Smt. C.Anuradha, CHENNAI V. ITO, CHENNAI

ITA 952/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61284 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 30-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(3); 54F; 148; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH CHENNAI BEFORE SHRI N. S. SAINI, ACCOUNTANT MEMBER AND SHRI V.DURGA RAO, JUDICIAL MEMBER .. ITA NO.952 /MDS./2012 ASSESSMENT YEAR: 2003-04 SMT. C. ANURADHA, NO. 46, RISHIKESH APARTMENTS, 38, G.N. CHETTY ROAD, T. NAGAR,CHENNAI-600017. VS. THE INCOME TAX OFFICER, BUSINESS WARD-I(1), CHENNAI. PAN : AFRPA5757Q (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VIKRAM VIJAYARAGHAVAN, ADVOCATE RESPONDENT BY : SHRI SHAJI P. JACOB, ADDL. CIT DATE OF HEARING : 03.07.2012 DATE OF PRONOUNCEMENT : 06.07 .2012 O R D E R PER V. DURGA RAO, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT Y EAR 2003-04 IS AGAINST THE ORDER PASSED BY THE LEARNED CIT(APPEALS )-VI, CHENNAI DATED 17-02-2012. 2. FACTS IN BRIEF ARE THAT THE ASSESSEE, WHO IS AN INDIVIDUAL, FILED RETURN OF INCOME DECLARING A TOTAL INCOME OF RS. 8, 891/- UNDER THE HEAD LONG TERM CAPITAL GAINS. THE CASE OF THE ASSESS EE WAS TAKEN UP FOR SCRUTINY BY ISSUING A NOTICE UNDER SECTION 148 OF T HE INCOME TAX ACT, 1961 (THE ACT FOR SHORT). AFTER DUE PROCESS, THE ASSESSMENT WAS ITA. 952/MDS/2012 2 COMPLETED UNDER SECTION 143(3) OF THE ACT DENYING T HE ASSESSEES CLAIM OF EXEMPTION UNDER SECTION 54F OF THE ACT. THE ASS ESSEE CARRIED THE MATTER BEFORE THE LEARNED CIT(A). THE LEARNED CIT( A) BY ORDER DATED 13-05-2008 GRANTED RELIEF TO THE ASSESSEE. ON APPE AL THE ITAT, CHENNAI VIDE ITS ORDER DATED 13-11-2009 REMANDED THE MATTER BACK TO THE AO TO PASS A FRESH ORDER. THEREAFTER, IN PURSUANCE OF TH EORDER PASSED BY THE ITAT, CHENNAI THE AO HAS COMPLETED THE ASSESSMENT U NDER SECTION 143(3) READ WITH SECTION 254 OF THE ACT BY COMPUTIN G THE LONG TERM CAPITAL GAINS OF RS 2,69,338/-. DURING THE COURSE OF THE SECOND ASSESSMENT PROCEEDINGS, THE AO AFTER CALLING FOR TH E EXPLANATION FROM THE ASSESSEE HAS HELD THAT AS PER SECTION 54F THE A SSESSEE IS ONLY ELIGIBLE FOR EXEMPTION UNDER SECTION 54F FOR ONE HOUSE. AC CORDINGLY, HE DENIED THE CLAIM OF THE ASSESSEE FOR SECOND FLAT. 3. ON BEING AGGRIEVED, THE ASSESSEE CARRIED THE MAT TER BEFORE THE CIT(A). IT WAS SUBMITTED BEFORE THE LEARNED CIT(A) THAT HER CASE IS COVERED BY THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF MS. FULWANTI C. RATHOD IN ADDITION TO THE CASES OF THE CO-OWNERS OF THE ASSESSEE ON FILE, I.E. SHRI D. MALLIKARJUNA RAO AND MS. ANITHA VUYYURU IN WHOSE CASES THE CLAIM OF DEDUCTION UNDER SECTION 54F HAS BEEN ACCOMMODATED BY THE ORDERS OF THE FIRST APPELLATE A UTHORITY WHICH HAVE BECOME FINAL. SHE FURTHER RELIED ON THE DECISION O F THE KARNATAKA HIGH COURT IN THE CASE OF CIT V. SMT. K.G. RUKMINIAMMA R EPORTED IN 196 TAXMAN 87. AFTER CONSIDERING THE ARGUMENTS AND THE ABOVE CASE LAWS THE LEARNED CIT(A) HAS OBSERVED THAT THE AO IN HIS ORDER DATED ITA. 952/MDS/2012 3 29.12.2010 ALLOWED EXEMPTION U/S 54F FOR ONE FLAT A T RS. 2,87,045/-. IN VIEW OF THE FACT THAT THE APPELLANT WHO OWNED A PIE CE OF LAND JOINTLY WITH OTHERS ENTERED INTO JOINT DEVELOPMENT AGREEMENT AND IN LIEU RECEIVED MORE THAN ONE APARTMENT AND HENCE THE CLAIM MADE IS U/S 54F. THE LEARNED CIT(A) FURTHER OBSERVED THAT THE DECISION O F THE KARNATAKA HIGH COURT IN THE CASE OF SMT. K.G. RUKMINIAMMA, SUPRA, HAS NO APPLICATION TO THE FACTS OF THE CASE. IN THAT CASE THE HONBLE KARNATAKA HIGH COURT HAS CONSIDERED EXEMPTION U/S 54 AND HE FURTHER OBSE RVED THAT IN THE CASE OF ACIT, BANGALORE V. NARESH KUMAR J. SHAH (20 10-TIOL-647) THE HONBLE BANGALORE BENCH OF THE TRIBUNAL HAS HELD TH AT THE BENEFIT U/S 54F IS AVAILABLE ONLY ON A SINGLE RESIDENTIAL UNIT. BY FOLLOWING THE SAME, THE LEARNED CIT(A) CONFIRMED THE ORDER OF THE AO. 4. ON BEING AGGRIEVED, THE ASSESSEE CARRIED THE MAT TER BEFORE THE TRIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE REL IED ON THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF SMT . K.G. RUKMINIAMMA, SUPRA. ON THE OTHER HAND, THE LEARNED DR RELIED ON THE DECISION OF THE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SHRI PAW AN ARYA V. CIT IN ITA NO. 613 OF 2010 DATED 13-12-2010, REPORTED IN 2 011-TIOL-01-HC- P&H-IT. 5. WE HAVE HEARD BOTH THE SIDES, PERUSED THE RECORD S AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ONLY ISSUE FOR CONSIDERATION BEFORE US IS WHETHER THE ASSESSEE IS ELIGIBLE FOR EXEMPTION U/S 54F FOR TWO HOUSES OR FOR ONE HOUSE. THE ASSES SEE OWNED A PIECE OF LAND JOINTLY WITH OTHERS AND ENTERED INTO JOINT DEV ELOPMENT AGREEMENT ITA. 952/MDS/2012 4 AND SHE RECEIVED MORE THAN ONE APARTMENT AND CLAIME D EXEMPTION U/S 54F OF THE ACT. SHE RELIED ON THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT V. SMT. K.G. RUKMINIAMMA, REPORTED IN (2011) 196 TAXMAN 87. IN THIS CASE THE HONBLE KARNATAKA HIGH COURT HAS CONSIDERED SECTION 54 OF THE INCOME TAX ACT, 1961 A ND BY FOLLOWING THE DECISION IN THE CASE OF ANAND BASAPPA V. ITO (2005) 1(11) ITCL 283 GRANTED RELIEF TO THE ASSESSEE. IN THE PRESENT CAS E THE CLAIM OF THE ASSESSEE IS FOR EXEMPTION U/S 54F OF THE INCOME TAX ACT, 1961. IN THIS CONNECTION THE MUMBAI SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF ITO V. MS. SUSHILA M. JHAVERI (107 ITD 327) (MUM.) (SB) WHILE CONSIDERING THE EXEMPTION UNDER SECTIONS 54 AND 54F HAS CATEGOR ICALLY HELD THAT THE ASSESSEE WAS ENTITLED TO EXEMPTION UNDER SECTION 54 IN RESPECT OF INVESTMENT IN ONLY ONE FLAT OF HER CHOICE. THE HON BLE PUNJAB & HARYANA HIGH COURT BY CONSIDERING THE SPECIAL BENCH DECISIO N OF THE TRIBUNAL IN THE CASE OF MS. SUSHILA M. JHAVERI, SUPRA AND ALSO CONSIDERING THE CASE OF CIT V. ANAND BASAPPA (309 ITR 329)(KAR) HAS OBSERVE D THAT EXEMPTION AGAINST PURCHASE OF TWO FLATS WAS ALLOWED HAVING RE GARD TO THE FINDING THAT BOTH THE FLATS WOULD BE TREATED TO BE ONE HOUS E AS BOTH HAD BEEN COMBINED TO MAKE ONE RESIDENTIAL UNIT. THE SAID JU DGMENT THUS PROCEEDS ON DIFFERENT FACTS AND SITUATION AND UPHELD THE ORD ER OF THE TRIBUNAL THAT THE ASSESSEE IS ONLY ELIGIBLE FOR EXEMPTION IN RESP ECT OF ONE HOUSE. WE FIND THAT THE DECISION OF THE HONBLE PUNJAB & HARY ANA HIGH COURT SQUARELY APPLIES TO THE FACTS OF THE CASE. WE, THE REFORE, BY FOLLOWING THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN TH E CASE OF MS. SUSHILA M. ITA. 952/MDS/2012 5 JHAVERI, SUPRA, AND ALSO THE DECISION OF THE HONBL E PUNJAB & HARYANA HIGH COURT IN THE CASE OF SHRI PAWAN ARYA (SUPRA) F IND NO INFIRMITY IN THE ORDER OF THE LEARNED CIT(A). APART FROM THE ABOVE, THE LEARNED CIT(A) BY FOLLOWING THE TRIBUNAL ORDER IN THE CASE OF NARE SH KUMAR J. SHAH (SUPRA) HELD THAT BENEFIT OF SECTION 54F IS AVAILAB LE ONLY TO SINGLE RESIDENTIAL UNIT AND REJECTED THE CLAIM OF THE ASSE SSEE. NO MATERIAL WAS BROUGHT TO OUR NOTICE THAT THE ABOVE SAID ORDER OF THE TRIBUNAL WAS REVERSED OR MODIFIED BY THE HIGH COURT. THEREFORE, THIS APPEAL FILED BY THE ASSESSEE IS DISMISSED. 6. IN THE RESULT, THE APPEAL IS DISMISSED. 7. ORDER PRONOUNCED ON 06 TH JULY, 2012. SD/- SD/- (N. S. SAINI) ( V.DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 06 TH JULY, 2012. H. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE