Shr Peddakota Parvateesam Naidu, CHENNAI V. ITO, CHENNAI

MA 239/CHNY/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5852 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 17-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S SRIDHAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI ... , . !' , # $ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER %% / M.P. NO.239/MDS/2017 (IN I.T.A. NO.2571/MDS/2016) & '& / ASSESSMENT YEAR : 2012-13 SHRI PEDDAKOTA PARVATEESAM NAIDU, 2/297, JASMIN COURT, DOOR NO.405, MOUNT POONAMALLE RD, KATTUPAKKAM POST, CHENNAI - 600 056. PAN : AAHPP 4986 D V. THE INCOME TAX OFFICER, NON-CORPORATE CIRCLE 17(3), CHENNAI - 600 034. ()*& /PETITIONER) ()+*,/ RESPONDENT) )*& . / /PETITIONER BY : SHRI S. SRIDHAR, ADVOCATE )+*, . / / RESPONDENT BY : SHRI AR.V. SREENIVASAN, JCIT 0 . 1# / DATE OF HEARING : 27.10.2017 2!' . 1# / DATE OF PRONOUNCEMENT : 09.11.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS PETITION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER O F THIS TRIBUNAL DATED 22.06.2017. 2. SHRI S. SRIDHAR, THE LD.COUNSEL FOR THE ASSESSEE , SUBMITTED THAT THIS TRIBUNAL REMANDED BACK THE MATTER TO THE FILE OF THE 2 M.P. NO.239/MDS/17 ASSESSING OFFICER WITH A DIRECTION TO CONSIDER THE ISSUE AFRESH IN THE LIGHT OF THE JUDGMENT OF MADRAS HIGH COURT IN CIT V . V.R. KARPAGAM (2015) 373 ITR 127 AND ALSO FIND OUT WHETHER THE TW O FLATS PURCHASED BY THE ASSESSEE CONSTITUTE ONE UNIT OR NO T. REFERRING TO THE JUDGMENT OF MADRAS HIGH COURT IN CIT V. SHRI GU MANMAL JAIN IN T.C.A. NO.33 OF 2017 DATED 03.03.2017, THE LD.COUNS EL POINTED OUT THAT THE MADRAS HIGH COURT HAS HELD THAT - AS LONG AS ALL THE FLATS ARE IN THE SAME ADDRESS / LOCATION, EVEN IF THEY AR E LOCATED IN SEPARATE BLOCKS OR TOWERS, IT DOES NOT ALTER THE PO SITION. IN THE INSTANT CASE, AFTER ALL, ALL THE FLATS ARE A PRODUC T OF ONE DEVELOPMENT AGREEMENT OF THE SAME PIECE OF LAND, THEREFORE, EVE N IF THE FLATS / APARTMENTS ARE IN DIFFERENT BLOCKS AND DIFFERENT TO WERS AS LONG AS THEY ARE IN SAME ADDRESS / LOCATION, IT DOES NOT DI SENTITLE THE ASSESSEE FROM GETTING THE BENEFIT OF SECTION 54-F O F THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). IN VIEW OF THIS JU DGMENT OF MADRAS HIGH COURT, ACCORDING TO THE LD. COUNSEL, THE DIREC TION GIVEN TO THE ASSESSING OFFICER TO FIND OUT WHETHER THE FLATS PUR CHASED BY THE ASSESSEE WOULD CONSTITUTE ONE UNIT OR NOT IS AN ERR OR WITHIN THE MEANING OF SECTION 254(2) OF THE ACT, SINCE THE JUD GMENT OF MADRAS HIGH COURT IN SHRI GUMANMAL JAIN WAS NOT CONSIDERED BY THIS TRIBUNAL. 3 M.P. NO.239/MDS/17 3. WE HEARD SHRI AR.V. SREENIVASAN, THE LD. DEPARTM ENTAL REPRESENTATIVE ALSO. ACCORDING TO THE LD. D.R., TH IS TRIBUNAL REMANDED BACK THE MATTER TO THE FILE OF THE ASSESSI NG OFFICER TO RECONSIDER THE ISSUE AFRESH IN THE LIGHT OF JUDGMEN T OF MADRAS HIGH COURT IN V.R. KARPAGAM (SUPRA). THEREFORE, THERE I S NO ERROR MUCH LESS PRIMA FACIE ERROR IN THE ORDER OF THIS TRIBUNAL. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THIS TRIBUNAL AT PARA 6 OF THE ORDER FOUND THAT IT WAS NOT CLEAR FRO M THE FACTS OF THE CASE WHETHER THE RESIDENTIAL UNITS PURCHASED BY THE ASSESSEE WERE COMPRISED IN ONE SINGLE UNIT OR NOT. IN VIEW OF TH E ABOVE, THE MATTER WAS SET ASIDE WITH A DIRECTION TO THE ASSESSING OFF ICER TO FIND OUT WHETHER THE FLATS PURCHASED BY THE ASSESSEE CONSTIT UTE ONE UNIT OR NOT. THE JUDGMENT OF MADRAS HIGH COURT IN SHRI GUM ANMAL JAIN (SUPRA), IN CATEGORICAL TERM SAYS THAT FLATS / APAR TMENTS, EVEN IF THEY ARE IN DIFFERENT BLOCKS OR DIFFERENT TOWERS, AS LON G AS THEY ARE IN SAME ADDRESS / LOCATION, IT DOES NOT DISENTITLE THE ASSESSEE FROM GETTING THE BENEFIT OF SECTION 54-F OF THE ACT. TH IS JUDGMENT OF MADRAS HIGH COURT WAS VERY MUCH AVAILABLE ON THE DA TE OF HEARING OF THIS APPEAL. THEREFORE, NON-CONSIDERATION OF TH E JUDGMENT OF JURISDICTIONAL HIGH COURT AMOUNTS TO ERROR WITHIN T HE MEANING OF 4 M.P. NO.239/MDS/17 SECTION 254(2) OF THE ACT. ACCORDINGLY, THE SAME N EEDS TO BE RECTIFIED. THEREFORE, THE ORDER OF THIS TRIBUNAL D ATED 22.06.2017 IS RECTIFIED AS FOLLOWS:- ON PAGE 4, PARA 6 OF THE ORDER IS DELETED. INSTE AD, THE FOLLOWING SHALL BE INSERTED AS PARA 6. 6. THE MADRAS HIGH COURT IN CIT V. SHRI GUMANMAL JAIN IN T.C.A. NO.33 OF 2017 FOUND THAT EVEN IF FLATS / APARTMENTS ARE IN DIFFERENT BLOCKS AND DIFFERENT TOWERS, AS LONG AS THEY ARE IN SAME ADDRESS / LOCATION, IT DOES NOT DISENTITLE THE ASSESSEE FROM GETTING THE BENEFIT OF SECTION 54-F O F THE ACT. IN THE CASE BEFORE US, IT IS NOT IN DISPU TE THAT THE FLATS ACQUIRED BY THE ASSESSEE ARE IN THE SAME ADDRESS AND LOCATION. THEREFORE, IN VIEW OF THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN SHRI GUMANMAL JAIN (SUPRA), THE ASSESSEE IS ENTITLED FOR BENEFIT OF SECTION 54-F OF THE ACT. ACCORDINGLY, T HE ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO GRANT DEDUCTION UNDER SECTION 54-F OF THE ACT. 5 M.P. NO.239/MDS/17 PARA 7 IN THE EXISTING ORDER IS DELETED. INSTEAD , THE FOLLOWING SHALL BE INSERTED AS PARA 7. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. 5. THE ORDER OF THIS TRIBUNAL DATED 22 ND JUNE, 2017 IS ACCORDINGLY RECTIFIED. 6. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED COURT ON 9 TH NOVEMBER, 2017 AT CHENNAI. SD/- SD/- (. !' ) ( ... ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) # / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 9 TH NOVEMBER, 2017. KRI. . )15% 6%'1 /COPY TO: 1. )*& / PETITIONER 2. )+*, /RESPONDENT 3. 0 71 () /CIT(A) 4. 0 71 /CIT 5. %8 )1 /DR 6. 9& : /GF.