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2015 (9) TMI 376 - AT - Income TaxEntitlement to indexed cost of acquisition for working of capital gains - addition made on account of denying the exemption claimed under section 54 by treating the LTCG claimed by the assessee as STCG, as the assessee has held the ownership of the flat for less than 36 months - holding period of the flat sold by the assessee during the year under consideration, should be counted from which date? - Held that:- The assessee is holding the possession of the flat since 15th April 1996 and this fact is not denied and is duly supported with the evidence submitted by the assessee. The evidences available on record clearly show that the assessee has been holding this flat as a user and as an owner since beginning. No adverse comment has been given by the Assessing Officer either during the course of assessment proceedings or in the remand proceedings. The family declaration / confirmation dated 8th August 2008, is also placed. Allotment letter dated 15th April 1996 in the name of Shri Ratansingh C. Pethani, showing allotment of the impugned flat i.e., flat no.502, Ashirwad Building, 55, Shankar Lane, Kandiwali, Mumbai 400 067, in the name of the assessee. On a perusal of these documents and evidences, it is clearly established that the assessee has been the owner in possession of the said flat since 15th April 1996. Even otherwise, there cannot be any doubt on the fact that the assessee has been enjoying this property as a “defacto owner”. The concept of defacto ownership is not alien to the income tax law. Thus, viewed from any angle, the assessee is holding this flat since 15th April 1996 and, therefore, the learned CIT(A) has rightly allowed the claim of the assessee. Decided against revenue.
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