9911796707
TMI Blog2008 (1) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... orders of the authorities below, i.e. the Assessing Authority, appellate order of Commissioner of Income Tax, and further appellate order of Income-tax Appellate Tribunal. 2. The appeal was admitted on 4.4.2003 by framing the following substantial question of law:- "Whether in the facts and circumstances of the case, the Tribunal was right in holding that appellant - assessee was not entitled to exemption for residential house under Section 53 of the Income Tax Act.?" 3. The necessary facts, devoid of unnecessary details, are, that there existed a plot of land, being Plot No. 20 at Sector-A, Kamla Nehru Nagar, Jodhpur, having a boundary wall and a garage cum room constructed thereon. It was acquired by one Mr. Ajit Mal Bhandari, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant time, as they have subsequently been omitted, by Finance Act of 1992, w.e.f. 1.4.93 which read as under:- "53 Notwithstanding anything contained in section 45, where in the case of the assessee being an individual or a Hindu undivided family, the capital gain arises from the transfer of long-term capital asset, being buildings or lands appurtenant thereto, and being a residential house, the income of which is chargeable under the head "Income from house property", the capital gain arising from such transfer shall be dealt with in accordance with the following provisions of this section, that is to say;- (a) in a case where the full value of the consideration received or accruing as a result of the transfer of such capital asset do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was not there. 9. On the other hand, learned counsel for the Revenue supported the impugned judgments, by contending, that all the three authorities below have gone into the questions of fact, thread bare, and have come to the conclusion, that taken from any stand point, the property does not fall within the four corners of expression "residential house", which being a sine qua non for exemption under Section 53, exemption was rightly refused. 10. We have considered the submissions, and have gone through the provisions of Section 53. Admittedly the Income Tax Act does not define the expression "residential house", and Section 53 only comprehends "buildings or lands appurtenant thereto and being a residential house". Thus it does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot No. 20, Sector-A, Kamla Nehru Nagar, Jodhpur. We need not dilate much on the aspect, that a plot can obviously, by itself, not be residential building, much less residential house. It is while describing the property as plot, it is only mentioned, that there exists a boundary wall and a garage cum room on the plot. Even while giving this part of description also, it has never been described as a residential building, or residential house. Then, admittedly the assessee has sold the asset on 5.3.92, and even the assessee has not produced the sale deed, nor has he examined the purchaser, to depose, or even show, that the seller and the purchaser, even at the time of sale, were ad idem, about the asset being residential building, or resident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he face of the dictionary meaning also, the construction can possibly not be said to be fulfilling the character of residential house. May be that some person might be living there, being Chowkidar, but then he cannot mean to be dwelling therein, even if considered on the common sense, to the effect, that any person could have lived anywhere under compulsion, or circumstances, and at times such residence even may not require building, or even a structure, as footpath dwellers are not in scarcity in India, but thereby the footpath would not be their residential house. Likewise Nomads do live in their mobile bullock cart, but then the bullock cart cannot be said to be falling within expression "residential house". Thus, in absence of any stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d then, may be that he might be raising construction, as found in the present case, or even may be, he might be working as a regular builder, having more than one plots, and constructing more than one houses on such plots, and then selling them, and thereby earning income. May be a smart dealer might be living for a short while in each of such building, but then, the question that would arise is, as to whether Section 53 at all comprehends providing absolute holiday in payment of tax to such person, and in our view, the answer has to be in the negative. Inasmuch as the purpose of provisions of Section 53 clearly is, to provide relief to the assessee, who might like to shift residence from one place to another, may be for variety of reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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