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TMI Blog2018 (7) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... essment Year 2014-15. 2. The only issue to be decided in this appeal is as to whether the ld CITA was justified in granting exemption u/s 54 of the Act in the facts and circumstances of the case. 3. The brief facts of this appeal are that the assessee is an individual deriving income from capital gains and other sources. The return of income for the Asst Year 2014-15 was filed on 23.8.2014 declaring total income of Rs. 6,37,430/- comprising of the following:- Income from short term capital gains - Rs. 1,39,413/- Income from other sources - Rs. 6,16,494/- Rs. 7,56,907/- Less: Deductions under Chapter VIA Rs. 1,18,479/- Rs. 6,37,428/- 3.1. The assessee along with a co-owner Mr Manoj Kumar Bothra (husband ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchase consideration in instalments commencing from April 2008 to April 2013. c) Thereafter the assessee took possession of the property as on 13.5.2013. d) The property was not a registered property and the assessee became owner of the property as per agreement basis with South City Projects (Kolkata) Ltd as part performance of the contract in terms of section 53A of the Transfer of Property Act that envisages that 'Where any person contracts to transfer for consideration any immovable property by writing signed by him and the transferee has in part performance of the contract taken possession of the property or any part thereof then the transfer has been completed." So, it is evident that the term 'possession' of the property is an im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordingly made an addition of Rs. 1,90,93,438/- in the assessment. 5. The ld CITA observed that the assessee and her husband being co-owners of the property, received an allotment offer letter from South City Projects (Kolkata) Ltd vide their letter dated 12.4.2008 for allotment of Unit No. B at Floor No. 15 of Tower No. 5, CYPRESS in residential complex of South City Projects (Kolkata) Ltd at 375, Prince Anwar Shah Road, Kolkata - 700068 having super built up area of 3175 sq.ft against unit price of Rs. 1,61,13,125/- along with car parking space for Rs. 7,00,000/- totaling to Rs. 1,68,13,125/-. So the share of the assessee's share of purchase comes to Rs. 84,06,562/- being 50% of her ownership. He took cognizance of the fact that an infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that section 2(14) of the Act defines Capital Asset as under:- Property includes and shall be deemed to have always included any rights in or in relation to an Indian Company, including rights of management or control or any other rights whatsoever. 5.1. The ld CITA categorically held that the crucial date is the date of allotment and the payment of monies in installments is a follow up action. The ld CITA also placed reliance in support of his observations on the following decisions :- a) Co-ordinate Bench of Mumbai Tribunal in the case of Anita D Kanjani vs ACIT reported in (2017) 79 taxmann.com 67 (Mumbai - Trib.) dated 13.2.2017 . b) Decision of Hon'ble Punjab & Haryana High Court in the case of Smt Madhu Kaul vs CIT, Chandi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 'right in a property ' is a capital asset. Since this right has been acquired by the assessee pursuant to allotment letter dated 12.4.2008 and the same has been held by the assessee up to 9.12.2013 (i.e for more than three years) , the gain arose pursuant to such transfer would have to be construed only as long term capital gain, which has been rightly considered by the ld CITA. It is not in dispute that the assessee had duly reinvested the sale consideration in new property proposed to be purchased for Rs. 3,70,00,000/- and out of which Rs. 2,33,14,159/- was paid on 10.12.2013 itself ( i.e the date of agreement). Hence the resultant gain is long term capital gain and since the reinvestment had happened within the stipulated time, the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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