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2021 (1) TMI 404 - AT - Income TaxTreatment of long term capital gain as short term capital gain - assessee before the Assessing Officer claimed that possession of the asset was acquired on 29.09.2006 on payment of substantial amount - Assessing Officer held that Kabja Receipt/Sadakhat is nothing but afterthought and attempt to set right the wrong claim of long term capital gain of the assessee - HELD THAT:- Substantial payment of consideration was paid through banking channel on or before 29.09.2006. Thus, this fact is strengthening the contention of the assessee that substantial payment was made before execution of Sadakhat Kabja Receipt. So far as objection of Assessing Officer that the stamp paper on which Sadakhat Kabja Receipt was executed is in the name of D. M. Singhla. No further enquiry was made by Assessing Officer either from the stamp vendor agency or from D. M. Singhla, advocate. In absence of any adverse evidence against the documentary evidences furnished by the assessee, the suspicion of Assessing Officer that Sadakhat Kabja Receipt is entry dated is not sustainable. Considering that substantial payment of consideration was paid on 29.09.2006 and that the property was ultimately transferred by agreement dated 29.09.2006. Thus, the property was clearly held for more than thirty six months. As the assessee clearly held the property/asset from part of Block No.153B of Sarthana, Tal. Kamrej, Dist. Surat for more than thirty six months and clearly entitled for benefits of long term capital gain. Deduction u/s 54F - HELD THAT:- Assessing Officer after treating the capital gain as short term capital gain against long term capital gain as claimed by assessee, not examined the claim of deduction under section 54F. Thus reverse the treatment of short term capital gain as long term capital gain, therefore, the ground no.2 is restored back to the file of the Assessing Officer to examine the claim of assessee and passed the order in accordance with law after giving opportunity of hearing to assessee. Appeal of the assessee is partly allowed.
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