TaxTMI 
TaxTMI 
2008 (1) TMI 356
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.... facts and circumstances of the case, the Tribunal was right in holding that appellant - assessee was not entitled to exemption for residential house under Section 53 of the Income Tax Act.?" 3. The necessary facts, devoid of unnecessary details, are, that there existed a plot of land, being Plot No. 20 at Sector-A, Kamla Nehru Nagar, Jodhpur, having a boundary wall and a garage cum room constructed thereon. It was acquired by one Mr. Ajit Mal Bhandari, who bequeathed it to the two brothers, one being the assessee, and the other being Sanjay Surana. After death of testator, the entire plot of land was sold for Rs. 1,90,000/-, out of the sale proceeds, the assessee received his share being Rs. 95,000/-. The assessing authority asses....
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....ansfer of long-term capital asset, being buildings or lands appurtenant thereto, and being a residential house, the income of which is chargeable under the head "Income from house property", the capital gain arising from such transfer shall be dealt with in accordance with the following provisions of this section, that is to say;- (a) in a case where the full value of the consideration received or accruing as a result of the transfer of such capital asset does not exceed two hundred thousand rupees the whole of the capital gain shall not be charged under section 45; (b) in a case where the full value of such consideration exceeds two hundred thousand rupees, so much of the capital gain as bears to the whole of the capital gain the sam....
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....rty does not fall within the four corners of expression "residential house", which being a sine qua non for exemption under Section 53, exemption was rightly refused. 10. We have considered the submissions, and have gone through the provisions of Section 53. Admittedly the Income Tax Act does not define the expression "residential house", and Section 53 only comprehends "buildings or lands appurtenant thereto and being a residential house". Thus it does not exempt merely a building, nor does it exempt merely the land appurtenant thereto, but it exempts both of them, with the concomitant requirement of it being a residential house, obviously, as contra distinguished from residential building. 11. The distinction between the residential....
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.... garage cum room on the plot. Even while giving this part of description also, it has never been described as a residential building, or residential house. Then, admittedly the assessee has sold the asset on 5.3.92, and even the assessee has not produced the sale deed, nor has he examined the purchaser, to depose, or even show, that the seller and the purchaser, even at the time of sale, were ad idem, about the asset being residential building, or residential house. Thus, from the description of the property, as given in the Will, and in absence of anything else to show otherwise, on the face of it, it cannot be said that the asset was a residential building, or a residential house, rather it was a plot, having boundary wall and a garage cu....
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....e effect, that any person could have lived anywhere under compulsion, or circumstances, and at times such residence even may not require building, or even a structure, as footpath dwellers are not in scarcity in India, but thereby the footpath would not be their residential house. Likewise Nomads do live in their mobile bullock cart, but then the bullock cart cannot be said to be falling within expression "residential house". Thus, in absence of any statutory definition in the Act, even employing dictionary meaning, and/or the common sense approach, in order to describe the asset as residential house, it should be fulfilling the characteristics of a residential house as defined above. Admittedly there is only one garage cum room, with no ki....