TMI Blog2017 (2) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... ng into account all the facts and circumstances of the case, the sale of the Flat cannot be said to be completed in the year before us. Therefore, the resultant gain arising on the sale of the Flat concluded in the subsequent year could not have been brought to tax in the impugned year. Further, in any case, the taxable amount of capital gain has already been offered to tax by the assessee in the assessment year 2012-13 and has been accepted as such by the Revenue as per the information provided to us. Under these circumstances, it would not be justified to adopt a hyper technical approach and tax the same in this year also which will lead to double taxation and avoidable hardship to the assessee. Therefore, keeping in view the peculiar facts and circumstances of this case and in the interest of justice and all fairness we direct the AO to delete the addition. - Decided in favour of assessee - I.T.A. Nos.187 & 188/Mum/2015 - - - Dated:- 15-2-2017 - SHRI D.T. GARASIA (JUDICIAL MEMBER) AND SHRI ASHWANI TANEJA (ACCOUNTANT MEMBER) For The Appellants : Shri Naresh Kumar For The Respondent : Shri M.C. Omi Ningshen ORDER Per Ashwani Taneja, AM:- These appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Flat was done in impugned assessment year, i.e. AY 2010-11 therefore he brought to tax the amount of capital gain in the year before us i.e. AY 2010-11. 4. The brief background of the facts of the case is that assessee was coowner along with his wife, Smt. Nimala Seth of a residential Flat, viz. Flat 2201, Earth Castle, V.P. Road, Mumbai. The assessee along with his wife entered into agreement, for sale of the said Flat with Shri Jaywant Hastimal Shah and Mrs. Sapna J Shah. The assessee received advance of ₹ 40 lakhs towards his share against the total sale consideration of ₹ 85 lakhs. The sale agreement was also registered during the year. However, possession of the Flat was given in AY 2011-12 and other formalities were completed in AY 2011-12, therefore, assessee offered to tax the resultant capital gain in AY 2011-12. On the other hand, AO was of the opinion that since agreement was registered in the financial year 2009-10, therefore, sale was complete and resultant gain should be assessed in AY 2010-11 itself. Being aggrieved, assessee filed appeal before Ld. CIT(A) wherein detailed submissions were filed. It was explained that all the ingredients of sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Certificate from the society was received and there were other formalities pending completion before the buyer could have had proper legal title and absolute ownership of the Flat. 6. Per contra, the Ld. DR relied upon the orders of the lower authorities. It was submitted by him that Ld. CIT(A) has analysed in detail all the aspects before reaching to the conclusion that sale was completed in the year under consideration. Therefore, resultant capital gain has rightly been assessed by the AO in the impugned year. Therefore, his order should be upheld and appeal of the assessee should be dismissed. 7. We have gone through the orders passed by the lower authorities, submissions made by both the sides as well as documents placed before us. The issue before us is with regard to the determination of point of time when the sale of Flat can be said to have been completed. If the sale was not complete during the year as claimed by the assessee, then AO had wrongly held that the capital gain was taxable in the impugned year, and vice-versa. In this regard, we have analysed the facts of the case. Ld. Counsel has submitted before us chronology of events which reads as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her, our attention was drawn on the possession letter wherein Shah Family (i.e. Buyers) confirmed that possession was obtained by them from the assessee on 26th day of June, 2011. Further, our attention was also drawn on the letter written by Shah Family to the society for transferring the said Flat in their names and also clarifying in the said letter that from this date onwards, i.e. June, 2011 maintenance charges shall be borne by the Shah Family and not by the assessee. 9. Thus, the documents on record duly establish that during this period, i.e. between the date of registration of sale agreement on 03-07-2009 and till the date of handing over of possession on 26th June, 2011, the Flat was in the exclusive possession, enjoyment and custody of assessee only. Though sale agreement was executed and registered, but neither complete consideration was received by the assessee nor did all the legal formalities were complete. Further, the obligation about the maintenance of the property was also retained by the assessee till the Flat was transferred by the society in the name of the purchasers. 10. Thus, overall facts of the case indicate that sale could not have been said to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u vs. Janku Mandar AIR 1952 Pat 263 and Shiva Narayan Sat, vs. Baidya Nath Prasad Tiwary AIR 1973 Pat 386 relied on. 11. Thus, if we analyse all the documents and facts of this case and based upon the same gather the intention of the parties, we find that the substance of the transaction show that sale was not intended to be completed in the year before us. Therefore, the resultant gain arising on the sale of the Flat concluded in the subsequent year could not have been brought to tax in the impugned year. Further, in any case, the taxable amount of capital gain has already been offered to tax by the assessee in the assessment year 2012-13 and has been accepted as such by the Revenue as per the information provided to us. Under these circumstances, it would not be justified to adopt a hyper technical approach and tax the same in this year also which will lead to double taxation and avoidable hardship to the assessee. Therefore, keeping in view the peculiar facts and circumstances of this case and in the interest of justice and all fairness we direct the AO to delete the addition. As a result, Ground 1 is allowed. 12. No arguments were made with regard to Grounds 2 3, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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