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TMI Blog2004 (3) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... is purchaser of the flat and the entire amount spent by her has to be considered towards the purchase price paid by her for the new flat entitled to be computed while allowing deduction u/s 54. Revenue appeal is dismissed. Allowability of Expenditure on Repairs u/s 54 - Lower authorities have not disputed the fact that the repairs etc., undertaken by the assessee were genuine. The assessee would not have been able to carry out necessary repairs unless the conveyance was executed. The same will obviously mention the figure of agreed purchase price between vendor and assessee. Therefore, this fact cannot be held against the assessee. This issue has been considered by the Tribunal in Gulshanbanoo R. Mukhi's case [ 2002 (1) TMI 1296 - ITAT MUMBAI] . Following the same, we hold that the assessee is entitled to deduction of Rs. 40 lakhs towards purchase of the flat while working out the chargeable capital gains u/s 54. Assessee's cross objection is allowed. - Member(s) : R. P. TOLANI., K. K. BOLIYA. ORDER Per R.P. Tolani, Judicial Member. - This is revenue appeal and assessee's cross objection. Sole ground raised by revenue is as under: "1(a) On the facts and in the circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the capital gains on sale of a property shall be utilised by the assessee for purchase of a residential house, this condition was fully satisfied. The assessee's ground was allowed. Aggrieved, the revenue is before us. 3. The learned departmental representative relied on the order of Assessing Officer. 4. The learned counsel for the assessee reiterated the arguments and contended that merely because the second and third name of mother and father were incorporated for the sake of convenience, will not detract from the fact that the assessee had purchased the property. In common practice, it is so done in movable and immovable properties, more so when a lady is the purchaser for the reason that if the property stands in a single name, the heirs and executors cannot deal with such a property in the absence of probate from the High Court in the event of unfortunate demise of the concerned person. Granting of probate normally takes at least 2 to 3 years besides the complications involved. Therefore the assessee, as a precautionary measure, purchase the property and held it in joint names. The assessee paid all the consideration and expenditure from her bank account, which is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration that they have been advanced. If the consideration is paid out of a common fund their shares would be the same as their interests in that common fund. Although a mortgage is indivisible as between the mortgagor and the mortgagee, yet as between the mortgages inter se their interests in the property would be proportionate to the shares of the mortgage money they had advanced. When four mortgages advanced money in equal shares, and the fourth mortgagee consented to the mortgagor redeeming the other three mortgages, he could only recover one-fourth share of the mortgage money by sale of one-fourth of the property mortgaged. In an Allahabad case [Pertab v. Nihal Singh [1926] 96 IC 134, AIR 1926 All. 676], there was a recital in a sale deed that the plaintiff had contributed one half of the consideration for the suit property, but his share was shown as 1/21. It was held that in view of section 45, his share would be one half. Since the dispute was not between vendor and vendee but between two co-purchasers, section 92 of the Evidence Act would not come in the way [Mohan Lal v. Board of Revenue AIR 1982 All. 273, 275]." The learned counsel emphasized that section 45 of T.P. Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rship" can be applied considering the facts of the case. We are of the view that the facts of the present case conform to be seen from the gloss of the Hon'ble Supreme Court judgment in the case of Podar Cement (P.) Ltd., which also helps the case of the assessee. In consideration of all the above facts, observations and case laws, we hold that the assessee is purchaser of the flat and the entire amount spent by her has to be considered towards the purchase price paid by her for the new flat entitled to be computed while allowing deduction under section 54. 6. Revenue appeal is dismissed. 7. The assessee's cross objection raises following grounds: "(1) The Cross Objector submits that the learned Commissioner of Income-tax (Appeals) erred in confirming that the expenditure of Rs. 40 lakhs, towards repairs effected by the Cross Objector, to put the new flat in a habitable condition, was not allowable under section 54. (2) Having regard to the facts and circumstances of the case and the provisions of law, the Cross Objector submits that the said expenditure of Rs. 40 lakhs also requires to be considered as part of the cost of the new flat, and that deduction under section 54 is also r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enses incurred are subsequent to the ownership. It was contended that section 54 never prescribed such condition. All it refers to is cost of purchase. This aspect has been elaborately considered by the Tribunal in Gulshanbanoo R. Mukhi's case. Without paying the consideration to the vendor, the assessee cannot carry out the repairs. Therefore the same cannot be held against the assessee. 9. The learned DR, on the other hand, relied on the orders of lower authorities. 10. We have heard the rival contentions and perused the material available on record. Lower authorities have not disputed the fact that the repairs etc., undertaken by the assessee were genuine. The assessee would not have been able to carry out necessary repairs unless the conveyance was executed. The same will obviously mention the figure of agreed purchase price between vendor and assessee. Therefore, this fact cannot be held against the assessee. This issue has been considered by the Tribunal in Gulshanbanoo R. Mukhi's case. Following the same, we hold that the assessee is entitled to deduction of Rs. 40 lakhs towards purchase of the flat while working out the chargeable capital gains under section 54. 11. Assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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