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TMI Blog2010 (5) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... ct contains no rider that no deduction will be allowed in respect of investment of capital gains made in acquisition of land appurtenant to a building or an investment in land on which the building is to be constructed. Reliance by the learned Commissioner of Income-tax (Appeals) on [ITO v. Ms. Sushila M. Jhaveri (2007 -TMI - 59614 - ITAT BOMBAY-I)] is by holding and, rightly so, that the assessee's case was still better, since the assessee had purchased the two floors of the same building within a short span of two days, no error whatsoever in the order passed by the learned Commissioner of Income-tax (Appeals), the same is hereby confirmed, appeal filed by the Department is dismissed. - ITA NO. 939 (DELHI) OF 2010 - - - Dated:- 6-5-2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate agreements were executed for both these properties ; that as per the provisions of section 54F of the Act, deduction thereunder is to be allowed only for investment in one housing property and not for a number of properties ; that according to the proviso to section 54F of the Act, if the assessee purchases/constructs any residential house, other than a new asset, within a period of one/three years after the date of transfer of the original asset and the income from such residential house other than the one owned on the date of the transfer of the original asset, is chargeable as income from house property, no deduction under section 54F is allowable ; that in the assessee's case, initially, the deduction was available only for investm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been done on obtaining necessary approval and on payment of statutory dues ; that the assessee had not been able to show any such approval or payment ; and that ITO v. Ms. Sushila M. Jhaveri (supra) was not applicable, since the remarks therein, as cited by the assessee, were just a passing reference and not a decision, as the issue in the assessee's case was neither the subject matter before the Tribunal, nor had any discussion been made thereon by the Tribunal. Thus holding that the assessee had purchased two distinct residential properties, the Assessing Officer held the assessee not entitled for deduction under section 54F of the Act. 6. By virtue of the impugned order, the learned Commissioner of Income-tax (Appeals), while all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Income-tax (Appeals) has held the assessee entitled to deduction under section 54F of the Act by passing a detailed reasoned order. 11. The assessee had sold two commercial properties and had invested the capital gain within the stipulated period in a Group Housing Complex at Bangalore, in the ground floor and the first floor of the same property, numbered as IC-1 and IC-2. Before the Assessing Officer, the assessee, on query, had contended that both the premises in fact constituted one residential unit, inasmuch as the ground floor thereof comprised one bedroom, dining room, hall, kitchen, toilet and servant room and the first floor consisted of two bedrooms, hall, kitchen and two toilets. There was only one staircase, which was intern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals), that there was no question of the assessee obtaining any approval or making any payment, since the modification was done by the developer himself, as per the plans, the approval whereof was obtained directly by the developer. Otherwise also, the assessment order does not evince any query in this regard having ever been raised by the Assessing Officer to the assessee. 13. While before the learned Commissioner of Income-tax (Appeals), the assessee was asked by the learned Commissioner of Income-tax (Appeals) regarding any confirmation from the builder or any other document, suggesting that the house was indeed a single unit. In response, the assessee filed a confirmation from the developer. This confirmation, as reproduced in the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion was one single residential unit and not two, comprising two floors of one and the same double storeyed residential house. That being the case, it cannot at all be said, as tried to be made out by the Department before us that the learned Commissioner of Income-tax (Appeals) erred in relying on ITO v. Ms. Sushila M. Jhaveri case (supra) wherein it has been held that where more than one adjacent unit are purchased and converted into one house for the purpose of residence by having common passage, common kitchen, etc., it is a case of investment in one residential house. The Assessing Officer also erred in stating that these observations of the Tribunal were just a passing reference and not a decision. 16. The learned Commissioner of In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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