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2014 (1) TMI 1770

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..... t call for any interference. - Decided in favour of assessee Determining cost of acquisition of flat for the purpose of computing the capital gains - Held that:- Finding of the CIT (A) is very cryptic and has not gone into the relevant facts of the said contributions to corpus fund as well as for meeting the charges, the onetime payments in connection with the acquisition of the said flat. After hearing both the parties, we are of the opinion that the assessee has a strong case. However, the CIT (A) has not adjudicated the issue by passing a speaking order, therefore, for want of reasoned order, we set aside the issue to the files of the CIT (A) for deciding the issue afresh in a time bound manner i.e., within a couple of months from the .....

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..... irming the action of the AO in not granting deduction of the following expenditure while computing the short term capital gain tax liability; (i) Maintenance Charges ₹ 1,21,000/- (ii) Assessment Charges ₹ 10,000/- 2.2. It is submitted that in the facts and the circumstances of the case and in law, no such disallowance was called for. 3.1. The Ld CIT (A) erred in dismissing the grounds of appeal regarding interest under section 234B. 3.2. The Ld CIT (A) failed to appreciate the specific ground of appeal to the effect that the AO erred in charging interest under section 234B on the assessed tax, without reducing tax paid under section 140A, for the period commencing after the date of payment of self-a .....

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..... gistration and determined the short term capital gains. Therefore, now the issue to be decided by the Tribunal relates to if the date of allotment should be considered for the purpose of computing the said long term capital gains. In this regard, Ld Counsel filed various decisions to suggest that the date of allotment must be considered for the purpose of computing the long term capital gains instead of date of registration. Ld Counsel filed the order of the Tribunal in the case of ACIT vs. Smt. Vandana Rana Roy vide ITA No.6173/M/2011 (AY 2007-2008) dated 7.11.2012, wherein one of us (AM) is a party, and stated that the date of allotment should be reckoned as relevant date for computing the holding period for the purpose of computing the .....

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..... gains arising to him were long-term capital gains despite the fact that the physical possession of the flat was given to the assessee much later and, therefore he was entitled to deduction from such gains as per law. 7.1 The conclusion of the Hon ble Gujarat High Court judgment in the case of CIT vs. Anilaben Upendra Shah reads as under: Assessee having held the shares and allotment of a flat in a co-operative housing society for a period of more than 36 moths the capital gain arising from sale of said flat was long-term capital gain and assessee was entitled to benefit of section 80T irrespective of the fact that the assessee did not get possession of the flat in question at the time of allotment and it was constructed later .....

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..... rm Capital Gains. Therefore, in our opinion, order of the CIT (A) does not call for any interference. Accordingly, the grounds raised by the Revenue are dismissed. 4. Considering the above settled nature of this issue, we are of the opinion that the assessee must succeed on this issue. Accordingly, the relevant grounds of appeal are allowed. 5. The second issue relates to determining of cost of acquisition of the said flat for the purpose of computing the capital gains. In this regard, Ld Counsel mentioned that the assessee claimed assessment charges of ₹ 10,000/- and maintenance charges / corpus fund of ₹ 1,21,000/- as part of the cost of acquisition. It is argued that the Revenue Authorities have not appreciated the fac .....

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..... ) is very cryptic and has not gone into the relevant facts of the said contributions to corpus fund as well as for meeting the charges, the onetime payments in connection with the acquisition of the said flat. After hearing both the parties, we are of the opinion that the assessee has a strong case. However, the CIT (A) has not adjudicated the issue by passing a speaking order, therefore, for want of reasoned order, we set aside the issue to the files of the CIT (A) for deciding the issue afresh in a time bound manner i.e., within a couple of months from the date of receipt of this order. Assessee shall be granted a reasonable opportunity of being heard to the assessee during the set aside proceedings. Accordingly, grounds raised by the ass .....

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