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TMI Blog2019 (4) TMI 1024X X X X Extracts X X X X X X X X Extracts X X X X ..... , the legislature could also amend the provisions of Section 54F so as to include part ownership. Since, the legislature has consciously not amended the provisions of section 54F, it has to be held that the word own in Section 54-F would include only the case where a residential house is fully and wholly owned by the assessee and consequently would not include a residential house owned by more than one person. However, by virtue of gift deed, the share of the assessee has already been transferred in the name of his daughter. Thus even if, as per the provision of section 27(1) of the Act, the assessee is considered to be a deemed owner of the Goa flat, but even then, assessee would still being a co-owner cannot be termed that Goa flat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not to have considered the appellant as deemed owner by invoking Section 27 ( i ) of the Income Tax Act 1961 which decides deemed income under House Property. 4 The Learned Commissioner of income Tax (Appeals) 32 ought not to have accepted the additional evidence produce before him as it was relevant to decide date of transfer as in case of tenancy holding of property in possession is the most crucial evidence of tenancy right. 5 The Appellant Craves leave to add, to alter or to amend any one or more of Grounds as mentioned herein above, as and when necessary. 2. The brief facts of the case are that the assessee filed its return of income on 27.09.10 declaring total income at ₹ 1,26,99,467/- Subsequently the case was se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n July, 1998. Therefore, in view of the above facts, the assessee was denied exemption u/s 54F of the Act. 6.1 It was submitted that in fact the residential flat situated at Goa was actually purchases jointly in the name of assessee as well as his wife. In this respect, Ld. AR drawn our attention to page no. 37 to 60 of the paper book, which is an agreement of Goa flat jointly purchased in the name of assessee and his wife, which prima facie reflects that the said flat was not fully and wholly owned by one person. 6.2 It was submitted that after the purchase of the said property, the share of the assessee was transferred /gifted to his daughter Ms Alisha Ashok Chauhan by way of gift deed dated 15.04.04, which is at page no. 61 to 66 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trib), wherein it was held that Where ownership of assessee over property was subject to life interest retained by her mother in said property, it could not be said that assessee owned said property fully and it could not be a reason to deny exemption under section 54F claimed by assessee on sale of her another property. 6.4 Thus referring to the aforementioned judgments, Ld. AR argued that the assessee was not the owner of flat and hence assessee was entitled for exemption u/s 54F of the Act. 7. On the other hand, Ld. DR relied upon the orders passed by the revenue authorities and submitted that from the copy of gift deed, it is seen that the daughter of the assessee is minor and the gift has been accepted by her on behalf of her mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee owned said property fully and it could not be a reason to deny exemption under section 54F claimed by assessee on sale of her another property. 8.2 Therefore, as per the principles laid down above, the assessee cannot be said to be the full owner of the property and thus cannot be denied exemption u/s 54 of the Act as claimed by him. Even otherwise as per the decision of Coordinate Bench of ITAT in the case of ITO vrs. Rasiklal N. Satra (2006) 98 ITD 335 (Mum)/(2006) 100 TTJ 1039 (Mum), it has been categorically held that the word 'own' appearing in section 54F of the Act includes only such residential house which is fully and wholly owned by one person and not a residential house owned by more than one person. The above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of ours is also fortified by the judgment of the Hon'ble Supreme Court in the case of Seth Banarsi Ds Gupta v. CIT 166 ITR 783, wherein it was held that a fractional ownership was not sufficient for claiming even fraction depreciation Under Section 32 of the Act. Because of this judgment, the legislature had to amend the provisions of Section 32 with effect from 1.4.1997 by using the expression owned wholly or partly . So, the word own would not include a case where a residential house is partly owned by one person or partly owned by other person(s). After the judgment of Hon ble Supreme Court in the case of Seth Banarsi Dass Gupta (supra), the legislature could also amend the provisions of Section 54F so as to include part owners ..... X X X X Extracts X X X X X X X X Extracts X X X X
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