TMI Blog2014 (7) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... al to interest of the Revenue - neither there was any enquiry nor a view much less a possible one taken by the AO. The assessee has failed to place on record copies of the transactions and agreements to prove that Sh. ‘CP’ had acquired ownership and possession in the year 1991 or in any case before 11.08.2006 u/s 2(47)(v) of the Act – there was no fault with observations of the CIT that holding period of the capital asset is only from 11.08.2006 to 01.08.2008 i.e; less than 36 months which gives rise to ‘short term’ capital gains - assessee has not placed on record any evidence to prove his father’s ownership and possession before 11.08.2006 - ‘CP’ had acquired title and possession of the asset only on 11.08.2006 - the consequential cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys for acceptance of this appeal. 3. In reply, the Revenue strong supports the CIT s order passed in section 263 proceedings directing the Assessing Officer to treat the capital gains as short term in place of long term as done during regular assessment and prays for rejection of the appeal. 4. The assessee; an individual , is having interest income in relevant previous year. On 31.07.2009, he had filed his return declaring income of L.10,44,570/-. The same was summarily processed. Thereafter, the Assessing Officer framed regular assessment admitting income already disclosed. In this manner, the assessment attained finality on 19.12.2011. 5. It is to be seen from the case file that on 18.2.2013, the CIT issued section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer had not at all examined this issue of capital gains vis - vis holding period of the asset and wrongly treated short term capital gains as long term . In CIT s opinion, since there is difference in the rate of tax between the two capital gains i.e. 30% and 20% respectively; assessment framed was erroneous and prejudicial to the interest of the Revenue. Then he has held that the Assessing Officer had nowhere stated reasons for accepting the assessee s claim. Qua holding period of the capital asset, the CIT found that since allotment itself had been cancelled by the Bangalore Development Authority(BDA), assessee s father acquired the asset only on 11.08.2006 which has been sold on 01.08.2008 i.e. within a period of 36 months making it a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to transfer the property in CP s name. Accordingly, the BDA executed a conditional sale deed in CP favour on 11.02.1992. There is no record before us to prove CP possession over the asset. On 05.07.2006, the Commissioner, BDA cancelled the aforesaid conditional sale deed for non-fulfillment of certain terms, conditions and rules. On 22.07.2006, the Registrar, Bangalore registered this cancellation in his record, Thereafter on 7-8.8.2006, CP paid MM L.50,000/- in cash and L.1,00,000/- through a cheque respectively. On 10.08.2006, the BDA executed a sale deed in favour of MM . On the very next day falling on 11.08.2006, MM executed a sale deed in CP s favour for a consideration of L.2,25,038/- comprising of L.75,038/- alr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BDA had allotted original site to the concerned allottee; put him in possession, executed a registered sale deed. Thereafter, it had cancelled the sale deed and allotted yet another site. Only in those circumstances, the hon ble Karnataka high court has counted previous holding period before cancellation and held the asset sold as long term . These facts are not akin to those involved in the present case. We have already made it clear that the assessee has not placed on record any evidence to prove his father s ownership and possession before 11.08.2006 (supra). On 11.8.2006, CP had paid fresh consideration and got executed full fledged sale deed. Therefore, we observe that CP had acquired title and possession of the asset only on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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