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2015 (12) TMI 983 - BOMBAY HIGH COURT

2015 (12) TMI 983 - BOMBAY HIGH COURT - TMI - Surrender of tenancy rights - ITAT treating not as capital assets liable for tax as long term capital gain - whether the assessee was tenant of the said property and surrender of tenancy rights amounts to Transfer u/s 2(47)? - Held that:- We find that on examination of the agreements, both CIT(A) as well as Tribunal have categorically rendered a finding that there was, in fact, no surrender of tenancy under the two agreements dated 9th May, 2007 and .....

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nued. In this case, the Respondent-Assessess disputes the surrender of tenancy and/or any transfer and on examination of the clauses of the Agreements, the CIT(A) and the Tribunal accept the fact that no surrender/transfer took place. - Decided against revenue - ITA. 2194 of 2013 - Dated:- 8-12-2015 - M. S. Sanklecha And G. S. Kulkarni, JJ. For the Appellant : A R Malhotra with Padma Divakar ORDER P. C. Appeal under Section 260A of the Income Tax Act, 1961 (the Act) challenges the order dated 25 .....

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the case and in law,the Tribunal was justified in not treating the surrender of tenancy rights as capital assets liable for tax as long term capital gain without appreciating the fact that the assessee was tenant of the said property and surrender of tenancy rights amounts to Transfer u/s 2(47) of the Income Tax Act,1961? (b) Whether on the facts and in the circumstances of the case and in law,the Tribunal was justified in not appreciating the fact that the date of transfer is date of agreement .....

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nly as consequence if Questions (a) and (b) are decided in favour of the Revenue. 3 Re: Questions (a) and (b): (a) The RespondentAssessee is a tenant of a residential premises owned by Deshbhushan Cooperative Housing Society (the Society). On 9th May, 2007, the Society entered into a development agreement with a developer for the redevelopment of the society premises. In terms of the above agreement, developer was to provide the tenant with an alternate accommodation in the newly constructed bui .....

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tax. The Assessing Officer further held that as the RespondentAssessee had received three properties worth ₹ 1.39 Crores in consideration of tenancy rights, therefore, not entitled to benefit of Section 54F of the Act; (c) Being aggrieved, the RespondentAssessee filed an appeal to CIT(A) to contend that under the agreement, he had not received any alternate accommodation and continued to be tenant of the rented premises. The CIT(A) in his order on examination of the various clauses of the .....

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alternative accommodation provided. In the circumstances, the appeal of the Revenue was dismissed. (e) The grievance of the Revenue is that the date of the agreements dated 9th May, 2007 and 25th July, 2007 is the date of transfer i.e. surrender of tenancy and therefore, chargeable to capital gain tax. In support, reliance was placed upon the decision of this Court in Chatrabhuj Dwarkadas Kapadia v/s.CIT 260 ITR 491. (f) We find that on examination of the agreements, both CIT(A) as well as Trib .....

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