TaxTMI 
TaxTMI 
2007 (4) TMI 289
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..... P.B. Rane, Fifth ITO [1990] 185 ITR 499 (Bom.). On the other hand, the assessee contended that the exemption under the aforesaid sections would be available even if investment is made in the two house properties though distantly located from each other. Reliance was placed on the following decisions of the Tribunal: (i) Ratanchand Murarka v. Joint CIT [ITA No. 4485/M/1999, dated 12-9-2001] Assessment year 1996-97; (ii) ITO v. Daulat Lutharia [ITA No. 9639/B/1989, dated 16-5-1996 ]; (iii) ITO v. Bhupendra Patel [ITA No. 70/M/1995, dated 24-4-2002]; (iv) Fulwanti C. Rathod v. ITO [ITA No. 1092/M/1995, dated 3-5-2002]; (v) ITO v. Nansi Kriti S. [ITA No. 2954/M/1995, dated 28-5-2005]; (vi) Himmatlal H. Sheth v. ITO [ITA No. 6761/M/2002, dated 15-2-2005]; (vii) Prabhakar S. Mogre v. Joint CIT [ITA No. 27/M/2000, dated 2-5-2005]; (viii) Dy. CIT v. Mohanlal K Zaveri [ITA No. 2747/M/1998, dated 15-12-2005]. The Division Bench also noticed that Mumbai Bench of the Tribunal in the case of Ratanchand Murarka had also considered the decision of the Hon'ble Bombay High Court in the case of K.C. Kaushik and distinguished the same and thereby held that exemption under section 54/54F wa....
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....f the Tribunal in the case of Ratanchand Murarka, held that exemption was available in respect to investment made in both the flats. Aggrieved by the same, the revenue is in appeal before the Tribunal. 3. Both the parties have been heard at length. At the outset, the learned Sr. D.R. drew our attention to the question referred to point out that this Bench is concerned with a situation where investment is made by the assessee in two residential houses independently located at different places either in the same building or in the city. Therefore, those decisions of the Tribunal would not be applicable where the investments had been made in two flats adjacent to each other intended to be used as one residential house having same kitchen and common passage. Accordingly, the decisions of the Tribunal at sl. Nos. (ii) to (vii) in the list mentioned in the earlier paragraph would not be relevant in adjudicating the question referred before this Bench inasmuch as in all those cases, the flats purchased were either adjacent to each other or on two floors having common staircase. Proceeding further, it was submitted that the language of the provisions of section 54/54F is plain and unambig....
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....ether, the petitioner had a choice to choose the property against which the capital gain which had arisen on the transfer of a capital asset are to be adjusted? and 2. Whether, the property purchased but not actually used for residence for three years fulfils the requirement of section 54(1) of the Income-tax Act, 1961 were raised before the CIT." In view of the above questions the learned Sr. counsel for the assessee vehemently submitted that the questions for consideration before the High Court were entirely different from the question to be adjudicated by the Special Bench. Therefore, the decision of the Hon'ble Bombay High Court should be understood in the context of the questions referred. According to him, it was with reference to question No.1 that the Hon'ble High Court held that if the assessee purchased two house properties within one year of the sale of his house, the assessee has choice to claim exemption under section 54 of the Act against the purchase of anyone of the properties. Thus, according to him, the said decision is quite distinguishable and cannot be applied to the present case. 5. Coming to the decision of the Tribunal in the case of Mrs. Gulshanbanoo R. ....
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....v. Natu Hansraj [1976] 105 ITR 43 to contend that if substantial compliance is made, then exemption cannot be denied. He referred to the decision of Hon'ble Allahabad High Court to submit that there is a distinction between the provision of section 5(1)(iv) of the Wealth-tax Act, 1956 and the provisions of section 54/54F of the Act inasmuch as the Legislature used the word "one" in Wealth-tax Act, 1956, while used the word "a" in section 54/54F of the Act. According to him, if the Legislature in tended to restrict the exemption to investment in one residential house, it could easily use the words "one residential house" in section 54/54F. He also referred to the decision of the Hon'ble Supreme Court in the case of CIT v. T.N AravindaReddy [1979] 120 ITR 46, to contend that the Apex Court allowed exemption under section 54 even where house was purchased by different deeds. Reference was made to the decision of the Hon'ble Calcutta High Court to submit that expression was allowed even where assessee purchased a house and made further investment in construction of additional floor thereon. Lastly, it was contended that as compared to the word "a", the word "the" is definite word. If t....
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.... "1. One, some, any (when referring to something for the first time in a text or conversation), 2. one like, 3. one single (not a thing or sight), 4. the same (all of a size), 5. in, to, or far each (twice a year, seven a side)." As per Webster's Encyclopedic Unabridged Dictionary, it means: "Indefinite article - 1. not any particular or certain one of a class or group; a man, a chemical, a horse, 2. another typically representing; 3. one; a certain; a particular: one at a time; two of a kind, 4. (used before plural, noun that are preceded by a quantifier singular in term) : a hundred men; a dozen times, 5. idefinitely or non-specifically: a great many years: a few stars, 6. any; a single: not a one; 7. (when stressed) each, every, per: ten cents a dance, three time a day." As per Judicial Dictionary by K.J. Aiyer (8th Edition), it means- "Sometimes, "a" is read as "the", sometimes as "some" but more frequently as "any". Similarly meaning is given by the Law Lexicon." Perusal of the above clearly shows that the word "a" is ambiguous as it has no definite meaning. Various meanings are given to the word "a". It not only means "one" or "any" but it has various other meanings depe....
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.... or two years after the date on which the transfer took place purchased), or has within a period of three years after that date constructed, a residential house, then], instead of the capital gain being charged to income-tax as income of the previous year in which the transfer took place, it shall be dealt with in accordance with the following provisions of this section, that is to say....." "54B. [Subject to the provisions of sub-section (2), where the capital gain arises] from the transfer of a capital asset being land which, in the two years immediately preceding the date on which the transfer took place, was being used by the assessee or a parent of his for agricultural purposes (hereinafter referred to as the original asset), and the assessee has, within a period of two years after that date, purchased any other land for being used for agricultural purposes, then, instead of the capital gain being charged to income-tax as income of the previous year in which the transfer took place, it shall be dealt with in accordance with the following provisions of this section, that is to say......" "54D. [Subject to the provisions of sub-section (2), where the capital gain arises] from ....
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.... provisions of this section, that is to say......." "54E. (1) Where the capital gain arises from the transfer of a [long-term capital asset] (before the 1st day of April, 1992), (the capital asset so transferred being hereafter in this section referred to as the original asset) and the assessee has, within a period of six months after the date of such transfer, invested or deposited the [whole or any part of the net consideration] in any specified asset (such specified asset being hereafter in this section referred to as the new asset), the capital gain shall be dealt with in accordance with the following provisions of this section, that is to say......." "54F. (1) [Subject to the provisions of sub-section (4), where, in the case of an assessee being an individual or a Hindu undivided family], the capital gain arises from the transfer of any long-term capital asset, not being a residential house (hereafter in this section referred to as the original asset), and the assessee has, within a period of one year before or [two years] after the date on which the transfer took place purchased, or has within a period of three years after that date constructed, a residential house (hereaft....
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....islature used the word "a" where it intended investment in one residential house only and used the word "any" where it intended investment in one or more assets. 9. Having held that intention of the Legislature was to allow exemption under sections 54 and 54F in respect of investment in one single residential house, it is not necessary for us to deal with the other submissions of the learned Sr. counsel for the assessee since they loses their significance in view of the above finding. 10. However, we are in agreement with certain decisions of the Tribunal relied on by the learned counsel for the assessee wherein exemption was allowed in respect of investments in two adjacent or contiguous units converted into one residential house by having common passage/stair case, common kitchen, etc. intended to be used as single house for the residence of the family. As already observed, the intention of the Legislature is that investment should be made in one residential house. So long as the house purchased is one even after conversion, the exemption would be available. On the other hand, if the investment is made in two independent residential houses, even located in the same complex, the....