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2016 (7) TMI 169 - ITAT KOLKATA

2016 (7) TMI 169 - ITAT KOLKATA - TMI - Capital gain computation - selection of period of holding - whether the date of allotment should be taken for the period of holding for the working of capital gain? - Held that:- From the facts of this case, we find that there is no separate agreement executed by assessee for the purchase of the flat and the letter of allotment which is in the paper book at pages 23 to 33 is the only document which gives right of ownership in the flat. Therefore, in our vi .....

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period of holding exceeds 36 months in the present case. So the period of holding in the instant case exceeds 36 months and income arising on the sale of said property will be treated as LTCG. - Decided in favour of assessee. - ITA No.1514/Kol /2013 - Dated:- 8-6-2016 - Shri Waseem Ahmed, Accountant Member and Shri S.S.Viswanethra Ravi, Judicial Member For The Appellant : Appellant Shri Prasun Kr. Bhattacharya, FCA For The Respondent : Shri Niloy Barun Som, JCIT, DR ORDER PER Waseem Ahmed, Accou .....

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rred both in law and in the facts and circumstances of the case to have dismissed the appeal of the appellant assessee. 2) For that without prejudice to any other ground taken herein, both the Ld. Income Tax Officer and the Ld. Commissioner of Income tax (Appeals) - XVI, Kolkata erred both in law and in the facts and circumstances of the case to have disallowed assessee's claim of Long Term Capital Gains arising from the effective sale with regard to Apartment No. 302 on 3rd floor in buildin .....

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in a residential house within the prescribed period and neither the Assessing Officer nor the Ld. Commissioner of Income tax (Appeals) - XVI, Kolkata allowed this claim of the assessee as both of them treated the emanating gains to be "short term capital gain" and not "long term capital gains" 4) For that without prejudice to any other ground taken herein, the Ld. Commissioner of Income tax (Appeals) - XVI, Kolkata erred both in law and in the facts and circumstances of the .....

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hat assessee is an individual has declared its income under the head salary, capital gains and other sources . The assessee purchased a flat No. 302, 3rd floor, Building E , Sector 44, Noida, Dist. Gutam Budh Nagar, Uttar Pradesh from M/s Pearls Infrastructure Projects Ltd. The assessee made payment of ₹ 10 lakh on application for booking of said flat on 10.02.2006 and as per agreement balance payment to the tune of 85% of the basic price plus other charges was to be paid within 45 days fr .....

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his connection. In compliance to the notice, the assessee submitted that the allotment letter was received from the Company on dated. 01.01.2006. Therefore the period of holding for the working of capital gain should be reckoned from 01.01.2006 or at the most from the date of first payment of booking amount which is 10.02.2006. However, AO disregarded the plea of assessee by observing as under:- (i) After payment of booking amount, balance payment was to be paid within 45 days and the second pay .....

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06.06.2008 leaving a balance of ₹ 13,90,998.93 still to be paid. (iii) The booking amount paid by assessee was in the nature of earnest money. Therefore, the claim of assessee for holding the right of ownership in the flat is not tenable and the letter of allotment or agreement only give a right to an acquired flat and not the right of ownership. The assessee has never shown in his books of account as assets but treated as advance against flat. (iv) That the principle of allotment of flat .....

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ly considered the assessment order, submission of the ape, additional evidenced, remand report of the AO and its rejoinder. I found that the appellant shown in the balance sheet of ₹ 1,04,64,000/- as opening balance of Advance for Flat and further advance for ₹ 56,45,250/- made during the year. It was also found from record that the appellant applied to Pearls Infrastructure Project Ltd. (promoted by PACL India Ltd.) on 10/02/2006 for allotment of a flat and agree to sign and execute .....

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payment was made on 05/06/2008 and the appellant got possession after making full payment. The letter of AGM marketing of pearls Infrastructure Project Ltd., that permission / possession of the said flat was given on 07/02/2009. Te appellant applied to Pearls Infrastructure Project Ltd (promoted by PACL India Ltd.) on 10/02/2006 and paid booking money on 10/02/2006 and how the allotment letter issued on 01/01/206. This is totally contradictory. The appellant not made any submission on these iss .....

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years and there was a short term capital gain of ₹ 52,47,000/-. Being aggrieved by this order of Ld. CIT(A) assessee preferred second appeal before us. 4. Before us Ld. submitted paper book which is running pages from 1 to 40 and various case laws. He stated that in the instant case assessee has sold the right of ownership in the flat which was required by making the payment of booking amount for ₹ 10 lakh dated 10.02.2006 and the right was transferred to the purchaser on 07.03.2009. .....

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l not be binding on the parties unless it is signed expressly by the parties. Ld. AR further submitted that in the instant case assessee has sold the right which is capital asset within the meaning of Sec. 2(14) of the Act and he prayed before the Bench to quash the orders of Authorities Below. On the other hand Ld. DR submitted that the booking amount is nothing but the earnest money which was paid on 10.02.2006 and same cannot be taken as date to reckon the period of holding the agreement. As .....

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sold the right vested before taking the possession of the property but Authorities Below have not treated the transactions as sale of the right but treated the transactions as sale of the property. Now the issue before us to adjudicate is so as to whether the date of allotment should be taken for the period of holding for the working of capital gain. From the facts of this case, we find that there is no separate agreement executed by assessee for the purchase of the flat and the letter of allotm .....

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ins (Land and building) - assessment year 2009-10 - whether where assessee had entered into an agreement with builder for purchase of undivided share of land and construction, date of allotment of undivided share in land was to be adopted as date of acquisition for computing capital gain instead of date of sale deed - Held, yes [para 10] [in favour of assessee] 2) Ms. Madh Kaul v. CIT (2014) 43 taxmann.com 417 (P&H) where headnote:- Section 2(29B), read with section 2(42B), of the Income-tax .....

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ts of case, capital gain arising from sale of flat was a long-term capital gain - Held, yes [para 8] [in favour of assessee] 3) Vinod Kumar Jain v. CIT (2010) 195 taxmann 174 (P & H) where headnote:- Section 2(29A) red with section 54, of the Income-tax Act, 1961 - capital gains - long-term capital gains/assets - assessment year 1989-90 - assessee was allotted a flat under scheme of DDA on 27.2.1982 - delivery of possession of said flat took place on 15.5.1986 when actual flat number was all .....

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