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2014 (1) TMI 1770 - ITAT MUMBAI

2014 (1) TMI 1770 - ITAT MUMBAI - TMI - Capital gain computation - STCG OR LTCG - selection of date - Held that:- The “date of allotment” is reckoned as the date for computing the holding period for the purpose of capital gains. The date of allotment in this case being 19.11.2001 and the date of sale is 23.8.2006, therefore, the holding period is much more than 36 months. In this case, the gains earned by the assessee on the sale of flat have to be computed as capital gains. Without prejudice, e .....

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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 .....

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mbai dated 18.5.2010 for the assessment year 2007-2008. 2. In this appeal, assessee raised the following grounds which read as under: 1.1. The Ld CIT (A) erred in confirming the action of the AO whereby the AO computed the capital gain arising on account of sale of her flat as short term capital gains instead of as long term capital gain, as offered by the appellant. 1.2. While doing so, the Ld CIT (A) erred in (i) failing to appreciate that the appellant had held the property for more than 36 m .....

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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 reduc .....

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or general in nature. Accordingly, they are dismissed as general or consequential. The issues, which need to be adjudicated in this appeal are (i) if the capital gains earned by the assessee are in the nature of the short term as held by the AO or long term capital gains as offered by the assessee in the return. At the outset, Ld Counsel for the assessee mentioned that the assessee purchased a flat vide the allotment letter dated 9.9.2003 from the builder namely Prestige Estates Projects Pvt. L .....

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ent proceedings, AO considered the date of registration i.e., 22.9.2006 the date of registration 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 .....

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considering the judgment of the Gujarat High Court in the case of CIT vs. Anilaben Upendra Shah (2003) 262 ITR 657 (Guj) apart from other decisions of the Tribunal in the case of Jitendra Mohan vs. ITO (2007) 11 SOT 594 (Del) and also another decision of the ITAT in the case of Pravin Gupta vs. ACIT and the relevant propositions are extracted in para 7 of the Tribunal s order dated 7.11.2012. The said paras 7 and 8 from the order of the Tribunal in the case of Smt. Vandana Rana Roy read as under .....

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elevant and applicable to the facts of the present case. The conclusion of the Hon ble Gujarat High Court judgment in the case of CIT vs. Jindas Panchand Gandhi reads as under: Assessee having sold the flat allotted to him by a co-operative housing society after a period of 36 months from the date of allotment, capital 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 .....

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on at the time of allotment and it was constructed later on. 7.2. The conclusion of Hon ble ITAT, Delhi Bench in the case of Jitendra Mohan vs. ITO reads as under: On the facts of the case, assessee held the capital asset (shed) allotted to it on installment basis from 28th December, 1994, the date of payment of second installment and sale thereof on 15th December, 2000, gave rise to long term capital loss even though possession of shed was handed over by DSIDC to assessee on 28th May, 1998. 7.3 .....

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luding that the date of allotment is reckoned as the date for computing the holding period for the purpose of capital gains. The date of allotment in this case being 19.11.2001 and the date of sale is 23.8.2006, therefore, the holding period is much more than 36 months. In this case, the gains earned by the assessee on the sale of flat have to be computed as capital gains. Without prejudice, even if the date of possession, being 14.8.2003, is considered; the assessee is still entitled to the ben .....

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is 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 fact that the said maintenance charges of ₹ 1.21 lakhs goes to the corpus fund, which is kept in the bank to earn interest income, which is meant for the purpose of utilization of the same for meeting the running expenses for the main .....

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