1997 (2) TMI 83 - HC - Income Tax

Summary

Issues:
Whether the assessee is entitled to exemption under section 54 of the Income-tax Act, 1961, in respect of capital gain received on the sale of a residential flat.

Analysis:
The judgment pertains to a reference under section 256(1) of the Income-tax Act, 1961, where the Income-tax Appellate Tribunal referred a question of law regarding the assessee's entitlement to exemption under section 54 of the Act. The assessee had sold a flat in Malbar Apartment and claimed exemption from capital gains tax under section 54, stating he had occupied the flat for two years prior to its sale. The Income-tax Officer initially rejected the claim, but the Appellate Assistant Commissioner allowed it. The Tribunal later overturned the decision, stating that for exemption under section 54, the assessee must reside in the residential house as an owner for two years before its sale.

The court considered the submission that it is not necessary for the assessee to occupy the premises as an owner for exemption under section 54, but it is sufficient if the assessee was in occupation in any capacity for two years. However, the court noted that section 54 requires the property to be used mainly for the assessee's or his parents' own residence for two years before the transfer. In this case, the assessee purchased the flat in July 1973 and sold it in August 1974, owning it for only a little over a year. The court emphasized that the property must be used for residence as an owner, not merely as an occupant, and occupation during the period when the property did not belong to the assessee is not considered.

The court highlighted that the property in question was not used by the assessee or his parents for their own residence in the two years preceding the transfer, as the assessee only purchased the property in July 1973. Therefore, the Tribunal was correct in denying the assessee's claim for exemption under section 54 of the Act. The court answered the question in favor of the Revenue, stating that the assessee was not entitled to claim exemption for the capital gains from the sale of the residential flat. No costs were awarded in this case.