Surinder Kumar Malhotra Vs ITO (ITAT Chandigarh)
The relevant facts of the case are that qua the Long Term Capital Gain available to the assessee in the year under consideration deduction u/s 54 of the Act was claimed. The said claim was disallowed holding that the proceeds have been applied to acquiring two separate properties. The assessee has pleaded that these were adjoining properties and may be treated as a single unit in terms of various decisions available. However, the said request was not accepted. The ld. CIT(A) has dismissed the appeal on the legal issue and has held in para 6 that the assessee has not argued anything further.
It is evident that that assessee, no doubt has purchased two separate residential houses, however, it is also a fact that consistently the assessee who is a senior citizen has pleaded in writing on record that these were adjoining residential houses, hence, constituted a single unit. It is seen that no finding has been given by the Tax Authorities on this claim. It is seen that the legal position on two adjoining flats, if constituting a single residential unit is well settled. Recording my painful dissatisfaction and disappointment in the passing of orders of the authorities, I set aside the order for a factual verification on facts back to the file of the Assessing Officer. The prayer of the ld. Sr.DR is accepted to the extent that matter needs verification at the end of the AO. Accordingly, the impugned order is set aside back to the file of the AO with a direction to pass a speaking order in accordance with law. Needless to say that in case the assessee’s prayer on facts is not to be accepted, a reasonable opportunity of being heard is to be granted putting the issue to the notice of the assessee.
