9911796707
TMI Blog2015 (6) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... consolidated order for the sake of convenience. 4. The facts in brief borne out from the record are that the assessee has raised a claim of deduction under section 54F of the Act with regard to the capital gain earned on sale of property No.101-B, 1st Floor, Elegant Business Park, Andheri (East), Mumbai. Deduction under section 54F of the Act was claimed in respect of investment in purchase of residential house No.10/495, Khalasi Lines, Kanpur for Rs. 4,28,46,400/- on 26.6.2008; deduction of Rs. 5lakhs for transfer charges; Rs. 17,07,480/- for excess tax paid after sale and Rs. 30 lakhs penal charges for late possession from the sale consideration of Rs. 12 crores on sale of property at Mumbai. The Assessing Officer, however, disallowed the deduction under section 54F of the Act as well as claim of expenditure of Rs. 17,07,470/- and Rs. 30 lakhs as aforesaid. He allowed deduction of Rs. 5 lakhs only relating to transfer charges in respect of property sold at Mumbai. While disallowing the claim of deduction under section 54F of the Act, the Assessing Officer was of the view that the assessee is already having a self occupied property at Parwati Bagla Road, Kanpur and has also disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the ld. CIT(A) has placed reliance upon the order of the ld. CIT(A). Besides, he has also invited our attention that the assessee has filed various documents before the ld. CIT(A) in order to establish that the properties held by the assessee at the relevant point of time are commercial properties. 9. With regard to the property at plot No.14/6B, Gwalitoli, Civil Lines, Kanpur, the assessee has filed certificate of registration with Trade Tax Department, registration with Directorate of Industries, Unnao, Wealth Tax return for assessment year 2009-10 and valuation report of the DVO dated 15.7.2009 to prove that this property was used for commercial purposes. 10. Similar is the position with regard to the property No.105 & 106, Parampurwa, Kanpur and with regard to this property, the assessee has filed the copies DVO's report, High Court order, Income-tax return and computation of income, Certificate issued by the U.P. Pollution Control Board, Electricity bill, Registration Certificate and other evidences to establish that this property is a factory building and was used for commercial purposes. The ld. CIT(A) examined these evidences in detail and came to the conclusion that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f transfer of the original asset, is chargeable under the head ''Income from house property''. As per above provisions the condition relating to the ownership of more than one residential house other than the new assets is to be judged on the date of transfer of the original assets. In the present case the position of the two properties considered as residential house by the Assessing Officer at the relevant time has been as under:- (i) Property No.105-106 Parampurwa, Kanpur. The Assessing Officer has considered this property as residential on the basis of sale deed which was executed in financial year 2006-07 whereas the transfer of Mumbai property took place in financial year 2008-09. About the nature & use of the property the learned AR has furnished voluminous documents and most of them are the certificates issued by various Govt. agencies like Excise Department, Sales Tax, Labour Deptt., Pollution Deptt., etc. Apart from this the premises was also inspected by Department Valuer of Valuation Cell who had found the property as factory building in the year 1996. The appellant had disclosed the rental income from the tenant who was running the factory before a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this property was also not a residential house. The nature of this property has been explained in written submission dated 24.9.2012 which is reproduced as under:- Evidence relating to house property No.14/6-B, Civil Lines, Kanpur. This was also not a residential property. It was a piece of land on which some old construction being garage and small verandah existed. It was being used for commercial purposes for installation of genset. It was not in a condition of living for residential purposes. There was no Toilet, Bathroom, Kitchen & electricity connection. The property had no basis amenities fit for human habitation and as such it could not be called and considered a residential house. This property was received by the appellant as per court's order dated 18.2.1990 in suit No.374/1989 in the case of Irshad Mirza vs. Smt. Qaiser Jahan, Mirza Shakil Ahmad & Mirza Anish Ahmad decided by District & Session Judge, Kanpur. Following documents showing that the property was no a residential house and the old constructed portion was being used for business purposes by M/s Gemini Packagers are enclosed:- 1. Registration certificate dated 27.8.2002 under Central sales Tax ( Addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cific characteristic of property cannot be changed to assessee's own mood without following law prevailed for the purpose. In conclusion, I am of the view that first application of the assessee under rule 46A(1)(c) is not deserves to be considered and secondly since assessee is having more than one residential property at that time, therefore claim under section 54F is not allowable in assessee's case." The ld. AR in his counter reply has staed that the Assessing Officer has wrongly treated this property as residential house. The relevant portion of the reply is reproduced as under:- in his counter reply has staed that the Assessing Officer has wrongly treated this property as residential house. The relevant portion of the reply is reproduced as under:- About House Property no. 14/6B Civil Lines Kanpur:- Various documents showing the nature of property has also been filed. This property was also not a residential property. Here also the Assessing Officer has not refuted our contention & has not disbelieved the documents filed in support of our submission. The variation in valuation of the property in Asstt Year 2005-2006 & 2006-have also not been properly understood The valua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Certificate of Registration dated 27.8.2004 with Trade Tax Department. 2. Registration certificate dated 27.8.2003 with DIC, Unnao 3. Wealth Tax Return for assessment year 2004-05 to 2009-10 4. Copy of valuation report dated 15.7.2009 It is obvious that property is commercial property. Looking to the totality of the facts documents, evidences & case law cited, I hold that this property was also not a residential property at the relevant time." 12. During the course of hearing, the Revenue has not brought anything on record to controvert the evidence produced by the assessee before the ld. CIT(A) and also before us. The evidence filed before the ld. CIT(A) is also available on record and from its careful perusal we find that these properties are of commercial in nature. Therefore, it cannot be held that the assessee owns more than one residential house at the time of purchase of new residential house out of sale proceeds received from his capital asset at Mumbai. We, therefore, find no merit in the order of the ld. CIT(A) in this regard. Accordingly we confirm the same. 13. So far as disallowance of deduction of Rs. 30 lakhs is concerned, we find that the assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
