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2014 (4) TMI 1153 - AT - Income TaxNature of Capital gains - LTCG v/s STCG - treatment given by the AO to the capital gains as short term instead of long term as claimed by the assessee - whether the date of allotment of the flat or the date of possession of the flat by the assessee should be considered as the date for computing the holding period of 36 months? - Held that:- The “date of allotment” should. be reckoned as the date for computing the holding period for the purpose of capital gains [See: Meena A Hemnani Versus ITO- (IT) -3 (1) , Mumbai - 2014 (1) TMI 1770 - ITAT MUMBAI ]. In the instant case, the date of allotment is 11.04.2003 (FY 2003-2004) and the date of sale of the property is 14.10.2007, therefore the holding period is more than 36 months. Therefore, the capital gains earned by the assessee on the sale of the flat have to be treated as "long term capital gains‟. The assessee paid the first installment on 11.4.2003, thereby conferring a right to hold a flat, which was later identified and possession delivered on later date. The Hon’ble Punjab & Haryana High Court in the case of Mrs. Madhu Kaul vs. CIT [2014 (2) TMI 1117 - PUNJAB & HARYANA HIGH COURT ] held that the mere fact that possession was delivered later, does not detract from the fact that the allottee was conferred a right to hold. property on issuance of an allotment letter. Thus, the ld. DR's arguments on non-existence of the flat at the time of issuing of allotment letter stands answered in favour of assessee Exemption for investment in new residential house u/s 54 / 54F against long term capital gains on sale of the property allowed in favour of assessee
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