TMI Blog2013 (12) TMI 1589X X X X Extracts X X X X X X X X Extracts X X X X ..... no infirmity in the order of CIT(A) for allowing assessee's claim for exemption u/s 54/54F, by treating the capital assets so sold as long term capital assets. - C.O.No.83/Ind/2013 (Arising out of I.T.A.No. 448/Ind/2013) - - - Dated:- 19-12-2013 - SHRI JOGINDER SINGH, J.M. AND SHRI R.C.SHARMA, A.M. Department by : Shri R.A.Verma, Sr. DR Respondent by : Shri H.P.Verma and Ms.Sakshi Verma, Advocates ORDER R. C. Sharma, Accountant Member This is an appeal filed by the Revenue and cross objection by the assessee against the order passed by the CIT(A), dated 18.02.2013 for the assessment year 2009-10. 2. The Revenue has taken five grounds, however, the controversy revolves around the CIT(A)'s action for treating the capital assets (Flat) sold by the assessee as long term capital asset, thereby allowing assessee's claim for deduction u/s 54F. 3. Rival contentions have been heard and records perused. Facts in brief are that the assessee vide allotment letter dated 22nd January, 2005, allotted a Flat No.1202 at Raheja, Tipco-I, Malad, Mumbai. As per this letter of allotment, the Builder M/s. K. Raheja Universal Pvt. Ltd., Mumbai, agreed to sell t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the following parties: M/s. Raheja Universal Private Limited, Mumbai (The Developer) and 1. Nirmal Bapulal Thakkar (HUF) (The First Owner) 2. Surat Bapulal Thakkar (HUF) (The Second Owner) 3. Dayal Bapulal Thakkar (HUF) (The Third Owner) And Shri Sanjay Kumath (The Assessee Purchaser) d. Agreement for Transfer transferring the said right to purchase a flat is found to have been made on 05.03.2009 during the P.Y. itself between: Shri Sanjay Kumath (The Assessee Transferor) And M/s. Raheja Universal Private Limited, Mumbai (The Confirming Party No.1) And 4. Nirmal Bapulal Thakkar (HUF) (The First Owner) 5. Surat Bapulal Thakkar (HUF) (The Second Owner) 6. Dayal Bapulal Thakkar (HUF) (The Third Owner) And Shri Jayesh Veljibhai Gadhecha and Mrs. Divya Jayesh Gadhecha (Transferees) Since the assessee has been bestowed with the right to purchase the aforesaid flat on 27.02.2009 and the said right has been sold by him on 05.03.2009 during P.Y. itself, it was required of the assessee to explain as to why the rights to sale the flat under consideration should not be considered to be vested with him from the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The expressing the rights hereunder granted in favour of the Purchaser in respect of the said flat evidently indicate the fact that the assessee is being bestowed with the rights to purchase the said flat only through the said agreement for sale. It may, therefore, very well be said that rights has been conferred on assessee from the date of execution of agreement for sale on 27.02.2009 and not from the date of allotment letter. j. Para- (I) of the Agreement for Transfer dated 05.03.2009 also confirm the aforesaid fact which read as under: (I) Pursuance to the negotiation between the parties hereto, the Transferor (The Assessee) have agreed to sell and transfer to the Transferee (Shri Jayesh Veljibhai Gadhecha and Mrs. Divya Jayesh Gadhecha) and the Transferees have agreed to acquire from the Transferor (The Assessee) the Transferor's right, title and interest in the said original Agreement for sale dated 27.02.2009 for a lump sum .. Evidently the Transferor (The Assessee) has been vested with the right, title and interest in the aforesaid flat from the date of original agreement (Agreement for Sale) dated 27.02.2009. k. Again, the Developer i.e. M/s. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4f in respect of allotment of flat/house. Thus, taking note of all these facts of the case, I consider it proper and appropriate to hold that the A.O. was not justified in rejecting he claim of the appellant in respect of 'Right to purchase' i.e. date of allotment. Further I find that the appellant is also entitled to deduction u/s 54F as the entire sale consideration value of the said flat/house was invested in capital gain-CDR A/c with OBC. RNT Marg, Indore. Accordingly this ground of appeal is allowed. 5. Department is in appeal against the said order of CIT(A). 6. Shri R. A. Verma, Sr. DR, on behalf of the Revenue contended that as on the date of allotment i.e. 22.01.2005, no capital asset was existed, therefore, the ld. CIT(A) was not justified in taking the date of acquisition as on 22.1.2005. As per contention of ld. Sr. DR, the flat was acquired by the assessee only by way of agreement of purchase executed on 27.2.2009, which was sold by the assessee on 05.03.2009. Period of holding of flat by assessee was just for few days. Thus, the Assessing Officer was justified in treating the flat so sold as short term capital assets. He relied on the decisions reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,40,209/- 03.01.2007 11,21,672/- 23.03.2007 1,40,209/- 24.05.2007 1,40,209/- 21.09.2007 1,40,209/- 06.11.2007 1,40,209/- 31.03.2008 2,80,418/- 9. After the entire payment was made by the assessee, agreement was executed on 27.2.2009, thereafter, the assessee sold the flat on 5.3.2009. Thus, all the rights in the flat was duly acquired by the assessee on 22.1.2005, when he was given letter of allotment which clearly described the precise number of flat so allotted to him. As per the provisions of Section 2(47)(ii) Transfer in relation to capital assets includes the extinguishment of any right therein. This letter of allotment extinguishes the rights of builder in the said flat in favour of the assessee in respect of this flat and by signing the letter of allotment, the assessee agreed to buy the same and for which payment was also made according to the latter of allotment. Decisions cited by ld. Senior DR are distinguishab ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
