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Late Gulam Ali Khan Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAndhra Pradesh High Court
Decided On
Case NumberReference Case No. 288 of 1980
Judge
Reported in[1987]165ITR228(AP)
ActsIncome Tax Act, 1961 - Sections 45, 53 and 54
AppellantLate Gulam Ali Khan
RespondentCommissioner of Income-tax
Appellant AdvocateN.V. Ranganatham, Adv.
Respondent AdvocateM. Suryanarayana Murthy, Adv.
Excerpt:
.....54 de00000nied by income-tax officer - appeal before tribunal - tribunal confirmed view of ito and assistant appellate commissioner - decision of tribunal challenged before high court - whether legal representative can claim exemption under section 54 - assessee is eligible for exemption from capital gain tax on proceeds from sale of residential house to purchase another residential house - expression 'assessee' has given wide and liberal meaning and legal heir also included in this expression - held, legal heir entitled to exemption under section 54 - decision of tribunal set aside. - .....appellate assistant commissioner who dismissed the appeal. he however, modified the quantum of the capital gains to rs. 93,750 as against rs. 1,01,250 included by the income-tax officer. on a further appeal by the legal representative to the income-tax tribunal, the views of the income-tax officer and the appellate assistant commissioner were confirmed. in reaching this conclusion, the tribunal relied upon decisions of the karnataka high court in smt. vijayalakshmi v. cit : [1975]100itr648(kar) and the gujarat high court in cit v. tikyomal jasanmal : [1971]82itr95(guj) . 3. learned counsel for the assessee, mr. ranganatham, contended that this is a case where exemption ought to have been allowed under section 54 of the act. section 54 of the act is as follows : '54. profit on sale of.....
Judgment:

K. Amareshwari, J.

1. The following question is referred to us for our opinion under section 256(1) of the Income-tax Act, 1961 :

'Whether, on the facts and in the circumstances of the case, the denial of exemption under section 54 of the Income-tax Act, 1961, by the Appellate Tribunal for the relevant assessment year 1976-77 is correct in law ?'

2. Late Mir Gulam Ali Khan, during his lifetime, sold his residential house situated at Nallakunta in Hyderabad in December, 1975, for a sum of 2 lakhs. Immediately thereafter, he entered into an agreement for purchase of another house at Purani Haveli and paid an advance amount or Rs. 1,000. He died on April 16, 1976, soon after the payment of the earnest money. The transaction was subsequently completed by the legal representatives of the deceased and the house was purchased on December 23, 1976, i.e., within one year from the date of sale of the original house. There is no dispute that the house sold was used for residential purpose and the house purchased was also for residential purpose. The question is whether the legal representatives were entitled to claim exemption under section 54 of the Income-tax Act. The Income-tax Officer negatived the claim on the ground that the assessee who sold the house is not the same as the person who purchased the house. The legal representatives carried the matter in appeal to the Appellate Assistant Commissioner who dismissed the appeal. He however, modified the quantum of the capital gains to Rs. 93,750 as against Rs. 1,01,250 included by the Income-tax Officer. On a further appeal by the legal representative to the Income-tax Tribunal, the views of the Income-tax Officer and the Appellate Assistant Commissioner were confirmed. In reaching this conclusion, the Tribunal relied upon decisions of the Karnataka High Court in Smt. Vijayalakshmi v. CIT : [1975]100ITR648(KAR) and the Gujarat High Court in CIT v. Tikyomal Jasanmal : [1971]82ITR95(Guj) .

3. Learned counsel for the assessee, Mr. Ranganatham, contended that this is a case where exemption ought to have been allowed under section 54 of the Act. Section 54 of the Act is as follows :

'54. Profit on sale of property used for residence - (1) Where, in the case of an assessee, being an individual, the capital gain arises from the transfer of a long-term capital asset to which the provisions of section 53 are not applicable, being buildings or lands appurtenant thereto, and being a residential house, the income of which is chargeable under the head 'Income from house property' (hereafter in this section referred to as the original asset) and the assessee has within a period of one year before or after the date on which the transfer took place purchased, or has within a period of three years after that date constructed a residential house, then, instead of the capital gain being charged to income-tax as income of the previous year in which the transfer took place, it shall be dealt with in accordance with the following provisions of this section, that is to say, -

(i) if the amount of the capital gain is greater than the cost of the residential house so purchased or constructed (hereafter in this section referred to as the new asset), the difference between the amount of capital gain and the cost of the new asset shall be charged under section 45 as the income of the previous year; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase or construction, as the case may be, the cost shall be nil; or

(ii) if the amount of the capital gain is equal to or less than the cost of the new asset, the capital gain shall not be charged under section 45; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase or construction, as the case may be, the cost shall be reduced by the amount of the capital gain.

Explanation. - For the purposes of this sub-section, 'long-term capital asset' means a capital asset which is not a short-term capital asset.'

4. Relying upon the expression 'assessee' occurring in section 54 of the Act, it is contended for the Department that in order to claim the exemption, the person who sold the house must be the same as the person who purchased the house, that is, the assessee must be one and th e same person. The identity must be the same. We are unable to accept this contention. The object of granting exemption under section 54 of the Act is that a person who sells a residential house for the purpose of purchasing another convenient house must be given exemption so far as capital gains are concerned. As long as the sale of the house and purchase of another house are part of the same scheme, the lapse of some time between the sale and purchase makes no difference. The word 'assessee' must be given a wide and liberal interpretation so as to include his legal heirs also. There is no warrant for giving too strict an interpretation the word 'assessee' as that would frustrate the object of granting the exemption and what is more, in the instant case, the very same assessee immediately after the sale of the house, entered into an agreement for purchasing another house and paid a sum of Rs. 1,000 as earnest money and subsequently the legal representative completed the transaction within a period of one year from the date of the death of the deceased. The sale and purchase are two links in the same chain. We are fortified in this view by a decision of the Madras High Court in C. V. Ramanathan v. CIT : [1980]125ITR191(Mad) .

5. We accordingly answer the question in the negative, that is, in favour of the assessee and against the Revenue. No costs.


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