TMI Blog2021 (12) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... ession has not been handed over as certain conditionalities are to be fulfilled like payment of balance consideration and obtaining of NOC - Mumbai Port Trust has been applied for issuing the NOC but still the same is awaited - sale is certainly not complete and it is absolute sale but a conditional sale which would be complete after satisfaction of the above two conditions. Neither AO nor ld CIT(A) have brought on record any substantive evidence to the contrary. So we are not in agreement with the conclusion of the ld CIT(A) that sale is complete. Sale of flat would only be completed after fulfilment of remaining conditions - we are inclined to set aside the order of ld CIT(A) on this issue and direct the AO delete the addition of short te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the facts and circumstances of the case and in law, the Ld. CIT (A) erred in confirming the AO's action of disallowing the depreciation on flat of ₹ 2,01,120/- claimed by appellant u/s. 32 of the Income Tax Act, 1961. 5. The appellant craves leave to add to, alter, amend and /or delete all or any of the foregoing grounds of appeal. 6. The appellant prays before the Hon'ble Tribunal to delete the additions made by the AO and to the extent confirmed by the Ld. CIT(A). 3. The issue raised in ground no. 1 is against the confirmation of addition of ₹ 1,60,90,798/- by ld CIT(A) as made by the AO on account of short term capital gain by ignoring the fact that there was no transfer of flat during the year. 4. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crystalized and therefore the assesse is liable for capital gain tax. Pertinent to state the flat was part of block of asset and therefore AO calculated short term capital gain. The AO also noted that sale consideration was ₹ 1,15,00,000/- whereas stamp duty value was ₹ 1,81,62,000/- and thus there was difference of ₹ 66,62,000/-. Accordingly, AO issued show cause notice to the assesse as to why the provisions of section 50C of the Act should not be invoked which was replied by assessee by submitting that the property is leased property of Mumbai Port Trust and the reconstructed structure has no lift and other amenities, with common toilet and no BMC water supply and therefore the flat fetches lesser price. The AO was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Port Trust and approval of the Mumbai Port Trust was required to be obtained for handing over the possession .We also note that the assesse has received only ₹ 25,00,000/- and the balance consideration was still outstanding. Further the assesse was to hand over the possession to the buyer only upon full and final payment of sales consideration and after obtaining NOC from Mumbai Port Trust. So this is undisputed that the possession has not been handed over as certain conditionalities are to be fulfilled like payment of balance consideration and obtaining of NOC. We also note that the Mumbai Port Trust has been applied for issuing the NOC but still the same is awaited. Keeping in view these facts, we are of the opinion that the sale is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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