Income Tax Appellate Tribunal - Mumbai
Ramkrishna Hari Dandekar, Thane vs Assessee on 31 December, 2014
आयकर अपील य अ धकरण, मुंबई यायपीठ "जी" मुंबई
IN THE INCOME TAX APPELLATE TRIBUNAL "G" BENCH, MUMBAI
BEFORE S/SHRI B.R.BASKARAN (AM) AND SANJAY GARG, (JM)
सव ी बी.आर.बा करन, लेखा सद य एवं ी संजय गग, या यक सद य के सम
आयकर अपील सं./I.T.A. No.1290/Mum/2008
( नधारण वष / Assessment Year : 2004-05)
Shri Ramkrishna Hari Dandekar, बनाम/ The Dy.Commissioner of Income
1, Laxmi Keshav Apartment Tax, Circle -3, Thane,
Vs.
Dandekar wadi, Lower Ground floor, Vardaan,
Dr.Ramesh Pradhan Marg, MIDC, Wagle Industrial Estate,
Near New English School, Thane(W)
Naupada,
Thane(W)-400602
Mumbai
(अपीलाथ /Appellant) .. ( यथ / Respondent)
आयकर अपील सं./I.T.A. No.1610/Mum/2009
( नधारण वष / Assessment Year : 2000-01)
Shri Ramkrishna Hari Dandekar, बनाम/ The Dy.Commissioner of Income
1, Laxmi Keshav Apartment Tax, Circle -3, Thane,
Vs.
Dandekar wadi, Lower Ground floor, Vardaan,
Dr.Ramesh Pradhan Marg, MIDC, Wagle Industrial Estate,
Near New English School, Thane(W)..
Naupada,
Thane(W)-400602
Mumbai
(अपीलाथ /Appellant) .. ( यथ / Respondent)
थायी ले ख ा सं . /जीआइआर सं . /PAN/GIR No. : AEJPD3767J
आयकर अपील सं./I.T.A. No.4086/Mum/2009
( नधारण वष / Assessment Year : 2000-01)
The Asstt. Commissioner of बनाम/ Shri Govind Hari Dandekar,
Income Tax, Circle -1, Thane, 201, Laxmi Keshav Apartment
Vs.
Lower Ground floor, Vardaan, Dandekar wadi,
MIDC, Wagle Industrial Estate, 2nd floor, Dandekar Wadi,
Thane(W).. Naupada,
Thane(W)-400602
Mumbai
(अपीलाथ /Appellant) .. ( यथ / Respondent)
2 ITA. No1290/Mum/2008 and
other two appeals
आयकर अपील सं./I.T.A. No.4087/Mum/2009
( नधारण वष / Assessment Year : 2004-05)
The Asstt. Commissioner of बनाम/ Shri Govind Hari Dandekar,
Income Tax, Circle -1, Thane, 201, Laxmi Keshav Apartment
Vs.
Lower Ground floor, Vardaan, Dandekar wadi,
MIDC, Wagle Industrial Estate, 2nd floor, Dandekar Wadi,
Thane(W).. Naupada,
Thane(W)-400602
Mumbai
(अपीलाथ /Appellant) .. ( यथ / Respondent)
थायी ले ख ा सं . /जीआइआर सं . /PAN/GIR No. : AEBPD6893D
अपीलाथ ओर से / Revenue by Shri C N Vaze
यथ क ओर से/Assessee by Shri R N D'Souza and
Shri Premanand J
सन
ु वाई क तार ख / Date of Hearing : 21.10.2014
घोषणा क तार ख /Date of Pronouncement : 31.12.2014
आदे श / O R D E R
Per B.R.BASKARAN, Accountant Member:
All the four appeals filed by the respective assessees are directed against the orders passed by Ld CIT(A)-I, Thane in their respective hands and they relate to the assessment years 2001-02 and 2004-05. All these appeals were heard together, since they arise out of common set of facts. Accordingly, these appeals are disposed of by this common order, for the sake of convenience.
2. Both the assessees herein were joint owner of a property and they entered into a development agreement with M/s Niwara Construction around December 1999 through a Memorandum of Understanding (MOU). The construction was completed in the financial year 2003-04 relevant to the assessment year 2004-05 and the assessees got their share in the construction in that year. Hence both the assessees offered the capital gains arising out of 3 ITA. No1290/Mum/2008 and other two appeals development agreement in the assessment year 2004-05, i.e., in the year in which the assessees got their share. However, the assessing officer held that the Capital gain is assessable in the financial year 1999-2000 relevant to the assessment year 2000-01, i.e., in the year in which MOU was signed. The AO further noticed that the compensation originally granted to the assessees was enhanced subsequently. Accordingly, the AO assessed the capital gain arising on original compensation on substantive basis in assessment year 2000-01 and on protective basis in assessment year 2004-05. However, the AO assessed the capital gain arising on enhanced compensation on substantive basis in assessment year 2004-05. The Ld CIT(A) also confirmed the view taken by the assessing officer.
3. Hence the principal issue urged before us relates to the determination of the assessment year in which the Capital gains is assessable. Further the assessee is aggrieved in respect of the following issues also:-
(a) Determination of the value of Sale consideration.
(b) Determination of cost as on 1.4.1981.
(c) Denial of exemption claimed u/s 54 of the Act.
4. We shall take up the first issue relating to the determination of the assessment year in which the Capital gain should be assessed. The facts relating thereto are stated in brief. The assessees herein entered into a memorandum of understanding dated 'NIL' (MOU) with M/s Niwara Construction (on non-judicial stamp paper issued on 07-12-99) for development of a property located within the Thane Municipal limits admeasuring 913.88 Sq. mts. At the time of execution of the MOU, the assessees have received an advance of Rs.12.00 lakhs. It was stated by the assessees that the advance was received on 04.1.2000. Hence, it can be reasonably concluded that the MOU was executed by the time the advance amount of Rs.12.00 lakhs was received, i.e., during the financial year 1999-2000 relevant to the assessment year 2000-01. According to the MOU, M/s Niwara Construction (hereinafter "developer") shall pay a sum of Rs.1.00 crore to the assessees, allot four residential flats each admeasuring 800 Sq. ft. of carpet area, two shops each admeasuring 300 Sq.ft. of carpet area and two earmarked car parking space each admeasuring 150 Sq.ft in the proposed 4 ITA. No1290/Mum/2008 and other two appeals building. The developer also agreed to settle with the tenants residing in the existing building.
5. The developer got the plan sanctioned by the Thane Municipal Corporation (TMC) on 26.6.2000 and obtained commencement certificate also on 15.7.2000. However, subsequently the TMC directed that the construction should be restricted to ground and two floors in view of a Writ petition No.309 of 2000 filed in Bombay High Court. Hence, the developer also joined as an intervener in the above said writ petition. After the disposal of the writ petition, the TMC informed the developer, vide its letter dated 19.10.2001, that it can carry out the construction as per the original plan sanctioned on 26.6.2000. Thus, it is seen that the commencement of construction got delayed by about 15 months due to legal proceedings.
6. Due to the delay in completion of the construction, the compensation payable to the assessees was enhanced, i.e., the amount payable to them was enhanced to Rs.1,52,88,800/- and further the carpet area of the shops was also enhanced to 780 sq.ft.. Thus, the assessees got additional amount of Rs.52.88,800/- and additional constructed area of 180 sq.ft. It is an admitted fact that the developer completed the construction during the financial year 2003-04 and handed over the possession of the constructed areas to the assessees in that year.
7. The assessees offered the Capital gains arising on account of the MOU in assessment year 2004-05. However, as stated earlier, the assessing officer assessed the capital gains computed as per the initial compensation in AY 2000- 01 and the capital gains computed on enhanced amount in AY 2004-05. As stated earlier, the capital gains assessed in AY 2000-01 on substantive basis was also assessed on protective basis in AY 2004-05. The Ld CIT(A) also confirmed the order of the assessing officer.
8. The main contention of the assessee was that the developer did not comply with the terms and conditions of the MOU and hence the date of MOU 5 ITA. No1290/Mum/2008 and other two appeals cannot be considered as date of transfer. To substantiate this contention, the assessee has submitted the following points:-
(a) The developer did not start the construction immediately as per the terms of MOU
(b) The payments were not made by the developer in accordance with the terms agreed upon.
(c) The assessees had to serve a legal notice to the developer in order to compel him to adhere to the terms and conditions of MOU
(d) The assessees had retained the right to cancel the MOU in case of breach of terms and conditions of MOU
(e) The assessees have given the Irrevocable Power of Attorney for a limited period, i.e., upto the date of completion of the building.
(f) The developer was not entitled to sell his share of constructed area until the shares of the assessees are handed over to them.
(g) Originally agreed terms of compensation was later revised, which shows that the MOU has not become final.
Accordingly it was submitted that there was uncertainty about the compliance of the terms and conditions of MOU. Further it was submitted that the developers did not have independent right to sell their share unless and until the assessees were given possession of their share in construction. Accordingly it was contended that the MOU should not be relied upon to determine the year of assessing the Capital gains. It was further submitted that the assessees were given possession of their share of constructed area only in the financial year 2003-04 relevant to the assessment year and hence the capital gains should be assessed in the assessment year 2004-05 only.
9. However, we are not convinced with the contentions of the assessee. In our view, the various clauses mentioned in MOU relating to right of revocation of MOU, the condition that the assessees should be given possession of the constructed areas before the sale of developer's share, irrevocable power of attorney given to the developer only upto the completion of construction etc., are usual terms and conditions which would normally incorporated in the agreement in order to protect the rights of the parties. Hence, the said clauses cannot be, in our view, taken support of in order to contend that there was no transfer of the 6 ITA. No1290/Mum/2008 and other two appeals property. Similarly, the delay in payment of installments at agreed time shall also not support the case of the assessee, since the tax authorities have noticed that the project got delayed due to legal complications and hence, it is natural for the developer to delay the payment of installments. Though the assessees contend that they had to serve legal notice to the developer, yet we notice that the said notice was duly addressed by the developer and the same has also been accepted by the assessees. There was no record to show that the assessee was not convinced with the reply given by the developer. Finally, the assessees have got possession of the constructed areas and also received the agreed amount, which shows that the terms of MOU has been complied with even though there was some delay. Hence, in our view, the tax authorities are justified in placing due reliance on the MOU, since it has ultimately been given effect to.
10. We notice that the Ld CIT(A) has considered all these points and accordingly has rendered his decision. For the sake of convenience, we extract below the operative portion of the order passed by Ld CIT(A) on this issue:-
"5. I have gone through the assessment order and the written submissions filed by the appellant during the course of appellate proceedings. After examining all the relevant facts of the case and the legal position on various issues involved in this appeal, the grounds of appeal taken by the appellant are being considered and disposed off as under:
Ground of Appeal No -1 In the first ground of appeal, the appellant has challenged the AO's action of taxing the long term capital gains on transfer of residential land to the developer in the AY 2000-01 on substantive basis and in AY 2004-05 on protective basis. The facts have been explained hereinabove. The main issue to be decided in this ground of appeal is whether the Memorandum of Understanding (MOU) dated NIL entered into by the appellant and M/s Niwara Construction ( on the non-judicial stamp paper issued on 07/12/99 ) conferred the development rights unto the developers in FY 1999-2000 relevant to AY 2000-01 and whether this transaction was covered within the provisions of Section 2(47)(v) of the IT Act r.w.s 53A of the Transfer of Property Act. On close scrutiny of the various provisions of the MOU entered into by the appellant and the developers, it becomes amply clear that the appellant had conferred all development rights unto the developers in respect of the plot of land in question admeasuring 913.88 sq mtrs bearing S No 7, Hissa No-2, Tikka No-16, CTS No-40A situated at Ram 7 ITA. No1290/Mum/2008 and other two appeals Maruti Cross Road, Gokhale Road, Naupada, Thane. The developers acquired the right to relocate the appellant and other co-owners to a temporary alternate accommodation; to demolish the existing structure ; to persuade the existing tenants for proposed development and to shift them to alternate locations ; to apply for and get sanction for the project from TMC; to implement the project with adequate speed; to pay the monetary consideration to the appellant and to give possession of the agreed flats / shops / parking spaces to the appellant etc. At the time of entering into the MOU, the developers paid a sum of Rs 12 Lakhs to the appellant and, thereafter, the possession of the land was taken over by the developer. From perusal of the facts, I find that the developers, M/s Niwara Construction did make every effort to comply with the provisions of the MOU. The developers had all the good intentions to carry out the project within the stipulated time and they indeed tried for the same.
The developers got the plan of construction sanctioned by TMC on 26/06/2000, i.e., within a period of seven months from the date of MOU. The commencement certificate was obtained on 15/07/2000 i.e. within a period of less than one month from the date of approval of the plan. The project was delayed only because of the writ petition ( No 349 of 2000 ) filed in the Bombay High Court and the consequent order dated 02/12/2000 of TMC withholding its earlier sanction as per plan submitted to it. As a result of this, the developer had to intervene in the writ petition filed in the Bombay High Court and eventually the developers were able to get the go ahead signal from the TMC on 19/10/2001 to complete the project as per the originally sanctioned plan. This intervening period (from 02/12/2000 to 19/10/2001 ) delayed the implementation of the project by the developer and had its impact on the payment schedule of the consideration. In spite of this serious problem and the financial crisis resulting therefrom, the developers did their best to pay substantial amount, i.e. more than 50 % of the consideration to the appellant by February, 2002. The appellant was all the time aware of the problems being faced by the developers.
The appellant has contested that the MOU did not confer any 'legal ownership' or any 'beneficial ownership' on the developers. It has also been contested that there was a clause in the MOU which empowered the appellant and other co-owners to terminate the MOU in the event of non compliance of its clauses by the developers. It has been argued that this particular clause in the MOU makes it a contract that is not covered under the provisions of Section 53A of the Transfer of Property Act. I do not agree with the arguments of the appellant on this issue. After entering into the MOU with the developers, the appellant and other co-owners had entrusted all development rights to the developers and it is not correct to say that no rights were transferred to the developers. The fact of entrustment of all development rights unto the developers has been clearly mentioned in clause 2 of the Terms & Conditions embedded in the MOU as "The owners do hereby jointly and each of them do hereby severally grant unto the Developers on "As is where is basis", all the development rights in respect of the said property....." In this context, it would also be pertinent to quote a few lines from the show cause letters 8 ITA. No1290/Mum/2008 and other two appeals issued by the appellant to the developers. The show cause letters were issued by the appellant on 18/02/02 and on 24/03/03. In para 1 of the letter dated 18/02/02 , it has been written as under:
"My clients have instructed me to state that by a Memorandum of Understanding executed in the month of December '99 , you have acquired the rights of development from my clients in respect of their immovable property being a piece and parcel of land admeasuring 913.88 sq. mtrs..........".
Again in para 1 of the letter dated 24/03/03 / it has been written as under:
By and under a Memorandum of Understanding executed in the month of December '99, my client had entrusted unto you the rights of development in respect of their immovable property bearing S No 7 ........."
From the contents of Clause 2 of Terms & Conditions of the MOU and the two show cause letters, it becomes clear that all the development rights of the land in question were entrusted upon the developers by the MOU dated 09/12/99. Further the developers had given a detailed reply to the appellant's letter dated 24/03/03.- In their reply dated 28/03/03, the developers had explained the issues regarding the implementation of the project in great detail. It would be relevant to quote a few lines from the reply dated 28/03/03 given to the appellant by the developers.
We have at no point avoided or sought to avoid any of our obligations under the aforementioned memorandum of understanding and are wanting to comply with each one of the obligations. It is only due to the said delay caused in implementing the development project for no fault of ours and the said unwarranted loss , hardship and prejudice caused to us and the shadow cast on the development project, that we sought more time to comply with our obligations under the said Memorandum of Understanding and your clients were kind enough to agree to the same. We have at all times apprised your clients of the developments taking place and your clients have all along been kind enough to accommodate us. Your clients are fully aware of the stage of the construction and your clients calling upon us at this stage of the development project despite being fully aware of the facts to comply with the requisitions is not justified.With reference to your said letter dated 24" March, 03, we have to state that our client has already made substantial payments of more than Rupees One Crore which have been accepted by your clients. Further, the time taken in making payments has been due to circumstances which your clients are very well aware of. We require more time till 15th June, 2003, to make payment of the balance outstanding amount. The construction of the building on the said property is substantially completed and we will be in a position to hand over the possession of the premises to be handed over to 0
9 ITA. No1290/Mum/2008 and other two appeals your clients by 31" May, 2003. It is not correct to state that we have committed any breaches as is sought to be suggested or at all. The circumstances in which the project has been implemented have been set out hereinabove and your clients are fully aware of the same. The facts and circumstances of the matter do not warrant termination of the contract or the initiation of any legal proceedings as mentioned in your said letter or otherwise nor is the same necessary."
From the facts narrated in the reply by the developers, it is very clear that the intentions of the developers were to implement the project with required speed and to pay the monetary consideration to the appellant as agreed upon and to give possession of the flats / shops / parking spaces etc to the appellant at an early date. This shows that the developers were more than willing to fulfill all the obligations entrusted upon them by various clauses of the MOU dated 09/12/99. The appellant was satisfied with the reply as no further action appears to have been taken by him against the developers.
The Hon'ble Bombay High Court in the case of Chaturbhuj Dwarkadas Kapadia Vs CIT (2003) 260 ITR 491 (Bombay) has very clearly observed as follows:
"u/s 2(47)(v) , any transaction involving allowing of possession to be taken or retained in part performance of the contract of the nature referred to in Section 53A of the Transfer of Property Act , would come within the ambit of Section 2(47)(v). That , in order to attract the Section 53A, the following conditions need to be fulfilled. There should be a contract for consideration; it should be in writing; it should be signed by the transferor ; it should pertain to the transfer of immovable property; the transferee should have taken possession of property ; lastly transferee should be ready and willing to perform the contract. That even arrangements confirming privileges of ownership, without transfer of title, could fall U/s 2(47)(v)."
All ingredients of the Hon'ble Bombay High Court judgment are fulfilled in this case. The most important ingredient of the above judgment and section 2(47)(v) of the IT Act is that the contract should be of the nature referred to in section 53A of the Transfer of Property Act. The Hon'ble Bombay high Court has analyzed this ingredient and has come to the conclusion that the most important thing to be seen in this context is the transferee's willingness and readiness to perform his part of the contract in terms covenanted there under. The willingness of the transferee has to be absolute, unconditional and unqualified. In the instant case, as discussed above, the developers were always ready and willing to perform their part of the contract and their bonafide in this respect could not be doubted even by the appellant. The developers' commitment to the project was absolute unconditional and unqualified. The minor difference in payment schedule crept in because of the writ petition filed in the Bombay High Court. This situation was beyond the control of the developers and the co- owners of the land were aware of the situation. This cannot be taken as a tool to doubt the intentions of the developers. The developers have 10 ITA. No1290/Mum/2008 and other two appeals complied with all the provisions of the contract i.e. the MOU. This fact is proved by their reply dated 28/03/03 given to the appellant and other co- owners. The appellant and the other co-owners were fully satisfied with the reply given by the developers as no further action was taken against the developers by the appellant and other co-owners after receipt of the reply. By following the decision of the Bombay High Court in the case of Chaturbhuj Dwarkadas Kapadia (supra), I find that the MOU dated 09/12/99 conferred all development rights unto the developers at the time of signing of the MOU and the MOU can be considered as a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882 and as such the provisions of section 2(47)(v) of the IT Act, 1961 are squarely applicable in this case. Since the transfer was effected in the FY 99-00, the AO was right in taxing the long term capital gain arising out of this transfer in the AY 2000-01. Since the appellant had disclosed the LTCG in AY 04-05, the AO has taxed it on protective basis in the interest of revenue. The additional consideration accrued and was received in FY 03-04 and hence has been correctly taxed in AY 04-05. The case laws quoted by the appellant i.e. Ajay Kumar Sah Jagati Vs ITO 55 lTD 348 (Delhi) and R Dalmia (DECD) Vs CIT 133 ITR 169 (Delhi) are not very relevant to the facts of the case. The appellant's ground of appeal No 1 is therefore, dismissed."
The finding given by the tax authorities that the assessee had given possession of the property upon entering into the MOU has not been controverted by the assessee. Further, it is a fact that the assessees have been receiving the monetary portion of the consideration in instalments and the said fact was also not denied by the assessees, though the developer did not give the instalments at the agreed point of time at the agreed amount. We notice that the tax authorities have made reference to sec. 2(47)(v) of the Act and the assessees are disputing about the applicability of that section to them. However, in view of the decision of Hon'ble jurisdictional Bombay High Court rendered in the case of Chaturbhuj Dwarkadas Kapadia (supra), we are inclined to reject the said contentions of the assessee. Even otherwise, we notice that the assessee's case would also fall u/s 2(47)(vi) of the Act. Hence, we are of the view that the Ld CIT(A) was justified in upholding the action of the assessing officer in assessing the Capital gain in assessment year 2000-01.
11. Since we have upheld the assessment of Capital gain arising on original consideration in AY 2000-01, we direct the assessing officer to delete the protective assessment made in the hands of the assessees in AY 2004-05.
11 ITA. No1290/Mum/2008 and other two appeals
12. In assessment year 2000-01, both the assessees have raised grounds relating to validity of reassessment proceedings on the ground that the assessing officer has reopened the assessment without recording reasons. We notice from the order of the Ld CIT(A) that the first appellate authority has given a finding that the assessing officer has explicitly discussed about assessing Capital gain in the assessment order relating to AY 2004-05 and has also recorded the same reasons before issuing notice u/s 148 of the Act for AY 2000-01. Before us, the assessee could not produce any material to contradict the findings given by the Ld CIT(A). Accordingly we do not find any merit in the grounds relating to validity of reassessment and accordingly dismiss them.
13. The next issue relates to the determination of sale consideration. We notice that the assessing officer has determined the value of constructed areas allotted to the assessee by adopting the Fair Market Value (FMV) determined by the Stamp authority for stamp duty purposes. The same was also confirmed by the Ld CIT(A). Before us, the Ld A.R submitted that the value of constructed area allotted to the assessees should be determined as per the cost of construction of the proposed building. In support of this proposition, he took support from the decision rendered by Hyderabad bench of Tribunal in the case of Deputy Director of Income tax Vs. G.Raghuram (2010) (39 SOT 406). In the above said case, the Hyderabad bench has held that the Real consideration received by the assessee in lieu of the land foregone by him is only the cost of construction of proposed building to the extent of which falls to the assessee in the ultimately constructed area and not the market value of such share of constructed area which may be available after the completion of construction.
14. We agree with the view expressed by the Hyderabad bench of Tribunal in the case referred supra. Accordingly we set aside the order of Ld CIT(A) on this issue passed in the hands of both the assessees and restore the matter to the file of the assessing officer with the direction to compute the sale consideration by following the decision rendered in the case of G. Raghuram (supra).
15. The next issue relates to the determination of FMV of the property as on 1.4.1981. Even though the assessee has filed a report obtained from the 12 ITA. No1290/Mum/2008 and other two appeals Registered valuer, the AO ignored the same and proceeded to determine the FMV of the property on the basis of information obtained from the Sub-registrar. Before us, the Ld A.R placed a number of case laws to contend that the FMV is required to be determined in terms of Sec. 55A of the Act and hence the AO was not justified in rejecting the valuation report furnished by the assessee. We find merit in the said contentions. We notice that the AO did not examine the valuation report obtained by the assessee from a Registered Valuer. In our view, the AO should have examined the same and should have given reasons for not accepting the same. In the absence of the same, we are of the view that this issue also requires fresh examination at the end of the assessing officer. Accordingly, we set aside the order of Ld CIT(A) on this issue passed in the hands of both the assessees and restore the same to the file of the AO with the direction to examine the same afresh by duly considering the report of the Registered Valuer furnished by the assessee.
16. The next issue relates to the deduction claimed u/s 54 of the Act. Both the assessees claimed exemption u/s 54 of the Act in respect of the value of two flats each obtained by them. According to the assessees, both the flats are contiguous to each other and should be considered as one flat. However, the AO rejected the said claim by holding that the said flats do not fall under the category of either 'purchase' or 'construction' stated in sec. 54 of the Act. The Ld CIT(A) also confirmed the same.
17. Before us, the Ld A.R placed reliance on the decision rendered by the co- ordinate bench of Tribunal in the case of Jatinder Kumar Madan Vs. ITO (2012)(21 taxmann.com 316) to contend that the tax authorities are wrong. We notice from the said decision that the co-ordinate bench of Tribunal has held that the flats obtained under development agreement is eligible for deduction u/s 54 of the Act if the new flat had been constructed within a period of 3 years from the date of transfer. Thus, we notice that the view entertained by the tax authorities have been rejected by the Tribunal. Hence, this issue also requires examination at the end of the assessing officer. Accordingly, we set aside the order of Ld CIT(A) on this issue passed in the hands of both the assessees and restore the 13 ITA. No1290/Mum/2008 and other two appeals same to the file of the AO with the direction to examine the same afresh by duly considering the decision rendered in the case of Jatinder Kumar Madan (supra). The AO also should consider the claim of the assessee that both the flats should be considered as single residential house for the purpose of allowing deduction u/s 54 of the Act.
18. In the result, all the appeals filed by the assessees are treated as partly allowed.
The above order was pronounced in the open court on 31st Dec, 2014.
घोषणा खल
ु े यायालय म दनांकः 31st Dec,2014 को क गई ।
sd sd
(संजय गग /SANJAY GARG) ( बी.आर.बा करन / B.R. BASKARAN)
या यक सद य / JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER
मुंबई Mumbai: 31st Dec,2014.
व. न.स./ SRL , Sr. PS
आदे श क त ल प अ े षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent.
3. आयकर आयु त(अपील) / The CIT(A)- concerned
4. आयकर आयु त / CIT concerned
5. वभागीय त न ध, आयकर अपील य अ धकरण, मंब
ु ई/
DR, ITAT, Mumbai concerned
6. गाड फाईल / Guard file.
आदे शानुसार/ BY ORDER,
true copy
सहायक पंजीकार (Asstt. Registrar)
आयकर अपील य अ धकरण, मंब
ु ई /ITAT, Mumbai