TMI Blog2001 (10) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... capital gain in question was rightly held by the Tribunal to be a long-term capital gain. Therefore, the assessee was rightly entitled to the benefit of section 80T of the Income-tax Act, 1961. - - - - - Dated:- 17-10-2001 - Judge(s) : M. S. SHAH., D. A. MEHTA. JUDGMENT The judgment of the court was delivered by M.S. SHAH J.-In this reference at the instance of the Revenue, the following question is referred for our opinion in respect of the assessment year 1983-84: "Whether in law and on facts when the assessee received possession of the flat in October, 1981, and sold the same on December 4, 1982, the assessee is entitled to benefit of section 80T of the Income-tax Act, 1961?" The facts leading to this reference, briefly sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid flat was, however, delivered by the said society to the assessee only in October, 1981. Thereafter, the assessee had entered into an agreement to sell the said flat on October 8, 1982, and in performance of such contract she had later on sold the same on December 4, 1982, for Rs. 1,40,000. It was thus contended on behalf of the assessee that it was not at all a case of short-term capital gain, but was one of long-term capital gain. The Income-tax Officer did not feel satisfied with the contentions of the assessee. In his opinion, the assessee had avoided to mention the date of transfer of the shares, though the assessee had contended that the contract was completed when allotment of shares was made. The Income-tax Officer was, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal. The Tribunal confirmed the view of the Appellate Assistant Commissioner. Hence, this reference at the instance of the Revenue. We have heard Mr. Akil Kureshi, learned counsel for the Revenue. Though served, none appears for the respondent-assessee. Mr. Kureshi has vehemently submitted that all that the assessee acquired on November 15, 1979, was the shares in the co-operative housing society, but she acquired possession of the flat only in October, 1981, presumably because the construction of the flat was not completed till then. It is, therefore, the contention of Mr. Kureshi that the assessee did not acquire, and could not have acquired, the flat which was not in existence on November 15, 1979. Since the flat was cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rship for the purpose of the Income-tax Act. Hence, the assessee not getting possession of the flat in question at the time of allotment on November 15, 1979, did not detract from the assessee's ownership of the property in question even if it was constructed after November 15, 1979. We also had an occasion to consider a similar question under the provisions of the Wealth-tax Act. By section 5(1)(xxviii), the shares in a co-operative housing society are exempted from the wealth-tax liability. The assessee, in that case upon holding shares in a co-operative housing society was allotted an open plot of land and was sought to be subjected to wealth-tax liability. The Tribunal had accepted the case of the Revenue that it was an asset which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a co-operative housing society and allotted/let out to the member or whether any member can transfer any such right to possession, and enjoy the property without selling the shares held by him, learned counsel for the Revenue submitted that the shares as well as interest in the land or building are two separate properties and the Legislature has granted exemption under section 5(1)(xxviii) only qua shares in a co-operative housing society and not qua interest in the land or building. We are unable to accept this contention because learned counsel has not been able to point out any provision of either the Gujarat Co-operative Societies Act or the Rules framed thereunder or the bye-laws of the co-operative society which contemplate interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing society, the relevant date would be the date on which the member acquires the shares in the Co-operative housing society and the date on which the member had sold his shares in the said co-operative housing society. In the facts of the instance case, it is clear that the assessee acquired shares in the co-operative housing society and was allotted the flat on November 15, 1979, and she transferred those shares on December 4, 1982. Thus, the assessee had held the shares and allotment of the flat in the said co-operative housing society for a period of more than 36 months. Accordingly, the capital gain in question was rightly held by the Tribunal to be a long-term capital gain. Therefore, the assessee was rightly entitled to the benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
