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Sandeep S. Shah Vs. Income-tax Officer - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Madras
Decided On
Reported in(2000)73ITD313(Mad.)
AppellantSandeep S. Shah
Respondentincome-tax Officer
Excerpt:
.....not a shareholder of the company ankur housing investments nor ankur housing investments is a co-operative society of which the assessee is a member. the deposit or advance made by him with ankur housing investments was in the capacity of a member of public or as a customer of ankur housing investments. in view of this, according to the ao the assessee did not satisfy the requirement of sub-cl. (b) of s. 88(2)(xv). hence it was held that the assessee was not eligible for rebate in respect of the sum of rs. 10,000 under s. 88. the assessee was aggrieved and moved the matter in appeal before the first appellate authority, who dismissed the appeal for the elaborate reasons incorporated in the impugned order. the assessee is still aggrieved and is on second appeal before us.3. the learned.....
Judgment:
1. This is an appeal preferred by the assessee Shri Sandeep S. Shah, Madras, against the order dt. 27th June, 1997 of the Dy. CIT(A), B-Range, Madras, for the asst. yr. 1994-95.

2. Briefly stated the facts of the case are that the assessee is a practising advocate. He filed a return of income for the asst. yr.

1994-95 admitting a total income of Rs. 99,650 on 1st November, 1994.

While filing the said return the assessee had claimed rebate under s.

88 in a sum of Rs. 10,000 in respect of an investment in property. The return was processed under s. 143(1)(a) on 27th January, 1995 accepting the income returned and an intimation under the said section was issued on 22nd February, 1995. However, later on the case was selected for scrutiny and notice under s. 143(2) was issued on various dates.

Finally the assessee personally appeared for the hearing and furnished the details called for. During the course of hearing it was noticed by the AO that the assessee had claimed rebate under s. 88 in respect of an investment in property in a sum of Rs. 10,000 (being the maximum claim allowable). When the assessee was requested to furnish details of this item it was replied by the assessee that the rebate was claimed in respect of the advance payment of Rs. 75,000 made to Ankur Housing Investments. The AO invited the attention of the assessee to the provisions of s. 88(2)(xv)(a) and (b) and requested to clarify the exact provision under which the claim for rebate was made, for which the assessee replied that the claim was made under sub-cl. (b) of s.

88(2)(xv). However, the AO for the detailed discussion comprised in the assessment order held that the assessee was not a shareholder of the company Ankur Housing Investments nor Ankur Housing Investments is a co-operative society of which the assessee is a member. The deposit or advance made by him with Ankur Housing Investments was in the capacity of a member of public or as a customer of Ankur Housing Investments. In view of this, according to the AO the assessee did not satisfy the requirement of sub-cl. (b) of s. 88(2)(xv). Hence it was held that the assessee was not eligible for rebate in respect of the sum of Rs. 10,000 under s. 88. The assessee was aggrieved and moved the matter in appeal before the first appellate authority, who dismissed the appeal for the elaborate reasons incorporated in the impugned order. The assessee is still aggrieved and is on second appeal before us.

3. The learned counsel for the assessee Shri S. C. Shah strongly objected to the orders of the authorities below and reiterated the same arguments tendered before the first appellate authority and the AO. He argued that the word 'company' appearing in cl. (b) of s. 88(2)(xv) of the IT Act had a wide meaning and it included AOP, partnership and other combination of individuals. He also contended that the word 'member' appearing in the said clause was also not applicable in the case of the company but only in the case of co-operative society. He further contended that the words 'other authority' appearing in sub-cl.

(a) of s. 88(2)(xv) would include private company also. He also drew our attention to the object of the rebate for investment in house property by contending that it was the intention of the legislature to encourage savings and to chanelise the savings for construction of residential house which is a scarce item in the Indian economy.

4. On the other hand, the learned Departmental Representative strongly supported the orders of the lower authorities and contended that no interference was warranted with the order of the first appellate authority.

5. We have heard the rival submissions and perused the facts and the materials on record including the orders of the lower authorities. The undisputed facts are that : (i) the assessee had deposited money with a private limited company for the purpose of allotment of a house property to him, (ii) he was not a shareholder of the company, (iii) M/s Ankur Housing Investments was not a co-operative society. The word 'company' has been defined by the IT Act in s. 2(17) as follows : (ii) anybody corporate incorporated by or under the laws of a country outside India, or (iii) any institution, association or body which is or was assessable or was assessed as a company for any assessment year under the Indian IT Act, 1922 (11 of 1922), or which is or was assessable or was assessed under this Act as a company for any assessment year commencing on or before the 1st April, 1970, or (iv) any institution, association or body, whether incorporated or not and whether Indian or non-Indian, which is declared by general or special order of the Board to be a company : Provided that such institution, association or body shall be deemed to be a company only for such assessment year or assessment years (whether commencing before the 1st April, 1971, on or after that date) as may be specified in the declaration." 6. Also the words 'co-operative society' have been defined in s. 2(19) of the IT Act in the following words : "'co-operative society' means a co-operative society registered under the Co-operative Societies Act, 1912 (2 of 1912), or under any other law for the time being in force in any state for the registration of co-operative societies." 7. From a plain reading of the definition of 'company', it could be inferred that by no stretch of imagination the word 'company' could be construed to include AOP, partnership and other combination of individuals in its scope. The question of the assessee being a member of a co-operative society does not arise because the private limited company in question can never be termed as a co-operative society as extracted above. Though private limited company falls under the definition of 'company', in this case, admittedly, the assessee was not a shareholder of the said company. At best he was only a customer of the company in purchasing a house property in which the said company was dealing. Clause (xv) of s. 88(2) reads as follows : "for the purposes of purchase .......... by way of - (a) ***** ***** ***** (b) any instalment or part-payment of the amount due to any company or co-operative society of which the assessee is a shareholder or member towards the cost of the house property allotted to him; or (c) ***** ***** ***** (d) stamp duty, registration fee and other expenses for the purpose of transfer of such house property to the assessee, (A) the admission fee, cost of share and initial deposit which a shareholder of a company or a member of a co-operative society has to pay for becoming such shareholder or member . . . . ." A combined reading of sub-cls (b) and (d) as extracted above would definitely enlighten the fact that the assessee should be a shareholder of the company or a member of the co-operative society as the case may be of the entity providing the housing to the assessee. In other words, in order to claim rebate under s.

88(2)(xv) the assessee should either be a shareholder of the company or a member of the co-operative society. Obviously these conditions are not satisfied by the assessee and the assessee was only a mere customer of the said M/s Ankur Housing Investments. If the assessee's argument is accepted the investment in housing developed by any entity not being those mentioned in s. 88 of the IT Act would be eligible for rebate, which is not intention of the legislature because if it was so the legislature would have included such entities also in clear terms while drafting the said section. When the section is plain there is no need for importing while drafting the said section. When the section is plain there is no need for importing any words to interpret the same. After a careful consideration of all the facts and the circumstances of the case in the light of the discussion above we do not find any legal infirmity in the order of the first appellate authority and as such we uphold the same in dismissing the assessee's appeal.


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