TMI Blog2017 (4) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... MARJIT SINGH, JM Assessee by: Shri Anuj Kisnadwala Department by: Shri Pradeep Kumar Singh ORDER Per Amarjit Singh, JM The assessee has filed the present appeal against the order dated 29.07.2013 passed by the Commissioner of Income Tax (Appeals)-27, Mumbai [hereinafter referred to as the CIT(A) ] relevant to the assessment year 2010-11. 2. The assessee has raised the following grounds:- 1. The learned CIT(A) has erred in law and on facts in upholding the order of the Assessing Officer which is illegal and bad in law. 2. The learned CIT(A) has erred in law and on facts in sustaining the order of the Assessing Officer computing the total income of the appellant at ₹ 65,12,480/- as against the returned income of ₹ 11,16,013/-. 3. The learned CIT(A) has erred in law and on facts in confirming the order of the Assessing Officer assessing the LTCG offered by the appellant on sale of residential premises at Neelkanth Palm, Thane as STCG and consequently denying the benefit of exemption claimed u/s.54 of the Act. 4. Without prejudice to the above and in the alternative, the learned CIT(A) ought to have directed the Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.2009 respectively whereas the assessee has adopted the date of acquisition of these properties as 30.03.2005. If the date 26.03.2009 and 27.03.2009 were to be adopted on the basis of purchase agreements then in the said circumstances, the holding period would be below then three years hence the capital gain was required to be considered as Short Term Capital Gain, hence notice dated 17.12.2012 was issued and served upon the assessee. Thereafter, by considering the reply of the assessee, the Assessing Officer considered the holding of the assessee from the date of agreement i.e. 27.03.2009 which was sold on 28.02.2010 and purchased of new asset was taken into consideration on 28.07.2010 hence the Short Term Capital Gain was assessed to the tune of ₹ 53,96,470 and accordingly assessed the income of the assessee to the tune of ₹ 65,12,480/-. Aggrieved from this order, the assessee filed the appeal before the CIT(A) who confirmed the order of the Assessing Officer, therefore the assessee has filed the present appeal before us. Issue n.1 to 3 :- 5. All the issues lead to the question that which period is required to be considered as holding of the sold property for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he orders of the Tribunal cited above. For the sake of completeness of this order, relevant paras 6 to 8 of the Tribunal s order in the case of Richa Bagrodia (supa) are extracted as under:- 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 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 the Tribunal as well as the judgment of the Hon ble Gujarat High Court in the case of CIT vs. Anilaben Upendra Shah (2003) 262 ITR 657 (Guj). Relevant discussion is given in paras 3 4 of the said order of the Tribunal which read as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ravin 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly, 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 Court in the case of Mrs. Madhu Kaul vs. CIT vide Income Tax Appeal No.89 of 1999, dated 17th January, 2014 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-existence of the flat at the time of issuing of allotment letter stands answered by the said judgment of the Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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