AMIRALI AKBARALI ENGINEER,MUMBAI vs. ACIT 24(1), MUMBAI

आदेश / O R D E R Per Joginder Singh (Judicial Member) The assessee is aggrieved by the impugned order

dated 15/11/2016 of the Ld. First Appellate Authority,

Mumbai. The first ground raised by the assessee is with

respect to confirming the addition of Rs.1,07,54,234/-, on

account of Long Term Capital Gain, under section 54F of

the Income Tax Act, 1961 (hereinafter the Act).

explained that the assessee is a share holder of the

company M/s Rajdeep Realtors Pvt. Ltd., purchased

shares, which were sold for a consideration of

Rs.3,82,00,000/- and after claiming indexation of the cost

of purchase of shares invested the sale proceeds in flats

bearing number 1301, 1401 and 1502 in the building

known as Gaurav Palace, Kandivali(W) for a consideration

of Rs.2,63,79,011/-. The Ld. Assessing Officer disallowed

the claimed exemption of Flat No.1502 and allowed with

respect to Flats No.1301 and 1401. The Ld. counsel

explained that Flats No.1301 & 1401 were duplex for which

the claimed exemption was allowed and the exemption for

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the flat no.1502 was disallowed on the plea that this flat is

situated at different floor, by placing reliance upon the

decision of the Special Bench of the Tribunal in the case of

Income Tax Officer vs Ms. Sushila M. Jhaveri (2007) 107

ITD 321 (SB). The ld. counsel relied upon the decision from

Hon'ble High Court of Andhra Pradesh in CIT vs Syed Ali

Adil (352 ITR 418)(AP), Hon'ble Delhi High Court in CIT vs

Gita Duggal (357 ITR 153(Del.), Hon'ble Karnataka High

Court in CIT vs Smt. K. G. Rukminiamma 331 ITR 211

(Karn.). On the other hand, the Ld. DR, strongly defended

the impugned order by placing reliance upon the aforesaid

decision of the Special Bench of the Tribunal in the case of

Ms. Sushila M. Jhaveri ((supra)) and CIT vs Raman Kumar

Suri 255 CTR 107 (Bom.). It was contended that Flat

No.1502 is situated in the same building on 15th Floor,

therefore, deduction is not allowable as per the provision of

section 54F of the Act, only one unit/a house is to be

allowed.

2.1. We have considered the rival submissions and

perused the material available on record. The facts, in brief,

are that the assessee is engaged in the business of builder

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and developer, declared income of Rs.1,26,11,153/- in his

return filed on 31/08/2012. The case of the assessee was

selected for scrutiny, therefore, notice under section 143(2)

and 142(1) were issued and finally the assessment was

completed under section 143(3) of the Act, wherein,

addition of Rs.1,09,25,665/- was made. The assessee sold

5000 equity shares on a consideration of Rs.3,82,00,000/-,

as per the assessee, which resulted into Long Term Capital

Gain (hereinafter LTCG) of Rs.3,81,12,192/-. The assessee

invested the same by purchasing three flats on a

consideration of Rs.2,63,79,011/- including stamp duty,

registration fees and service tax on the new flats. The case

of the assessee is that triplex flats in the same building

were purchased and claimed deduction under section 54F

of the Act. The ld. Assessing Officer allowed the deduction

with respect to duplex flats consisting of Flat No. 1301 &

1401 and denied with respect to flat no.1502. The Ld.

counsel for the assessee explained that one agreement was

entered into with the builder with respect to Flat No.1201

but since it was sold to another party, the assessee, vide

Exchange Agreement, was allotted Flat No.1502. It was also

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explained that so far as the location of the flats is

concerned, it was got verified by the Ld. Assessing Officer.

2.2. If the observation made in the assessment order,

leading to addition made to the total income, conclusion

drawn in the impugned order, material available on record,

assertions made by the ld. respective counsel, if kept in

juxtaposition and analyzed, now question arises whether

the claimed deduction for Flat No.1502 is allowable to the

assessee and second question arose whether the decision of

the Special Bench of this Tribunal is to be followed or the

decision from non-jurisdictional High Court, relied upon by

the assessee. The stand of the Ld. DR is that firstly the

decision jurisdictional Tribunal has to be followed and

secondly the decision from Hon'ble Bombay High Court in

the case of CIT vs Raman Kumar Suri ((Supra)) has to be

preferred. We have perused these orders and find that the

Special Bench of the Tribunal in Ms. Sushila M. Jhaveri

(2007) 107 ITD 321 (SB) held as under:-

“Section 45, which is charging section, uses the expression ‘transfer of a capital asset’. Here the word ‘a’ means ‘every’, since capital gain of each capital asset has to be computed depending upon the period of holding. Exemption from the levy of capital gain tax is provided in sections 54, 54B, 54D, 54E, 54EA,

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54EB, 54F and 54H as is apparent from section 45 itself. A perusal of the provisions of sections 54, 54B, 54D, 54E, 54EA, 54EB and 54F clearly reveals that the Legislature has used the words ‘a’ and ‘any’ with reference to investment of capital gain/sale consideration in certain asset or assets. The Legislature was not oblivious regarding the meaning of these two words. The word ‘any’ has been used by the Legislature in sections 54B, 54D, 54E, 54EA and 54EB while the word ‘a’ has been used in sections 54 and 54F. This clearly shows that the Legislature intended different meanings to be given to these two words. A close reading of these sections shows that Legislature intended to allow exemption in respect of investment in more than one asset by using the word ‘any’. Section 54E allows exemption in respect of investment in any ‘specified asset’. Explanation 1 to section 54E defines the ‘specified asset’. It includes various assets in which investment can be made by the assessees who are eligible for exemption under section 54E. There is nothing to indicate that investment is restricted to any of the specified assets. Had the Legislature intended to restrict investment in any one of the specified assets, it would have used the words ‘in any one of the specified assets’ instead of ‘in any specified asset’. This clearly shows that the word ‘any’ has been used where the Legislature intended investment in more than one asset. Similarly, in section 54EB, the Legislature has used the words ‘in any of the assets specified by the Board’. Similar is the position in section 54EA. Section 54B and section 54D also use the word ‘any other land’ and ‘any other land and building’ respectively. The expression ‘any other land’ is an expression of widest amplitude and, therefore, its meaning cannot be restricted to any one piece of land. On the other hand, the Legislature has used the word ‘a’ in sections 54 and 54F. Had the Legislature intended for investment in more than one asset, it could have easily used the words ‘in any residential house’ in sections 54 and 54F instead of the words ‘a residential house’. Superfluous words are not used by the Legislature. Different words like ‘a’ and ‘any’ have been deliberately used by the Legislature to convey different meanings. Therefore, the Legislature used the word ‘a’, where it intended investment in one residential house only and used the word ‘any’, where it intended investment in one or more assets. [Para 8] Thus, the intention of the Legislature was to allow exemption under sections 54 and 54F in respect of investment in one single residential house. [Para 9] Therefore, the exemption under sections 54 and 54F would be allowable in respect of one residential house only. If the assessee has purchased more than one residential house, then the choice would be with assessee to avail the exemption in respect of either of the houses, provided the other conditions are fulfilled. However, where more than one unit are purchased

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which are adjacent to each other and are converted into one house for the purpose of residence by having common passage, common kitchen, etc., then it would be a case of investment in one residential house and consequently, the assessee would be entitled to exemption. [Para 11] In the instant case, the investment was made in two flats located at different localities in Mumbai. Accordingly, the assessee was entitled to exemption in respect of investment in one house only of her choice. The Assessing Officer had already allowed exemption in respect of house, which permitted higher exemption. Therefore, the order of the Commissioner (Appeals) was to be reversed on this issue and the order of Assessing Officer was to be restored. [Para 12]

While coming to the aforesaid conclusion, the Bench

also considered the following decisions:

� K.C. Kaushik v. P.B. Rane, Fifth ITO [1990] 185 ITR 499/ 51 Taxman 51 (Bom.) (para 1), � Ratanchand Murarka v. Jt. CIT [IT Appeal No. 4485 (M) of 1999, dated 12-9-2001] (para 1), � ITO v. Daulat Lutharia [IT Appeal No. 9639 (B) of 1989, dated 16-5-1996] (para 1), � ITO v. Bhupendra Patel [IT Appeal No. 70 (M) of 1995, dated 24-4-2002] (para 1), � Fulwanti C. Rathod v. ITO [IT Appeal No. 1092 (M) of 1995, dated 3-5-2002] (para 1), � ITO v. Nansi Kriti S. [IT Appeal No. 2954 (M) of 1995, dated 28-5-2005] (para 1), � Himmatlal H. Sheth v. ITO [IT Appeal No. 6761 (M) of 2002, dated 15-2-2005] (para 1), � Prabhakar S. Mogre v. Jt. CIT [IT Appeal No. 27 (M) of 2000, dated 2-5-2005] (para 1), � Dy. CIT v. Mohanlal K. Zaveri [IT Appeal No. 2747 (M) of 1998, dated 15-12-2005] (para 1), � Krishangopal Nagpal v. Dy. CIT [2004] 2 SOT 628 (Pune) (para 1), � Mrs. Gulshanbanoo R. Mukhi v. Jt. CIT [2002] 83 ITD 649 (Mum.) (para 1), � Mahomedally Tajbhoy v. CEPT [1951] 20 ITR 274 (Bom.) (para 5),

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� Dr. Anand Basappa v. ITO [2004] 91 ITD 53 (Bang.) (para 6), � CIT v. Natu Hansraj [1976] 105 ITR 43 (Guj.) (para 6), � CIT v. T.N. Aravinda Reddy [1979] 120 ITR 46/ 2 Taxman 541 (SC) (para 6), � Keshavji Raoji & Co. v. CIT [1990] 183 ITR 1/ 49 Taxman 87 (SC) (para 7) and � B.B. Sarkar v. CIT [1981] 132 ITR 150/ 7 Taxman 239 (Cal.) (para 10). 2.3. It is further noted that Hon'ble jurisdictional

High Court in CIT vs Raman Kumar Suri [2013] 29

taxmann.com 231 (Bombay)/[2013] 212 Taxman 411

(Bombay)/[2013] 255 CTR 257 (Bombay) held as under:-

“This appeal by the revenue under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as "the Act") challenges the order dated 30/4/2010 passed by the Income Tax Appellate Tribunal (hereinafter referred to as "the Tribunal") for the Assessment Year 2006-07. 2. Being aggrieved, the revenue has formulated the following questions of law for the consideration of this Court. (a) Whether the Tribunal was justified in approving the decision of Commissioner of Income Tax (Appeals) in deleting the addition of capital gain assessed in the hands of the assessee ignoring the fact that the Memorandum of Understanding entered into by the assessee with his brother is a personal arrangement between the brothers and the relinquishment of the assessee's share in favour of his brother is application of capital gain income which has arisen to the assessee? (b) Whether the Tribunal was justified in upholding the decision of the Commissioner of Income Tax (Appeals) in considering FMV as on 1/4/1981 estimated by the registered valuer ignoring the fact that rates adopted by the A.O. as from Nabhi's Guide to house to Delhi based on L& DO rates is more in consonance with the FMV? (c) Whether the Tribunal was justified in upholding the findings of the Commissioner of Income Tax (Appeals) to adopt the FMV as per register valuer ignoring the fact that the valuer has not given any reasons for not adopting the Government approved rates in

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absence of comparable sales instances? (d) Whether the Tribunal was justified in approving the decision of Commissioner of Income Tax (Appeal) to determine the cost inflation index of the property as on 1/4/1981 ignoring the fact that as per clause 3 of the inflation given in Section 48 of the Income Tax Act benefit of indexation can be given only from the year 1999 which is the year when the assessee inherited the property and became the owner and not from 1974? (e) Whether the Tribunal was justified in confirming the decision of Commissioner of Income Tax (Appeals) in allowing the exemption u/s. 54 for investment in two new flats viz. 416A and 516A by treating the same as one single unit ignoring the fact that the assessee purchased two different flats in the same society and converted them into one duplex flat? (f) Whether the Tribunal was justified in treating the two flats viz. 416A and 516A purchased by the assessee as one singular unit for the purpose of deduction under Section 54 and not as two separate and distinct units? Regarding Question -(a) : 3. (a) The respondent is an individual deriving income from salary, house property and other sources. For the Assessment Year 2006- 07, the respondent filed return of income declaring a total income of Rs. 2.25 crores and inter alia disclosed a long term capital gain from the sale of property at 3/35, Shanti Niketan, New Delhi. (New Delhi Property). The respondent and his brother had inherited New Delhi property from their mother in accordance with her Will dated 11/10/1987. This inherited property was sold by Deed of Conveyance dated 14/10/2005 for a consideration of Rs. 14 crores. (b) However, the total consideration of Rs. 14 crores was shared between the two brothers in accordance with Memorandum of Understanding in writing arrived at between them which provided that the respondent's brother would receive Rs. 1 crore more than the respondent's half share from the sale proceeds of New Delhi property. This understanding was reached between the brothers keeping in view the desire of their late father one Uttamchand Suri as recorded in his last Will and Testament dated 12/11/1968. Consequently, the sale consideration of Rs. 14 crores was distributed between the respondent and his brother at Rs. 6 crores and Rs. 8 crores respectively. (c) The Assessing Officer by his order dated 22/12/2008 held that the sale consideration of the inherited property has to be distributed between the two brothers at Rs. 7.00 crores each. This was on the basis that Rs. 1 crore received by respondent 's brother was in excess of that received by the respondent and is, in fact, an application of income received by the respondent and not diversion

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of income at source. Therefore, Assessment Order dated 22/12/2008 brought to tax the capital gain taxable in the hands of the respondent on the basis of the net consideration of Rs. 7 crores as against Rs. 6 crores declared by the respondent for sale of New Delhi property. (d) In appeal, the Commissioner of Income Tax (Appeals) held that the Memorandum of Understanding arrived at between the brothers is a legally binding document, which also finds mention in the sale deed dated 14/10/2005 under which New Delhi property was sold. The Commissioner of Income Tax (Appeals) held that by virtue of Memorandum of Understanding it is clear that the income of Rs. 1 crores was diverted before it reached the respondent and is thus not includable in the respondent's income. (e) In Appeal, the Tribunal by its order dated 30/4/2010 upheld the finding of the Commissioner of Income Tax (Appeals). The Tribunal also recorded the fact that the additional amount of Rs. 1 crores received by the brother of the respondent had been offered to tax by the brother and the same was duly accounted as his income under the head capital gain. The Tribunal observed that the assessment cannot be based on the perception of the Assessing officer that the assessee should have received Rs. 7 crores as sale consideration. The assessment can only be on the actual amount received by the assessee, the respondent assessee has sold his share in the New Delhi property at Rs. 6 crores only and that alone can be the sale consideration. (f) We find no fault with the order of the Tribunal. Both CIT(Appeals) as well as Tribunal have on consideration of all the facts involved, concluded as a finding of fact that the appellant had received only Rs. 6 crores for the sale of his rights in the New Delhi property and the same had been offered to tax. There is no provision to tax a person on the basis of the deemed income for the purpose of capital gain tax. This finding of the Tribunal as well as CIT(Appeals) has taken into consideration the Memorandum of Understanding reached between the brothers as well as the sale document dated 14/10/2005 which not only referred the Memorandum of Understanding but also shows that Rs. 6 crores is the consideration received by respondent for sale of his interest in the New Delhi property. In view of the above, we find that no substantial question of law arises with regard to question (a) above. Therefore, the appeal is dismissed with regard to question (a) above. Regarding Question (b) and (c) : 4. (a) For the purpose of computing capital gain tax to be paid by the respondent, the costs of acquisition at fair market value as on 1/4/1981 had to be determined. During the course of the assessment proceedings, the respondent had filed a valuation report dated 29/11/2005 with regard to the inherited New Delhi property by a registered valuer who is empanelled by the Income Tax Department. This valuation report dated 29/1/2005 showed the value of the

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inherited New Delhi property on 1/4/1981 at Rs. 47.74 lacs. During the course of the assessment proceedings, the Assessing officer took a view that the fair market value of the property has to be arrived at as per Nabhi's Guide to House Tax in New Delhi. The Assessing officer applied the Nabhi's Guide to house tax and held that the fair market value of the property on 1/4/1981 was Rs. 17.33 lacs and not Rs. 47.74 lacs as arrived at by empanelled registered valuer. Thus on the above basis of the fair market value as on 1/4/1981 being Rs. 17.33 lacs the capital gain was computed after indexation in the assessment order dated 22/12/2008. (b) In appeal the Commissioner of Income Tax (Appeals) by an order dated 4/5/2009 held that while determining the fair market value as on 1/4/1981 an element of estimation would creep in as one would have to envisage the existence of a hypothetical seller and a hypothetical buyer in a hypothetical market. The Commissioner of Income Tax (Appeals) held that the registered valuer's report could not be doubted as it explained the basis for adopting the value and the appellant had demonstrated that New Delhi property enjoyed a better value because of its location. The Commissioner of Income Tax (Appeals) held that Nabhi's Guide to House Tax was not applicable specially in view of the valuation report given by the registered valuer which has not been found to be incorrect. Consequently, the registered valuer's report valuing the New Delhi property at Rs. 47.74 lacs as its fair market value on 1/4/1981 was accepted and the fair market value of Rs. 17.33 as on 1/4/1981 as arrived at in the assessment order dated 22/12/2008 was not accepted. (c) In appeal, the Tribunal by its order dated 30/4/2010 upheld the finding of the Commissioner of Income Tax (Appeals). The Tribunal held that Nabhi's Guide to House Tax cannot be substituted for the valuation of the New Delhi property done by an empanelled valuer of the Income Tax Department for the purpose of valuation of the property. The Tribunal upheld the finding of the Commissioner of Income Tax (Appeals) that the valuation of a property differs depending upon its size, location, road frontage, corner plot etc. even in respect of two properties situated in the same locality. (d) No fault can be found with the order of the Tribunal upholding the order of the Commissioner of Income Tax (Appeals) that the valuation done by an empanelled registered valuer of the Income Tax Department would certainly take precedence over Nabhi's Guide to House Tax. The valuation done by the registered valuer is with regard to the specific property and takes into account its various advantages and disadvantages all of which influence the valuation of the property. As against the above, the Nabhi's Guide to House Tax is generalized guide and does not take into account the peculiar features of the property being valued. Moreover, the determination of the fair market value as on 1/4/1991 is a question of fact which has been examined by both the Commissioner of Income Tax (Appeals)

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as well as the Tribunal and both have concluded that the fair market value as estimated by the registered valuer at Rs. 47.74 lacs as on 1/4/1981 is acceptable. This finding of the authorities is neither perverse nor arbitrary so as to raise a substantial question of law. In view of the above, no substantial question of law arises with regard to question (b) and (c) above. Therefore, the appeal is dismissed with regard to question (b) and (c) above. Regarding question (d) :- 5. (a) It is an admitted position between the Advocates that Question (d) is covered in favour of the respondent-assessee and against the revenue by the decision of this Court in the matter of CIT v. Manjula J. Shah [2012] 204 Taxman 691/[2011] 16 taxmann.com 42. (b) In view of the above, question (d) does not give rise to any substantial question of law and the same is dismissed. Regarding question (e) and (f) :- 6. (a) The respondent in his return of income for the assessment year 2006-07 had claimed a deduction of Rs. 3 crores under Section 54 of the Act being the investment made for purchase of flat Nos. 416A and 516A at Mittal Park, Juhu, Mumbai. The Assessing officer in his assessment order dated 22/12/2008 restricted the exemption under Section 54 to only Rs. 1.34 crores on the ground that the exemption is allowable only in respect of investment in one residential house only. Further the fact that two flats had been joined and made into one flat would not be considered to be purchase of one flat but would be purchase of two separate flats. Consequently, the Assessing officer restricted the exemption to only Rs. 1.45 crores as according to him Section 54 of the Act exempts investment in a residential house i.e. one residential house only. (b) In appeal, the Commissioner of Income Tax (Appeals) by his order dated 4/5/2009 held that the respondent herein is entitled to the benefit of exemption under Section 54 of the Act to the extent of Rs.3 crores as claimed in the return of income. This was on the basis that the respondent herein had produced a Certificate of Co-operative Society that two flats were inter connected by internal stair case. The site plan was also submitted inter alia showing only one entrance gate and one kitchen. The duplex flat Nos. 416A and 516A was purchased on as is and where is basis and the assessee had not joined the said two flat internally after acquiring the flats. The flats were inter connected by the previous owner only and therefore, the fact that there were two different flats was immaterial as Section 54 grants exemption to a residential house and unit. The Commissioner of Income Tax (Appeals) had reached a finding of fact was that two flats were joined into one single flat before the respondent became its owner and was one residential house. (c) On an appeal filed by the revenue, the Tribunal by its order dated 30/4/2010 upheld the findings of Commissioner of Income Tax

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(Appeals) dated 4/5/2009. The Tribunal also followed the Special Bench decision of the Tribunal in the matter of ITO v. Ms. Sushila M. Jhaveri [2007] 107 ITD 327 (Mum.) to hold that where two flats bearing Nos. 416A and 516A had only one entrance, one kitchen and common passage it has to be considered as one residential house and the respondent was entitled to exemption for the aggregate consideration of Rs. 3 crores under Section 54 of the Act. (d) We find no fault with the order of the Tribunal which has upheld the finding of fact of the Commissioner of Income Tax (Appeals) to the effect though the respondent-assessee had purchased flat Nos. 416A and 516A it was only purchase of one residential house. Further, the Tribunal held that two flats were joined together before the respondent assessee became the owner of the two flats. The Certificate from the society also established the fact that two flat Nos. 416A and 516A were joined together and were considered as one residential house. These concurrent findings of fact by the Commissioner of Income Tax (Appeals) and the Tribunal have not been shown to be perverse or arbitrary. Further, Section 54 of the Act exempts capital gain to the extent the consideration is paid for the purpose of a residential house. Consequently, where respondent- assessee has acquired one residential house consisting of two flats, it cannot be said the respondent assessee had purchased two residential houses. In view of the above, we find that question (e) and (f) also do not raise any substantial question of law. Therefore, the appeal is dismissed with regard to question (e) and (f) above. 7. In view of the above, the appeal is dismissed with no order as to costs.” 2.4. We further note that Hon'ble Andhra Pradesh

High Court in CIT vs Syed Ali Adil (2013) 352 ITR 418 (AP),

considering the decision of the Special Bench of the

Tribunal, relied upon by the Ld. DR along with various

other decisions held as under:-

“This appeal is filed under section 260-A of the Income Tax Act, 1961 (for short 'the Act') by the Revenue challenging the order dated 09-09-2011 in I.T.A.No.284/Hyd/2011 of the Income Tax Appellate Tribunal, Hyderabad Bench "B", Hyderabad. 2. The respondent is an individual assessee. He filed his return of income for the assessment year 2007-08 on 31-08-2007 with the Assistant Commissioner of Income Tax, Circle-VI (1), Hyderabad admitting therein a net income of Rs. 43,97,840/-. The said return

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was processed under section 143(1) of the Act on 24-02-2009. Meanwhile, the case was taken up for scrutiny by issuing notice dt.25-08-2008 under section 143(2) of the Act. A notice dt.15-06- 2009 under section 142(1) was issued calling for various details. 3. Before the Assessing Officer, the assessee offered under the head, long term capital gains, a sum of Rs. 41.00 lakhs contending that he had inherited an ancestral house property which was sold during the year under consideration and the resultant long term capital gains were offered from sale of the said house; that he had taken the sale consideration of Rs.1,99,50,000/- for arriving at the capital gains even though the sale deed mentioned the sale consideration as Rs. 2,66,00,000/-; that out of the sale consideration he had purchased two flats in Mayfair Apartment, Banjara Hills, Hyderabad and he is entitled to claim deduction/exemption under section 54 of the Act for an amount of Rs.93,80,192/- and that in view of the decision in CIT v. D. Ananda Basappa [2009] 309 ITR 329/180 Taxman 4 (Kar.), even though section 54 mentions that the proceeds should be invested in "a residential house", it being a beneficial provision, it should be construed liberally and the deduction cannot be restricted to only one residential house and it should be extended to the purchase of two adjacent residential flats. 4. The Assessing Officer by order dt.25-08-2009 held that the assessee is not entitled to claim exemption in respect of Rs.93,80,192/- but only to the extent of Rs.45,52,860/- comprising of consideration of Rs.42,36,000/- and a stamp duty of Rs.3,16,860/- utilized for investment on one of the flats by the assessee on the ground that the inspection report of the I.T.I. deputed by the Assessing Officer showed that what was purchased were two residential units separated by a strong wall; that they were purchased from two different vendors under two separate sale deeds and as such the deduction under section 54 has to be restricted to only one flat. 5. Aggrieved thereby, the assessee filed an appeal to the CIT (Appeals), Guntur. He allowed the appeal by order dt.13-10-2010 holding that the Assessing Officer had acted too technically and had erroneously denied the assessee the deduction to the extent of 50% and that since the assessee had purchased two flats having adjacent kitchens and toilets which have a common meeting point, he is entitled to 100% deduction under section 54 for both the flats purchased by him. 6. Challenging the same, the Revenue filed I.T.A.No.284/Hyd/2011 to the Income Tax Appellate Tribunal. By order dt.09-09-2011, the Tribunal dismissed the appeal of the Revenue on the ground that it had consistently taken the view that even though flats are located at different floors, when they could be combined, it should be construed as a single residential

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accommodation only; that the said view is supported by the decisions of the Tribunal reported in K.G. Vyas v. Seventh ITO [1986] 16 ITD 195 (Bom.), ITO v. P.C. Ramakrishna, (HUF) [2007] 108 ITD 251 (Chennai) and Prem Prakash Bhutani v. Asstt. CIT [2009] 31 SOT 38 (Delhi) (URO) 7. Challenging the same, the Revenue has filed the present appeal. 8. Heard Sri B. Narasimha Sarma, learned Standing Counsel for the Income Tax Department at the stage of admission. 9. He contended that the deduction under section 54 of the Act is allowable only for one residential house and not for more than one residential house and that the Tribunal erred in holding that the deduction under section 54 of the Act is allowable for two independent residential flats in the same complex. He also placed reliance on the decision of the Special Bench of the Tribunal in ITO v. Ms. Sushila M. Jhaveri [2007] 107 ITD 327 (Mum.) 10. We see no force in the said contention. As held in D. Ananda Basappa's case (supra) by the Karnataka High Court, the expression "a residential house" in section 54 (1) of the Act has to be understood in a sense that the building should be of residential nature and "a" should not be understood to indicate a singular number and where an assessee had purchased two residential flats, he is entitled to exemption under section 54 in respect of capital gains on sale of its property on purchase of both the flats, more so, when the flats are situated side by side and the builder has effected modification of the flats to make it as one unit, despite the fact that the flats were purchased by separate sale deeds. This decision was followed by the Karnataka High Court in CIT v. Smt. K.G. Rukminiamma [2011] 196 Taxman 87/[2010] 8 taxmann.com 121 (Kar.) where a residential house was transferred and four flats in a single residential complex were purchased by the assessee, it was held that all four residential flats constituted "a residential house" for the purpose of section 54 and that the four residential flats cannot be construed as four residential houses for the purpose of section 54. Admittedly the two flats purchased by the assessee are adjacent to one another and have a common meeting point. In the impugned order, the Tribunal has also relied upon the decisions in K.G. Vyas's case (supra), P.C. Ramakrishna, HUF's case (supra) and PremPrakash Bhutani's case (supra) wherein it was held that exemption under section 54 only requires that the property should be of residential nature and the fact that the residential house consists of several independent units cannot be an impediment to grant relief under section 54 even if such independent units were on different floors. The decision in Ms.Suseela M.Jhaveri's case (supra) holding that only one residential house should be given the relief under section 54 does not appear to be correct and we disapprove of it. We agree with the interpretation placed on section

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54 by the High Court of Karnataka in D. Ananda Basappa's case (supra) and Smt. K.G. Rukminiamma's case (supra) and the decisions of the Mumbai, Chennai and Delhi Benches of the Tribunal in K.G. Vyas (supra), P.C. Ramakrishna,HUF (supra) and Prakash Bhutani (supra). We therefore hold that the CIT (Appeals) was correct in setting aside the order of the Assessing Officer and the Tribunal rightly confirmed the decision of the CIT (Appeals). 11. We hold that no substantial question of law arises for consideration in this appeal and the same is accordingly dismissed. No costs.” 2.5. We further note that Hon'ble Delhi High Court in

CIT vs Gita Duggal (357 ITR 153)(Del.) considering the

decision in CIT vs B. Ananda Basappa (2009) 309 ITR 329

held as under:-

“The revenue has filed the appeal under Section 260A of the Income Tax Act, 1961 against the order dated 07.06.2001 passed by the Income Tax Appellate Tribunal in ITA 3613/Del./2010 for the assessment year 2007-08. 2. The assessee which is the respondent in the appeal is an individual. In the computation of income filed along with the return of income, she declared long term capital gains of Rs. 2,68,25,750/- in the following manner :- "Income from Capital Gain Long Term A 22 WESTEND COLONY Consideration as per Collaboration Agreement 40,000,000.00 Less Index cost for pur. of Rs. 1575000 (Fair Value as on 1-04-81) 8,174,250.00 31,825,750.00 Less : Exemption under section 54EC (REC Bonds) 5,000,000.00 26,825,750.00" While completing the assessment the assessing officer took the view that on the terms of the agreement entered into with M/s Thapar Homes Ltd. on 08.05.2006, the cost of construction of the building incurred by the aforesaid company which was the developer of the property would also be included in the total sale consideration. The assessee responded by submitting that the entire cost of

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construction was incurred by the builder and even if it is considered as part of the sale consideration, since it has been fully invested in the residential house itself, the same would be exempt under Section 54 of the Act. The assessing officer did not accept the assessee's submission. He therefore, added an amount of Rs. 3,43,72,529/- which was the cost of construction incurred by the developer to the sale consideration of Rs. four crores received by the assessee and computed the total sale consideration at Rs. 7,43,72,529/-. 3. Dealing with the assessee's contention that in any case the sale consideration should be taken as having been invested in the new residential house and thus exempt under Section 54, which was supported by a judgment of the Karnataka High Court in CIT v. D. Ananda Basappa [2009] 309 ITR 329/180 Taxman 4, the assessing officer held that the two floors which were given to the assessee by the developer and on which the developer had incurred construction cost were independent of each other and self- contained and therefore they cannot be considered as one unit of residence. Accordingly, he held that the assessee was not eligible for the exemption under Section 54. Dealing with the claim for relief under Section 54F, the assessing officer held that the exemption would be available only in respect of one unit, since the two residential units were independent of each other and the assessee cannot therefore claim exemption on the footing that both constituted a single residence. In this view of the matter he recomputed the capital gains by making an addition of Rs. 98,20,722/-. 4. On appeal, the CIT(Appeals) agreed with the assessee's contention and following the judgment of the Karnataka High Court cited above, held that the assessee was eligible for the deduction under Section 54 in respect of the basement, ground floor, first floor and the second floor. He accordingly, allowed the appeal. 5. The revenue carried the matter in appeal before the Tribunal and raised the following ground :- "On the facts and on the circumstances of the case Ld. Commissioner of Income Tax (Appeals) has erred in law and on the facts in deleting the addition of Rs. 98,20,722/- u/s. 54F of the IT Act, 1961 which the Assessing Officer had allowed in respect of only one unit by treating the units as two separate residential properties. " The Tribunal confirmed the decision of the CIT (Appeals) by observing as under: - "6. We have heard the rival contentions in light of the material produced and precedent relied upon. We find that ld. counsel of the assessee submitted that the issue is squarely covered in favour of the assessee by the decision of the Hon'ble Karnataka High Court

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in the case of CIT & Anr.v. Smt. K.G. Rukminiamma in ITA No.783 of 2008 vide order dated 27.8.2010 wherein it was held as under :- "The context in which the expression 'a residential house' is used in Section 54 makes it clear that, it was not the intention of the legislation to convey the meaning that: it refers to a single residential house, if, that was the intention, they would have used the word "one." As in the earlier part, the words used are buildings or lands which are plural in number and that: is referred to as "a residential house", the original asset. An asset newly acquired after the sale of the original asset also can be buildings or lands appurtenant thereto, which also should be "a residential house." Therefore the letter 'a' in the context it is used should not be construed as meaning "singular." But, being an indefinite article, the said expression should be read in consonance with the other words 'buildings' and 'lands' and, therefore, the singular 'a residential house' also permits use of plural by virtue of Section 13(2) of the General Clauses Act. CIT v. D. Ananda Bassappa [2009] 223 (kar) 186 : [2009] 20 DTR (Kar) 266 followed. " 7. Upon careful consideration, we find that the contentions of the assessee that the issue is covered in favour of the assessee are correct. 7.1 Ld. Departmental Representative could not controvert the above and no contrary decision was cited before us. 8. Accordingly, we do not find any infirmity or illegality in the order of the Ld. Commissioner of Income Tax (Appeals) and hence, uphold the same." 6. In the present appeal before us, the revenue has proposed the following questions as substantial questions of law which in its opinion arise out of the order of the Tribunal. "(A) Whether the Hon'ble ITAT has erred in deleting the addition of Rs. 98,20,772/- under section 54F of the Income Tax Act, 1961 as made by the Assessing Officer? (B) Whether the Hon'ble ITAT has erred in law and facts in holding that the assessee should be given deduction under section 54 of the Income Tax Act, 1961?" 7. We have considered the facts and taken note of the rival submissions. To complete the narration of facts, it needs to be noticed that the assessee was the owner of property at A/22, Westend Colony, New Delhi comprising of the basement, ground floor, first floor and second floor. She was deriving rental income from the property. On 08.05.2006 she entered into a collaboration agreement with M/s Thapar Homes Ltd. for developing the property. According to its terms, the assessee being desirous of getting the property redeveloped/reconstructed and not being possessed of

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sufficient finance and lacking in experience in construction, approached the builder to develop the property for and on behalf of the owner at the cost of the builder. The builder was to demolish the existing structure on the plot of land and develop, construct, and/or put up a building consisting of basement, ground floor, first floor, second floor and third floor with terrace at its own costs and expenses. In addition to the cost of construction incurred by the builder on development of the property, a further payment of Rs. four crores was payable to the assessee as consideration against the rights of the assessee. The builder was to get the third floor. The assessee accordingly handed over vacant physical possession of the entire property along with 22.5% undivided interest over the land. The handing over of possession of the entire property was however only for the limited purpose of development; the undivided interest in the land stood transferred to the developer/builder only to the extent of 22.5% for his exclusive enjoyment. It was on these facts that the assessing officer first took the view that the sale consideration for the transfer of the capital asset should be taken not merely at Rs. four crores which was the cash amount received by the assessee, but the cost of construction incurred by the developer on the development of the property amounting to Rs. 3,43,72,529/- should also be added to the sale consideration. The assessee thereupon claimed that if the cost of construction incurred by the builder is to be added to the sale price, then the same should also be correspondingly taken to have been invested in the residential house namely the two floors which the assessee was to get in addition to the cash amount under the agreement with the builder, and the amount so spent on the construction should be allowed as deduction under Section 54 of the Act. It was at this stage that the assessing officer rejected the claim for deduction under Section 54 on the footing that the two floors obtained by the assessee contained two separate residential units having separate entrances and cannot qualify as a single residential unit. He agreed that the assessee was eligible for the relief under Section 54F in respect of the cost of construction incurred on one unit. He noted that the assessee has retained the ground floor and the basement. He therefore, apportioned the construction cost of Rs. 3,43,72,529/- to have been incurred on the basement, ground floor, first floor and second floor in the ratio of 1:1:1:0.5 for second floor, first floor, ground floor, basement respectively. Since he was allowing the relief under Section 54F of the Act only in respect of one unit, he added Rs. 98,20,722/- which is the figure arrived at by dividing the total cost of construction of Rs. 3,43,72,529/- by 3.5. This is how the assessment was made. What in effect the assessing officer had done was to reject the assessee's claim for deduction under Section 54/54F of the Act in respect of the house/units in the first and second floors holding that they were separate and independent residential units having separate entrances and cannot be considered as one unit to enable the assessee to claim the deduction. This was disapproved by the CIT(Appeals) on the basis

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of the judgment of the Karnataka High Court (supra) and his decision was approved by the Tribunal. The Tribunal expressed the view that the words "a residential house" appearing in Section 54/54F of the Act cannot be construed to mean a single residential house since under Section 13(2) of the General Clauses Act, a singular includes plural. 8. It is the correctness of the above view that is questioned by the revenue and it is contended that the interpretation placed by the Tribunal gives rise to a substantial question of law. The assessee strongly relies upon the judgment of the Karnataka High Court (supra) which, it is stated, has become final, the special leave petition filed by the revenue against the said decision having been dismissed by the Supreme Court as reported in the annual digest of Taxman publication. The judgment of the Karnataka High Court supports the contention of the assessee. An identical contention raised by the revenue before that Court was rejected in the following terms : "A plain reading of the provision of section 54(1) of the Income- tax Act discloses that when an individual-assessee or Hindu undivided family- assessee sells a residential building or lands appurtenant thereto, he can invest capital gains for purchase of residential building to seek exemption of the capital gains tax. Section 13 of the General Clauses Act declares that whenever the singular is used for a word, it is permissible to include the plural. The contention of the Revenue is that the phrase "a" residential house would mean one residential house and it does not appear to the correct understanding The expression "a" residential house should be understood in a sense that building should be of residential in nature and "a" should not be understood to indicate a singular number. The combined reading of sections 54(1) and 54F of the Income-tax Act discloses that, a non residential building can be sold, the capital gain of which can be invested in a residential building to seek exemption of capital gain tax. However, the proviso to section 54 of the Income-tax Act, lays down that if the assessee has already one residential building, he is not entitled to exemption of capital gains tax, when he invests the capital gain in purchase of additional residential building." This judgment was followed by the same High Court in the decision in CIT v. Smt K.G. Rukminiamma [2011] 196 Taxman 87/[2010] 8 taxmann.com 121 (Kar.). 9. There could also be another angle. Section 54/54F uses the expression "a residential house". The expression used is not "a residential unit". This is a new concept introduced by the assessing officer into the section. Section 54/54F requires the assessee to acquire a "residential house" and so long as the assessee acquires a building, which may be constructed, for the sake of convenience, in such a manner as to consist of several units which can, if the

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need arises, be conveniently and independently used as an independent residence, the requirement of the Section should be taken to have been satisfied. There is nothing in these sections which require the residential house to be constructed in a particular manner. The only requirement is that it should be for the residential use and not for commercial use. If there is nothing in the section which requires that the residential house should be built in a particular manner, it seems to us that the income tax authorities cannot insist upon that requirement. A person may construct a house according to his plans and requirements. Most of the houses are constructed according to the needs and requirements and even compulsions. For instance, a person may construct a residential house in such a manner that he may use the ground floor for his own residence and let out the first floor having an independent entry so that his income is augmented. It is quite common to find such arrangements, particularly post-retirement. One may build a house consisting of four bedrooms (all in the same or different floors) in such a manner that an independent residential unit consisting of two or three bedrooms may be carved out with an independent entrance so that it can be let out. He may even arrange for his children and family to stay there, so that they are nearby, an arrangement which can be mutually supportive. He may construct his residence in such a manner that in case of a future need he may be able to dispose of a part thereof as an independent house. There may be several such considerations for a person while constructing a residential house. We are therefore, unable to see how or why the physical structuring of the new residential house, whether it is lateral or vertical, should come in the way of considering the building as a residential house. We do not think that the fact that the residential house consists of several independent units can be permitted to act as an impediment to the allowance of the deduction under Section 54/54F. It is neither expressly nor by necessary implication prohibited. For the above reasons we are of the view that the Tribunal took the correct view. No substantial question of law arises for our consideration. The appeal is accordingly dismissed with no order as to costs.” 2.6. In the light of the above decisions, it is our

bounded duty to examine section 54F of the Act as was

applicable during the impugned Assessment Year, which is

reproduced hereunder:-

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54F. (1) [Subject to the provisions of sub-section (4), where, in the case of an assessee being an individual or a Hindu undivided family], the capital gain arises from the transfer of any long-term capital asset, not being a residential house (hereafter in this section referred to as the original asset), and the assessee has, within a period of one year before or [two years] after the date on which the transfer took place purchased, or has within a period of three years after that date constructed, a residential house (hereafter in this section referred to as the new asset), the capital gain shall be dealt with in accordance with the following provisions of this section, that is to say,— (a ) if the cost of the new asset is not less than the net consideration in respect of the original asset, the whole of such capital gain shall not be charged under section 45 ; (b ) if the cost of the new asset is less than the net consideration in respect of the original asset, so much of the capital gain as bears to the whole of the capital gain the same proportion as the cost of the new asset bears to the net consideration, shall not be charged under section 45: [Provided that nothing contained in this sub-section shall apply where— (a ) the assessee,— (i) owns more than one residential house, other than the new asset, on the date of transfer of the original asset; or (ii) purchases any residential house, other than the new asset, within a period of one year after the date of transfer of the original asset; or (iii) constructs any residential house, other than the new asset, within a period of three years after the date of transfer of the original asset; and (b ) the income from such residential house, other than the one residential house owned on the date of transfer of the original asset, is chargeable under the head "Income from house property".] Explanation.—For the purposes of this section,— 5 [***] 6 [***] "net consideration", in relation to the transfer of a capital asset, means the full value of the consideration received or accruing as a result of the transfer of the capital asset as reduced by any expenditure incurred wholly and exclusively in connection with such transfer. (2) Where the assessee purchases, within the period of 7 [two years] after the date of the transfer of the original asset, or constructs, within the period of three years after such date, any residential house, the income from which is chargeable under the head "Income from house property", other than the new asset, the amount of capital gain arising from the transfer of the original asset not charged under section 45 on the basis of the cost of such new asset as provided in clause (a), or, as the case may be, clause (b), of sub-section (1), shall be deemed to be income chargeable under the head "Capital gains" relating to long-term capital assets of the previous year in which such residential house is purchased or constructed. (3) Where the new asset is transferred within a period of three years from the date of its purchase or, as the case may be, its construction, the amount of capital gain arising from the transfer of the original asset not charged under section 45 on the basis of the cost of such new asset as provided in clause (a) or, as the case may be, clause (b), of sub-section (1) shall be deemed to be income chargeable under the head "Capital gains"

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relating to long-term capital assets of the previous year in which such new asset is transferred.] [(4) The amount of the net consideration which is not appropriated by the assessee towards the purchase of the new asset made within one year before the date on which the transfer of the original asset took place, or which is not utilised by him for the purchase or construction of the new asset before the date of furnishing the return of income under section 139, shall be deposited by him before furnishing such return [such deposit being made in any case not later than the due date applicable in the case of the assessee for furnishing the return of income under sub-section (1) of section 139] in an account in any such bank or institution as may be specified in, and utilised in accordance with, any scheme 9 which the Central Government may, by notification in the Official Gazette, frame in this behalf and such return shall be accompanied by proof of such deposit ; and, for the purposes of sub-section (1), the amount, if any, already utilised by the assessee for the purchase or construction of the new asset together with the amount so deposited shall be deemed to be the cost of the new asset : Provided that if the amount deposited under this sub-section is not utilised wholly or partly for the purchase or construction of the new asset within the period specified in sub-section (1), then,— (i ) the amount by which— (a) the amount of capital gain arising from the transfer of the original asset not charged under section 45 on the basis of the cost of the new asset as provided in clause (a) or, as the case may be, clause (b) of sub- section (1), exceeds (b) the amount that would not have been so charged had the amount actually utilised by the assessee for the purchase or construction of the new asset within the period specified in sub-section (1) been the cost of the new asset, shall be charged under section 45 as income of the previous year in which the period of three years from the date of the transfer of the original asset expires ; and (ii ) the assessee shall be entitled to withdraw the unutilised amount in accordance with the scheme aforesaid. Explanation.— [Omitted by the Finance Act, 1992, w.e.f. 1-4-1993.]]

Later vide Finance Act, 2014 w.e.f. 01/04/2015,

section 54F was amended and a word ‘a residential house’

was substituted with ‘one residential house’.

2.7. If the aforesaid section is analyzed section

54/54F uses the expression 'a residential house' as was

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applicable during the impugned Assessment Year. The

expression used is not 'a residential unit'. This is a new

concept introduced by the Assessing Officer into the

section. Section 54/54F requires the assessee to acquire a

'residential house' and so long as the assessee acquires a

building, which may be constructed, for the sake of

convenience, in such a manner as to consist of several

units which can, if the need arises, be conveniently and

independently used as an independent residence, the

requirement of the section should be taken to have been

satisfied. There is nothing in these sections which require

the residential house to be constructed in a particular

manner. The only requirement is that it should be for the

residential use and not for commercial use. If there is

nothing in the section which requires that the residential

house should be built in a particular manner, it seems that

the income-tax authorities cannot insist upon that

requirement. A person may construct a house according to

his plans and requirements. Most of the houses are

constructed according to the needs and requirements and

even compulsions. For instance, a person may construct a

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residential house in such a manner that he may use the

ground floor for his own residence and let out the first floor

having an independent entry so that his income is

augmented. It is quite common to find such arrangements,

particularly post-retirement. One may build a house

consisting of four bedrooms (all in the same or different

floors) in such a manner that an independent residential

unit consisting of two or three bedrooms may be carved out

with an independent entrance so that it can be let out. He

may even arrange for his children and family to stay there,

so that they are nearby, an arrangement which can be

mutually supportive. He may construct his residence in

such a manner that in case of a future need he may be able

to dispose of a part thereof as an independent house. There

may be several such considerations for a person while

constructing a residential house. Therefore, one cannot see

how or why the physical structuring of the new residential

house, whether it is lateral or vertical, should come in the

way of considering the building as a residential house. The

fact that the residential house consists of several

independent unit cannot be permitted to act as an

ITA NO.289/Mum/2017 26 Amirali Akbarali Engineer

impediment to the allowance of the deduction under

section 54/54F. It is neither expressly nor by necessary

implication prohibited. The context in which the expression

'a residential house' is used in Section 54 makes it clear

that, it was not the intention of the legislation to convey the

meaning that: it refers to a single residential house, if, that

was the intention, they would have used the word "one." As

in the earlier part, the words used are buildings or lands

which are plural in number and that: is referred to as "a

residential house", the original asset. An asset newly

acquired after the sale of the original asset also can be

buildings or lands appurtenant thereto, which also should

be "a residential house." Therefore the letter 'a' in the

context it is used should not be construed as meaning

"singular." But, being an indefinite article, the said

expression should be read in consonance with the other

words 'buildings' and 'lands' and, therefore, the singular 'a

residential house' also permits use of plural by virtue of

Section 13(2) of the General Clauses Act. CIT v. D. Ananda

Bassappa[2009] 223 (kar) 186 : [2009] 20 DTR (Kar) 266

followed. In the present appeal, no doubt flat No.1502 is

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situated at 15th Floor while the other flats were situated on

13th & 14th Floor of the same building and the claimed

deduction was rejected by the Ld. Assessing Officer with

respect to flat situated in 15th Floor by holding that it is

separate and residential unit having separate entrance,

therefore, it is a separate unit, consequently, cannot be

considered as one unit to enable the assessee to claim the

deduction. The fact remains that all the three flats are in

the same building and also are situated on floors above

each other i.e. 13th, 14th & 15th Floor, while the flats at 13th

& 14th Floor are duplex flats joined with each other but the

fact remains the third flat is situated on the immediate

next floor i.e. 15th floor of the same building which is in the

immediate vicinity. This question has been settled by

Hon'ble Delhi High Court in the aforesaid order in CIT vs

Gita Duggal ((supra)) and also by Hon'ble By Karnataka

High Court ((supra)). It is further noted that the SLP, filed

by the Revenue was dismissed by Hon'ble Apex Court. The

only requirement, as per the section, is that it should be a

residential house and there is nothing in the section which

requires that the residential house should be built in a

ITA NO.289/Mum/2017 28 Amirali Akbarali Engineer

particular manner. A person may construct a house

according to his requirements/needs and sometime due to

compulsions. There may be several such consideration for

a person while constructing a residential house. Identical

ratio was laid down by Hon'ble Karnataka High Court in

CIT vs Smt. KG. Rukminamma (2011) 331 ITR 211

(Karnataka). So far as, the decision from Hon'ble

jurisdictional High Court in CIT vs Raman Kumar Suri is

concerned, it was decided rather in favour of the assessee,

wherein, two flats were interconnected as one residential

unit, wherein, exemption was disallowed on different facts.

This decision is dated 27/11/2012, whereas, the decision

in the case of CIT vs Syed Ali Adil is of later date and the

decision in CIT vs Gita Duggal is of 21/02/2013. The facts

of the case of the present assessee are similar to the facts

in Gita Duggal (decided by Hon'ble Delhi High Court) and

the cases from Hon'ble Karnataka High Court. Thus,

considering the totality of facts and the aforesaid decisions,

this ground of the assessee is allowed.

the addition of Rs.1,50,000/- on account of loss under the

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head ‘Income from House Property”. It was explained that

the interest was paid to the bank and the Ld. Assessing

Officer has mixed up this issue, therefore, it requires

verification. It was pointed out that for Assessment Year

2014-15 and 2015-17 (pages 171to 175 and 180-184 of the

paper book) identically it was allowed by the Ld. Assessing

Officer. The Ld. DR though defended the addition but did

not object if the issue is again verified. Considering the

totality of facts, and the assertions made from both sides,

we direct the Ld. Assessing Officer to examine the factual

matrix and then decide in accordance with law. The

assessee be given opportunity of being heard. Thus, this

ground is allowed for statistical purposes.

Rs.21,430/- on account of expenses under the head

business income was not pressed by the Ld. counsel for the

assessee, therefore, it is dismissed as not pressed.

demand of Rs.49,04,380/-, as per the assessee, there is

calculation mistake. The assessee is directed to furnish the

ITA NO.289/Mum/2017 30 Amirali Akbarali Engineer

necessary evidence to substantiate its claim. The Ld.

Assessing Officer is directed to verify the claim of the

assessee and if any calculation mistake is found, the same

may be directed to be verified/corrected. Otherwise, the ld.

Assessing Officer may decide in accordance with law, thus,

this ground of the assessee is allowed for statistical

purposes.

Finally, the appeal of the assessee is partly allowed for

statistical purposes.

This order was pronounced in the open court in the

presence of ld. representative from both sides at the

conclusion of the hearing on 01/10/2018.

Sd/- Sd/- (Ramit Kochar) (Joginder Singh) लेखा सद�य / ACCOUNTANT MEMBER �या�यक सद�य /JUDICIAL MEMBER

मुंबई Mumbai; �दनांक Dated : 01/10/2018

f{x~{tÜ? P.S/.�न.स.

आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to :

ITA NO.289/Mum/2017 31 Amirali Akbarali Engineer

आदेशानुसार/ BY ORDER,

उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील�य अ�धकरण, मुंबई / ITAT, Mumbai