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TMI Blog1980 (4) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... gains. During the relevant accounting year the assessee, jointly with Shri Charles Rodriques, sold his house property at Juhu Tara. The conveyance deed was executed in Feb., 1975 and the deed was registered some time in 1976. Therefore, the assessee offered to be assessed on capital gains for the asst. yr. 1975-76 in respect of which the accounting year ended on 31st March, 1975. The ITO, however, erroneously mentioned in the assessment order that he was going to tax the assessee in respect of capital gains on a protective basis. Be that as it may, the year of taxability is not before us and we proceed on the basis that the capital gains were rightly brought to tax during the relevant accounting year. 2. Now the assessee claimed exemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self occupied portion constituted the bungalow and the land surrounding it and that it was not proper for the ITO to hold that the ratio of 1/10th should be applied for the computation of relief under s. 54. 4. Aggrieved by the decision of the Commr. (A), the Department has come up in appeal before us. The Deptl. Rep. placed in our hands a computation sheet, according to which, there was actually a loss on the sale of building and that the profit arose only because of the sale of land which was surplus and which could not be said to be appurtenant to the building sold by the assessee. It was pointed out by the Deptl. Rep. that the building stood only on a small portion of the land and that the surplus land which was sold could not be bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and was occupied by the owner. There was a small shed occupied by the owner's servant. There was also another shed occupied by the owner. Only one new construction of 1960 with ground and first floors and covering 108 sq. yards had been let out. It was, therefore, pointed out that these four structures occupied the plot of land measuring 2146 sq. yards, the whole could be said to be appurtenant of the building sold. It was not always possible to sell portions separately and that entire land was in enjoyment and use alongwith the buildings thereon. He then referred to V.S. Sundaram's Commentary on IT Law and pointed out that the word "mainly" as used in s. 54 should be interpreted to mean that the assessee would be entitled to the benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. commentator relied upon by the assessee that the use of the word "mainly" in the section would confer the benefit of s. 54 on the assessee if the major portion of the building was used for residential purposes by him or by his parent. In the present case the Commr. (A) has brought on record, and his findings have not been successfully impugned before us, that while the total area or the plot sold was 2146 sq. yards, the let out structure built in 1960 occupied only 108 sq. yards. Thus, the property sold was substantially self occupied by the assessee and the provisions of s. 54 were rightly relied upon by the assessee before the lower authorities. 7. As for the contention of the Deptl. Rep. about the meaning of "appurtenant thereto" ..... X X X X Extracts X X X X X X X X Extracts X X X X
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