TaxTMI 
TaxTMI 
2017 (1) TMI 948
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....al income. 2.1. On appeal before the First Appellate Authority, remand report from the Assessing Officer, reply of the assessee, report from the BMC were considered and following the decision in the case of ACIT vs Sudha Gurtoo 48 SOT 393 and also Hon'ble Karnataka High Court in CIT vs D. Ananda Basappa (2009) 180 taxman 4 (Karn.) held that exemption u/s 54 is available to the assessee. The Revenue is aggrieved and is in appeal before this Tribunal. 2.2. We have considered the rival submissions and perused the material available on record. Before coming to any conclusion, under the facts, narrated hereinabove, the Bench questioned the ld. counsel for the assessee , with respect to total area of the flats ( six flats) situated on the first floor of the building. The ld. counsel explained that the total area is less than 2000 Sq. Ft. (precisely 1935 Sq. Ft.). We find that while coming to a particular conclusion, the Ld. Commissioner of Income Tax (Appeal) sought remand report dated 30/10/2013, as per which, the Assessing Officer, claimed that it was nonresidential property for Financial Year 2007-08. Whereas, the assessee produced the evidence that the status of the property wa....
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....uilding" vide note dated 29/09/2009. Before the Ld. Commissioner of Income Tax (Appeal), the assessee also enclosed copy of receipt dated 27/04/2011 for transfer of residential gas Cylinder at the new address. All these documents were made part of the paper book before the First Appellate Authority and also before us. The small units were converted in a single unit (as mentioned earlier the total area of all units is 1935 Sq. Ft.), therefore, in our considered opinion, it is a single unit. It is not the case that all the six flats are having abnormally bigger areas and simply to get the benefit u/s 54 of the Act, a story was concocted by the assessee. The evidences filed by the assessee clearly indicates that small units on the same floor were converted into one habitable unit for a peaceful/comfortable living, thus, the assessee cannot be denied the benefit of exemption. 2.3. It is also noted that the assessee sold its long term capital asset and made the investment of the sale proceeds, within specified time, in the first floor properties of the same building. The stand of the Revenue is that the assessee has purchased six houses, whereas, as per the Act only one house is allowe....
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....shing 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 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 subsection (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 not so utilised shall be charged under section 45 as the 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 such amount in accordance with the scheme aforesa....
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.... of the General Clauses Act. - CIT V. D. Ananda Bassappa (2009) 223 (kar) 186: (2009) 20 DTR (Kar) 266 can be followed. 2.4. 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 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 an....