TMI Blog2017 (1) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to be allowed exemption of ₹ 64,92,50/- under section 54 of the Act in respect of investment made by him in the purchase/construction of new flat at Amanda ‘B’, Hiranandani Meadows, Thane as worked out by the AO at para 4.3 of the order of assessment as against the assessee’s claim of ₹ 73,72,315/-. Consequently, grounds 1 to 3 of the assessee’s appeal are partly allowed as indicated above. - ITA No. 6048/Mum/2013 - - - Dated:- 4-11-2016 - Shri Jason P. Boaz, Accountant Member and Shri Amerjit Singh , Judicial Member For The Appellant : Shri Rajesh S. Shah For The Respondent : Shri Ranathir Gupta ORDER Per Jason P. Boaz, A.M. This appeal by the assessee is directed against the order of the CIT(A)- 32, Mumbai dated 06.08.2013 for A.Y. 2010-11. 2. The facts of the case, briefly, are as under: - 2.1 The assessee, engaged in dealing in leather, filed his return of income for A.Y. 2010-11 on 07.09.2010 declaring total income of ₹ 1,09,81,284/-. The return was processed under section 143(1) of the Income Tax Act, 1961 (in short 'the Act') and the case was subsequently taken up for scrutiny. The assessment was completed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and circumstances of the case and in law, the Assessing Officer has erred in not allowing ₹ 19,03,506/- being stamp duty, registration fees payable in respect of Kandivali Flat from Long Term Capital Gain arrived at in respect of sale of Ambrosia flat. 7. On the facts and circumstances of the case and in law, the A.O. erred in initiating penalty proceeding u/s.271(1)(c) of the act though the provisions of the act are not applicable to the facts and circumstances of the case. 8. The appellant craves leave to add, amend, modify, substitute and/or cancel any of the ground of the appeal. 4. Grounds 1 to 3 4.1 In these grounds (supra), the assessee assails the impugned order of the learned CIT(A) in upholding the AO s view that the capital gains of ₹ 2,47,24,250/- on sale of the Flat 1280A B at Torino Building, Powai as STCG instead of as treating it as LTCG as declared by the assessee. The assessee also challenged the orders of the authorities below in holding that no exemption under section 54 of the Act was allowable against the sale of flat at Torino building, Powai even though he had made investment of ₹ 73,72,315/- in acquisition of flat i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10.2009. On a perusal of the cited order in the case of Richa Bagrodia in ITA No. 3601/Mum/2012, we find that an identical issue came up for consideration before the Coordinate Bench of the Tribunal wherein the Coordinate Bench decided the issue on identical facts in favour of the assessee following the decisions of the Hon'ble Gujarat High Court in the case of Anilaben U. Shah 262 ITR 657 (Guj) and of the Coordinate Bench of the Tribunal in the case of Meera A. Hennani in ITA No. 59989/Mum/2010. In its order in the case of Richa Bagrodia (supra), the Coordinate Bench held as under at paras 6 to 8 thereof: - 6. We heard 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this regard, Ld Counsel brought our attention to para 7 and 8 of the said order of the Tribunal to support his case. The said judgment was decided 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: 7. We have heard both the parties, perused the cited decisions and we find that there is no dispute on the facts. The only issue that is to be decided is whether date of allotment of the flat or the date of possession of the flat by the assessee should be considered as date of holding for computing the holding period of 36 moths. In alternative, the date of registration should be the relevant date. On perusal of the said decisions relied upon by the Ld Counsel, we find that the decisions are relevant and applicable to the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prejudice, even if the date of possession, being 14.8.2003, is considered; the assessee is still entitled to the benefits of the Long Term 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. 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 on the sale of the flat have to be treated as long term capital gains . The assesee 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 Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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