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TMI Blog2017 (12) TMI 1332X X X X Extracts X X X X X X X X Extracts X X X X ..... ind the facts of particular case. The Hon’ble High Court has clearly held that “a” cannot be read as singular, it also cannot be read as multiples and so as to avoid paying tax under section 45 of the Act. Applying the said principle to the facts of the present case, we hold that the assessee is entitled to claim the deduction under section 54 of the Act only in respect of flat in Padma Vilas building. We uphold the order of CIT(A) in denying the deduction under section 54 of the Act in respect of flat at Hadapsar. - ITA No.524/PUN/2017 - - - Dated:- 11-12-2017 - MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM For The Appellant : Shri Rajiv Thakkar For The Respondent : Shri Ajay Modi ORDER PER SUSHMA CHOWLA, JM: The appeal filed by the assessee is against the order of CIT(A), Pune-10, dated 13.01.2017 relating to assessment year 2011-12 against order passed under section 143(3) of the Income Tax Act 1961 (in short the Act ). 2. The assessee has raised the following grounds of appeal:- 1. On facts and circumstances prevailing in the case and as per provisions scheme of the Act the Hon ble CIT(A) has erred in confirming the disallowance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able where investment made in more than one residential house. 6. The assessee is in appeal against the order of CIT(A). 7. The learned Authorized Representative for the assessee pointed out that the issue is squarely covered by series of decisions with special reference to the ratio laid down by the Hon ble High Court of Karnataka in CIT Vs. Smt. K.G. Rukminiamma (2011) 196 TAXMAN 87 (Kar) and in CIT Vs. Khoobchand M. Makhija (2014) 43 taxmann.com 143 (Kar). He further referred to the decision of the Hon ble High Court of Delhi in CIT Vs. Gita Duggal (2013) 30 taxmann.com 230 (Del) and also the Mumbai Bench of Tribunal in DCIT Vs. Jai Trikanand Rao (2014) 41 taxmann.com 453 (Mumbai-Trib). The learned Authorized Representative for the assessee further pointed out that amendment in 2014 was prospective in nature and it clearly established that the term a residential house is to be interpreted to mean more than one residential house. 8. The learned Departmental Representative for the Revenue on the other hand, pointed out that in the facts of the case before the Hon ble High Court of Karnataka, flats were purchased at the same location vide same agreement. He further relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said investment was also claimed as deduction under section 54 of the Act. The first flat which was purchased by the assessee was in Padma Vilas building, Pune for ₹ 5.77 crores and deduction under section 54 of the Act was allowed in respect thereof. There is no dispute vis- -vis said investment made by the assessee. However, the second investment which was made by the assessee was in flat which was far away from his earlier investment and was an independent flat though residential but it was not clear whether the same was being used by the assessee for her residential purpose or was let out. The Assessing Officer and the CIT(A) have denied deduction under section 54 of the Act in respect of investment made in second flat as being not eligible under section 54 of the Act. The issue which is raised before us is the said deduction claimed under section 54 of the Act. 11. Coming to the provisions of section 54 of the Act, wherein it is clearly provided that in the case of assessee, whether an individual or HUF, where capital gains arises from transfer of long term capital asset, being building or land appurtenant thereto, being a residential house, income from which is ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the other words buildings and lands and, therefore, the singular a residential house also permits use of plural by virtue of Section 13(2) of the General Clauses Act. CIT v. D. Ananda Basappa [2009] 223 (Kar) 186 : [2009] 2- DTR (Kar) 266 followed. 13. In the facts of the case in CIT Vs. D. Ananda Basappa (supra), assessee HUF had sold one residential house and purchased apartments side by side which were joined by the builder by making them as one unit by opening the door in between two apartments. Also, in the facts of CIT Vs. Smt. K.G. Rukminiamma (supra), the assessee entered into Joint Development Agreement for putting up flats and under the agreement, eight residential flats were put up on that property, out of which four flats representing 48% was the share of assessee and remaining 52% was the share of builder. In such circumstances, four residential flats acquired by the assessee were held not to construe four residential houses but only a residential house. 14. In a later decision, the Hon ble High Court of Karnataka in CIT Vs. Khoobchand M. Makhija (supra) had applied the said proposition as laid down in CIT Vs. Smt. K.G. Rukminiamma (supra) and held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 18. The learned Departmental Representative for the Revenue has relied on decisions of different Benches of Tribunal and also the Special Bench of Tribunal, wherein the word a residential house has been defined to mean only one residential house. 19. However, in order to adjudicate the issue, we refer to the proposition laid down by the Hon ble High Court of Karnataka in various decisions and the Hon ble High Court of Delhi wherein the facts were at variance to the facts before us. The assessee in the present case before us has purchased one flat in Padma Vilas building and another at Hadapsar, Pune which are at two different places and are not commonly placed. Secondly, there is finding of fact that widow of assessee is staying alone in the house at Padma Vilas building and it is not clear whether the other house is occupied by her or on rent. Under the provisions of the Act, it is not the requirement to occupy the premises for itself. However, we have to keep in mind the observations of the Hon ble High Court of Karnataka in CIT Vs. Khoobchand M. Makhija (supra), wherein after allowing the claim of deduction under section 54 of the Act in respect of second consecutive ..... X X X X Extracts X X X X X X X X Extracts X X X X
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