HEMANT SHAH, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX-20(1), MUMBAI

ITA 4566/MUM/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3178 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Assessment Year: 2013-2014
• Appeal Filed On: 22-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R BHOOPATI
• Assessee Lawyers: PARESH VAKHARIA
• Keywords: Business income; Capital Gains
• Section: 143(3); 54F; 54EC; 13; 6; 10; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H, MUMBAI BEFORE SHRI R.C. SHARMA (A.M.) & SHRI PAWAN SINGH (JM) ITA NO. 4566/MUM/2017(ASSESSMENT YEAR: 2013-14) HEMANT SHAH 10, OOMED SADAN 58, SION, MUMBAI 400 022 PAN : AADPS2405E VS ACIT-20(1), MUMBAI APPELLANT RESPONDEDNT APPELLANT BY SHRI PARESH VAKHARIA RESPONDENT BY SHRI MANOJ KUMAR SINGH SR DR & R. BHOOPATI SR DR DATE OF HEARING 13.12.2019 DATE OF PRONOUNCEMENT 25.02.2020 O R D E R PER PAWAN SINGH, JM : 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LEARNED COMMISSIONER OF INCOME TAX- 32 [LD.CIT(A)], MUMB AI FOR ASSESSMENT YEAR 2013-14. THE ASSESSEE HAS RAISED T HE FOLLOWING GROUNDS OF APPEAL:- GROUND 1 : CLUBBING OF EXEMPT LONG TERM CAPITAL GAIN INCOME OF MINOR CHILD NATISHA AND ADITYA 1.1 THE LEARNED CIT(A) ERRED IN CONFIRMING THE CLUB BING OF THE EXEMPT LONG TERM CAPITAL GAINS INCOME OF RS 1,06,27,312/- OF THE MINOR CHILD NATISHA WITH THE INCOME OF THE APPELLANT. 1.2 THE LEARNED CIT(A) ERRED IN CONFIRMING THE CLUB BING OF THE EXEMPT LONG TERM CAPITAL GAINS INCOME OF RS 1,06,36,3247- OF THE MINOR CHILD ADITYA WITH THE INCOME OF THE APPELLANT. GROUND 2 : DISALLOWANCE OF EXEMPTION U/S 54F OF THE ACT (RS 2, 66,82,526/-) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW: ITA NO. 4566/MUM/2017-HEM ANT SHAH (AY 2013-14) 2 2.1 THE LEARNED CIT(A) ERRED IN CONFIRMING DENIAL OF EXEMPTION OF LONG TERM CAPITAL GAINS OF RS 2,66,82,5267- U/S 54F OF T HE ACT ALTHOUGH ALL THE CONDITIONS OF SECTION 54F WERE COMPLIED BY THE APPE LLANT. 2.2 THE LEARNED CIT(A) FAILED TO APPRECIATE THE SU BMISSION OF YOUR APPELLANT THAT YOUR APPELLANT WAS NOT 'OWNER' OF TH E RESIDENTIAL HOUSES WITHIN THE MEANING OF SUB-CLAUSE (IJ OF CLAUSE (A) OF PROV ISO TO SECTION 54F OF THE ACT AND CONSEQUENTLY, ERRED IN DENYING EXEMPTION OF THE LONG TERM CAPITAL GAIN REFERRED TO ABOVE. WITHOUT PREJUDICE TO THE FOREGOING GROUND OF APPEAL , THE LEARNED CIT(A) FAILED TO APPRECIATE THE SUBMISSION OF YOUR APPELLA NT THAT THE RESIDENTIAL HOUSES WERE JOINTLY HELD WITH OTHER PERSON AND ACCO RDINGLY, AS PER THE JUDGMENT OF THE HON'BLE MADRAS HIGH COURT IN THE CA SE OF SMT. P.K. VASANTHI RANGARAJAN (23 TAXMANN.COM 299) CITED BEFO RE HER; THE EXEMPTION U/S 54F OF RS 2,66,82,526/- CLAIMED BY YOUR APPELLA NT COULD NOT HAVE BE DENIED. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S AN INDIVIDUAL. THE ASSESSEE DECLARED HIS TOTAL INCOME AT RS.43,19,257/ - FOR RELEVANT ASSESSMENT YEAR. IN THE COMPUTATION OF INCOME THE ASSESSEE COMPUTED LONG TERM CAPITAL GAIN ON SALE OF SHARES OF RS. 3,1 7,86,086/- AND A RESIDENTIAL HOUSE FOR RS. 60,40,636/- AND CLAIMED EXEMPTION U/S 54 & 54F OF RS. 3,27,96,082/- AND EXEMPTION OF RS. 50,00 ,000/- U/S 54EC. THE CASE WAS SELECTED FOR SCRUTINY. DURING THE ASSE SSMENT THE ASSESSEE WAS ASKED AS TO WHY EXEMPTION U/S 54F BE NOT DENIED TO THE ASSESSEE AS THE ASSESSEE OWNED MORE THAN TWO RESIDENTIAL HOU SES ON THE DATE OF SALES OF SHARES. THE ASSESSEE FILED ITS REPLY DATED 09-10-2015. IN THE REPLY THE ASSESSEE STATED THAT HE HAS PURCHASED TWO FLATS IN THE YEAR 2015 WHEN LIVING WITH HIS FATHER AT SION AND WANTED TO SHIFT TO A NEW ITA NO. 4566/MUM/2017-HEM ANT SHAH (AY 2013-14) 3 PREMISE. HOWEVER, HE COULD NOT SHIFT TO NEW PREMIS ES AS HIS FATHERS HEALTH DETERIORATED AND HE COULD NOT LEAVE HIM ALON E AT SION. THE TWO FLATS PURCHASED IN 2015 WERE IN THE SAME COMPOUND W HICH CAN BE CONSIDERED AS ONE PROPERTY. BOTH THE FLATS WERE NE VER OCCUPIED THAT INTENDED TO BE OCCUPIED SINGLE UNIT AND SHOULD BE C ONSIDERED AS A SINGLE UNIT FOR ALLOWABILITY OF DEDUCTION U/S 54F. THE ASSESSEE SUBMISSIONS OF ASSESSEE WAS NOT ACCEPTED BY AO AND REJECTED CLAIM OF ASSESSEE U/S 54F OF RS. 2,66,82,526/- AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 3. THE AO FURTHER NOTED THAT INCOME OF TWO MINOR CHILD REN WAS ALSO CLUBBED WITH THE ASSESSEE AFTER CLAIMING EXEMPTION U/S 54F FOR (LONG TERM CAPITAL GAIN) LTCG EARNED BY THEM ON SALE OF S HARES AND MUTUAL FUNDS INDIVIDUALLY. THE AO ALSO ISSUED SHOW CAUSE N OTICE AS TO WHY THE BENEFIT U/S 54F SHOULD NOT BE DENIED IN THE HAN DS OF MINOR. THE ASSESSEE ALSO FILED HIS REPLY TO THE SHOW CAUSE ON THE DENIAL OF EXEMPTION U/S 54. IN THE REPLY, THE ASSESSEE STATE D THAT INCOME OF THE MINORS IS TO BE CLUBBED AFTER COMPUTING THE SAME IN ACCORDANCE WITH LAW. FURTHER CAPITAL GAIN IS TO BE ALLOWED AS PER C HAPTER IV-E AND MINORS ARE ENTITLED FOR THE BENEFITS OF SECTION 54F . THE ASSESSEE ALSO RELIED ON THE DECISION OF KOLKATA TRIBUNAL IN DCIT VS RAJEEV GOYAL [22 TAXMANN.COM 34]. THE REPLY OF THE ASSESSEE WAS NOT ACCEPTED AND ITA NO. 4566/MUM/2017-HEM ANT SHAH (AY 2013-14) 4 AO DISALLOWED EXEMPTION OF RS. 2,11,90,716/-.THE AO COMPLETED THE ASSESSMENT U/S 143(3) ON 10-12-2015 DETERMINING TOT AL INCOME AT RS.5,22,65,417/- AND DENIED THE EXEMPTION CLAIMED B Y ASSESSEE U/S 54F TO THE EXTENT OF RS.4,79,46,206/-.ON APPEAL BEF ORE THE LD. CIT(A), THE ACTION OF ASSESSING OFFICER WAS CONFIRMED. THU S, FURTHER AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE FILED PRES ENT APPEAL BEFORE THIS TRIBUNAL. 4. WE HAVE HEARD THE SUBMISSION OF THE LEARNED AUTHORI SED REPRESENTATIVE (LD.AR) OF THE ASSESSEE AND THE LEARNED DEPARTMENTA L REPRESENTATIVE (LD. DR) FOR THE REVENUE AND PERUSED THE MATERIAL AVAILA BLE ON RECORD. THE LD.AR OF THE ASSESSEE SUBMITS THAT ASSESSEE BEING A N INDIVIDUAL, EARNED LONG TERM CAPITAL GAIN ALONG WITH HIS MINOR CHILDREN ADITYA AND NATISHA ON SALE OF EQUITY SHARES OF A PRIVATE LIMIT ED COMPANY. THE LD. AR FOR THE ASSESSEE EXPLAINED THE DETAILS OF ASSET WISE LTCG ON SALE OF EQUITY SHARES AND MUTUAL FUNDS AND SALE OF HOUSE PROPERTY. PARTICULARS ASSESSEE (A) AY NO. OF SHARES AMOUNTS RS. DATE OF ACQUISITION FROM AY 1987- 88 TO 1995-96 126000 9,73,918/- (INDEXED COST) DETAILS OF SALES AY 2013-14 126000 3,27,60,000/ - LTCG 3,27,60,000/- STCL -1,03,510/- LTCG NET STCL 3,16,82,572/- BENEFIT U/S 54 EC CLAIMED : ALLOWED 50,00,000/- BENEFIT U/S 54F(INVESTMENT IN CGAS) 2,62,82,572/- INCOME CHARGEABLE UNDER THE HEAD CAPITAL GAIN NILL B ENEFIT U/S 54F DENIED 2,66,82572/ - ASSESSEES LTCG 2,66,82572/- ITA NO. 4566/MUM/2017-HEM ANT SHAH (AY 2013-14) 5 IN CASE OF ADITYA SHAH (MINOR CHILD) PARTICULARS ADITYA SHAH (MINOR CHILD) AY NO. OF SHARES AMOUNTS RS. DATE OF ACQUISITION FROM AY 1987- 88 TO 1995-96 60,000 3,24,642/- (INDEXED COST) DETAILS OF SALES AY 2013-14 42,000 1,09,20,000/ - LTCG 1,05,95,358/- STCL --- -- LTCG NET STCL 1,05,95,358/- BENEFIT U/S 54 EC CLAIMED : ALLOWED ----- BENEFIT U/S 54F(INVESTMENT IN CGAS) 1,05,95,358 INCOME CHARGEABLE UNDER THE HEAD CAPITAL GAIN NILL B ENEFIT U/S 54F DENIED 1,05,95,358/ - ASSESSEES LTCG 1,05,95,358/- IN CASE OF NATISHA SHAH (MINOR CHILD) PARTICULARS NATISHA SHAH (MINOR CHILD) - AY NO. OF SHARES AMOUNTS RS. DATE OF ACQUISITION FROM AY 1987- 88 TO 1995-96 60,000 3,24,642/- (INDEXED COST) DETAILS OF SALES AY 2013-14 42,000 1,09,20,000/- LTCG 1,05,95,358/- STCL -- LTCG NET STCL 1,05,95,358/- BENEFIT U/S 54 EC CLAIMED : ALLOWED -- BENEFIT U/S 54F(INVESTMENT IN CGAS) 1,05,95,358 INCOME CHARGEABLE UNDER THE HEAD CAPITAL GAIN NILL BENEFIT U/S 54F DENIED 1,05,95,358/- ASSESSEES LTCG 1,05,95,358/- TOTAL LTCG CLAIMED, ALLOWED AND DENIED, PARTICULARS AMOUNTS RS. DETAILS OF SALES 5,46,00,000/- LTCG 5,29,76,798/- STCL -103,510/- LTCG NET STCL 528,73,288/- BENEFIT U/S 54 EC CLAIMED : ALLOWED 50,00,000/- ITA NO. 4566/MUM/2017-HEM ANT SHAH (AY 2013-14) 6 BENEFIT U/S 54F(INVESTMENT IN CGAS) 478,73,288/- INCOME CHARGEABLE UNDER THE HEAD CAPITAL GAIN NIL BENEFIT U/S 54F DENIED 478,73,288/- ASSESSEES LTCG 478,73,288/- B- DETAILS OF LONG TERM CAPITAL GAIN ON SAL ES OF MUTUAL FUNDS OF MINORS PARTICULARS ADITYA NATISHA TOTAL SALES VALUE -RS 20,77,464/- 24,28,578/- 45,06,042/- INDEXED COST RS. 20,36,498/- 23,96,624/- 44,33,123/- LTCG RS 40,966/- 31,954/- 72,920/- DATE OF PURCHASE 12.04.2010. 23.04.2010 DATE OF SALE 05.12.2012 05.12.2012 PERIOD OF HOLDING 2 YEARS 2 YEARS BENEFITS CLAIMED U/S 54F (INVESTMENT IN CGAS) 40,966/- 31954/- 72,920/- BENEFIT U/S 54F DISALLOWED 40,966/- 31,954/- 72,920/- C- LTCG ON SALE OF HOUSE PROPERTY BY ASSESSEE; PARTICULARS JUNIPER FLAT FLAT 1601 MAYFLOWER FLATS - 1601/1602 TOTAL DATE OF PURCHASE 15.10.2007 (AY-2008-09) 16.12.2007 (AY-2008-09) DATE OF OCCUPATION CERTIFICATE 22.07.2009 22.07.20 09 DATE SALE 06.12.2012 01.12.2012 PERIOD OH HOLDING 5 YEARS 5 YEARS LTCG 25,41,264/- 34,99,372/- 60,40,636/- BENEFIT U/S 54 CLAIMED AND ALLOWED 25,41,264/- 34,99,372/- 60.40,636/- 5. IN VIEW OF THE AFORESAID EXPLAINED FACTS THE LD. AR FOR THE ASSESSEE EXPLAINED THAT THE ASSESSEE AND MINORS INVESTED THE CAPITAL GAIN IN THE CAPITAL GAIN ACCOUNT SCHEME FOR AVAILING EXEMPTION U/S 54F. ACCORDINGLY, MINORS, VIZ. ADITYA AND NATISHA HAVE N O INCOME ITA NO. 4566/MUM/2017-HEM ANT SHAH (AY 2013-14) 7 CHARGEABLE TO CAPITAL GAIN IN VIEW OF THE INVESTMEN T IN CAPITAL GAIN ACCOUNT SCHEME. 6. THE LD.AR SUBMITS THAT AS PER DEFINITION OF INCOME U/S 2(24)(VI), CAPITAL GAIN IS DEFINED AS CAPITAL GAIN CHARGEABLE U/S 45. SECTION 45(1) OF THE ACT WHICH IS A CHARGING SECTION EXCLUD E THE CHARGE OF CAPITAL GAIN IN CASE OF INVESTMENT IS MADE IN ACCOR DANCE WITH SECTION 54F. CONSEQUENTLY, SUCH CAPITAL GAIN DOES NOT ACCRU E OR ARISE AND, THEREFORE, DOES NOT FORM PART OF GROSS TOTAL INCOME . IF CAPITAL GAIN IS NOT CHARGED U/S 45, THERE IS NO CAPITAL GAIN CHARGE ABLE TO TAX. THEREFORE, THE INVESTMENT MADE BY MINOR CHILDREN U/ S 54F LEFT NO CHARGEABLE CAPITAL GAIN WHICH COULD BE CLUBBED U/S 64(1A) IN HANDS OF ASSESSEE. THE AO CLUBBED THE CAPITAL GAIN INCOME O F CHILDREN WITHOUT CONSIDERING INVESTMENT BY THEM U/S 54F. THE ASSESS EE HAS CHALLENGED THE ACTION OF LOWER AUTHORITIES IN WRONGFUL CLUBBIN G OF GROSS CAPITAL GAIN OF MINOR CHILDREN. IN SUPPORT OF HIS SUBMISSI ON, THE LD.AR OF THE ASSESSEE RELIED UPON THE DECISION OF TRIBUNAL IN GO VIND ROHIRA 95 ITD 77 AND MADANLAL BASSI 88 ITD 557 AND RAJIV GOYAL 81 ITD 379. THE LD. AR FOR THE ASSESSEE SUBMITS THAT IN VIEW OF THE FACTS EXPLAINED AND THE CASE LAW RELIED BY HIM; THE GROUND NO. 1.1& 1.2 ARE LIABLE TO BE ALLOWED. ITA NO. 4566/MUM/2017-HEM ANT SHAH (AY 2013-14) 8 7. ON THE OTHER HAND THE LD. DR FOR THE REVENUE SUPPOR TED THE ORDER OF THE LOWER AUTHORITIES. THE LD. DR FURTHER SUBMITS THAT WHEN THE ASSESSEE HIMSELF IS NOT ELIGIBLE FOR EXEMPTION U/S 54, HOW T HE SAME COULD BE GIVEN TO THE MINOR CHILDREN, WHOSE INCOME IS REQUIR ED TO BE CLUBBED WITH HIS INCOME. THE LOWER AUTHORITIES HAVE RIGHTLY DISALLOWED THE CLAIM OF EXEMPTION. IN SUPPORT OF HIS SUBMISSIONS T HE LD. DR FOR THE REVENUE RELIED ON THE DECISION OF DELHI TRIBUNAL IN ITO VS SUBASH CHANDRA WADHWA 366 TTJ 075/ 2001(6) TMI-ITAT DELHI. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PAR TIES AND HAVE GONE THROUGH THE ORDERS OF THE LOWER AUTHORITIES. DURIN G THE ASSESSMENT THE AO CLUBBED THE INCOME / CAPITAL GAIN OF BOTH THE MI NORS WITH THE ASSESSEE WITHOUT CONSIDERING THE FACTS THAT THE MIN ORS INCOME WAS INVESTED IN CAPITAL GAIN ACCOUNTS SCHEME (CGAS). TH E LD CIT(A) AFFIRMED THE ACTION OF THE AO BY TAKING VIEW THAT S ECTION 64(1A) OF THE ACT STATES THAT WHILE COMPUTING THE INCOME OF ANY I NDIVIDUAL , THERE SHALL INCLUDED ALL SUCH INCOME ACCRUED OR ARISE TO HIS MINOR CHILDREN. IT WAS ALSO HELD THAT THE ASSESSEE IS ALSO NOT ENTITLE D FOR THE BENEFITS OF SECTION 54F; THE SAME CANNOT BE EXTENDED TO THE MIN ORS. WE HAVE NOTED THAT THE LOWER AUTHORITIES HAVE NOT DISPUTED THE DATE OF ACQUISITION AND SALE OF ASSETS, NATURE OF ASSET AND THE PERIOD OF HOLDING, AT THE HAND ON THE MINORS. FURTHER, THERE IS NO DIS PUTE THAT THE GAINS ITA NO. 4566/MUM/2017-HEM ANT SHAH (AY 2013-14) 9 EARNED BY MINORS WERE INVESTED IN CGAS. WE HAVE FUR THER NOTED THAT AFTER THE INVESTMENT MADE BY MINOR CHILDREN U/S 54F LEFT NO CHARGEABLE CAPITAL GAIN WHICH COULD BE CLUBBED U/S 64(1A) IN H ANDS OF ASSESSEE. 9. THE COORDINATE BENCH OF KOLKATA TRIBUNAL IN RAJEEV GOYAL (SUPRA) HELD THAT IN CASE OF CLUBBING OF INCOME OF MINORS C HILD, DEDUCTION U/S 54EC IS TO BE ALLOWED ON MINORS INCOME FROM LTCG S EPARATELY AND ONLY NET INCOME IS TO BE CLUBBED. IN MADAN LAL BASS I (SUPRA), CHANDIGARH BENCH OF TRIBUNAL ALSO HELD THAT U NDER SECTION 45(1), ANY PROFITS OR GAINS ARISING FROM THE TRANSFER OF A CAP ITAL ASSET ARE CHARGEABLE TO INCOME-TAX. SAVE AS OTHERWISE PROVIDED IN VARIOU S SECTIONS INCLUDING SECTION 54F. IN OTHER WORDS, IF SECTION 54F IS APPL IED, ONLY THE AMOUNT OF CAPITAL GAINS FOUND TAXABLE AFTER APPLICATION OF AB OVE PROVISIONS CAN BE CHARGED TO INCOME-TAX. THEREFORE, TO FIND OUT WHETH ER THERE IS ANY PROFIT OR GAIN CHARGEABLE TO TAX UNDER SECTION 45(1), THE PROVISIONS OF BOTH THE SECTIONS ARE TO BE READ TOGETHER. SECTION 54F CANNO T BE READ IN ISOLATION. CONSIDERING THE AFORESAID DECISIONS OF THE TRIBUNAL THE AO / CIT(A) WAS NOT JUSTIFIED IN DENYING THE EXEMPTION OF CAPIT AL GAIN TO THE MINORS, WHICH WAS INVESTED IN CAPITAL GAIN ACCOUNT S SCHEME (CGAS). 10. THE CASE LAW RELIED BY THE LD. DR FOR THE REVENUE I N SUBHASH CHANDRA WADHWA (SUPRA) IS NOT HELPFUL TO HIM AS THE FACTS O F THIS CASE ARE ENTIRELY BASED ON DIFFERENT FACTS. IN THAT CASE THE ASSESSEE CLAIMED THE ASSESSEE CLAIMED DEDUCTIONS WHICH WAS SEPARATELY AL LOWABLE UNDER ITA NO. 4566/MUM/2017-HEM ANT SHAH (AY 2013-14) 10 SECTION 10(32) AND HAS ALREADY BEEN ALLOWED TO HIM. AND THE ASSESSEE WAS FURTHER CLAIMING DEDUCTION U/S 80I FOR EACH OF THE CHILDREN AND THUS HIS CLAIM WAS NOT ADMISSIBLE. HOWEVER, THE FA CTS OF THE CASE IN HAND ARE ENTIRELY DIFFERENT. THEREFORE, WE DIRECT THE AO TO ALLOW EXEMPTION WITH REGARD TO THE CAPITAL GAIN EARNED AN D INVESTED ON BEHALF OF BOTH THE MINORS IN CGAS. IN THE RESULT THE GROUN D NO. 1.1 &1.2 ARE ALLOWED. 11. GROUND NO. 2 RELATES TO DENIAL OF EXEMPTION U/S 54F OF THE ACT TO THE ASSESSEE. THE LD. AR FOR THE ASSESSEE SUBMITS THAT THE AO DENIED EXEMPTION U/S 54 ON THE GROUND THAT THE ASSESSEE IS THE OWNER OF MORE THAN ONE RESIDENTIAL HOUSE ON THE DATE OF TRANSFER OF SHARES FROM LONG TERM CAPITAL GAIN AROSE. HOWEVER, THE FACT IS THAT THE BUILDER HAS NOT MADE CONVEYANCE OF THE PROPERTY TO THE ASSESSEE OR TO THE SOCIETY (NOT FORM AT THAT POINT OF TIME). THE LD.AR OF THE ASSE SSEE SUBMITS THAT HE HAS FILED COPY OF THE AGREEMENT BETWEEN ASSESSEE AN D BUILDER. THUS, THE ASSESSEE HAS NOT ACQUIRED TITLE TO THE PROPERTY WHICH CAN BE CONSIDERED AS OWNERSHIP. BESIDES THAT THE PROPERTIE S ARE JOINTLY HELD WHICH IS EVIDENT FROM THE COPY OF AGREEMENT WHICH I S PLACED ON RECORD. SUCH GENERAL HOLDING IS NOT EXCLUSIVELY OWN ERSHIP AND DOES NOT BREACH THE CLAIM OF EXEMPTION U/S 54F. IN SUPPORT O F HIS SUBMISSION, THE LD.AR OF THE ASSESSEE RELIED UPON THE DECISION OF HONBLE SUPREME ITA NO. 4566/MUM/2017-HEM ANT SHAH (AY 2013-14) 11 COURT IN ALIPATI VENTARAMAIH 57 ITR 185 (SC); GUJA RAT HIGH COURT IN USHABEN JAYANTILAL SODHAN 93 TAXMANN.COM 453 (GUJ ( HC), DECISION OF TRIBUNAL IN RASIKLAL SATRA (98 ITD 335), ASHOK C HOUHAN (176 ITD 717), SMT. VASANTI RANGARAJAN 23 TAXMANN.COM 299 (M ADRAS HC), KAPIL NAGPAL (63 TAXMANN.COM 336 (DELHI HC). 12. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUPPO RTED THE ORDER OF LOWER AUTHORITIES. THE LD. DR FURTHER SUBMITS THAT THE ASSESSEE WAS OWNER OF MORE THAN ONE RESIDENTIAL HOUSE AND THE EX EMPTION CLAIMED U/S 54F CANNOT BE ALLOWED IF THE ASSESSEE IS OWNER OF MORE THAN ONE RESIDENTIAL HOUSE AS ON THE DATE OF TRANSFER OF SHA RE. IN SUPPORT OF HIS SUBMISSION, THE LD. DR FOR THE REVENUE RELIED UPON THE DECISION OF HYDERABAD TRIBUNAL IN APSARA BHAVANA SAI (148 ITD 6 58). TO SUPPORT THE CLUBBING OF INCOME OF ASSESSEE WITH MINORS RELI ED UPON THE DECISION OF YOGI AGGARWAL (96 ITD 288). 13. IN THE REJOINDER SUBMISSION, THE LD.AR OF THE ASSES SEE SUBMITTED THAT THE DECISIONS RELIED UPON BY LD. DR FOR THE REVENUE IN APSARA BHAVANA SAI (SUPRA) IS OF NON-JURISDICTIONAL TRIBUNAL, WHIL E THE ASSESSEE HAS RELIED ON THE DECISION OF JURISDICTIONAL TRIBUNAL I N RASIKLAL SATARA (SUPRA), ASHOK CHOUHAN (SUPRA) AND HONBLE MADRAS H IGH COURT IN VASANTI RANGARAJAN (SUPRA), THEREFORE, IN VIEW OF T HE DECISION OF HONBLE MADRAS HIGH COURT IN VASANTI RANGARAJAN (SU PRA), THE ITA NO. 4566/MUM/2017-HEM ANT SHAH (AY 2013-14) 12 RELIANCE BY LD. DR IS NOT A GOOD LAW. ON THE DECIS ION OF YOGI AGGARWAL RELIED BY LD. DR, THE LD. AR OF ASSESSEE S UBMITS THAT THIS DECISION IS COMPLETELY DISTINGUISHABLE ON FACT. SIM ILARLY, THE FACTS IN SUBHASH CHANDRA WADHWA RELIED BY LD. DR FOR THE REV ENUE IS NOT BASED ON THE EXEMPTION PROVISION LIKE 54F UNDER CON SIDERATION, RATHER RELATES TO DEDUCTION OF CHAPTER-VI OF SECTION 80L O R 80I ARE NOT APPLICABLE ON THE FACTS OF THE CASE OF ASSESSEE. 14. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PAR TIES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE AO DEN IED THE EXEMPTION U/S 54 TO THE ASSESSEE BY TAKING VIEW THAT THE ASSE SSEE IS OWNER OF MORE THAN ONE RESIDENTIAL HOUSE ON THE DATE OF TRANSFER OF SHARES FROM WHICH THE ASSESSEE EARNED LTCG. BEFORE THE LD. CIT(A), TH E ASSESSEE FURNISHED EXHAUSTIVE WRITTEN SUBMISSION AS RECORDED IN PARA- 4 OF THE IMPUGNED ORDER. THE LD. CIT(A) UPHELD THE ACTION OF AO BY TAKING VIEW THAT EXEMPTION UNDER SECTION 54F CANNOT BE ALL OWED AS HE IS THE OWNER OF MORE THAN ONE RESIDENTIAL HOUSE ON THE DAT E OF TRANSFER OF SHARES. BEFORE US, THE LD. AR OF THE ASSESSEE EXPLA INED THAT THE ASSESSEE PURCHASED FLAT NO. 1601 IN JUNIPER ON 15.10.2007 AN D FLAT NO. 1601/1602 IN MAYFLOWER ON 16.12.2007. THE DATES OF OCCUPATION OF CERTIFICATE OF ALL THE FLATS ARE 22.07.2009. THE FL AT NO. 1601 WAS SOLD ON 06.12.2012 AND MAYFLOWER FLATS WERE SOLD ON 01.12.2 012. THE PERIOD ITA NO. 4566/MUM/2017-HEM ANT SHAH (AY 2013-14) 13 OF HOLDING FOR ALL THE FLATS WERE CLAIMED FOR FIVE YEARS AND THE ASSESSEE CLAIMED LTCG OF RS. 25,41,264/- AND 34,99,372/- RES PECTIVELY. THE ENTIRE BENEFIT/GAIN EARNED BY ASSESSEE WAS INVESTED IN CGAS. THE ASSESSEE FURTHER CLAIMED THAT NEITHER THE POSSESSIO N OF THE ASSET WAS GIVEN NOR CONVEYANCE DEED WAS EXECUTED. THUS, INTER EST IN THE ASSET WAS TRANSFERRED. WE HAVE NOTED THAT THERE IS NO CLA RITY ABOUT THE FACTS WHETHER THE ASSESSEE OWNED ANY OTHER RESIDENTIAL HO USE OR NOT, IN THE ORDER OF ASSESSING OFFICER AS WELL AS LD. CIT(A). T HEREFORE, WE DEEM IT APPROPRIATE TO RESTORE THIS ISSUE TO THE FILE OF AS SESSING OFFICER TO DECIDE THE ISSUE AFRESH. THE ASSESSEE IS ALSO DIREC TED TO BRING ALL THE FACTS WITH CLARITY BEFORE ASSESSING OFFICER. NEEDLE SS TO ORDER THAT BEFORE PASSING THE ORDER, THE ASSESSING OFFICER SHA LL GRANT OPPORTUNITY OF HEARING TO THE ASSESSEE AND PASS ORDER IN ACCORD ANCE WITH LAW. HENCE, THIS GROUND OF APPEAL IS ALLOWED FOR STATIST ICAL PURPOSE. 15. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 -02-2020. SD/- SD/- (R.C. SHARMA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIALMEMBER MUMBAI, DT : 25 TH FEBRUARY, 2020 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT ITA NO. 4566/MUM/2017-HEM ANT SHAH (AY 2013-14) 14 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI