TMI Blog2016 (7) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Accountant Member:- This appeal by the assessee is against the order of Commissioner of Income Tax (Appeals)-XVI, Kolkata dated 15.03.2013. Assessment was framed by ITO Ward-45(2), Kolkata u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) vide his order dated 29.11.2011 for assessment year 2009-10. Assessee has raised the following concise grounds:- 1) 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 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 fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of payment i.e 24.5.2006. During the year under consideration, assessee has sold the said flat on 07.03.2009 and claimed as Long Term Capital Gains (LTCG for short). However, AO treated the gains as Short Term Capital Gains (STCG for short) and sought clarification from assessee in this 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 payment was made after booking amount on dated 24.05.2006. So it is clearly indicated that the agreement was made in the month of April, 2006. The AO also observed that the copy of agreement was not made available at the time of assessment. (ii) As per the terms and conditions of allotment, the offer for possession of flat only to be given after the payment of balance basic price and other charges. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 issues. He only relied upon various case laws. I duly considered the case laws cited by the A/R. the facts of the case are different with cited case laws. In this case the appellant made second payment after the application money on 24/05/2006 which should be within 45 days of agreement. That also established that agreement was made in the month of April, 2006. The property was sold on 07/-3/2009 or ₹ 2,13,56,250/-. The above facts clearly prove that the property was held for less than three 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .com 107 (Mad) where the head-note:- Section 2(29A), read with section 2(42A), of the Income-tax Act, 1961 capital gains Long term capital gains (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 Act, 1961 capital gains Long-term capital gains (Allotment of flat) assessment year 1990-91 A flat was allotted to assessee on 07.06.1986 she aid first installment on 4-7-1986 possession of flat was delivered on a later date thereafter she sold flat on 5-7-1989 in return of income for assessment year 1990-91, she disclosed capital gain arising from sale of flat as long-term capital gain lower authorities treated capital gain as short-term capital gain whether in peculiar facts of case, capital gain arising from sale of flat was a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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