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2016 (11) TMI 386 - AT - Income TaxLong term capital gain - Entitlement to indexation computed with respect to the date of actual payments of installments slab wise - date on which assessee acquired rights, title and interest in the flat - Held that:- The assessee has made the installment payments slab wise from time to time over a period of time. However, we have observed that the assessee has written a letter to the Builder Apex Hotels Enterprises Private Limited dated 10-03-2008 whereby it was stated that a beneficial right and interest in the flat was acquired by the assesssee under the allotment letter dated 01-08- 1994 issued by the Builder with respect to flat bearing No. 601 in 6th floor in the building known as Pujit Plaza situated at plot No. 67, Sector 11, Belapur, Navi Mumbai, which is now proposed to be sold by the assessee in March 2008 . The said letter dated 10-03-2008 addressed to the Builder is placed on record in paper book/page 22/25 filed by the assessee. However, the assessee has not placed the said allotment letter dated 01-08-1994 on record in the paper book filed with the Tribunal for our study and perusal to determine whether in fact the assessee acquired rights, title and interest in the flat vide the said allotment letter dated 01-08-1994. The order of the AO did mention about this allotment letter dated 01-08-1994. CBDT Circular No. 471 dated 15th October 1986 and also CBDT circular no. 672 dated 16-12-1993 stipulates that in case of allotment of flat under self financing scheme of Delhi Development Authority(DDA) and co-operative societies , the date of allotment shall be the date of construction for the purpose of Section 54/54F of the Act. Thus, by virtue of allotment letter dated 01-08-1994 , prima facie it appears that the assessee has acquired the interest , rights and title in the property but the said allotment letter dated 01-08-1994 is not placed on record by the assesssee to enable us to study detailed terms and conditions. The matter in our considered view, need to be set aside and restored to the file of the AO for re-determination of the issue on merits by the AO after examining the terms and conditions of allotment letter dated 01-08-1994 to enable the AO to determine whether the assessee has in-fact acquired rights , title and interest in the said flat by virtue of the said allotment letter dated 01-08-1994 . The assessee has sold the flat in March 2008 and hence if it is held by the AO that the assessee acquired rights, title and interest in the flat w.e.f. 01-08- 1994 i.e. the date of allotment, the gains shall be brought to tax as long term capital gains - Decided in favour of assessee for statistical purposes
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