Citation of case laws

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Sairam (Querist)
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26 November 2012 hi,
can anyone help me on this..where can i find the citation of this case...pls help..if anyone found so pl mention website and also the citation numbers..pl pl urgent

Mr. Vinay Mishra vs ACIT (ITAT)

Dintakurthi Tirumala

Dintakurthi Tirumala (Expert)
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27 November 2012 First Bangalore ITAT wherein it is held that exemption u/s 54F is allowable
on the investment in house property situated outside india, appearing on behalf
of assessee CA B P Sachin Kumar successfully argued before ITAT.

Mr. Vinay Mishra vs ACIT (ITAT)

The assessee sold certain shares which resulted in Long Term Capital Gains and
invested the entire capital gains in the acquisition of a house property in
United States of America and claimed exemption under section 54F of the Act.
Assessee relied on a decision of the Mumbai bench of the Tribunal in the case of
Mrs. Prema P. Shah and Sanjiv P Shah Vs. ITO.

AO on the view that the Act is applicable only to the whole of India and
therefore on a plain reading of the provisions, the purchase / construction of a
residential house must necessarily be in India and not outside India and
rejected the claim for exemption under section 54F of the Act, relying on
Ahmedabad ITAT ruling in the case of Leena J. Shah.

Assessee on appeal before CIT(A)

Ld. CIT(A) confirmed the order of AO and held that the order of the ITAT,
Ahmedabad, relied on by the AO, is to be preferred over the decision of the
ITAT, Mumbai which was relied upon by the assessee. The ld. CIT(A) in his order
was of the opinion that in both the cases relied upon by the assessee, the claim
for exemption was by a NRI whereas the assessee is a resident tax payer who is
also a Director of a company located at Bangalore and that there are specific
provisions of the IT Act to regulate the income and grant exemptions to those
assessees holding NRI status. The ld. CIT(A) has further opined that merely
because the provisions of section 54F do not mandate that in order to be
eligible to claim exemption under section 54F, the investment should be made in
a house property in India, it cannot be construed that investment in a house
property in a foreign country will make one entitled for exemption.

Aggrieved by the order of the ld. CIT(A), assessee on appeal before ITAT

Whether the Ld. CIT(A) erred in his interpretation of the provisions of section
54F that the “intention of the legislature is to allow exemption in respect of
the houses bought or constructed in India only, and not if the investment is
made in house property abroad” and also in holding that the decision of the
Mumbai Bench of the Hon 'ble Tribunal in the case of Prema P Shah is not
applicable to assessee case and went wrong in further holding that the said
decision is applicable only to the assessee who are non residents.

Held, “On a plain reading of the provisions of section 54F of the Act, could not
find anything therein to suggest that the new residential house acquired should
be situated in India. The jurisdictional High Court in the case reported in
(2011) 5 TaxCorp (DT) 49764 (KARNATAKA) has held that introducing a word which
is not there into a section amounts to legislating when Parliament has not used
these words in the said section. In view of the decision, we are precluded from
reading the words “In India” into section 54F of the Act, when Parliament in its
legislative wisdom has deliberately not used the word 'in India' in section 54F
of the Act.

Therefore, in view of the discussion above, we follow the latter decisions of
the Mumbai Benches of the ITAT in the cases of Mrs. Prema P Shah A Sanjiv P Shah
and Dr. Girish M Shah. The provisions of section 54 of the Act which was
considered by the Mumbai Benches of the ITAT in the cases of Mrs. Prema P. Shah
& Sanjiv P Shah and Dr. Girish M Shah (supra) are in pari material with section
54F of the Act and therefore these two decisions of the Mumbai Benches of the
Tribunal are equally applicable while considering the exemption under section
54F of the IT Act and hence would be applicable to the present case of the
assessee. In this view of the matter, we allow the assessee's claim for
exemption under section 54F of the Act since all conditions laid down in this
section are satisfied for availing the said exemption.
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I FOUND IT AT http://www.thetaxcorp.in/Contents/details.aspx?ID=13764

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