ACIT 25(3), MUMBAI V. RUKHMANI M. IYER, MUMBAI

ITA 6952/MUM/2010

• Counselvise Citation: 695219914 RSA 2010
• Duration Of Justice: 3 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-04-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: D
• Next Hearing Date: 01-08-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 06-10-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Cost of acquisition
• Section: 143(3); 54

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D , MUMBAI [ , [ , BEFORE SHRI RAJENDRA , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDIC IAL MEMBER ./ ITA NO. 6952 / M/ 2010 ( [ [ / ASSESSMENT YEAR : 2007 - 08 ) ACIT 25(3) , C - 11, R.NO.308, PRATYAKSHA KAR BHAVAN, BANDRA - KURLA COMPLEX, BANDRA (EAST) MUMBAI 400051 / VS. SMT RUKMANI M. IYER, (PROP M/S. P.P. INTERNATION AL) 1002, DOLL APARTMENTS, BHATT LANE, KANDIVALI (W), MUMBAI - 67 PAN: AAAPI7916F ( / APPELLANT) ( / RESPONDENT) ASSESSEE BY : SHRI HARESH P. SHAH RE VENUE BY : SHRI SANJEEV JAIN, D.R. / DATE OF HEARING : 27.02.14 / DATE OF PRONOUNCEMENT : 9.4.2014 / O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) [ (HEREINAFTER REFERRED TO AS CIT(A)] DATED 26.07.10. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL. (I) 'ON THE FACTS AND I N THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE L D.CIT(A) ERRED IN DELETING THE ADDITION OF RS .32,48,974/ - TOWARDS COMMI SSION WITHOUT APPRECIATING THE FACT THAT THE LIABILITY TO PAY THIS AMOUNT IS NOT ASCERTAINED IN THE CURRENT YEAR'. (II) 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE L D.CIT(A) HAS ERRED IN RESTRICTING THE ADDITION TOWARDS BUSINESS PROMO TION EXPENSES TO RS.2,60, 975/ - WITHOUT PROPER VERIFICATION ITA NO . 6952/M/2010 SMT RUKMANI M. IYER 2 AND ENQUIRY OF THE EXPENSES AND WITHOUT ASCERTAINING THE BUSINESS NEEDS FOR SUCH EXPENSES'. (III) ' ON THE FACTS AND I N THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE L D.CIT(A) HA S ERRED IN ALLOWING EXEMPTION U /S 54 IN SPITE OF THE FACT THAT THE ASSESSEE HAS SOLD TWO FLATS AND ONLY ONE FLAT IS ENTITLED TO EXEMPTION U/S 54'. (IV) 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE L D.CIT(A) HAS ERRED IN RELYING ON THE JUDGMEN T IN CASE OF JCIT VS. SMT. ARMEDA K BHAYA ALTHOUGH THERE IS DIFFERENCE IN THE FACTS OF THE TWO CASES'. (V) THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE A.O. BE RESTORED. (VI) THE APPELLANT CR AVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND. GROUND NO. (I) 2. THE ASSESSEE , AN INDIVIDUAL , IS IN THE BUSINESS OF MERCANTILE EXPORT OF PHARMACEUTICAL PRODUCTS UNDER THE NAME AND STYLE OF M/S. P.P. INTERNATIONALS. DURING THE ASSESSMENT PR OCEEDINGS U/S 143(3) OF THE INCOME TAX ACT (HEREINAFTER REFERRED TO AS THE ACT) FOR THE ASSESSMENT YEAR UNDER CONSIDERATION , THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) NOTICED THAT THE ASSESSEE HAD CLAIMED RS.32,48,974/ - TOWARDS COMMISSION P AYABLE ON SALES IN THE PROFIT AND LOSS ACCOUNT. HE NOTICED THAT THE COMMISSION WAS OUTSTANDING AS PAYABLE AS ON 31.03.07 AND THE SAME WAS DEDUCTED BY THE RESPECTIVE PARTIES FROM THE AMOUNT PAYABLE BY THEM TO THE ASSESSEE IN THE SUBSEQUENT YEARS. AS THE C OMMISSION WAS CLAIMED BY THE ASSESSEE ON MERCANTILE BASIS BUT , ACTUALLY WAS DEDUCTED BY THE RESPECTIVE PARTIES IN THE SUBSEQUENT YEAR , THE AO CALLED FOR THE EXPLANATION FROM THE ASSESSEE. THE ASSESSEE IN HIS REPLY SUBMITTED THE DETAILS OF THE SALES PARTIE S TO WHOM THE COMMISSION WAS PAYABLE AT THE RATE OF 12% ON SALES AND FURTHER EXPLAINED THAT AS PER THE UNDERSTANDING BETWEEN THE PARTIES , THE COMMISSION WAS PAYABLE AFTER THE REALIZATION OF ENTIRE SALE PROCEEDS. DURING THE YEAR , ONLY A PART OF THE SALE PR OCEEDS WERE REALISED AND THE ENTIRE COMMISSION PROVIDED WAS NOT PAID AND THE SAME WAS DEDUCTED BY THE CUSTOMERS IN THE NEXT FINANCIAL YEAR FROM THE AMOUNT PAYABLE BY THEM TO ITA NO . 6952/M/2010 SMT RUKMANI M. IYER 3 THE ASSESSEE AGAINST THE SALES BOOKED DURING THE YEAR UNDER CONSIDERATION. THE AO DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE AND HELD THAT THE LIABILITY TO PAY COMMISSION DID NOT ACCRUE DURING THE YEAR AND FURTHER THAT THE ASSESSEE HAD SOLD SIMILAR PRODUCTS TO VARIOUS OTHER PARTIES BUT NO COMMISSION WAS CLAIMED AS PAYABLE TO THEM E XCEPT TO THE THREE PARTIES. HE THEREFORE DISALLOWED THE CLAIM OF COMMISSION ON SALES. IN FIRST APPEAL, T HE LD. CIT(A) NOTICED FROM THE DOCUMENTS THAT THE COMMISSION AT THE RATE OF 12% OF THE SALES WAS PAID BY THE ASSESSEE TO THE THREE PARTIES MENTIONED IN THE ASSESSMENT ORDER. THE DETAILS WERE SUPPORTED WITH THE DOCUMENTS LIKE INVOICE NUMBER, DATE, AMOUNT BILLED, SHIPPING BILL NUMBER AND REALIZATION AS PER BANK CERTIFICATE. HE FURTHER OBSERVED THAT IN FACT THE SAME WAS NOT A COMMISSION RATHER WAS A DI SCOUNT AT THE RATE OF 12% ON SALES. BUT THE ASSESSEE BOOKED THE SAME UNDER THE HEAD COMMISSION IN THE BOOKS OF ACCOUNT WITH A VIEW TO DEPICT HIGHER TURNOVER FOR THE PURPOSE OF OBTAINING LOAN FROM THE BANK. THE COMMISSION WAS IN THE NATURE OF TRADE DISC OUNT WHICH WAS TO BE ALLOWED AT THE TIME WHEN THE SALES WERE AFFECTED. HE WAS SATISFIED WITH THE SUBMISSION OF THE LD. REPRESENTATIVE OF THE ASSESSEE THAT THE PRODUCTS SUPPLIED TO THE THREE PARTIES IN QUESTION WERE DIFFERENT FROM THE PRODUCTS SUPPLIED TO OTHER PARTIES AND FURTHER THAT MERELY BECAUSE THE COMMISSION WAS NOT PAID TO THE OTHER PARTIES , THE SAME CANNOT BE DISALLOWED IN RELATION TO THE THREE PARTIES TO WHOM IT WAS ACTUALLY PAID. HE FURTHER OBSERVED THAT THE FACTUM OF PAYMENT OF COMMISSION/DISCO UNT IN THE SUBSEQUENT YEARS WAS NOT DISPUTED AND THE ACTUAL LIABILITY ACCRUED DURING THE YEAR UNDER CONSIDERATION AT THE TIME OF BOOKING OF THE SALES. HE THEREFORE DELETED THE ADDITIONS MADE BY THE AO UNDER THIS HEAD. 3. WE HAVE HEARD THE LD. REPRESENT ATIVES OF BOTH THE PARTIES AND ALSO HAVE GONE THROUGH THE RECORDS. THE FACTS OF THE CASE REVEAL THAT IN FACT THE COMMISSION CLAIMED BY THE ASSESSEE AT THE RATE OF 12% OF SALES PAYABLE TO THE ITA NO . 6952/M/2010 SMT RUKMANI M. IYER 4 THREE PARTIES IN QUESTION WAS IN FACT A DISCOUNT ON THE SALES. THE AO DISALLOWED THE SAME HOLDING THAT THE LIABILITY DID NOT ACCRUE DURING THE YEAR IN QUESTION AS ALMOST 50% OF THE COMMISSION AMOUNT WAS DEDUCTED BY THE PARTIES IN THE SUBSEQUENT YEAR. IN OUR VIEW, THE FINDING ARRIVED AT BY THE AO WAS NOT CORRECT. IT IS NOT DISPUTED THAT THE ALLEGED COMMISSION AT THE RATE OF 12% OF THE SALES WAS IN FACT A DISCOUNT ON SALES. IT IS OBVIOUS THAT THE PURCHASER WOULD PAY THE SALE PRICE AFTER DEDUCTING THE DISCOUNT GIVEN ON THE SALE OF THE PRODUCT. SO FAR THE QUESTION OF A CCRUAL OF THE LIABILITY DURING THE YEAR UNDER CONSIDERATION IS CONCERNED, IT MAY BE NOTED THAT THE SALES IN QUESTION WERE BOOKED BY THE ASSESSEE DURING THE YEAR. AS AND WHEN THE SALES WERE BOOKED BY THE ASSESSEE , AT THE SAME TIME THE DISCOUNT PAYABLE AGAI NST THOSE SALES WAS ALSO TO BE BOOKED ALONG WITH THE SALES. SO THE MOMENT THE SALES ALONG WITH DISCOUNTS ARE BOOKED, THE LIABILITY TO PAY OR THE RIGHT OF THE PURCHASER TO DEDUCT THE DISCOUNT ACCRUES. IN VIEW OF THIS, WE DO NOT FIND ANY INFIRMITY IN THE A CTION OF THE LD. CIT(A) IN DELETING THE IMPUGNED ADDITIONS. THIS GROUND OF THE APPEAL OF THE REVENUE IS ACCORDINGLY DISMISSED. GROUND N O . (II) 4. THE AO NOTICED THAT THE ASSESSEE HAD CLAIMED RS.8,74,306/ - TOWARDS BUSINESS PROMOTION EXPENSES. THE AO OBS ERVED THAT THE ASSESSEE HAD FAILED TO FILE THE DETAILS TO PROVE THAT THE SAID EXPENSES WERE INCURRED WHOLLY OR EXCLUSIVELY FOR THE PURPOSE OF BUSINESS OF THE ASSESSEE. HE THEREFORE DISALLOWED THE ENTIRE AMOUNT OF RS.8,74,306/ - CLAIMED BY THE ASSESSEE. TH E LD. CIT(A) NOTICED THAT IN FACT THE AO DID NOT CALL FOR ALL THE DETAILS OF PAYMENT OF SUCH EXPENSES. HE ONLY ASKED FOR THE DETAIL OF EXPENSES WHICH WERE IN EXCESS OF RS.1 LAKH. THE AO DID NOT RAISE ANY QUERY REGARDING NATURE OF BUSINESS PROMOTION EXPEN SES. THE LEDGER WAS PRODUCED BEFORE THE AO BUT HE DID NOT POINT OUT ANY SPECIFIC DEFECT IN THE SAME . THE LD. CIT(A) FURTHER NOTICED FROM THE LEDGER ACCOUNT THAT THERE WERE ONLY TWO PAYMENTS EXCEEDING RS. 1 LAKH OUT ITA NO . 6952/M/2010 SMT RUKMANI M. IYER 5 OF WHICH THE PAYMENT OF RS.1,48,355/ - W AS TOWARDS HSBC ACCOUNT WHICH CONSISTED OF MANY PAYMENTS BELOW RS.1 LAKH. HE WAS SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE THAT THE ASSESSEE BEING ENGAGED IN THE BUSINESS OF EXPORT OF PHARMACEUTICAL PRODUCTS HAD TO INCUR THE EXPENDITURE TOWARDS ACCOMMODATION, DOMESTIC TRAVEL AND ENTERTAINMENT ETC. OF ITS FOREIGN CUSTOMERS. ALL THE EXPENDITURE HAD BEEN INCURRED THROUGH CREDIT CARDS. THE LD. CIT(A) AFTER GOING THROUGH THE DETAILS OF THE EXPENDITURE SO CLAIMED BY THE ASSESSEE OBSERVED THAT THERE WAS ONLY ONE ITEM OF RS.2,60,97 5 / - IN THE NAME OF PRAMILA. P . WHICH WAS INCURRED FOR THE PURCHASE OF JEWELLERY ITEMS FOR THE PERSON WHO CLEARED THE EXPORT SALES OF THE ASSESSEE. HE NOTICED THAT THE SAID EXPENDITURE WAS NOT ALLOWABLE AS BUSINESS PROMOTION EXPENDITURE. HE THEREFORE CONFIRMED THE DISALLOWANCE TO THE EXTENT OF RS.2,60,975/ - AND DELETED THE REMAINING DISALLOWANCE MADE BY THE AO. 5 . WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PARTIES. THE LD. CIT(A) AFTER GOING THROUGH THE RECORDS AND A FTER SATISF YING HIMSELF ABOUT THE GENUINENESS OF THE EXPENDITURE DELETED THE ADDITION EXCEPT THE SUM OF RS.2,60,975/ - WHICH HE FOUND WAS NOT IN RELATION TO BUSINESS PROMOTION EXPENSES. THE FINDING OF FACT ARRIVED AT BY THE LD. CIT(A) AFTER GOING THROUGH T HE RECORD AND AFTER SATISFYING HIMSELF ABOUT THE GENUINENESS OF EXPENDITURE, IN OUR VIEW, DOES NOT CALL ANY INTERFERENCE BY US. WE DO NOT FIND ANY INFIRMITY IN THE FINDING OF THE LD. CIT(A) IN THIS RESPECT. THIS GROUND OF APPEAL OF REVENUE IS ALSO ACCORD INGLY DISMISSED. GROUND NOS. (III) & (IV) 6 . THROUGH THE ABOVE GROUNDS OF APPEAL THE REVENUE HAS AGITATED THE ALLOWANCE OF EXEMPTION UNDER SECTION 54 OF THE ACT. THE AO NOTICED THAT THE ASSESSEE HAD CLAIMED EXEMPTION OF LONG TERM CAPITAL GAIN ON SALE OF BUNGALOW AT RS.28,39,079/ - . THE AO NOTICED THAT THE ASSESSEE SOLD TWO FLATS, BEING FLAT ITA NO . 6952/M/2010 SMT RUKMANI M. IYER 6 NO.B - 1 ON THE GROUND FLOOR, AND FLAT NO.B - 2 ON THE FIRST FLOOR OF SACHI CO - OP. HOUSING SOCIETY, BORIVALI (W), MUMBAI, FOR A SALE CONSIDERATION OF RS.40,00,000/ - EACH, TOTALLING TO RS.80,00,000/ - , VIDE TWO SEP ARATE AGREEMENTS DT.17.01.07. H E FOUND THAT AFTER REDUCING THE INDEXED COST OF ACQUISITION OF THE TWO FLATS, THE ASSESSEE ADMITTED LONG TERM CAPITAL GAIN OF RS.28,39,079/ - WHICH WAS CLAIMED AS EXEMPT UNDER SECTION 54 ON THE GROUND THAT A SUM OF RS.32,15,057/ - WAS INVESTED FOR PURCHASE OF NEW HOUSE PROPERTY. THE AO NOTICED THAT THE ASSESSEE WAS LIVING IN THE FLAT AT KANDIVALI OWNED BY HER HUSBAND EVEN AS PER THE ADDRESS FURNISHED IN THE RETURN OF INCOME. HE WAS OF THE OPINION THAT AS THE PROPERTY SOLD WAS NOT USED BY THE ASSESSEE FOR HER OWN RESIDENCE, THE ASSESSEE WAS NOT ENTITLED TO CLAIM EXE M PT I ON OF LO NG TERM CAPITAL GAIN. WITHOUT PREJUDICE TO THE ABOVE, HE FURTH ER HELD TH AT EVEN IF THE ASSESSEE WAS ENTITLED TO EXEMPTION U/S.5 4, THE SAME WAS TO BE RESTRICTED T O 50% AS THE ASSESSEE SOLD TWO FLATS AND ON L Y ONE FLAT IS ENTITLE D T O EXEMPTI ON U/S.5 4. HE FURTHER NOTICED THAT THE A SSESSEE PURCHASED THE NEW PROPERTY WHICH WAS CO - OWNED BY TWO OTHER PERSONS CLAIMING TO BE RELATIVES OF THE ASSE S SEE AND, THEREFORE, THE ASSESSEE WAS NOT THE SOLE OWNER OF THE NEW PROPERTY BUT ONLY OWNER OF 1/3 RD SHARE AND, THEREFORE, THE A SSESSEE WOULD BE ENTITLED TO 1/3 RD OF CAPITAL GAIN OF RS. 14,19,540/ - WHICH WORKED OUT TO RS. 4,73,180/ - . I N VIEW OF THE ABOVE, T H E AO DID NOT ALLOW THE CLAIM OF EXEMPTION U/S.54 AT RS.28,39,079 / - . T HE LD. CIT(A) CONSIDERED THE SUBMISSIONS OF THE REPRESENTATIVE AND THE STAND TAKEN BY THE A.O. HE OBSERVED THAT SECTION 54 DOES NOT STIPULATE THAT THE PROPERTY SO LD MUST HAVE BEEN USED FOR THE A SSESSEES OWN RESIDENCE AND IT IS ENOUGH , IF THE PROPERT Y IS USED FOR RESIDENCE EVEN BY ANY OTHER PERSON . HE FURTHER OBSERVED STATEMENT OF TOTAL INCOME FILED ALONG WITH THE RETURN OF INCOME SHOWED THAT THE A SSESSEE ADMITTED LONG TERM CAPITAL GAIN ON SALE OF BUNGALOW AT BORIVALI. HE FURTHER OBSERVED FROM THE MUNICIPAL TAX RECEIPT THAT THE A SSESSEE OWNED BUNGALOW IN B WING OF SACH I CO - OP. HOUSING SOCIETY, ITA NO . 6952/M/2010 SMT RUKMANI M. IYER 7 BORIVALI (W) IN GROUND FLOOR AND FIRST FLOOR WHICH ARE INTERCONNECTED BY STAIRCASE AS PER THE FIRST FLOOR PLAN SUBMITTED. THE VERY FACT THAT THE GROUND FLOOR WAS NUMBERED AS B - 1 AND FIRST FLOOR NUMBERED AS B - 2 SHOW ED THAT IT WAS AN INDEPENDENT BUNGALOW HAVING ONE MUNICIPAL TAX ASSESS MENT AS EVID ENT FROM THE TAX PAID RECEIPT. EVEN THE PERUSAL OF THE MUNICIPAL TAX PAID RECEIPT SHOW ED THAT THE PROPERTY WAS DESCRIBED AS 'ICE COLONY HOUSE, B - WING BUNGALOW'. THUS LD. CIT(A) ACCEPT ED THE PLEA OF THE REPRESENTATIVE THAT THE A SSESSEE SOLD INDEPENDENT BUN G ALO W BY MEANS OF TWO SALE DEED S AS THE PURCHASE W AS MADE BY MEANS OF TWO PURCHASE DEEDS. HE THEREFORE HELD THAT I N THE CIRCUMSTANCES, THE ASSESSEE HAD SOLD ONE HOUSE PROPERTY AND NOT TWO SEPARATE FLATS . SO FAR THE OBSERVATIONS OF THE AO THAT NEW HOUSE PROPERTY PURCHASED BY THE ASSESS EE WAS OWNE D BY THE A SSESSEE AND TWO OTHERS AND, THEREFORE, THE ASSESSEE WOULD BE ENTITLED TO EXEMPTION U/S.54 ONLY TO THE EXTENT OF 1/3 RD SHARE OF THE A SSESSEE , THE CIT(A) OBSERVED THAT IT REVEALED FROM THE BALANCE SHEET FILED BY THE ASSESSEE FOR A . Y.200 7 - 08 THAT THE ENTIRE INVESTMENT OF R S.32 , 15,0 57/ - WAS MADE BY THE A SSESSEE AND NOT BY THE C O - OWNERS. M ERELY BECAUSE THE A SSESSEE INCLUDED TWO OF HER RELATIVES IN THE PURCHASE DEED, IT CANNOT BE SAID THAT THE A SSESSEE WAS OWNER OF THE NEW PROPERTY ONLY TO T HE EXTENT OF 1 / 3 RD SHARE. HE FURTHER OBSERVED THAT AS PER S ECTION 45 OF THE TRANSFER OF PROPERTY ACT IN THE ABSENCE OF ANY CONTRARY CONTRACT, THE RESPECTIVE OWNERS WOULD BE ENTITLED TO INTEREST IN SUCH PROPERTY IN PROPORTION TO THE SHARE OF MONEY ADVANCED. IN THE INSTANT CASE, SINCE THE RELA TIVES HAD NOT CONTRIBUTED ANY SUM OF MONEY TOWARDS PURCHASE OF THE HOUSE PROPERTY, THEY HAD NO RIGHT, TITLE OR INTEREST IN THE HOUSE PROPERTY. THE ENTIRE CONSIDERATION FOR THE PURCHASE OF NEW HOUSE PROPERTY WAS FUNDED BY THE A SSESSEE OUT OF SALE PROCEEDS OF HER HOUSE AND AS SUCH THE A SSESSEE WAS THE ON L Y LEGAL OWNER OF THE PROPERTY . HE THEREFORE ALLOWED THE CLAIM OF THE ASSESSEE. THE REVENUE IS THUS IN APPEAL BEFORE US ON THIS ISSUE. ITA NO . 6952/M/2010 SMT RUKMANI M. IYER 8 7 . WE HAVE CONSIDERED THE RESPECTIVE SUBMISSIONS OF THE LD. R EPRESENTATIVES OF THE PARTIES ON THIS ISSUE. VIDE ORDER SHEET ORDER DATED 13.03.14 , THE LD. A.R. WAS ASKED TO PRODUCE A COPY OF THE SALE DEED IN QUESTION VIDE WHICH THE ALLEGED RESIDENTIAL HOUSE WAS PURCHASED BY THE ASSESSEE FOR W HICH THE BENEFIT UNDER SECTION 54 OF THE ACT HAS BEEN CLAIMED . THE LD. A.R. THEREAFTER PRODUCED THE COPY OF THE SALE DEED IN QUESTION BUT A PERUSAL OF THE SAME REVEALED THAT IT WAS IN MALAYALAM. THEREFORE HE WAS REQUESTED TO PRODUCE THE TRUE TRANSLATED COPY OF THE SAME IN ENGLISH. THE LD. A.R. PRODUCED THE TRANSLATED COPY OF THE SAME AND THEREAFTER THE HEARING WAS CONCLUDED ON 28.03.14. WE MAY OBSERVE THAT THE LD. CIT(A) WHILE ALLOWING THE CLAIM OF THE ASSESSEE DID NOT BOTHER TO LOOK INTO THE CONTENT S OF THE SALE DEED IN QUESTION. HE WRONGLY INTERPRETED SECTION 45 OF THE TRANSFER OF THE PROPERTY ACT AND HELD THAT THE ASSESSEE WAS THE SOLE OWNER OF THE PROPERTY IN QUESTION. IT MAY BE OBSERVED THAT AS TO WHO IS THE OWNER OF A PROPERTY CAN BE SEEN FROM THE RECITALS IN SALE DEED IN QUESTION ITSELF . FROM THE TRANSLATED V ERSION OF THE SALE DEED IN QUESTION PRODUCED BY THE LD. REPRESENTATIVE OF THE ASSESSEE AND ALSO DULY ATTESTED BY HIM , I T REVEALS THAT IT HAS NOWHERE MENTIONED IN THE SALE DEED IN QUESTION THAT ONLY ASSESSEE IS THE SOLE OWNER OF THE PROPERTY. ALL THE THREE LADIES HAVE BEEN DECLARED THE OWNERS OF THE PROPERTY IN QUESTION. IN THE PRESEN CE OF DIRECT EVIDENCE I.E. THE SALE DEED IN QUESTION ITSELF , NO ASSUMPTION OR PRESUMPTIONS WAS REQUIRED TO BE MADE BY THE LD. CIT(A) REGARDING THE OWNERSHIP OF THE PROPERTY. EVEN THE LD. CIT(A) WRONGLY INTERPRETED THE SECTION 45 OF THE TRANSFER OF PROPERTY ACT AND HE IGNORED THE WORDS IN THE ABSENCE OF A CONTRACT TO THE CONTRARY WHILE HOLDING THAT THE PROPE RTY BELONGS TO THE ASSESSEE SINCE SHE HAD PAID THE CONSIDERATION. HOWEVER, IT IS NOT A CASE OF ABSENCE OF CONTRACT RATHER THE SALE DEED ITSELF IS THE CONTRACT WHICH IS TO BE SEEN FOR KNOWING THE OWNERSHIP OF THE PROPERTY. A PERUSAL OF THE SAID TRANSLATIO N OF THE SALE D EED FURTHER REVEALS THAT THERE A RE SIX PROPERTIES PURCHASED BY THE ASSESSEE ALONG WITH OTHER TWO LADIES WHICH CONSTITUTE WASTE ITA NO . 6952/M/2010 SMT RUKMANI M. IYER 9 LAND AND LOW LINE CULTIVABLE LAND TOGETHER WITH PADDY FIELD ETC. FOR ENTITLEMENT OF CLAIM UNDER SECTION 54 OF THE ACT , THE PROPERTY PURCHASED MUST BE A RESIDENTIAL HOUSE. NO SUCH CLAIM IS ALLOWABLE FOR THE PURCHASE OF WASTE LAND OR LOW LINE CULTIVABLE LAND UNDER SECTION 54 OF THE ACT. UNDER SUCH CIRCUMSTANCES, THIS CLAIM OF THE ASSESSEE IS NOT MAINTAINABLE AND AS S UCH THE FINDING OF THE LD. CIT(A) ON THIS ISSUE IS HEREBY SET ASIDE AND IT IS HELD THAT THE LD. AO RIGHTLY DISALLOWED THE CLAIM OF THE ASSESSEE UNDER SECTION 54 OF THE ACT. 8 . SINCE G ROUND NO. (V) & ( VI ) ARE GENERAL IN NATURE, HENCE THE SAME DO NOT REQUIRE ANY ADJUDICATION . 9 . IN THE RESULT, THE APPEAL OF THE REVENUE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 9 .0 4 . 201 4 . 9 .0 4 .2014 SD SD ( / RAJENDRA ) ( [ / SANJAY GARG) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / MUMBAI ; / DATED 9.4. 2014 * KISHORE / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CI T(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. [ / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI