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TMI Blog2014 (2) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... The Architect has also given certificate with regard to the completion of the building - However, there is no finding by both the authorities below as to whether the building was fit for human habitation or not - it is necessary to examine whether the construction completed within the specified period is fit for human habitation or not - Since lower authorities have not examined and recorded finding to this effect, thus,the matter needs to be reconsidered – order set aside and the matter remitted back to the AO for fresh adjudication – Decided in favour of Assessee. - ITA No.219/Coch/2013 - - - Dated:- 16-8-2013 - Before Shri N.R.S. Ganesan (JM) And Shri B. R. Baskaran (AM),JJ. For the Appellant : Shri R. V. Veeramani For the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admittedly, the work relating to construction of lawn in the front portion of the plot was in progress during the visit of the Inspector. Referring to the judgment of the Madras High Court in CIT vs Sardarmal Kothari Anr (2008) 302 ITR 286 (Mad), the ld.representative submitted that the assessee need not complete the construction of the house and occupy the same. It is enough if the assessee established that the assessee has invested the net consideration within the stipulated period. In view of this judgment of the Madras High Court, according to the ld.representative when the assessee invested the entire money in the construction of the house he is entitled for exemption u/s 54 of the Act. The ld.representative further submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending was only creation of lawn in front of the house. We have also carefully gone through the report said to be filed by the Inspector, who visited the premises, copy of which is available on page 3 of the paper book. For clarity we reproduce the report of the Inspector below: " As directed, on 19/08/2010 I visited the premises RS No.68/1, 68/4, Ward 35, Vengeri Village, Kozhikode, where Shri Jose Joseph is constructing a house. The work s going on in full swing. Carpentry work, Plumbing work, electrical fittings etc. are presently being done. 2. Again on today, i.e. 23/12/10 I visited the above plot. About 90% of construction work has been completed. Outer portion of the house finishing work is going on. Work relating to construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) found that a habitable residential house to be completed within the specified time. However, he has not examined whether the construction completed so far was fit for human habitation or not? 6. We have also carefully gone through the judgment of the Delhi High Court in Dr D.P. Mehta (supra). In the case before the Delhi High Court, admittedly, what was constructed was a garage and servant quarters and the assessee himself admitted that the property was not worthy of occupation. In the case before us, whether the building was worthy of occupation or fit for human habitation was not examined by either of the authorities below. Therefore, this Tribunal is of the considered opinion that the assessing officer has to examine whether th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authorities that the assessee himself has admitted that the construction put up was only a garage and service quarters and it was not fit enough for occupation of the assessee. That factual finding is totally absent in these cases. There is no material to entertain these appeals." 8. In view of the above, it is necessary to examine whether the construction completed within the specified period is fit for human habitation or not? Since lower authorities have not examined and recorded finding to this effect, this Tribunal is of the considered opinion that the matter needs to be reconsidered. Accordingly, the orders of lower authorities are set aside and the issue is remitted back to the file of the assessing officer for reconsideration. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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