CIT vs. Kapil Nagpal (Delhi High Court)

COURT:
CORAM: ,
SECTION(S):
GENRE:
CATCH WORDS: ,
COUNSEL:
DATE: September 11, 2015 (Date of pronouncement)
DATE: September 14, 2015 (Date of publication)
AY: 2007-08
FILE: Click here to download the file in pdf format
CITATION:
S. 54: To constitute purchase of new house, a registered sale deed is not necessary. Suspicion, howsoever strong, cannot partake the character of evidence

(i) In light of the decision of the Supreme Court in CIT v. Podar Cements (P) Limited [1997] 226 ITR 625 (SC), CIT v. T.N. Aravinda Reddy (1979) 120 ITR 46 and Balraj v. CIT (2002) 254 ITR 22 (Del), in order to constitute purchase for the purpose of Section 54 and Section 54F of the Act it is not necessary that there should be registered sale deed. This Court in Balraj v. CIT (supra) noticed the decisions in Mysore Minerals Ltd. v. CIT (1999) 239 ITR 775 (SC) and CIT v. R.L. Sood (2000) 245 ITR 727 (Del) and held that “for the purpose of attracting the provisions of Section 54 of the IT Act, it is not necessary that the Assessee should become the owner of the property. Section 54 of the said Act speaks of purchase. Moreover, the ownership of the property may have different connotation in different statutes.” It was concluded that the Tribunal in that case “went wrong in holding that for the purpose of applicability of Section 54, registration of document is imperative.” In Dr. P.K. Vasanthi Rangarajan v. CIT (2012) 252 CTR 336 the Assessee and her husband were co-owners to the extent of 50% share in a building that had a clinic and a residential house. It was held that since the entire property was not an exclusive residential property and 50% of the ownership was with reference to the clinic on the ground floor, the harshness of the proviso to Section 54 F cannot be applied “unless and until there are materials to show that the Assessee is the exclusive owner of the residential property.”

(ii) In the present case, as pointed out by the CIT (A), the sale deed does show that what was purchased by the Appellant (Assessee herein) is an agricultural land. Khasra Girdawri also clarifies that while there is a kothi, i.e., house on Khasra No. 76 (purchased by the Assessee’s father), the land in Khasra Nos. 75 and 90 purchased by the Assessee was used only for agricultural purpose. The explanation by the Assessee that only the rental income from letting out the constructed portion property was being shared between him and the father in the ratio of 15%: 85% appears to be a plausible one. Unless there is document to show that the Assessee was a co-owner of the said building to the extent of even 15%, there cannot be an inference in that regard. As explained by Umacharan Shaw & Bros v. CIT (1959) 37 ITR 271 (SC) suspicion howsoever strong cannot partake the character of evidence. The evidence produced by the Assessee showed that the house was purchased by him on 10th April 2007 within the time allowed under Section 54F of the Act, after making payment and by obtaining the possession thereof. A substantial part of the consideration of Rs. 2 crores was paid on the date of the agreement to sell itself. The balance payment of Rs. 22 lakhs was made on 17th April 2007 when the possession was handed over. The conclusion that the house was in fact purchased on 10th April 2007 within the time allowed under Section 54F of the Act stands supported by the documents placed on record by the Assessee. The Court is satisfied that the prior to 10th April 2007 the Assessee was not the owner of another residential house and therefore the exemption under Section 54 read with Section 54F of the Act could not be denied to him.

One comment on “CIT vs. Kapil Nagpal (Delhi High Court)
  1. vswami says:

    “S. 54: To constitute purchase of new house, a registered sale deed is not necessary. …….”
    The stated proposition that has been favourably opined on by the court, if viewed independently, to say the least has been too widely stated to be uniformly followed in all situations. Without having to necessarily discuss the case law, and its merits or otherwise of the view the court has taken – which may perhaps be endorsed for other reasons,- in any view, the correctness of reliance placed on inter alia the SC judgment in Podar Cements case is prima facie debatable. For, in that case, the point of issue was centred on the concept of ‘DEEMED ownership’ within the meaning of the law; not on ‘ownership’ as such, which is of direct relevance to the scheme of taxation of CGT (or its exemption) as per the applicable enactment herein.
    For a discussion and an attempted analysis of the SC case, with a view to provoking more thoughts, attention may be invited to the published write-ups on the website of Taxguru.com, so also elsewhere.

    Perhaps,anyone can hope for enlightenment and clarity on the indicated controversy,in the possible further proceedings before the SC.

Leave a Reply

Your email address will not be published.

*