2016 (11) TMI 945

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....ay of 114 days in filing the present appeal. The assessee has filed a petition seeking condonation of delay supported by an affidavit. It is submitted, the assessee sold his old residential premises in June, 2012, and shifted to a new residential premises. He submitted, after shifting to a new residential premises, he suffered heart attack in March, 2013, and was undergoing treatment for a prolonged period. He submitted, the order passed by the learned Commissioner (Appeals) though was communicated to the assessee's old residential address but since the purchaser of the flats were busy in marriage function of their son, they could not inform the assessee. He submitted, after slight recovery from heart ailment, the assessee along with hi....

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.... of shop. The Assessing Officer observed, the assessee was already the owner of one residential house at Andheri. As per section 54F, the assessee can be eligible for deduction under section 54F, if he invested in one more residential house. However, the assessee had purchased two flats, hence, deduction 54F is not allowable. He also observed that as per section 71, the assessee was required to adjust the business loss against long-term capital gain whereas the assessee without doing so has carried forward his business loss. Therefore, while disallowing the assessee's claim of deduction under section 54F at the time of completion of assessment, the Assessing Officer initiated proceedings for imposition of penalty under section 271(1)(c)....

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....ble on record. Undisputedly, the basis for imposition of penalty under section 271(1)(c) is, the assessee has wrongly claimed deduction under section 54F. As could be seen, it is the claim of the assessee that capital gain arising from sale of shop is not taxable as the assessee has invested in flats Nos. 103 and 104, in the first floor of a building at Ghatkopar. The Department also does not dispute this fact. Only ground on which the assessee's claim of deduction 54F was disallowed was flats Nos. 103 and 104 are two separate properties. It is the claim of the assessee that these two flats are adjacent to each other and contiguous, hence, to be treated as one flat. In this regard, it is to be noted that the expression "a residential ho....