BE SEEN FROM THE FACTS OF THE CASE, NONE OF THE DECISIONS RELIED UPON BY THE A.R SUPPORTS THE ASSESSEE'S CASE. FURTHER TH E HON'BLE ITAT, SPECIAL BENCH MUMBAL IN THE CASE OF MS. SUSHILA M.JAVERI 107 LTD 321 HAS NOTED THAT THE LEGISLATURE CONSCIOUSLY USE THE WORD 'A' WHERE IT I NTENDED INVESTMENT IN ONE ITA NO.446/VIZAG/2012 T. SITALAKSHMI, VISAKHAPATNAM 6 RESIDENTIAL HOUSE ONLY AND USE THE WORD 'ANY' WHERE IT INTENDED INVESTMENT IN ONE OR MORE ASSETS IN SECTION 54 OR 54F OF THE INCOME-T AX ACT. 20. CONSIDERING ALL, I AM OF THE VIEW THAT THE APPEL LANT OWNS MORE THAN ONE HOUSE WHEN SHE TRANSFERRED HER RESIDENTIAL HOUSE. A CCORDINGLY, THE APPEAL IS DISMISSED. 5. ON BEING AGGRIEVED, ASSESSEE CARRIED MATTER IN A PPEAL BEFORE THE TRIBUNAL. 6. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED T HAT THOUGH THE ASSESSEE SOLD THE HOUSE PROPERTY IN TWO SALE DEEDS, THE FACT WHAT WAS SOLD BY THE ASSESSEE WAS ONLY ONE HOUSE. HE FURTHE R CONTENDED THAT THE SAID HOUSE PROPERTY WAS BEARING ONLY ONE DR.NO. 15-121-27/2 AND SUBMITTED THAT THE HOUSE SOLD BY THE ASSESSEE IS ON LY ONE HOUSE. TO SUPPORT HIS CONTENTION, HE STRONGLY RELIED ON THE D ECISION OF THE HYDERABAD BENCH IN THE CASE OF SMT. HANSA BAI SANGH I VS. ITO 89 ITD 239(2004). HE FURTHER SUBMITTED THAT THE ASSESSEE SOLD THE HOUSE PROPERTY TO THE BUYERS AND BOTH THE BUYERS ARE PART NERS IN A PARTNERSHIP FIRM AND SUBMITTED THAT ASSESSEE IS ELIGIBLE FOR EX EMPTION U/S 54F OF THE ACT. 7. ON THE OTHER HAND, THE LD. D.R. STRONGLY SUPPORT ED THE ORDER PASSED BY THE AUTHORITIES BELOW AND SUBMITTED THAT WHEN THE ASSESSEE SOLD THE PROPERTY ON 18.9.2008, THE ASSESSEE IS HAV ING MORE THAN ONE ITA NO.446/VIZAG/2012 T. SITALAKSHMI, VISAKHAPATNAM 7 PROPERTY, THEREFORE, THE ASSESSEE IS NOT ELIGIBLE FOR EXEMPTION U/S 54F OF THE ACT. 8. I HAVE HEARD BOTH THE PARTIES, PERUSED THE MATER IALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. THE ASSESSEE PURCHASED A VACANT SITE AND CONSTRUCTED A HOUSE CONSISTING OF GROUND FLOOR, FIRST FLOOR, DUPLEX PORTION IN THE SE COND AND THIRD FLOORS. THE ASSESSEE SOLD THE DUPLEX PORTION OF SECOND & TH IRD FLOORS TO SHRI CH. SURYA RAO ON 18.9.2008. ON THE DATE OF SALE, THE ASSESSEE IS HAVING ONE HOUSE AT DR.NO.50-50-14/A AT GURUDWARA JUNCTION , VISAKHAPATNAM AND ALSO GROUND FLOOR AND FIRST FLOOR IN RESPECT OF HOUSE CONSTRUCTED BY THE ASSESSEE. THE ASSESSEE HAS PURCHASED A HOUSE P ROPERTY AT DABAGARDENS, VISAKHAPATNAM AND CLAIMED EXEMPTION U/ S 54F OF THE ACT. THE A.O. HAS REJECTED THE CLAIM ON THE GROUND THAT ON THE DATE OF SALE, ASSESSEE IS HAVING MORE THAN ONE HOUSE, THEREFORE, THE ASSESSEE IS NOT ELIGIBLE FOR AVAIL EXEMPTION U/S 54F OF THE ACT. T HE VIEW ENDORSED BY THE A.O. HAS BEEN CONFIRMED BY THE LD. CIT(A). I F IND THAT THE ASSESSEE OWNS A HOUSE AT DR.NO.50-50-14/A AT GURUDWARA JUNCT ION, VISAKHAPATNAM, WHICH IS NOT IN DISPUTE. THE ONLY D ISPUTE IS IN RESPECT OF THE HOUSE CONSTRUCTED BY THE ASSESSEE AT SEETHAM MADHARA IN RESPECT OF DUPLEX PORTION IN 2 ND & 3 RD FLOORS AND GROUND & FIRST FLOORS IS ITA NO.446/VIZAG/2012 T. SITALAKSHMI, VISAKHAPATNAM 8 CONSIDERED TO BE ONE UNIT OR SEPARATE UNITS. THE L D. CIT(A) IN HIS ORDER GAVE A FINDING THAT THERE ARE TWO RESIDENTIAL UNITS COMPRISING OF GROUND & FIRST FLOORS AND A DUPLEX PORTION IN 2 ND & 3 RD FLOORS WITH EACH RESIDENTIAL UNIT HAVING SEPARATE KITCHEN, SEPARATE ENTRANCE AND ALL OTHER AMENITIES ARE BEING USED AS ONE RESIDENTIAL UNIT. THERE IS N O DISPUTE REGARDING THE FACT THAT THE PROPERTY WAS SOLD TO TWO INDIVIDUALS ON DIFFERENT DATES. EVEN BEFORE ME, THESE FACTS ARE NOT DISPUTED. WHEN THE ASSESSEE CONSTRUCTED A HOUSE AS A SEPARATE UNIT CONSISTING O F DIFFERENT FLOORS WITH A SEPARATE KITCHEN, SEPARATE ENTRANCE AND ALL AMENI TIES ARE PROVIDED IN EACH ONE OF THE RESIDENTIAL UNIT AND EACH RESIDENTI AL UNIT WAS SOLD TO TWO SEPARATE PERSONS. UNDER THESE FACTS AND CIRCUMSTAN CES OF THE CASE, THE CLAIM OF THE ASSESSEE THAT BOTH THE UNITS I.E. DUPL EX PORTION IN 2 ND & 3 RD FLOORS AND GROUND FLOOR & 1 ST FLOOR, CANNOT BE ACCEPTED AS A ONE UNIT. AS ON THE DATE OF SALE ON 18.9.2008, ASSESSEE IS HAVIN G ONE HOUSE AT GURUDWARA JUNCTION AT DR.NO.50-50-14/A AND ALSO ANO THER HOUSE WHICH IS CONSTRUCTED BY THE ASSESSEE AT GROUND & FIRST FL OORS WHICH IS AN INDEPENDENT UNIT. IN VIEW OF THE ABOVE FACTS AND C IRCUMSTANCES OF THE CASE, THE ASSESSEE IS NOT ELIGIBLE FOR EXEMPTION U/ S 54F OF THE ACT HAVING MORE THAN TWO RESIDENTIAL UNITS. ITA NO.446/VIZAG/2012 T. SITALAKSHMI, VISAKHAPATNAM 9 9. IN SO FAR AS CASE LAW RELIED UPON BY THE LD. COU NSEL FOR THE ASSESSEE IS CONCERNED IN THE CASE OF SMT. HANSA BAI SANGHI (SUPRA) THE FACTS ARE ENTIRELY DIFFERENT. IN THAT CASE, THE FI RST FLOOR DID NOT BEAR A SEPARATE MUNICIPAL NUMBER AND DID NOT HAVE INDEPEND ENT ACCESS NOR A SEPARATE KITCHEN. UNDER THOSE CIRCUMSTANCES, THE T RIBUNAL HAS HELD THAT EVEN THOUGH THERE ARE TWO FLOORS, IT HAS TO BE CONS IDERED AS A ONE UNIT. IN THE PRESENT CASE, EACH UNIT IS HAVING A SEPARATE KITCHEN, SEPARATE ENTRANCE AND ALL OTHER AMENITIES ARE SOLD TO TWO SE PARATE PERSONS. THEREFORE, THE ABOVE CASE LAW RELIED UPON BY THE AS SESSEE HAS NO APPLICATION TO THE FACTS OF THE CASE. 10. IN SO FAR AS ANOTHER ARGUMENT OF THE LD. COUNSE L FOR THE ASSESSEE THAT THE ASSESSEES HOUSE BEARING ONLY ONE DR.NO.50 -121-27/2, THEREFORE, THE ENTIRE HOUSE HAS TO BE CONSIDERED AS ONE UNIT CANNOT BE ACCEPTED. IN THE PRESENT CASE, THE ASSESSEE HAS CO NSTRUCTED SEPARATE FLOORS BY PROVIDING ALL AMENITIES AND SEPARATE ENTR ANCE AND THEREFORE EACH PORTION HAS TO BE CONSIDERED AS A SEPARATE UNI T. 11. SO FAR AS ANOTHER ARGUMENT RAISED BY THE LD. CO UNSEL FOR THE ASSESSEE IS CONCERNED, BOTH THE UNITS ARE SOLD TO P ARTNERS OF THE FIRM IS NOT A SOUND ARGUMENT AND THERE IS NO BASIS ALSO. T WO PERSONS MAY BE PARTNERS OF THE SAME FIRM, HOWEVER, THEY ARE TWO SE PARATE PERSONS IN ITA NO.446/VIZAG/2012 T. SITALAKSHMI, VISAKHAPATNAM 10 THE EYE OF LAW AND PURCHASED TWO SEPARATE INDEPENDE NT UNITS. THEREFORE, THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE CANNOT BE ACCEPTED. IN VIEW OF THE ABOVE, THE APPEAL FILED B Y THE ASSESSEE IS DISMISSED. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 1 ST SEPT16. SD/- ( . ) (V. DURGA RAO) /JUDICIAL MEMBER ! /VISAKHAPATNAM: % /DATED : 01.09.2016 VG/SPS '! (! /COPY OF THE ORDER FORWARDED TO:- 1. / THE APPELLANT T. SITALAKSHMI, DOOR NO.15-7-1/1 0, FLAT NO.601, ANGEL ENCLAVE, KRISHNA NAGAR, VISAKHAPATNAM 2. / THE RESPONDENT THE ITO, WARD-1(4), VISAKHAPATN AM 3. ) / THE CIT-1, VISAKHAPATNAM 4. ) ( ) / THE CIT(A),VISAKHAPATNAM 5. ! , , , , ! / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // /0 , (SR.PRIVATE SECRETARY) , , ! / ITAT, VISAKHAPATNAM