TMI Blog2012 (4) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... said date. There is nothing in the said Section to show and hold that the time period would not include fraction of a day. The expression “not more than” clearly in this case would refer and include the date on which the asset is first held or acquired. Thus, an asset acquired on the 1st of January would complete 12 months at the end of the said year, i.e., on 31st of December and if it is sold next year and if the proviso to Section 2(42A) applies, it would be treated as a long term capital gains. - in favour of assessee. - INCOME TAX APPEAL NO. 1234/2011 - - - Dated:- 12-4-2012 - MR. JUSTICE SANJIV KHANNA, MR. JUSTICE R.V. EASWAR, JJ. For Appellant: Mr. Prakash Kumar, Advocate. For Respondent: Ms. Suruchi Aggarwal, Sr. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 54EC of the Act. The Assessing Officer in the assessment order treated the two gains as short term capital gains on the ground that the instruments had not been held for a period of more than 12 months immediately preceding the date of transfer. 5. In the first appeal, the assessee succeeded and it was held that the instruments were held for 12 months and the gains were, therefore, not short term capital gains. Revenue preferred an appeal and by the impugned order has succeeded before the tribunal. The findings of the Assessing Officer has been restored. 6. In order to appreciate the controversy and to answer the substantial question of law mentioned above, we are required to examine and interpret Section 2(29A) and Section 2(42A) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eveal that the date of transfer or sale is treated as a cut off point, to apply the test. The expression immediately preceding the date of transfer is a cut off point for determining and deciding the period during which the asset was held by an assessee. The said expression does not and should not be interpreted to mean that the date of transfer itself should be added or excluded. 9. The first part of Section 2(42A) stipulates that if an asset is held for 36/12 months, it will be a long term capital asset. The term month has not been defined in the Act and, therefore, we have to fall back and can rely upon the word calendar month as defined in the General Clauses Act, 1897. Section 3(35) of the said Act defines a month to mean a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed days for complying with the requirements of law or to furnish reply. In such circumstances, it has been held that in computation of time, fraction of a day should not be reckoned (see In re Hector Whalling Limited, 1935 All England Reporter, 302 (1936 Ch. 208). Even under the Income Tax Act, 1922, the stipulation not less than 30 days in Section 22(2) was interpreted in Commissioner of Income Tax Versus Ekbal and Company, AIR 1945 Bom 316 to mean 30 clear days. This expression was distinguished from the expression within 30 days, which means within two points of time. Similar views have been expressed in N.V.R. Nagappa Chettiar and Another versus Madras Race Club, AIR 1951 Mad 831, Anokhmal Bhurelal versus Chief Panchayat Officer Raj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of not less than seven years as per the proviso to Rule 1(b) of the second schedule of the Companies (Profits) Surtax Tax Act, 1964. Reversing the judgment of the High Court and accepting the stand of the assessee, it was held that a fraction of a day would be counted to determine and decide whether the loan was for a period of less than seven years or more than seven years . It was held as under: We are of the view that on a plain reading of the proviso to rule 1(v), Second Schedule to the Act, it is clear that in order to claim the benefit of the said provision, the borrowed money has to be repaid during the period of more than seven years. The only interpretation which can be given to the expression during a period of not l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distraint . The sale was held on the 13th February, but the notice was published on 6th February. It was held that not less than means the same as clear and seven whole days must elapse between the day of the notice and the day fixed for sale. In Railway Sleepers Supply Co., In re [1885] LJ 54 Ch 720; [1885] 29 Ch 204, it was held that the expression not less than a given number of days means clear days . It was held that the expression not less indicates a minimum . 14. Bombay High Court in Ravi versus Collector, Wardah, (2008) 3 Maharashtra Law Journal 758 had examined the expression within a period not more than one month used in Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. The said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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