TaxTMI 
TaxTMI 
2018 (4) TMI 1061
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....Forest, Faridabad against the long term capital gain on sale of residential plot. 4. That the AO and the Ld. CIT (A) were not correct and justified in not relying upon the case law of the jurisdictional Hon'ble High Court and other Hon'ble Courts while passing the order and therefore, the order passed by the Ld. CIT (A) deserved to be set aside, 2. The brief facts of the case are that the assessee filed return of income on 30.08.2012 declaring income of Rs. 1,21,00,530/-. The case was selected for scrutiny and statutory notices were issued to the assessee. During the course of scrutiny proceedings, the Assessing Officer observed that the assessee earned long-term capital gains on sale of residential plot amounting to Rs. 3,77,17,108/- during the financial year 2011-12. In the return of income, the assessee claimed deduction u/s. 54F of the IT Act in respect of investment made in two under construction properties viz., Flat Nos. 1601 & 1602, Tower Tulip in Omax Forest, Faridabad and placed documentary evidences before the Assessing Officer. It was noted that both the properties were situated on the same floor, opposite to each other, but not adjacent to each other. Both....
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.... one property. It is being contended that restriction in respect of one property has been brought to the statute only w.e.f. AY 2015-16 only and prior to that assessee can make investment in more than one property. To substantiate his claim, Ld. AR has placed reliance on certain judicial pronouncements, which are mentioned above. However, on the other hand, AO has based his addition simply on the basis of provisions of section 54 of the Act holding that, claim of exemption u/s 54 cannot be made in respect of two properties which are not adjacent to each other, but are separate and opposite to each other. 4.1.2 I have carefully considered the submissions of the Id. AR, judicial pronouncements relied upon by him and assessment order passed by the A.O. At the outset, it is pertinent to mention here that judicial pronouncements on which Id. AR has placed reliance are not similar to the facts of the case of the appellant. Ratio of judicial pronouncement of the cases which have been relied upon by the Id. AR, the judgment of Karnataka High Court in CIT vs. D. Anandabasappa relied by the Ld. AR, exemption against purchase of two flats was allowed having regard to the finding that both ....
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....recedents relied by assessee properly. He also submitted a small written synopsis and a paper book containing 91 pages which are placed on record. The ld. AR has also relied on the following decisions : (i). CIT vs. Gita Duggal, 357 ITR 153 (Del.) (ii). CIT vs. Gita Duggal (2015) 228 Taxman 62 (SC) (iii). Vittal Krishna Conjeevaram vs. ITO, 144 ITD 325(Hyd.) (iv). DCIT vs. Jai Trikanand Rao, 149 ITD 112 (Mumbai) It was also submitted that the claim of the assessee is covered by the decision of Hon'ble Delhi High Court in the case of Gita Duggal (supra), the SLP against which filed by the Revenue has been dismissed by the Hon'ble Apex Court (2015) 228 Taxman 62(SC). 6. On the other hand, the ld. DR relied on the orders of the authorities below and submitted that the separate registered deed was made for both the houses. Therefore, it cannot be said that the assessee has invested money in one house so as to claim deduction u/s. 54F. He has also relied on the decision of Punjab & Haryana High Court in the case of Pawan Arya vs. CIT, 11 taxmann.com 312. In rejoinder, the ld. AR submitted that this case law is not applicable in the present case because the above case pertai....
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....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. High Court 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. High Court 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, reasons High Court are of the view that the Tribunal took the correct view. No substantial question of law arises for High Court consideration. The appeal is accordingly dismissed with no order as to costs." 8. Similar view has been taken by I....