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2005 (8) TMI 314 - ITAT LUCKNOW-BComputation of Capital Gains - Computation of holding period of capital assets - whether the assessee's income from sale of Flat, is to be assessed a long-term capital gain or short-term capital gain ? - HELD THAT:- We are of the considered opinion that the assessees got the legal possession of the property on 10th July, 1990 in case of Shri Sharad Thadani and Shri Manav Thadani and in case of Ms. Mrinalini Thadani on the date when her name was also included as per the request of Shri Gullu Thadani. Admittedly, if these dates are taken as the date of possession, there is no dispute that the capital asset sold was a long-term capital asset. Whether this would have been covered within the purview of capital gain or not needs to be addressed to in view of the definition of "capital asset" as per s. 2(14). It cannot be denied that the allotment letter per se was a valuable right vested in the assessees and therefore, when they transferred the same, it would have been subjected to capital gains tax. Therefore, when the flat as such was sold, this right also got extinguished and therefore, it will be liable for long-term capital gain. The Revenue can raise one more plea that in the present case the capital asset transferred was not the right to obtain conveyance of the flat itself. This argument, in our opinion, will not hold good because of the definition of "capital asset" as per which property of any kind held by an assessee is a capital asset. The flat in its physical form at best can be said to have additional rights added to the rights originally held by the assessees flowing from the original agreement. Thus, we confirm the order of the learned CIT(A) in all the three cases. In the result, all the three appeals filed by the Revenue are dismissed.
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