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Income Tax Appellate Tribunal, H Bench, Mumbai
Before: Shri Manoj Kumar Aggarwal & Shri Ravish Sood
O R D E R
Per Ravish Sood, JM
The present appeal filed by the revenue is directed against the order passed by the CIT(A)-34, Mumbai, dated, 27.03.2017, which in turn arises from the order passed by the A.O under Sec. 143(3) of the Income Tax Act, 1961 (for short ‘Act’), dated 27.03.2015. The revenue assailing the order of the CIT(A) has raised before us the following grounds of appeal:
On the facts and in the circumstances of the case and in law, the Ld. CIT(A) “(1) erred in allowing the exemption under section 54 of the Income Tax Act. 1961 to the assessee, as the exemption under section 54 of the Act is applicable for one unit only whereas the assessee has purchased four units independently which is a violation of Section 54 of the Income Tax Act, 1961. (2) The appellant prays that the order of the CIT(A) on the above ground be set aside and that of the A.O. be restored. (3) The appellant craves leave to amend or alter any ground or add a new ground, which may be necessary.”
P a g e | Income Tax Officer Wd. 22(2)(1) Vs. Ms. Kanchan Kamlesh Bhatija 2. Briefly stated, the assessee had e-filed her return of income on 22.03.2013, declaring total income at Rs.12,21,180/-. The return of income was processed as such under Sec. 143(1) of the Act. Subsequently, the case of the assessee was selected for scrutiny assessment under Sec. 143(2).
During the course of the assessment proceedings, it was observed by the A.O that the assessee had sold a residential flat along with two other co- owners, vide sale agreement dated 20.04.2011 for a total consideration of Rs. 3,82,20,000/-. The assesses share in the aforesaid property was 60% and hence, her share of the sale consideration worked out at Rs. 2,29,32,000/-. Accordingly, the assessee worked out the Long Term Capital Gain (for short ‘LTCG’) at Rs. 2,27,30,412/-, which having been invested by her in the capital gain FDR scheme with Oriental Bank Of Commerce, Khar (W), Mumbai, was claimed as exempt under Sec. 54 of the Act. Further, the assessee in support of her claim of having invested the capital gain towards purchase of new residential house, therein placed on the record of the A.O a copy of purchase agreement of Four flats viz. Flat No. 1306 (on 13th Floor) and Flat No. 1401, 1402 and 1406 (all on 14th Floor) in the building viz. Monarch Imperial at Kalamboli. The A.O being of the view that as the assessee had claimed exemption in respect of more than one residential flat, thus called upon her to explain as to why LTCG in respect of the remaining 3 flats claimed as exempt by her may not be brought to tax. The assessee in her reply submitted before the A.O that the property under consideration was a duplex residential flat, and in support of her claim placed on record a copy of the letter from the builder alongwith the detail map of the said property. It was thus the contention of the assessee that her claim of exemption under Sec. 54 was well in order. The A.O in order to verify the factual position called for the information under Sec. 133(6) from the builder viz. M/s Monarch Imperial, however the latter did not respond to the same. In the backdrop of the aforesaid facts, the A.O deputed his inspector to verify as to whether the property under consideration was a duplex flat, as claimed by the assessee. The Inspector in his report stated that as per the agreement the flats were independent of each other. On the basis of the P a g e | Income Tax Officer Wd. 22(2)(1) Vs. Ms. Kanchan Kamlesh Bhatija aforesaid facts, the A.O being of the view that the assessee who was entitled to claim exemption under Sec. 54 only in respect of the investment made by her in one residential flat, however, had wrongly claimed the same in respect of four independent residential flats, thus confined the entitlement of the assessee towards exemption under Sec. 54 only in respect of one flat.
Aggrieved, the assessee carried the matter in appeal before the CIT(A). The CIT(A) after deliberating at length on the contentions advanced by the assessee was persuaded to accept the same. It was observed by the CIT(A) that as certified by the builder, all the four flats viz. Flat No. 1306 (on 13th Floor) and Flat Nos. 1401, 1402 and 1406 (all on 14th Floor) were interconnected to make it one unit. Further, the CIT(A) observed that the staircase leading from the Flat No. 1306 (on 13th Floor) opened up into three flats viz. Flat No. 1401, 1402 and 1406 (on 14th Floor). On the basis of his aforesaid observations, the CIT(A) was of the view that as the aforesaid four flats were interconnected and formed one residential unit, thus the claim of exemption raised by the assessee under Sec. 54 in respect of the investment made by her as regards the purchase of the said flats was in order. The CIT(A) while concluding as hereinabove, relied on the judgment of the Hon’ble High Court of Bombay in the case of CIT-21, Mumbai Vs. Devdas Naik (2014) 49 Taxmann.com 30 (Bom). Further, reliance was placed by the CIT(A) on the judgment of the Hon’ble High Court of Karnataka in the case of CIT & Anr. Vs. Smt. K.G. Rukminiamma (2011) 196 Taxmann.com 87 (Kar) and that of the Hon’ble High Court of Delhi in the case of CIT Vs. Geeta Duggal (2015) 30 Taxmann.com 230 (Del), in context on the issue under consideration. It was observed by the CIT(A) that the view of the High Court of Delhi in the case of Geeta Duggal (supra), that the fact that residential house consisted of several independent units cannot be permitted to act as an impediment for allowance of deduction under Sec. 54/54F of the Act, had been upheld by the Hon’ble Supreme Court and the ‘Special leave Petition’ of the revenue was dismissed. On the basis of his aforesaid deliberations, the CIT(A) observing that the claim of exemption under Sec. 54 raised by the P a g e | Income Tax Officer Wd. 22(2)(1) Vs. Ms. Kanchan Kamlesh Bhatija assessee in respect of the investment made in the aforementioned four flats was in order, thus allowed her appeal.
The revenue being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. We find that the assessee respondent despite having been put to notice of the date of hearing of the appeal, has however neither put up an appearance nor any application seeking an adjournment has been filed by her. We thus, under the aforesaid circumstances are constrained to proceed with the appeal in terms of Rule 25 of the Appellate tribunal Rules, 1963 and dispose of the same after hearing the appellant revenue.
6. The ld. Departmental Representative (for short ‘D.R’) relied on the order of the A.O. It was submitted by the ld. D.R that as the assessee had invested in more than one residential property, hence the A.O had rightly confined her entitlement only in respect of one residential flat. In order to fortify his aforesaid contention, the ld. D.R drew our attention to the order of the A.O, wherein it was observed that the inspector of Income tax on making necessary verifications had reported that the aforesaid flats as per the agreement were independent of each other. It was thus the claim of the ld. D.R that as the aforesaid flats were independent of each other, thus no infirmity did emerge from the order of the A.O in restricting the claim of exemption of the assessee to the extent of her investment in one residential flat. The ld. D.R submitted that as the CIT(A) had wrongly set aside the order of the A.O, thus, his order may be vacated and that of the A.O be restored.
We have heard the ld. D.R, perused the orders of the lower authorities and the material available on record. We find that as observed by the CIT(A), a perusal of the plan revealed that the staircase leading from the Flat No. 1306 (on 13th Floor) opened up into the three flats viz. Flat No. 1401, 1402 and 1406 (on 14th Floor). We find that the A.O going by the report of his inspector that the flats as per the agreement were independent of each other, had thus, for the said reason restricted the entitlement of the P a g e | Income Tax Officer Wd. 22(2)(1) Vs. Ms. Kanchan Kamlesh Bhatija assessee towards claim of exemption under Sec. 54 in respect of only one flat. We are unable to persuade ourselves to subscribe to the aforesaid view so arrived at by the A.O. We are of the considered view that though the aforesaid flats as per the agreement may be independent of each other, but as evidenced by the plan, as they were interconnected and formed one unit, thus, the claim of deduction raised by the assessee under Sec. 54 was in order and could not have been dislodged. We may herein observe that the issue as regards the entitlement of an assessee towards claim of exemption under Sec. 54 in case of independently acquired multiple flats, which however, were joined/merged together and formed a single residential unit, had been looked into by the Tribunal in the case of ITO (IT)-3(1), Mumbai Vs. Ms. Kavita Gupta (ITA No. 6884/Mum/2014; dated 11.04.2018). The Tribunal in its aforesaid order, following the judgments of the Hon’ble High Court of Bombay in the case of CIT-21, Mumbai vs. Devdas Naik (2014) 366 ITR 12 (Bom) and CIT-12 vs. Raman Kumar Suri (2013) 212 Taxman 411 (Bom) had allowed the claim for exemption under section 54 in respect of total investment made by the assessee towards acquisition of independently acquired flats, observing as under:
We have heard the authorised representatives for both the parties, perused the orders of the lower authorities and the material available on record. We find that our indulgence in the present appeal has been sought for adjudicating as to whether the claim of exemption raised by the assessee under section 54 in her return of income as accepted by the CIT(A), is in order, or not. We have deliberated on the facts of the case and find that the issue involved in the present appeal lies in a narrow compass. We have given a thoughtful consideration to the facts of the case and find that the controversy on the fact as to whether the assessee had acquired four independent residential units or a composite residential unit, stands resolved on a perusal of the report dated 22/08/2013 filed by the Income Tax Inspector, who pursuant to the directions of the CIT(A), after carrying out a spot verification of the property under consideration had reported that the Flats /units nos. 1901, 1902, 1903 and 1904 were merged/constituted into one flat having common entrance door. The relevant extract of the report of the Income Tax Inspector is reproduced as under:- “As directed , I visited the formal residence of Smt. Kavita Krishna Gupta on 22/8/2013 at Sahyadri Tower Co-op Society, Upper Govind Nagar, Malad – East, Mumbai – 400 097 to verify the assesses claim that whether all the four units purchased by the assessee constitute a single residence or not. The factual report are as under:-
P a g e | Income Tax Officer Wd. 22(2)(1) Vs. Ms. Kanchan Kamlesh Bhatija The society is located in posh area of Malad-East, Each floor contain 4 entrance door for 4 flats, 2 units constitute a single flat and single entrance door. For example:- 1) on 18th Floor, there are 4 flats. Flat No. 1801/1802 – 1 flat (2 Units constitute single flat having common entrance door) Flat No. 1803/1804 – 1 flat (2 Units constitute single flat having common entrance door) Flat No. 1805 - 1 flat Flat No. 1806 - 1 flat Total -4 flats. Four different people are staying in each flat. But on 19th Floor – There are 3 flats Flat No. 1901/1902/1903/1904-1 flat (4 units constitute /merged in 1 flat having common entrance door), (formal residence of Smt. Kavita Krishna Gupta) Flat No. 1905 - 1 flat Flat No. 1906 - 1 flat Total - 3 flats The wall between flat No. 1901/1902 and flat No. 1903/1904 was removed, so all units constitute one flat, at present Mr. Pankaj Shah and Vanita Pankaj residing there, society issued two different bills one for 1901/1902 and another for 1903/1904.” We are of the considered view that as canvassed by the ld. A.R before us, the issue that where an assessee had independently acquired multiple flats, which however, were joined/merged together and used by the assessee as a single residential unit, the claim for exemption under section 54 in respect of total investment made towards acquisition of the said flats cannot be denied, stands settled as on date by the judgment of the Hon'ble High Court of Bombay in the case of CIT-21, Mumbai vs. Devdas Naik (2014) 366 ITR 12 (Bom). We find that the Hon’ble High Court in the aforesaid judgment had concluded that that where acquisition of two flats had been done independently by the assessee, but however, the said flats were constructed in such a way that the adjacent units or flats could be combined into one, and eventually had been merged into a single unit and were used for the purpose of residence by the assessee, the latters claim of exemption under section 54 could not be denied. Still further, we find that a similar view was also earlier taken by the Hon'ble Jurisdictional High Court in the case of CIT-12 vs. Raman Kumar Suri (2013) 212 Taxman 411 (Bom), wherein the Hon'ble High Court upholding the order of the Tribunal had concluded that where the assessee had acquired one residential house consisting of two flats, it cannot be said that the assessee had purchased two residential houses. We, are of the considered view that as the issue involved in the present appeal is squarely covered by the aforesaid judgments of the Hon'ble High Court of Bombay, therefore, finding no infirmity in the order of the CIT(A), which we find is well in conformity with the view taken by the Hon'ble High Court, thus, find no reason to dislodge the same. The order passed by the CIT(A) is upheld.”
P a g e | Income Tax Officer Wd. 22(2)(1) Vs. Ms. Kanchan Kamlesh Bhatija 8. We thus, finding ourselves as being in agreement with the aforesaid view taken by the coordinate bench of the Tribunal, thus, follow the same. The order of the CIT(A) approving the claim of exemption raised by the assessee under Sec. 54, is upheld. 9. The appeal of the revenue is dismissed.