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2015 (11) TMI 1269 - AT - Income TaxGain received on the transfer of the land - Short term capital gain or long term capital gain - interpretation of the expression ‘held by the assessee’ - Held that:- As on 28/4/2001, all the other acts and process of acquisition of land in question were completed except registration of the conveyance deed. Since the assessee was allotted the land in question subsequent to the open auction and was issued allotment letter dated 14/2/2001 subject to the payment of consideration which the assessee paid by 28/4/2001 therefore, the date of acquisition would be when the assessee performed his part and complied with terms and conditions of allotment. The capital gain is treated as LTCG if the said asset is held by the assessee held by the assessee for more than 36 months (3 years) as per the provisions of sec.2(42A)/2(42B) of the Act. Therefore, for the purpose of sec.2(42A) and 2(42B), land in question will be regarded to be held by the assessee from the date of allotment on 14/2/2001 subject to payment of the entire consideration within the period stipulated as per allotment conditions. See A.Suresh Rao vs. ITO [2013 (4) TMI 743 - ITAT BANGALORE] Thus the assessee was holding the land in question from the date of allotment on 14/2/2001 and consequently the capital gain arising from the sale of the property on 16/9/2014 would be LTCG. Accordingly, orders of the authorities below qua the issue are set aside and the claim of the assessee being LTCG is allowed. Since the AO as well as the CIT(A) have treated the capital gain arising from sale of the property in question as STCG, therefore, the issue of claim u/s 54F has not been examined by the authorities below. Accordingly, in the facts and circumstances and in view of our finding on the nature of capital gain, being LTCG, the AO is directed to examine and decide the claim of deduction u/s 54F. - Decided in favour of assessee.
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