TaxTMI 
TaxTMI 
TaxTMI 
2018 (5) TMI 1583
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....ief facts of this issue are that the assessee is a lady senior citizen. The assessee on 08.07.1988, along with her two sister-In-laws purchased a piece of land for construction of residential house property at 7, Gulmohar Avenue, Rajpkari, New Delhil10038 and constructed a house along with her two sister-in-laws on the said purchased land. On 11.09.1997, a family settlement with other two sister-In-laws released their share in respect of the land and building constructed on the same in favour of the assessee, and thereafter she, the assessee became absolute owner of the said land and the house constructed thereon on and from 11.09.1997, which was being used by the assessee as residence for the family, consisting *of her husband, her two sons, and the respective families of the two sons. The assessee sold the residential house property on 11.11.2011 for a total sum of Rs. 84 crores, and after reducing the indexed cost of acquisition and expenses for completion of sale, net Long Term Capital Gain amounted to Rs. 83,S3,62,186/-. The assessee invested Rs. 50,00,000/- in 54EC capital Gain Bond and set-aside Rs. 33,50,00,000/- for building new residential property for herself and her fam....
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....floor, terrace. Communication connectivity through common phone lines in the three buildings and common Garbage disposal area. The assessee submitted that though there are 3 residential buildings, it is actually one residential house serving the same purpose as the old house did, that is being the residence of the Loyalkas. The assessee claimed exemption u/s 54 of the Act in respect of reinvestment made in 3 new residential houses. 4. The assessee during the course of assessment proceedings, produced the copy of sale deed of her house property, deed of plots of land, occupation certificate of constructed residential houses and copy of receipt of cess issued by District Town Planner, Cum- Member Secretary, Composition Committee, Gurgaon. The assessee also produced copy of bills raised by the supplier of building construction material, copy of bills raised by interior decorator, copy of acknowledgement of cheque/ draft receipt by DLF ltd, copy of bill raised by the architectural planning and design consultant, copy of bill of service charges raised by the party for facilitating purchase of different plots, details of utilization of capital gain till 31.7.2012, copy of electricity b....
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.... designer raised bill separately for each of the plots ; d) From the copy of occupation certificate, it is seen that the competent authority has granted permission for the occupation of the residential houses constructed on each of the plots vide separate occupation certificate. 5.1. The ld AO also observed that the legislature in its wisdom had provided exemption u/s 54 of the Act only in respect of reinvestment made in one residential house. Since in the instant case, the assessee had made reinvestment in 3 residential houses, the exemption would be eligible only for one house of the assessee. The assessee submitted that three conveyance deeds, three occupancy certificates and three electrical meters will not alter the fact that the three buildings are being used as 'a residential house'. All the arguments advanced by the assessee that the provisions of section 54 of the Act uses the expression 'a residential house', meaning thereby, the reinvestment should be done in a residential house and it does not restrict the scope of reinvestment in more than one residential house. The amendment in section 54 of the Act had been brought only from 1.4.2015 applicable from Asst Year 2015....
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....ountry Planning, Haryana to the effect confirming that all the three plots on which 3 row houses have been constructed is a combined single plot. The said evidence was not filed before the ld AO, the same was admitted and treated as additional evidence and accordingly the ld AO was requested to forward a remand report in the matter in terms of Rule 46A of the Income Tax Rules, after duly examining the said document. The ld CITA observed that the ld AO in the remand report neither raised any objections regarding the admissibility of the additional evidence, nor made any submission regarding such evidence, which had been forwarded to him for his comments. Accordingly he held that the Directorate General had given an occupancy certificate treating the reinvestment made by the assessee in a single combined plot on which construction has been carried out by the assessee having common infrastructure and facilities as listed above. The ld CITA further held that the legislature in its wisdom had purposefully made the amendment in section 54 of the Act by using the expression 'one residential house' with prospective application only with effect from Asst Year 2015-16 onwards. Hence the same....
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....n electrical, common water, common storage, common guard room, common boundary wall, common garden, common pathways and inter connected the building using steel bridges to allow movement within the houses and connect them. We find that the combined zoning plan also has been submitted before the Directorate General, DTCP, Haryana, Chandigarh. On perusal of al the relevant documents, the Directorate General, DTCP, Haryana, Chandigarh vide his proceedings in Memo No. - Misc- 2247/SD(BS)/2015/18284 dated 22.9.2015 addressed to the assessee herein had mentioned the same :- Please find enclosed a copy of the approved zoning plan of the above said plots bearing Drg.No. DGTCP-5364 dated 21.09.2015 for necessary action. The above said zoning plan is approved with the following conditions:- 1. That the site coverage and number of dwelling units shall be as per the Rules of 1965/zoning clauses. 2.The maximum permissible coverage shall be calculated considering the combined plot as a single plot and you shall demolish the construction beyond compoundable limit. 3. Further you shall submit an undertaking in the office of DTP, Gurgaon to use the building for four dwelling units only. ....
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....s Dictionary defines 'relation back' as :- "The doctrine that an act done at a later time is, under certain circumstances, treated as though it occurred at an earlier time". The Hon'ble Supreme Court in the case of Delhi Jal Board vs Mahinder Singh reported in (2000) 7 SCC 210 in the context of Service Jurisprudence had applied this 'Doctrine of Relation Back' and held that the findings of a disciplinary enquiry exonerating an officer would have to be given effect to as they relate back to the date on which the charges are framed. If the Disciplinary Officer ends in favour of the officer, it is as if the officer had not been subjected to any disciplinary enquiry and accordingly his promotion and other service related benefits cannot be denied to him. We hold that the same analogy would apply with equal force to the facts of the instant case also. In view of this modified occupancy certificate considering the three plots as a combined single plot, it could be safely concluded that the assessee had reinvested in only one residential house and accordingly entitled for exemption u/s 54 of the Act to the tune of Rs. 33,45,47,636/- for the year under appeal. 7.4. We find that the as....
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....have already stated hereinabove that the modified occupancy certificate has been issued to the assessee considering the entire building as a combined single building. Hence even as per the ld AO's own analogy, the ratio laid down by various high courts in the aforesaid decisions would be squarely applicable to the facts of the instant case and even on that count, the reinvestment made in the sum of Rs. 33,45,47,636/- would be eligible for exemption u/s 54 of the Act to the assessee. The relevant operative portion of the said judgements are not reiterated herein as they remain undisputed even as per the ld AO's order. 7.5. We also find that the ld AO had stated in his order that the special bench decision of Mumbai Tribunal in the case of Sushila M Jhaveri had been approved by the Hon'ble Bombay High Court in the case of CIT vs Raman Kumar Suri in ITA No. 6962 of 2010 dated 27.11.2012. The Hon'ble Bombay High Court again considered the identical issue in the case of CIT vs Devdas Naik in ITA No. 2483 of 2011 dated 10.6.2014. The ld DR was not able to place on record the copy of the said orders for our perusal. In any case, when there is divergent view taken by different high courts....