9911796707
TMI Blog2006 (11) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... rther wrong to hold that the material date for computation of long-term capital gains is 18-5-1998, when the actual possession was received by the assessee, ignoring the fact that the possession was received due to prior rights." 2. The relevant and material facts for the disposal of this issue involved in the grounds of appeal taken by the assessee are that the assessee has been allotted a 'D' type industrial shed at Kirti Nagar Packaging Complex by Delhi State Industrial Development Corporation Ltd. (hereinafter called 'DSIDC') vide letter dated 8-7-1994 which was not of any specific shed as the same was to be decided later on through a draw of lots. On 27-8-1996 by a draw of lots the Shed No. D-13 was allotted to the assessee subject to payment of all outstanding dues and interest. The assessee was allotted the plot on instalment basis and the 1st instalment of Rs. 60,000/- was paid on 21-10-1993 and a 2nd instalment of Rs. 1,25,255/- was paid on 28-12-1994, similarly, other instalments were paid by the assessee on different dates as given in the chart appearing at page 2 of paper book and the final instalment of Rs. 1,64,561/- was paid by the assessee on 19-12-1997. In this ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mounts including interest and escalation charges. This provisional allotment was liable for cancellation in the event of non-compliance with conditions of the scheme. The assessee paid the final instalment to DSIDC on 19-12-1997 and only thereafter he was put in possession of the industrial Shed D-13 on 18-5-1998. The said shed was sold by the assessee on 15-12-2000. In my view, in these undisputed circumstances, the conclusion seems to be inescapable that the subject industrial shed was held by the assessee for a period of less than 36 months and it has to be treated as a short-term capital asset in his hands." 6. We have considered the rival contentions of both the parties, perused the record and carefully gone through the orders of tax authorities below, as well as, the relevant case law relied upon by the ld. AR for the assessee. 7. The short question that requires to be decided by us is whether the profit/loss which arose to the assessee from the sale of the industrial shed was a short-term or a long-term capital gain/loss. 8. In this regard we are required to go through the relevant provisions of sections 2(14), 2(42 ), 2(47) and 45 of the Income-tax Act, 1961. 9. As per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asset is defined under section 2(47) of the Income-tax Act, 1961, which includes the sale, exchange or relinquishment of an asset or the extinguishment of any right therein or the compulsory acquisition thereof under any law. Hence, we find that the word 'property' used in section 2(14) of the Income-tax Act, 1961 is a word of the widest amplitude and the definition has re-emphasized this by use of the words 'of any kind'. Thus, any right which can be called property would be included in the definition of capital asset. Having gone through the above relevant provisions of Income-tax Act, 1961, we would like to revert to the facts of the instant case of the assessee. 16. In the instant case DSIDC vide letter dated 8-7-1994 has allotted a 'D' type industrial shed to the assessee on instalment basis. 17. On 27-8-1996, a Shed No. D-13 was allotted to the assessee by a draw of lots subject to payment of all outstanding dues and interest. The assessee paid the first instalment of Rs. 60,000/- on 21-10-1993 as advance money and paid the second instalment of Rs. 1,25,255/- on 28-12-1994 and thereafter continued paying the remaining instalments to DSIDC. Ultimately, DSIDC handed over the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r by a person in possession pursuant to a contract for sale, the holding will be taken to be the holding of all such persons. This obviously means that an owner who is not in actual possession will also be taken to be a holder of the land. In the instant case, in pursuance of the agreement to sell dated 18-11-1970, the assessee came in possession of W property from the date of the agreement with a right to realize rent and other profits. Ultimately the sale deed was executed in favour of the assessee on 7-5-1973. So the assessee was holding the property with effect from 18-11-1970. The said W property was sold by the assessee on 10-2-1976. Therefore, it was quite clear that W property sold in February 1976 was held by the assessee for more than 60 months before its transfer and as such, on the transfer of the said property, there would be long-term capital gains and the same was to be assessed in the hands of the assessee." 22. In the case of Asstt. CIT v. G.D. Thirani [1999] 70 ITD 148 , the Calcutta 'E' Bench of the Tribunal held as under :- "No capital gain arose when the assessee was given a right to possess some floor space in a new building for giving up his tenancy right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - "In this case the assessee had entered into an agreement on November 8, 1977, for purchase of a flat on the 11th Floor, 112-A, Mittal Towers, Nariman Point, Bombay, with Bharat Trading Corporation. She entered into a formal agreement with Bharat Trading Corporation on December 4, 1978. She obtained possession of the flat in June, 1981. No conveyance, however, was executed either in her favour or in favour of the co-operative society of the said building or any limited company in respect of the said building." Thereafter their Lordships held as under :- "She entered into an agreement dated April 28, 1983, with Chanrai Uttamchand transferring her right, title and interest in the said flat to Chanrai Uttamchand. The assessee has thus transferred all her rights under the agreement of November 8, 1977, and/or December 4, 1978, in favour of Chanrai Uttamchand by virtue of the agreement dated April 28, 1983, between the assessee and Chanrai Uttamchand. The assessee thus held rights under the said two agreements of November 8, 1977/December 4, 1978, for more than 36 months before transferring the same. The Tribunal has, therefore, rightly come to the conclusion that the capital gain ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
