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TMI Blog2016 (1) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... R FOR THE APELLANT : Shri M.N.MURTHY NAIK, DR FOR THE RESPONDENT : Shri ARUN KUMAR DAS, AR ORDER PER G. MANJUNATHA, Accountant Member: This appeal filed by the revenue is directed against the order of Ld. Commissioner of Income Tax (Appeals), Visakhapatnam dated 26.09.2012 for the assessment year 2008-09. 2. The brief facts of the case are that the assessee is an individual, filed her return of income for the assessment year 2008-09 on 31.08.2009 declaring a total income of ₹ 23,490/-. From the information available from the SRO data, it was noticed that the assesse entered into a joint development agreement with M/s NKP Builders on 5-3-2008. Since, the assesse did not disclose the capital gains from transfer of property, the AO had reason to believe that income chargeable to tax has escaped assessment and had issued notice u/s 148 of the Income tax Act, 1961. In response to notice u/s 148, the assesse vide her letter dated 17-03-2010 had objected the reopening of assessment. The assesse stated that she has given only restrictive right to the builder to construct flats and hand over her share within 24 months from the date of agreement. It is state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as the third and fourth floor she made it clear that the residential units are individual and separate units. Therefore, she claimed the entire built up area of 6250 Sft. as re-invested and claimed exemption u/s 54F. The CIT(A) after considering the assesse arguments and also relied upon the special bench case of ITAT in the case of Mrs. Sushila M Javeri 292 ITR (AT) 001, directed the AO to conduct an enquiry and allow the exemption in respect of one residential unit. In case, the assesse is using the entire first floor area for the purpose of her self-occupation then, AO is directed to allow the deduction in respect of entire first floor. In case, on enquiry it is found that the area in first floor is divided into different residential units then deduction may be allowed to the extent of cost of acquisition of one residential unit as per the choice of assesse. In short, the CIT(A) allowed the exemption u/s 54F for one residential unit. Aggrieved by the CIT(A) order, the Revenue is in appeal before us. 3. The Departmental representative, submitted that the CIT(A) was not correct in allowing exemption u/s 54F, as the assesse did not made any claim before the AO by filing revise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our attention to the Goetz (India) Ltd 284 ITR 323. We have examined the Hon ble Supreme Court decision mentioned (Supra) in the light of the facts of the present case. Their lordship in the above case in para 4 of the order has observed that the issue in this case is limited to the power of the assessing authority and does not impinge on the power of the Tribunal under section 254 of the Income tax Act, 1961. Therefore, we are of the opinion that the CIT(A) being appellate authority, shall have the power to entertain the claim of any deduction/exemptions based on the facts exists at the time of assessment. In the present case, though assesse did not made any claim before the assessing officer, she has made a claim before CIT(A) with the relevant facts which are exist at the time of assessment. The CIT(A) rightly allowed the exemption u/s 54 to one single residential unit therefore, we are unable to agree with the issue raised by the revenue. 6. Coming to the merits of the case. The assesse claimed to have converted the entire first floor into one single residential unit and selfoccupied for residential purpose. The CIT(A) relied upon the special bench decision of ITAT in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be restricted to any one piece of land. On the other hand, the legislature has used the word a in ss. 54 and 54F. Had the legislature intended for investment in more than one asset, it could have easily used the words in any residential house in ss. 54 and 54F instead of the words a residential house . Superfluous words are not used by the legislature. Different words a and any have been deliberately used by the legislature to convey different meanings. Therefore, the legislature 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. Having held that intention of the legislature was to allow exemption under ss. 54 and 54F in respect of investment in one single residential house, it is not necessary to deal with the other submissions of the senior counsel for the assessee since they lose their significance in view of the above finding. 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, then, exemption cannot be a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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