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2016 (2) TMI 346 - AT - Income TaxTaxability of the sale of property as Short Term Capital Gains OR long Term Capital Gains - denial of exemption claimed u/s 54F - Held that:- Possession of the flat was given subsequently. The assessee then sold the flat on 05/07/1989. In the return of income the assessee disclosed the capital gain arising from the sale of flat as LTCG. The authorities below treated the capital gain arising there from as STCG. Their Lordships held that the capital gains arising from the sale was LTCG. At para 7 thereof, their Lordships have observed that when the assessee paid the first installment on 04/07/1986 after allotment on 07/06/1986, this act conferred upon the assessee a right to hold the flat. The mere fact that possession of the flat was delivered later does not detract from the fact that the allotment was conferred with a right to hold the property on issuance of an allotment letter. The payment of balance installments and delivery of possession are consequential acts that relate back to and arise from the rights conferred by the allotment letter. In this view of the matter, the transaction was held to LTCG. Capital gains arising from sale of the said Flat No. 702, Mumbai Central, Mumbai by the assessee is to computed as LTCG as the period of 36 months is to be taken from 18/10/2005, i.e. the date of allotment to 11/12/2009 i.e. the date of sale. We accordingly uphold the order of the Ld.CIT (A) on this issue and dismiss the grounds raised by Revenue in this regard. As regards revenue averments that the assessee is not entitled to exemption u/s 54F of the Act since the claim by the assessee was made u/s 54 of the Act. We have heard both parties and perused the record and the judicial decisions and CBDT Circular No.14 (XI-35) of 1955 dt. 11/04/55 cited by the assessee. On an appreciation of the same, we concur with the view of the Ld. CIT (A) that there are a number of judicial pronouncements wherein it has been held that it is obligatory on the part of the AO to draw the assessee’s attention to the lawful relief available and that if such exemption /deduction was otherwise available to the assessee, the same should be allowed. Finding no reason to interfere with the order of the Ld. CIT (A) in the matter, we dismiss the ground raised by Revenue. - Decided in favour of assessee
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