9911796707
TMI Blog2005 (2) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... ether, on the facts and circumstances of the case, the Appellate Tribunal was correct in law in placing reliance on the definition of 'land appurtenant' as given in section 5(1)(ivc) of the Wealth-tax Act?" The present reference relates to the assessment year 1979-80. Briefly stated the facts giving rise to the present reference are as follows: The applicant's father Dr. K. N. Lahiri, gifted 10,700 sq. ft. of land to the applicant on August 3, 1971. The property is situated in a compound of nearly 3.5 acres containing residential bungalow of the applicant's father Dr. K. N. Lahri. The applicant was residing in the bungalow along with his father. On April 1, 1978, the applicant sold 5,700 sq. ft. of land for Rs. 1,00,000 and the sale proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property was sold on April 1, 1978, and on that basis he had held that the parents of the applicant did not reside in the house in the two years immediately preceding the date of sale. The Commissioner of Income-tax (Appeals) had also found that the applicant's father had left the property under a will to his grandson and not to the applicant and, therefore, the applicant was residing in his father's house property up to December 2, 1976, and in the son's property thereafter but never in his own property. He also held that the land sold was not appurtenant to the residential house as it was used independently. The matter was carried in further appeal before the Tribunal. After considering the various averments advanced on behalf of the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idential house did not belong to the assessee and the father of the assessee died much earlier than two years of the date in question. Thus, from any angle we may look at, we find that there is no case for the assessee to press for this claim. In the circumstances we sustain the order of the Commissioner of Income-tax (Appeals) on this point." We have heard Sri Vikram Gulati, learned counsel for the applicant, and Sri Shambhoo Chopra, learned standing counsel appearing for the Revenue. Learned counsel for the applicant submitted that it is not in dispute that the land which was sold by the applicant had formed part of the bungalow in which the applicant's father along with the applicant was residing till his death and thereafter the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 700 sq. ft. of land by way of gift from his father on August 3, 1971, out of which he had sold 5,700 sq. ft. of land on April 1, 1978, and had constructed residential house on the remaining portion of the land of 5,000 sq. ft. between May and October, 1978. Thus, it is established that the ownership of the land stood transferred in the name of the applicant whereas the residential bungalow stood in the name of the applicant's father. Section 54(1) of the Act as it stood during the relevant period is reproduced below: "54.(1) Where a capital gain arises from the transfer of a capital asset to which the provisions of section 53 are not applicable, being buildings or lands appurtenant thereto the income of which is chargeable under the head ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing from its transfer within a period of three years of its purchase or construction, as the case may be, the cost shall be reduced by the amount of the capital gain." From the reading of the aforesaid provisions, it will be seen that the exemption under the aforesaid provisions is available only where the building of the land appurtenant thereto is sold and within two years immediately preceding the date on which the transfer took place, was being used by the assessee or a parent of his mainly for the purposes of his own or the parent's own residence and the assessee has within a period of one year before or after that date purchased, or has within a period of two years after the date constructed, a house property for the purpose of his o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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