TMI Blog2015 (9) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly show that the assessee has been holding this flat as a user and as an owner since beginning. No adverse comment has been given by the Assessing Officer either during the course of assessment proceedings or in the remand proceedings. The family declaration / confirmation dated 8th August 2008, is also placed. Allotment letter dated 15th April 1996 in the name of Shri Ratansingh C. Pethani, showing allotment of the impugned flat i.e., flat no.502, Ashirwad Building, 55, Shankar Lane, Kandiwali, Mumbai 400 067, in the name of the assessee. On a perusal of these documents and evidences, it is clearly established that the assessee has been the owner in possession of the said flat since 15th April 1996. Even otherwise, there cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CG, as the assessee has held the ownership of the flat for less than 36 months. 2. The solitary issue involved in this appeal filed by the Revenue is that the holding period of the flat sold by the assessee during the year under consideration, should be counted from which date. According to the assessee, the holding period of the flat was more than 36 months whereas as per the Assessing Officer, the holding period was less than 36 months as a consequence of which the asset under consideration was short term capital asset and as a result of which the gain was short term capital gain and, hence, the exemption under section 54 of the Income Tax Act, 1961 (for short the Act ) was not allowable to him. 3. On the basis of facts culled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sold retained and allotted themselves in the month of April 1996 in the building of Shri Ashirwad Co-operative Housing Society Ltd. Out of 7 flats flat NO.502 got allotted to assessee Mr. Ratansinh C. Pethani admeasuring about 1124 sq. ft of built up area at the time of the construction in the year 1996. But, till, the ownership over all the 7 flats remained only with the 5 co-owner jointly, unless, the due date 23.09.2008 in the mutual agreement was registered, and all the co-owners paid stamp duty separately on the individual flat only allotted to them. In other words, the sole ownership over the individual flat including 502 allotted to the assessee normally happened took place only on 23.09.2008. Before 23.09.2008, all the flats sold i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a J. Shah vide judgment dated 11.10.2011 held that the objection cannot be defeated by excluding the period for which the said assets was held by the previous owner determining the indexed cost of acquisition of that assets to the assessee. With due respect to the above judgment and in view of the fact that department has not accepted the above judgment and SLP filed. 4. During the first appellate proceedings, the assessee contended that he has been holding the flat as an owner in possession for all legal and practical purposes since 15th April 1996 and, therefore, holding period should be counted from that date. The assessee submitted various evidences before the learned CIT(A) to show possession and user of the flat by him e.g., ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in the aforesaid registered document. The letter dated 15.04.1996 in favour of the appellant allotting the flat no.502 is a part of the registered document. It is not disputed that the appellant was not in possession of the flat no.502 prior to the family declaration / confirmation dated 08.08.2008. In my opinion, no transfer of property had taken place as on 08.08.2008, as the joint owners coul d not transfer the property to themselves, and the purpose of entering into said document seems only to confirm the existing possession of said flat no.502 by the appellant and further to give a clear title of the flat in his favour by payment of stamp duty with late penalty and registration of the document. This however does not mean that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d CIT(A), the Revenue is in appeal before the Tribunal. 5. Before us, the learned Departmental Representative relied upon the assessment order and contended that the impugned flat sold by the assessee was short term capital asset and, therefore, the resultant gain was short term capital gain and, consequently, the action of the Assessing Officer in denying the exemption under section 54 of the Act, was legally and factually justified. 6. The learned Counsel for the assessee, on the other hand, contended that the impugned asset was a long term capital asset because the assessee has been holding this asset since the year 1996. 7. We have heard the rival contentions and perused the relevant material on record. The assessee is holding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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