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2018 (6) TMI 1753 - ITAT DELHIGain on sale of plot - LTCG or STCG - date of acquisition of asset - period of holding of asset - ownership rights in an asset like leasehold rights - HELD THAT:- In the present case by obtaining the orders of the Noida Authority of transfer memorandum on 17.09.2002, the assessee got a right to get the lease hold right for 90 years from that date. It conferred the right upon the assessee to hold that particular property from that date. Such is also the view taken in case of Madhu Kaul Vs. CIT [2014 (2) TMI 1117 - PUNJAB & HARYANA HIGH COURT]. Therefore, the view taken by the ld AO that the assessee held property only from 05.06.2006 is devoid of any merit. In fact assessee got the right over the property on 17.09.2002. Therefore, the property was held by the assessee for more than 36 months and its transfer resulted into long term capital gain to the assessee. Therefore respectfully following the above decisions, we hold that the assets sold by the assessee is a “long term assets‟. Deduction as cost of improvement paid by the assessee for leveling of the land etc. - CIT(A) has made a detailed finding vide para No. 5.6 which shows that the assessee has failed to prove incurring of such cost by documentary evidence. The assessee has just supported it by evaluation report merely on information. Therefore, in absence of any information of incurring any cost of improvement deduction cannot be allowed to the assessee. No merit in the argument of the assessee that cost of improvement of ₹ 925000/- should be allowed to the assessee as deduction from the sale consideration. Applicability of section 50C - In the present case as the consideration has been passed on the same date on which the agreement of sale has been entered into, therefore, stamp duty rate as on the date of agreement shall be applied. We draw support from the order of DHARAMSHIBHAI SONANI [2016 (9) TMI 1259 - ITAT AHMEDABAD] wherein, it has been held that the proviso to section 50C inserted by Finance Act 2016 w.e.f 01.04.2017 applies retrospectively. Therefore, we direct ld AO to take stamp value of the property as on the date of the agreement. In view of this ground NO. 1 and 2 of the appeal of the assessee are partly allowed by holding that assets sold by the assessee is a “long term capital asset‟ and the circle rate if any for the purpose of computing the capital gain in accordance with section 50C, shall be taken as on the date of the agreement entered into by the assessee. However, the claim of the assessee for deduction of cost of improvement is rejected in absence of any evidence of incurring of those expenses. Accordingly, ground No. 1 and 2 of the appeal are partly allowed. Ground No. 3 is consequential in nature and hence, dismissed.
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