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2022 (12) TMI 926 - AT - Income TaxLong-term capital gain earned from the sale of a flat - AO has treated the assessee to be not the owner of 50% share in the Skylark flat - AR submitted that the assessee along with his wife has sold the flats to a third party, and without being the legal owner registration could not have taken place. Further, the assessee also paid part of the purchase consideration in the year 1992 and enjoyed 50% ownership of the said flat till it was sold in the year 2014 - HELD THAT:- As in the records of Skylark Co-operative Housing Society Ltd, the name of the assessee and his wife is appearing as the shareholders. The assessee has also furnished a copy of the bank statement of assessee’s account in Bombay Mercantile Co-operative Bank, to substantiate the payment as part of the purchase consideration of the Skylark flat. It has also not been disputed that the said flat was subsequently sold in July 2014 to third-party by the assessee and his wife and as per the registered deed of transfer the purchaser has agreed to pay the total consideration in equal proportion to the assessee and his wife Nothing has been brought on record that due to the alleged lack of ownership of the assessee, the title in the property has not been legally transferred to the purchaser. Therefore, we are of the considered opinion that the learned CIT(A) has rightly accepted the long-term capital gain in the hands of the assessee. Addition made by the AO by treating the part consideration from the sale of Skylark flat as unexplained credit - We find that the registered deed of transfer whereby the said flat was sold to the third party was already available on record before the AO and therefore in the aforesaid circumstances the amount of sale consideration received by the assessee, being the joint owner of the flat, cannot be held to be unexplained credit in the hands of the assessee. Thus, we find no infirmity in the impugned order passed by the learned CIT(A) on this issue. As a result, grounds No. 1 and 2 raised in Revenue’s appeal are dismissed. Set off of long-term capital loss arising from STT paid transactions against long-term capital gain arising from the sale of the flat - HELD THAT:- It has not been denied by the assessee that the long-term capital loss arose on account of the sale of units of mutual funds on which STT was paid. The said long-term capital loss has been sought to be set off against the long-term capital gain arising on the sale of Skylark flat. We find that in Appolo Tyres Ltd. [2021 (9) TMI 708 - KERALA HIGH COURT] following question of law came up for consideration the claim of the assessee of set off of long-term capital loss arising from STT paid transactions against long-term capital gain arising from the sale of the flat is rejected. As a result, ground raised in Revenue’s appeal is allowed.
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