TMI Blog2014 (4) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of sale of the property is 14.10.2007, therefore the holding period is more than 36 months. Therefore, the capital gains earned by the assessee on the sale of the flat have to be treated as "long term capital gains‟. The assessee paid the first installment on 11.4.2003, thereby conferring a right to hold a flat, which was later identified and possession delivered on later date. The Hon’ble Punjab & Haryana High Court in the case of Mrs. Madhu Kaul vs. CIT [2014 (2) TMI 1117 - PUNJAB & HARYANA HIGH COURT ] held that the mere fact that possession was delivered later, does not detract from the fact that the allottee was conferred a right to hold. property on issuance of an allotment letter. Thus, the ld. DR's arguments on non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3,519/-. Assessment was completed u/s 143(3) of the Act and the assessed income was determined at ₹ 1,69,48,520/-. During the assessment AO noticed that the assessee claimed capital gains of ₹ 1,41,06,633/- on sale of property; ₹ 4,97,017/- on sale of shares and ₹ 13,10,036/- as short term capital gains on sale of shares and mutual funds after setting off of brought forward losses of ₹ 47,329/-. In the assessment, AO did not allow the said capital gains of ₹ 1,41,06,633/- on sale property as long term capital gains as claimed by the assessee in the return and treated them as short term capital gains on the reason that the said property was not held. by the assessee for a period more than 36 months. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the parties and perused the orders of the Revenue Authorities as well as the judgments of the Hon ble High Court and the decisions of the Tribunal cited by learned representatives of both the parties. The only issue that is to be decided is whether the date of allotment of the flat or the date of possession of the flat by the assessee should. be considered as the date for computing the holding period of 36 months. On perusal of the cited orders of the Tribunal (supra), we find that an identical issue came up for adjudication before the Tribunal in the case of Meena A Hemnani (supra), order dated 17th January, 2014 wherein one of us (AM) is a party and the issue was decided in favour of the assessee by relying on various decisions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 capital gains. In this regard, Ld. Counsel broug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 on. 7.2. The conclusion of Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion, 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. 7. From the above settled position of the issue, it can be safely concluded that the date of allotment should. be reckoned as the date for computing the holding period for the purpose of capital gains. In the instant case, the date of allotment is 11.04.2003 (FY 2003-2004) and the date of sale of the property is 14.10.2007, therefore the holding period is more than 36 months. Therefore, the capital gains earned by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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