TMI Blog2018 (10) TMI 1891X X X X Extracts X X X X X X X X Extracts X X X X ..... nsferred the trade mark - CIT(A) had, on the other hand, found that one of the two properties was a commercial one and hence assessee was justified in claiming deduction u/s.54F - HELD THAT:- What we find is that neither the Ld.AO nor the Ld.CIT(A) had carefully not gone through the conveyance deeds through which the assessee had acquired the residential houses. AO had simply stated that letting out of a flat to a company for conducting its business did not change the nature of the flat. Ld.CIT(A) on the other hand, went by the pre-amble of the Conveyance Deed. We are, therefore, of the opinion that the question whether the assessee owned more than two residential properties and whether one of such property could be considered as commercial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e previous owner also needs to be considered even though the assessee did not receive the asset through gift or will as mentioned in section 49(1)(ii) but by settlement deed. 2.4 It is submitted that the order of the ITAT in ITA No. 2074 2075/Mds/2015 dated 11.05.2016 relied on by the CIT(A) was not accepted by the Department and appeal filed before the Hon ble High Court of Madras and thus the issue has not reached a finality. 3. For these and other grounds that may be adduced at the time of hearing, it is prayed that the order of the learned CIT(A) may be set aside and that of the Assessing Officer restored. 3. Ld. Counsel for the assessee, at the outset, pointed out that the nature of receipt on transfer of intangible asset, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue whether the gains arising on transfer of trade mark was long term or short term had come up before this Tribunal in the case of Shri T.T. Siddharath and Smt. Maya Varadarajan (in ITA Nos.2074 2075/Mds/2015). Assessee had become one of the co-owners of the trade mark through a settlement done by one Smt. Malathy Rangaswami one Shri T.T. Ashok. The other co-owners were Shri T.T. Siddharath and Smt. Maya Varadarajan. The AO had considered the gains arising on transfer of the trade mark to be short term in nature, whereas the Tribunal found it otherwise. In its order dated 11.05.2016 in the case of Shri T.T.Siddharath and Smt. Maya Varadarajan (supra), it was held by the Tribunal at Para Nos.4.1 to 4.2 as under: 4.1 We have heard b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.Krishnan Vs. DCIT in ITA No.2075/Mds./2014 vide order dated 15.05.2015 observed that though the assessee got the landed property while settlement dated 23.01.2004 from his mother for the purpose of computation of indexed cost of acquisition from 01.04.1981 by following the judgment of Bombay High Court in the case of Manjula J. Shah reported in (2012) 204 Taxman 691. Further the Co-ordinate Bench in the case of Mr.Abdul Hameed Khan Mohammed (supra), it is categorically held that transfer of property made voluntarily and without consideration by way of Settlement Deed, all within the definition of Gift and there is no difference between the Gift and Settlement u/s.49(1)(ii) of the Act. While adjudicating this, the Tribunal placed reliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.3, i.e., Builder to Develop and construction of commercial Apartments, in the above said property. WHEREAS, the Builder have constructed a Commercial Complex, on the above said property known as DIAMOND TOWRS Apartments. AND WHEREAS, the Vendors herein offered to sell a Shop/Office No.201/PART, on IInd Floor, Plinth Area 343 SFT., with Undivided Share of Land admeasuring 15.51 SQ.YARDS. OR 12.96 SQ.MTS., (Out of 2050 SQ.YARDS.) (Built Up Area 343 SFT), with Part of Premises bearing Nos.1-1-37 1-1-38, Situated at Sarojini Devi Road, Secunderabad, more particularly described in the schedule hereunder and specifically delineated in the Plan annexed hereto, hereinafter referred to as the SCHEDULE PROPERTY , for a total sale c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
