Income-tax---

----Capital gains---Exemption---Conditions for claiming exemption-- Purchase of residential house within a period of one year before or two years after the date on which transfer of property had taken place---Sale of house property A on 13-6-1978 and purchase of house property B on 12-1-1978, within one year before date of sale of house property A---Part of property lei out---Major portion of property used as residence ---Assessee entitled to exemption--- "Mainly", meaning of---Indian Income Tax Act, 1961, Ss.45 & 54.

The assessee owned a house (door No.163) which was a residential building and was in occupation of a portion of 1431 sq. ft. out of total area of the building measuring 2130 sq. ft. The assessee had purchased another building (door No. 183) on January 12, 1978. The assessee sold the house (door No. 163) on June 13, 1978. For the assessment year 1979-80, the assessee filed return showing an amount of Rs.24, 411 as capital gain under section 54 of the Income Tax Act, 1961. The Commissioner, in exercise of his powers of revision under section 263 of the Act, held that the assessee not entitled to the benefit of section 54 and directed the Income-tax Officer to assess the capital gains at Rs.76,234 instead of Rs.24,411. On appeal, the Tribunal held that the house property which was sold by the assessee was mainly used for his residential purposes, that the property purchased was also for the purpose of the assessee's own residence and, therefore, set aside the order of the Commissioner of Income-tax. On a reference:

Held, (i) that a perusal of section 54(1) of the Act would make it clear that an assessee can claim benefit under the Act, if he had purchased a residential house within a period of one year before or two years after the date on which the transfer of the property had taken place and if the above said residential property sold was used in the two years immediately preceding the date of transfer mainly for the assessee's or his parent's own residence apart from the fact of constructing a new house within a period of three years for the assessee's own residence. The assessee had sold the house (door No. 163) on June 13, 1978, and purchased the house (door No. 183) on January 12, 1978, within one year before the date of sale of the house (door No. 163). The assessee was also in possession of 1431 sq. ft out of the plinth area of 2130 sq. ft. in the building sold before it was sold to the third party. The return submitted by the assessee claiming benefit under section 54(1) of the Act was accepted by the Income tax Officer without raising any doubt or objection regarding the user of the building mainly for the residential purpose of the assessee. It is under the said circumstances, there was no opportunity for the assessee to put forward the case with regard to the area under his occupation in the above said building, specifying the area let out to the tenant. It 'was only because a question was raised by the Commissioner of Income-tax while revising the order of assessment under section 263 of the Act with regard to the occupation of the plinth area by the assessee in door No.163 that the assessee was under a compelling necessity to state the total area as well as the area under his occupation, to claim benefit under section 54(1) of the Act. Therefore, the disclosure of the area under the occupation of the assessee, out of the total area of the above said building, could not be termed as an afterthought. Since there was no material to establish that the assessee had given an erroneous statement with regard to the plinth area under his occupation out of the total plinth area, the Appellate Tribunal had come to the correct conclusion in accepting the case put forward by the assessee that he was in occupation of 1431 sq. ft out of 2130 sq. ft in the house sold.

(ii) That the house in question was purchased for the residential purpose of the assessee and in fact he had shifted to the said house from the house sold two and a half months prior to the date of sale of the said property. Thus, it was clear that the purchase of the said house was for the occupation of the assessee as residence. The mere fact that a portion of this property might have been let out to a tenant for getting some income would not lead to the inference that the purchase of the said property was not for the assessee's residential purpose.

(iii) That, therefore, the capital gains arising to the assessee on the sale of the house property had to be computed by applying the provisions of section 45 read with section 54 of the Act.

CIT v. Kamala Ranganathan (1990) 186 ITR 536 (Mad.) and CIT v. Mrs. P. Pajasulochana (1994) 210 ITR 423 (Mad.) applied.

CIT v. Jayalakshmi (C.) (1981) 132 ITR 82 (Mad.) and CIT v. Tikyomal Jasanmal (1971) 82 ITR 95 (Guj.) ref.

C. V. Rajan for the Commissioner.

P.P.S. Janarthana Raja for the Assessee.

JUDGMENT

P. THANGAVEL, J.---As per the direction of this Court in T.C.P. No.331 of 1984 on December 10, 1984, the following question of law has been referred for the opinion of this Court at the instance of Revenue under section 256(2) of the Income Tax Act, 1961 (hereinafter- referred to as "the Act"):

"Whether, on the facts and in the circumstances of the case, the capital gains arising to the assessee on the sale of the house property should be computed by applying the provisions of section 45 read with section 54 of the Income Tax Act, 1961?"

The assessee, as an individual, derived income from jewellery business. For the year ending with March 31, 1979, corresponding to the assessment year 1979-80, the assessee sold a building bearing door No. 163, South Masi Street, Madurai. The assessee, after taking the benefit of section 54 of the Act, computed the capital gain and returned an amount of Rs.24, 411 arid the same was accepted by the Income-tax Officer Madurai, in his order, dated March 22, 1980. The order of the Income-tax Officer was perused by the Commissioner of Income-tax; Madurai, and he had taken a decision that the assessee was not entitled to the benefit of section 54 of the Act and the Commissioner passed an order under section 263, of the Act, directing the Income-tax Officer to assess the assessee for gross capital gains of Rs.76, 234 instead of.Rs.24, 411 without granting benefit under section 54 of the Act.

The assessee, aggrieved by the order of the Commissioner of Income-tax, preferred an appeal before the Income-tax Appellate Tribunal, Madras Bench, Madras. The Appellate Tribunal, after considering the question as to whether the assessee was entitled to the benefit of section 54 of the Act, had come to the conclusion that the house property which was sold by the assessee was mainly used for the residential purposes of the assessee, that the property purchased by the assessee was also for the purpose of the assessee's own residence and that, therefore, the order of the Commissioner of Income-tax passed under section 263 of the Act, was liable to be set aside and accordingly, the Appellate Tribunal set aside the said order.

Aggrieved by the above said order of the Appellate Tribunal, the Revenue after getting appropriate direction from this Court, got the above said question of law referred for the opinion of this Court.

We have heard the rival submissions of learned counsel for the Revenue as well as the assessee and considered the materials brought to our notice. The assessee, who is an individual, was carrying on business in jewellery at Madurai. Admittedly, he owned the house sold and it was a residential building and he was in occupation of a portion of 1431 sq. ft, out of the total area of the said house measuring 2130 sq. ft. The fact remains that the assessee had purchased another residential house bearing door No.183, South Masi Street, Madurai, on January 12, 1978. It is not in dispute that the assessee had sold the house bearing door No.163, South Masi Street, Madurai, on June 13, 1978. It is in connection with these sale transactions, the assessee had claimed the benefit of capital gain under section 54(1) of the Act.

A perusal of section 54(1) of the Act would disclose that an income tax assessee can claim benefit under the Act, if he had purchased a residential house within a period of one year before or two years after the date on which the transfer of the property had taken place and if the above said residential property sold was used in the two years immediately preceding the date. of transfer mainly of the assessee's or his parent's own period of three years for the assessee's own residence.

In this case, the assessee has sold the house at 163, South Masi Street, on June 13, 1978, and purchased the house at 183, South Masi Street, on January 12, 1978, within one year before the date of sale of the house at 163, South Masi Street, Madurai. It is evidence from the perusal of the record that the assessee had claimed to be in possession of 1431 sq. ft out of the total plinth area of 2130 sq. ft. the building sold, before it was sold to a third party.

The above said submission made by the assessee was accepted by the Appellate Tribunal since the Commissioner of Income-tax had rejected the above said claim made by the assessee without verifying the correctness of the statement of the assessee simply on the ground that it was an afterthought. It is relevant to point out that the return submitted by the assessee, claiming benefit of section 54(1) of the Act was accepted by the Income-tax Officer without raising any doubt or objection regarding the user of the building mainly for the residential purpose of the assessee. It is under the said circumstances, there was no opportunity for the assessee to put forward the case with regard to the area under his occupation in the above said building, specifying the area let out to the tenant. It is only because a question was raised by the Commissioner of Income-tax while revising the order of assessment under section 263 of the Act with regard to the occupation of the plinth area by the assessee in door No. 163, South Masi Street, Madurai, the assessee was under a compelling necessity to state the total area as well as the area under his occupation, to claim benefit under section 54(1) of the Act. Therefore, as rightly held by the Appellate Tribunal, the disclosure of the area under the occupation of the assessee, out of the total area of the above said building, cannot be termed as an afterthought. Since there is no material to establish that the assessee had given an erroneous statement with regard to the plinth area under his occupation out of the total plinth area, we are of the opinion that the Appellate Tribunal had come to a correct conclusion in accepting the case put forward by the assessee, that he was in occupation of 1431 sq. ft. out of 2130 sq. ft in the house sold.

It is not in dispute that the house sold was mainly used for residential purpose. The decision in CIT v. Kamala Ranganathan (1990) 186 ITR 536 (Mad.) was brought to our notice. In that case, in the house comprising 1,885.31 sq. ft., the assessee had occupied 1,053 sq. ft. The assessee sold the said house in December, 1973, and purchased another house within the stipulated period. The assessee claimed exemption under section 54 of the Act in respect of the capital gain. The Income-tax Officer disallowed the claim, but the Tribunal allowed it. On a reference, it was held by a Division Bench of this Court that the word "mainly' in section 54 of the Act means "in the main", "principally" or "chiefly". It was further held that occupation of 1053 sq. ft. out of 1,885.31 sq. ft. constituted user by the assessee mainly for the purpose of her own residence and that in view of the purchase of another house property for the purpose of her own residence within a period of one year before or after the sale, the assessee was entitled to exemption from tax on capital gains under section 54 of the Act.

It has also been held by a Division Bench of this Court in CIT v. Mrs. P. Rajasulochana (1994) 210 ITR 423 following the decision in CIT v. Kamala Ranganathan (1990) 186 ITR 536 (Mad.), that even if a part of the property was let out, and if the major portion of the property had been used for the residence of the assessee for two years prior to the sale, the assessee would be entitled to the exemption under section 54 of the Act from capital gains. The decisions referred to supra apply to the facts of the present case and the assessee herein is entitled to the benefit of section 54(1) of the Act.

Learned counsel for the Revenue placed reliance on the decision in CIT v. C. Jayalakshmi (1981) 132 ITR 82 (Mad.) wherein it was held that in view of the dictionary meaning of the word "mainly" it is clear that the property sold should have been put to use principally as residence for two years immediately preceding the date of the transfer, and that since the entire first floor had been let out and since it was not a small portion of the building, it cannot be held that the building in question was mainly used for the purpose of the residence of the assessee's mother and that, therefore, the assessee was not entitled to any exemption under section 54 of the Act. We are of the view that the fact that the assessee occupied the house purchased two and a half months prior to the sale of the house sold which was kept vacant under the possession of assessee, will not lead to the inference that the house sold was not under the occupation of the assessee at the time of the sale of the above said house at door No. 163, South Masi Street, Madurai. For the reasons stated supra, we agree with the view of the Appellate Tribunal that the assessee was in occupation of, 1431 sq. ft. out of 2130 sq. ft. in the house sold. In the case relied on by the Revenue, the portion under the occupation of the owner of the building was less than the portion let out to the tenant. It is only after taking into consideration the above said fact, the Division Bench of this Court in CIT v. Kamala Ranganathan (1990) 186 ITR 536 and CIT v. Mrs. P. Rajasulochana (1994) 210 ITR 423 (Mad.), distinguished the decision in CIT v. C. Jayalakshmi (1981) 132 ITR 82 (Mad.) and laid down the law as stated supra. Therefore, the decision in CIT v. C. Jayalakshmi (1981) 132 ITR 82 (Mad.) will not help, the Revenue to hold that the assessee is not entitled to the benefit of section 54(1) of the Act.

Learned counsel for the Revenue has also brought to the notice of this Court the decision in CIT v. Tikyomal Jasanmal (1971) 82 ITR 95 (Guj.), in support of his contention. In that case, the assessee had sold the house, which he had been using as his residence and constructed the ground floor of another building within two years and let out more than half of the area to tenants. In view of the said circumstances, it was held by the High Court of Gujarat that the ground floor could be taken as a unit of house property, but as more than half of the area had been let out to tenants immediately on completion of construction, it could not be said that the new building had been constructed by the assessee for the purposes of his own residence. It was under the said circumstances, it was held that the assessee in that case was not entitled to exemption under section 54 of the Act. In this case, it is not disputed that the house in question was purchased for the residential purpose of the assessee and in fact he had shifted to the said house from the house sold two and a half months prior to the date of sale of the said property. Thus, it is clear that the purchase of the said house was for the occupation of the assessee as residence. It may be true that a portion of the property might have been let out to a tenant for getting some income. That will not lead to the inference, as rightly held by the Appellate Tribunal, that the purchase of the said property was not for the assessee's residential purpose. The Revenue has not convinced the Appellate Tribunal that the assessee had let out more plinth area for the occupation of the tenant and the said property was not mainly used for the residential purpose of the assessee. In view of the above said circumstances, this Court has not other alternative except to agree with the conclusion arrived at by the Appellate Tribunal that the house in question was purchased for residential purpose of the assessee. Therefore, the decision CIT v. Tikyomal Jasanmal (1971) 82 ITR 95 (Guj.) also will not come to the rescue of the Revenue to hold that the assessee is not entitled to the benefit of section 54 of the Act.

Further, learned counsel for the Revenue would contend that because of the omission of the word "mainly" in the second limb of the second condition in the above said section, it has to be held that the entire area of the residential building purchased by the assessee should be used for his own occupation without letting any portion to a tenant for claiming benefit under the above said section. On the other hand, learned counsel for the assessee would contend that the said omission of the word "mainly" as stated supra would only enable the assessee to occupy a portion of the building by letting out another portion to a tenant and that, therefore, the submission made by learned counsel for the Revenue, cannot be sustained. The said argument of learned counsel for the Revenue does not hold water in view of the fact that CIT v. Tikyomal Jasanmal (1971) 82 ITR 95 (Guj) was relied on by the Revenue itself. The assessee was held not entitled to the benefit of section 54 of the Act only because more than half of the area in the newly constructed residential building had been let out to tenants, and not on the ground that the entire area of the said building had not been occupied by the assessee for his residential purpose. Further, it has not been established in this case that a major portion of the house purchased by the assessee had been let out to tenants.

In view of the foregoing reason, the question of law referred to us is answered in the affirmative and against the Revenue. In the circumstances of the case, there will be no order as to costs.

M. B. A./4031/FCQuestion answered.