9911796707
TMI Blog1996 (7) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... return for the assessment year 1991-92, for the valuation date 31-3-1991, the assessee returned the value of her share in the flat at Rs. 63,000 on the basis of a valuation report showing the value of the entire flat at Rs. 1.26 lakhs. From the copy of the sale-deed filed by the assessee the W.T.O. found that the cost of the flat was Rs. 56 lakhs and the assessee's share therein came to Rs. 28 lakhs. He further observed that the assessee did not reside in the flat since it was purchased as she was a non-resident. He accordingly adopted the value of the assessee's half share in the flat at the cost price of Rs. 28 lakhs. 2. On appeal, it was pointed out that in the case of Mahesh Khatwani, the assessee's husband, the value of the properly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esidential purposes for these two months and not the whole of the year. Even these electricity bills are in the name of the appellant's father-in-law and not in the name of the appellant. No evidence has been produced before me that the appellant had actually come to India during the period of 12 months preceding the valuation date. Even the gas bill submitted before me, which is for one month only, viz., for the month of July 1990 is also in the name of appellant's father-in-law and not the appellant. Under the circumstances, it is doubtful whether the appellant used the flat at any time for her purpose during the period of 12 months preceding the valuation date. In any case, and as already mentioned above, the appellant's A. Rs' have them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carves out an exception to the second proviso. As per the third proviso, in respect of a house which is acquired or constructed after 31-3-1974, and is exclusively used by the assessee for his own residential purposes throughout the period of 12 months immediately preceding the valuation date, the cost of acquisition or cost of construction together with the cost of improvements of which does not exceed Rs. 50 lakhs in the case of a house situate at the four metropolitan cities, namely, Bombay, Calcutta, Delhi and Madras and does not exceed Rs. 25 lakhs in the case of a house situate at any other place, the second proviso will not apply. In other words, in the case of houses situate in the four metropolitan cities even though the value arri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is evident that the assessee was in India for some days during the 12 months preceding the valuation date. Though the CIT(A) says that there is no evidence to show the assessee's presence in India during this period, in view of the entries in the passport which is a public document, we have admitted them as evidence in support of the assessee's claim. The question whether the assessee was using the flat exclusively for her own residential purposes should therefore have to be answered in the affirmative. It is not possible to accept the objection raised on behalf of the revenue that there is no evidence to show actual user of the flat during the period. The assessee was present in India during the period as is clear by the endorsements in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n one house, as her residence, for the purpose of getting the benefit of the 3rd proviso. Obviously in the case of such an assessee it cannot be stated that he had used the house as his residence for every day during the aforesaid period. It would be unreasonable to interpret the word " throughout " appearing in the 3rd proviso as denoting every day during the period of 12 months. Such an interpretation would result in this anomaly, namely, that an assessee who owns only one house and uses it for his residential purposes would not get the benefit of the 3rd proviso to rule 3 whereas an assessee who owns more than one house would get the benefit. Since the Legislature could not have intended such an anomalous result, it would be more in acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ready seen how such a requirement could not have been intended by the use of the word " throughout " in the 3rd proviso. In the view we have taken, the admission cannot be considered as decisive of the case against the assessee. 6. We may also refer to the opinion of the Law Ministry with regard to a somewhat similar condition appearing in section 54 of the I.T. Act as it stood prior to the assessment year 1983-84. The opinion is reproduced at pages 3170 - 3171 of Vol. II of the Sampat Iyengar Treatise on Income-tax Law, 9th Edn. by Dilip K. Seth. It has been expressed in the opinion that the emphasis is on the use of the residence for the assessee's residential purposes. The expression used in section 54 was " being used by the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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