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2020 (4) TMI 294 - AT - Income TaxCapital gain - LTCG or STCG - Period of holding of asset - right acquired on signing of JDA - HELD THAT:- The Occupancy certificate issued by BBMP is dated 30.03.2016. Hence in the present year i.e. F. Y. 2014 – 15 relevant to A. Y. 2015 – 16, the Building was not complete and therefore, what is sold cannot be flat but only right in the flat. Hence, it is seen that in the facts of the present case, capital Asset in question is not the flats but right to obtain flats from the builder. This right has accrued to the assessee on 16.12.2010 itself on signing of JDA itself and the assessee is holding it since then because nothing more was required to be done in this regard. In our considered opinion, this right was held by the assessee for more than 36 months because it was acquired on 16.12.2010 and sold in F. Y. 2014 – 15. Hence, the capital gain in question is LTCG and not STCG. On this issue, we find no infirmity in the order of CIT (A). Allowability of deduction u/s 54 - new asset was acquired by the assessee on 10.01.2014 but the assets were transferred by way of sale deed executed on or after 16.01.2015 and therefore, as per the AO, the new asset was acquired prior to one year before the date of sale of flats - whether date of sale agreement should be considered or date of sale deed should be considered for the purpose of counting the period of one year before the date of sale as provided in section 54? - HELD THAT:- Latest date of Agreement and Date of possession/transfer is 27.11.2014. Even if we consider this date as the date of sale, the acquisition of the new asset acquired by the assessee on 10.01.2014 is not prior to one year before the date of sale of flats. As relying on SH. SANJEEV LAL ETC. VERSUS COMMISSIONER OF INCOME TAX & ANOTHER [2014 (7) TMI 99 - SUPREME COURT] we decline to interfere in the order of CIT (A) on this issue also because as per this judgment, date of sale agreement has to be considered as date of sale because some rights of the vendor gets extinguished and the vendee acquires some rights in the property in question on the date of the sale agreement coupled with part payment. - Decided against revenue.
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