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TMI Blog2018 (2) TMI 2032X X X X Extracts X X X X X X X X Extracts X X X X ..... challenged the impugned order by raising the following grounds:- Ground No. 1: Capital gain on sale of residential house property treated as short term capital gain amounting to Rs. 32,86,739/- The Ld. CIT (A) has erred in law and facts in treating capital gain on sale of residential house property a short term capital gain & in upholding the disallowance made by the Ld. A.O. on account of not allowing exemption u/s 54 of the Income Tax Act, 1961 on the ground that: (i) The period of holding is to be determined from the date of possession and not from the date of agreement. (ii) Alternatively & without prejudice, though the assessee became owner by way of agreement assessee would become the beneficial owner only on the complete payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for more than three years. The assessee relying on the various judgments of the Hon'ble High Courts and the various Benches of the Tribunal contended that the date of allotment of the flat is the date of purchased for the purposes of section 54/54F of the Act. However, the AO rejected the contention of the assessee and denied the claim of the assessee holding that the assessee is not entitled for exemption u/s 54 of the Act and added the said amount to the total income of the assessee treating the same as income from short term capital gain. In the first appeal, the Ld. CIT (A) affirmed the action of the AO. 4. Before us, the Ld. counsel for the assessee submitted that the Ld. CIT (A) has wrongly confirmed the action of the AO. The Ld. c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration was made much later then the date of agreement, the assessee had no right on the said property as on the date of execution of agreement. Since, the possession of said flat was taken by the assessee in May, 2009, the Ld. CIT(A) has rightly confirmed the action of the AO. 6. We have heard the rival submissions and also gone through the material placed on record. We notice that in the case of the co-owner of the same property, the Ld.CIT (A) has allowed exemption u/s 54 of the Act taking into consideration the submissions made by the assessee in the light of the various judgments of the High Courts and the decisions of the ITAT. The relevant portion of the order of the Ld. CIT (A) passed in the case of the co-owner reads as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate if acquisition. For the purpose of section 54/54F here in this case date of allotment for the appellant is 29.3.2005 on which date appellant had paid initial payment and received allotment letter. This date has to be considered as date of acquisition and capital gains has to be computed. In this case, date of allotment is considered as date of acquisition then appellant had right upon the property for more than 3 years, hence appellant is eligible for exemption u/s 54/54F from the Long term capital gain earned. Appellant's claim of exemption u/s 54/54F for Rs. 32,86,739/- is allowed." 7. Since, the exemption claimed by the co-owner in respect of the same property has been allowed by the Ld. CIT (A), the Ld. CIT (A) in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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