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2018 (10) TMI 178 - AT - Income TaxGain on sale of property - LTCG or STCG - period of holding - indexation benefit - Held V/S acquire - Held that:- The expressions like 'owned' / ‘acquired’ has not been used for the purpose of determining the nature of asset as short term capital asset or long term capital asset. Thus, the intention of the legislature was clear that for the purpose of determining the nature of capital gain, the period during which the asset was held by the assessee for all practical purposes on de-facto basis was to be considered and not the date of obtaining absolute legal ownership of the asset for determining the holding period. The term "held" has been interpreted by the Courts wherein unanimous view has been that the said term 'held' is different from the term 'acquire'. As in the case of CIT Vs. Ved Prakash & Sons (HUF) [1993 (7) TMI 45 - PUNJAB AND HARYANA HIGH COURT], stated that the term 'held' is deliberately used as against term 'owned'. Hence, a person can hold the asset as owner, lessee, tenant, etc. Therefore, the right to the property is held by a person from the date when he enters into an agreement for purchase and not when he acquires possession. Viewed from any angle, we are unable to find ourselves in agreement with the conclusion of Ld. first appellate authority that the capital gains earned were Short Term in nature and therefore, we reverse the same. The resultantly gain as counted from date of agreement, in our opinion, was Long Term Capital gain eligible for indexation benefit. This ground stands allowed. Deduction u/s 54 - Held that:- We find that the lower authorities have denied the same primarily by concluding that the same was not available since the nature of capital gains was Short Term Capital Gains. Therefore, on factual matrix, the matter stand remitted back to the file of Ld. AO for re-adjudication & verification of deduction u/s 54 with a direction to the assessee to substantiate the same with documentary evidences / requisite information.
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