TMI Blog2018 (8) TMI 1309X X X X Extracts X X X X X X X X Extracts X X X X ..... find no infirmity in the order of the CIT(A) and we confirm the same. - Decided against the assessee. - ITA No.32/Bang/2018 - - - Dated:- 21-2-2018 - SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER For The Assessee : Shri. V. K. Gurunathan, Advocate For The Revenue : Dr. P. V. Pradeep Kumar, Addl. CIT ORDER Per Sunil Kumar Yadav, Judicial Member This appeal is preferred by the Assessee against the order of the CIT(A), inter alia, on various grounds: 1. On the facts and in the circumstances of the case, the Id CIT(A) erred in passing the order in the manner which he did. 2. The conditions precedent being absent, the reopening of the assessment U/s.147 is bad in law. 3. The learned CIT(A) having not adjudicated the submission made by the appellant towards the validity of the reopening u/ s.147 of the Act prior to the commencement of assessment proceedings, the assessment as made was opposed to law and against the principles of natural justice and thus liable to be cancelled. 4. The learned CIT(A) ought to have appreciated the explanation furnished by the appellant and held that the capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment did not examine these aspects. Therefore, the income chargeable to tax has escaped assessment. The AO has rightly invoked the provisions of section 147 of the Act. 4. We have carefully examined the orders of authorities below in the light of rival submissions and we find that in the original assessment proceedings of which copy of assessment is placed at page Nos. 66-69, the AO has not examined the actual date of acquisition of the flat. He simply mentioned the date of sale of the property and the consideration received by the Assessee and his investment in acquisition of another flat. Therefore, the date of acquisition of flat No. 302, Buttercup, Hiranandani Meadows situated at Thane, West Mumbai was not at all examined by the AO while determining the issue of exemption under section 54 of the Act with regard to sale proceeds received by the Assessee on the sale of Flat No. 302, BUTTERCUP, Hiranandani Meadows and its investment in acquisition of another flat. In the light of these facts, we do not find that there is any change of opinion of the AO for recording reasons for reopening of the assessment under section 147 of the Act. In the reasons recorded, the AO has c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2006. They have also placed reliance upon the municipal certificate through which the permission was accorded for construction of the apartment. The AO accordingly disallowed the claim of exemption under section 51 of the Act and treated it to be short term capital gain and taxed the same. 6. Assessee preferred an appeal before the CIT(A) and reiterated its contentions. The CIT(A) has examined all these aspects and confirmed the order of the AO disallowing the claim under section 54 of the Act. The relevant observation of the CIT(A) is extracted hereunder: The main issue in the instant case is whether the capital gains arising out of the sale of flat at Hiranandani Meadows, Thane, Mumbai, sold through registered sale agreement dated 29-06-2009, which was purchased by the assessee through registered purchase deed dated 06-03-2009 is a short term capital gain or a long-term capital gain. The contention of the assessee to treat the gains as long-term capital gains on the ground that the allotment date was 22- 02-2006 and that the allotment date has to be taken as the date of acquisition is not acceptable, due to the following reasons: 1). As seen from the purchase dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a Government authority, gives the legal status and title for the property. Therefore, in the instant case the date of acquisition is taken as the date of registration i.e. 06-03-2009 and as the date of sale is 29-06-2009, the gains arising out of the sale can be only Short term capital gains . It is also pertinent to note here the intention of the assessee. The steep rise in property prices over the past few years particularly in larger cities like Mumbai, Delhi, Bangalore, has placed one category of homebuyers in a very fortunate situation. Those who booked yet to be constructed flats three or four years ago made payments over the past few years at booking rates and are now getting possession of the ready flats, are tempted to sell the flats at the high prices that the ready flats now command compared with the cs which they were booked. The assessee's intention in this project does not seem to occupy the flat and reside in the same, since as seen from the documents on during the FY 2009-10 relevant for AY 2010-11, the assessee has also sold a site at Gujarat on 19-09-2009 for ₹ 17 lakhs and sold the impugned flat at Hiranandani Meadows, Thane, and reinvested the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned DR further invited our attention that sale agreement executed between the builder and the appellant on 06.03.2009 appearing at page Nos. 1 to 37 of the compilation with the submission that in page No. 8 in agreement to sell, it has been mentioned that sanction of Development Permission/Commencement Certificate was granted on 17.11.2006 and in the same page, the Architect of the promoter has issued a certificate dated 21.11.2006 stating that building No. 3 referred to in the commencement certificate issued by the Thane Municipal Corporation and on the same page, the Architect has also certified that Thane Municipal Corporation has also granted the Development Permission and Commencement Certificate on 17.11.2006 meaning thereby that even the construction of the apartment was not started before 17.11.2006. The learned DR further invited our attention to the occupancy certificate given by Thane Municipal Corporation which is appearing at page No. 54 of the compilation with the submission that the commencement/occupancy certificate was granted to the builder on 18.02.2009. After the occupancy certificate was obtained by the builder, the agreement to sell was executed between t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
