TMI Blog2014 (1) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the said asset– Following Praveen Gupta vs. ACIT [2010 (8) TMI 820 - ITAT DELHI] – Decided in favour of the assessee. - I.T.A. No. 6120/Mum/2010 - - - Dated:- 8-2-2013 - Shri P. M. Jagtap And Shri Sanjay Garg,JJ. For the Appellant : Shri Ronak G. Doshi. For the Respondent : Shri O. P. Meena ORDER Per P. M. Jagtap, A.M. This appeal filed by the assessee is directed against the order of learned CIT(Appeals)-25, Mumbai dated 02-06-2010. 2. The solitary issue arising out of this appeal relates to the assessee's claim for deduction on account of indexed cost of acquisition while computing the long term capital gain as worked out taking into consideration the dates of the agreements and the dates of payments and not from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of possession and accordingly the indexed cost of acquisition was required to be computed taking into consideration the said date and not the dates of purchase agreement and instalments paid as claimed by the assessee. Accordingly, the indexed cost of acquisition of the flat was worked out by the AO at Rs.32,67,566/- and the long term capital gain was computed at Rs.27,20,932/- as against Rs.13,34,085/- declared by the assessee in the assessment completed u/s 143(3) vide an order dated 09-11-2009. 4. Against the order passed by the AO u/s 143(3), an appeal was preferred by the assessee disputing the computation of indexed cost of acquisition made by the AO by taking into consideration the date of possession and not the dates of pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to contend that the indexed cost of acquisition could be considered taking into consideration the year in which the relevant asset is transferred. 6. We have considered the rival submissions and also perused the relevant material on record. It is observed that the issue involved in the present case as well as all the facts relevant thereto are similar to that of the case of Praveen Gupta (supra) inasmuch as the assessee in the said case had entered into an agreement for purchase of flat in the year 1995-96 and after paying the purchase price of the flat in instalments in the year 1996-97, 1997-98, 1999-2000 and 2001-02, the possession of the flat was taken in December, 2001.The said flat was subsequently sold by the assessee in the previo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative has pleaded that the language employed in expln. (iii) is in pari material with the language employed in s. 2(42A) where describing the definition of 'short-term capital asset" the work "held" is used. 28. Explanation (iii) to s. 48 refers to the words 'the asset'. It means some capital asset which is subject-matter of sale on which long-term capital gain is to be computed. The capital asset is defined in s. 2(14) as under : "2(14) 'capital asset' means property of any kind held by an assessee, whether or not connected with his business or profession, but does not include- (i) any stock-in-trade, consumable stores or raw materials held for the purposes of his business or profession; (ii) personal effects, that is to say, movab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that assessee must have some right in the capital asset which is subject to transfer. By making the payment to the builder and having received allotment letter in lieu thereof, the assessee will be holding capital asset and, therefore, the benefit of indexation has to be granted to the assessee on the basis of payments made by him for acquiring the said asset and the assessee has rightly claimed the indexation benefit from the dates when he has made the payments to the builder. Therefore, we see force in the claim of the assessee. The AO is directed to provide the benefit of indexation to the assessee in the manner in which the assessee has claimed." The coordinate bench of this Tribunal thus has decided a similar issue involving identic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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