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2022 (4) TMI 499 - AT - Income TaxRectification u/s 154 - Deduction u/s. 54F on long term capital gain on sale of property - whether it can be said that the facts are straightforward enough to come to an unmistakable conclusion that the assessee has earned short term capital gains and assessee held the asset only for a period of 10 months, as held by the Ld. AO in the 154 order? - HELD THAT:- In our view, perhaps after a long drawn debate, we may come to the conclusion that the assessee did in fact earn short term capital gains and is not eligible for exemption u/s 54F of the Act which is available on sale of asset held for more than 36 months. However, in our view, this decision would not qualify as a ‘mistake apparent from the record’. There are few factors which need to be considered while taking a view in the matter. Firstly, the assessee entered into a Banakhat with the seller in 1987 in respect of a piece of land, which was duly registered. Secondly, the said piece of land was converted from agricultural to non-agricultural with the object to effectuate the Banakhat referred to above. Thirdly, the assessee has produced copies of Gota Gram Panachayat tax bills for the period 1988-89 to 2004-05 with the assessee’s name was appearing which showed that the assessee had effective right over the property since 1987. The above seems to suggest that assessee had secured the right to purchase the property after completing necessary formalities. Fourth, the same property in respect of which Banakhat was entered in 1987 was transferred in the name of the assessee by the same party/ seller. It would be difficult to conclude that it is a straightforward case wherein the Ld. assessing officer has made a ‘mistake apparent from the record’. Assessee has brought various evidences in support of his contention that the assessee had secured effective right to have the asset transferred in his name since 1987. Both parties, the seller and the buyer of land (assessee) took necessary steps to effectuate the sale. The sale of said plot was registered in assessee’s name on 08-12-2009. The issue involved requires an analysis of facts before coming to the conclusion whether the sale of land by the assessee qualifies as a short term or long term capital gains. This, in our view, is not an issue which can be a subject matter of section 154 of the Act. Therefore, in our view, the Ld. CIT(A) erred in law and in facts in upholding the order u/s 154 of the Act passed by the Ld. AO. Appeal of assessee allowed.
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