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TMI Blog2024 (5) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... bmissions of the assessee each flat is occupied by each of the joint owners. Therefore it cannot be said that one of the joint owners i.e. the assessee in this case is the absolute owner of the 6 flats and no individual person on his own can sell the entire property of all 6 flats. At best the joint owner can sell his share of interest in the property but the property would still continue to be owned by the rest of the co-owners. Joint ownership is therefore different from absolute ownership and in the case of residential unit which is jointly owned none of the co-owners can claim that he is the owner of residential house. Accordingly where a house is jointly owned by two or more persons, none of them can be said to be the absolute owner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment year 2016-17. The only issue contended by the assessee through various grounds of appeal is the disallowance of exemption claimed u/s 54F of the Income Tax Act (the Act) to the tune of Rs. 3 crores. 2. The assessee is an individual and filed the return of income for assessment year 2016-17 declaring total income of Rs. 5,43,56,720/-. The case was selected for scrutiny and the statutory notices that duly served on the assessee. The Assessing Officer during the course of assessment noticed that the assessee has received a sum of Rs. 8,70,00,000/- as his share of 20% in the sale of land jointly owned with other co-owners. It is further noticed that the assessee had claimed exemption u/s 54F of the Act for Rs. 3 crores towards investment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relying on the decision of the Hon'ble Karnataka High Court as upheld by the Apex Court in the case of M.J. Siwani v. CIT [2015] 53 taxmann.com 318 and denied the exemption claimed u/s 54F of the Act. 3. Aggrieved the assessee filed its appeal before the Ld. CIT(A) who upheld the order of the AO. 4. Before us, the Ld. AR submitted that the assessee though jointly owns 16.67% in the six flats he is actually occupying only one flat since each of six flats is earmarked a particular family members. The Ld. AR also submitted that the Co-ordinate Bench of the Tribunal in one of the other co-owner's case namely Shri Sainul Abedin Ghaswala v. CIT(A) (ITA No. 545/Mum/2023) dated 22.05.2023 has held that the said assessee is entitled for exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 54F of the Act. Capital gain on transfer of certain capital assets not to be charged in case of investment in residential house. 54F. (1) Subject to the provisions of sub-section (4), where, in the case of an assessee being an individual or a Hindu undivided family, the capital gain arises from the transfer of any long-term capital asset, not being a residential house (hereafter in this section referred to as the original asset), and the assessee has, within a period of one year before or two years after the date on which the transfer took place purchased, or has within a period of three years after that date constructed, one residential house in India (hereafter in this section referred to as the new asset), the capital gain shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue is that since the assessee has joint ownership to the extent of 16.67% in 6 flats, the assessee is not entitled for exemption u/s. 54F as per the proviso. Thus it is important to analyse whether the joint ownership of 16.67% in 6 flats amounts to owning more than one residential house in assessee's case and that the assessee is the "owner" of the 6 flats jointly. It is an admitted fact that there is no clear demarcation with regard to the Flats jointly owned, though as per the submissions of the assessee each flat is occupied by each of the joint owners. Therefore it cannot be said that one of the joint owners i.e.the assessee in this case is the absolute owner of the 6 flats and no individual person on his own can sell th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e coordinate bench in the following cases - (i) ITO vs Rasiklal N. Satra [2006] 98 ITD 335 (MUM.) (ii) Ashok G. Chauhan vs ACIT [2019] 105 taxmann.com 204 (Mumbai - Trib.) (ii) Anant R Gawande vs ACIT [2022] 144 taxmann.com 127 (Mumbai - Trib.) 8. The revenue has placed heavy reliance on the decision of the Karnataka High Court in the case of M J Siwani (supra) where the Hon'ble High Court has held that in terms of provisions of section 54F, where assessee on date of sale of long term capital asset owns a residential house even jointly with another person, his claim for deduction of capital gain arising from sale of asset has to be rejected. It is also submitted by the ld DR that the SLP against the order of the Hon'ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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