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TMI Blog2019 (12) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... e has taken the date of purchase of the above property as 31.01.2009 and claimed indexation accordingly. However, the AO noted from the documents submitted that the aforesaid property was purchased by the assessee vide sale deed dated 21.03.2013. Therefore, he held that the transaction comes under long-term capital gain as the period of holding is less than 36 months as per section 2(42A) of the IT Act. After deducting the cost of acquisition from the sale consideration, the AO made addition of Rs. 15,80,350/- being the short-term capital gain earned by the assessee. 4. Before the CIT(A), the assessee challenged the action of the AO in considering the date of purchase as the date of acquisition as against the date of agreement to purchase. However, the ld.CIT(A) was also not satisfied with the arguments advanced by the assessee and upheld the action of the AO in considering the date of acquisition of the property as the date of purchase which is 21.03.2013. 5. Aggrieved with such order of the CIT(A), the assessee is in appeal before the Tribunal. 6. The ld. Counsel for the assessee, referring to page 1 to 10 of the paper book, drew the attention of the Bench to the copy of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the property is a long-term capital asset since the holding period is more than 36 months if the date of agreement to purchase the property is considered as the date of acquisition. I find identical issue had come up before the Ahmedabad Bench of the Tribunal in the case of Nilam R. Kataria (supra). I find the Tribunal, after considering the various decisions, came to the conclusion that the period of holding of the asset has to be considered from the date of allotment of the property and not from the date of actual registration. The relevant observation of the Tribunal from para 4 onwards read as under:- "4. We have heard the rival contentions made by the parties, we have also perused the relevant materials available on record and the judgment relied upon by the Learned Counsel appearing for the assessee. The letter of allotment dated 15.02.2007 as appearing at Page 35/A clearly states the following "... land shall be allotted to you after being converted in NA and after execution of sale deed in favour of association and on payment of decided amount which may please be noted" Page 29A to 29AC of the Paper Book contained the sale deed against the sale consideration of said Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us situations and also circulars issued by the CBDT on this issue. Relevant portion of the observation wherein the issue before us has been properly analysed is reproduced hereunder:- 12. "The definition as contained in Section 2 (42A) of the Act, though uses the words, "a capital asset held an assessee for not more than thirty-six months immediately preceding the date of its transfer", for the purpose of holding an asset, it is not necessary that, he should be the owner of the asset, with a registered deed of conveyance conferring title on him. In the light of the expanded definition as contained in ITA No.2291/Mum/2015Section 2(47), even when a sale, exchange, or relinquishment or extinguishment of any right, under a transaction the assessee is put in possession of an immovable property or he retained the same in part performance of the contract under Section 53-A of the Transfer of Property Act, it amounts to transfer. No registered deed of sale is required to constitute a transfer. Similarly, any transaction whether by way of becoming a member of or acquiring shares in a co-operative society, company or other association of persons or by way of any agreement or any arrangem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and where there is no evidence of any dishonest or improper motive on the part of the assessee, it would be just and equitable to draw such inference in such a manner that would lead to equity and justice. Too hyper-technical or legalistic approach should be avoided in looking at a provision which must be equitably interpreted and justly administered...............Courts should, whenever possible unless prevented by the express language by any section or compelling circumstances of any particular case, make a benevolent and justice oriented inference. Facts must be viewed in the social milieu of a country." Therefore, keeping the aforesaid principles in mind, when we look at Section 48, the language employed is unambiguous. The intention is very clear. When a capital asset is transferred, in order to determine the capital gain from such transfer, what is to be seen is, out of full value of the consideration received or accruing, the cost of acquisition of the asset, the cost of improvement and any expenditure wholly or exclusively incurred in connection with such transfer is to be deducted. What remains thereafter is the capital gain. It is not necessary that after paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in the case of CIT vs S.R. Jeyashankar(supra), Hon'ble Madras High Court took a similar view following the aforesaid ITA No.2291/Mum/2015 judgment and held that holding period shall be computed from the date of allotment. It is noted by us that similar view has been taken by other High Courts in the judgments which have been relied upon by the Ld. Counsel before us and mentioned in earlier part of our order. 15. In the assessment order, the Ld. AO has placed reliance upon the judgment of Hon'ble Supreme Court in the case of Suraj Lamps & Industries Pvt Ltd (supra) for the proposition that transfer of a property shall be effective only on registration of conveyance deed in view of section 54 of Transfer of Property Act. In our view, it is a settled proposition of law and there is no dispute on that. The absolute legal ownership of an immovable property shall take place in terms of various provisions of Transfer of Property Act which needs to be read with provisions of section 2(47) of Income-tax Act, 1961 for the purpose of computing tax liability arising on account of sale / purchase of immovable properties under Income-tax Act. But the issue here before us is differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... society and still retain any interest in any property, whether land or building, belonging to a co-operative housing society and allotted/let out to the member. Similarly, a member of a co- operative housing society to whom a flat or land is allotted cannot transfer such land or building without selling the shares held by him. Hence, when the question comes up for consideration as to which is the relevant date, while computing the capital gain tax in case of transfer of his shares by a person who is a member in a co-operative housing 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 cooperative housing society. In the facts of the instant case, it is clear that the assessee acquired shares in the co-operative housing society and allotted the flat on 15- 11-1979 and she transferred those shares on 4-12-1982. 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 capita ..... X X X X Extracts X X X X X X X X Extracts X X X X
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