TMI Blog2019 (10) TMI 1544X X X X Extracts X X X X X X X X Extracts X X X X ..... f the property was to be related to the date on which the allotment letter was issued. On the basis of its aforesaid observations, the Hon'ble High Court had dismissed the appeal of the revenue. In the backdrop of our aforesaid deliberations, we are of the considered view that as no infirmity emerges from the order of the CIT(A), who we find had rightly concluded that the date of acquisition of the property under consideration was to be reckoned from the date of the allotment letter i.e 03.12.1999, therefore, we uphold his order. - ITA No. 553/Mum/2016, ITA No.1320/Mum/2016 - - - Dated:- 18-10-2019 - Shri G. Manjunatha, Accountant Member And Shri Ravish Sood, Judicial Member For the Appellant : Shri Rahul Hakani Shri Apurva Shah, A.Rs. For the Respondent : Shri Amit Pratap Singh, D.R. ORDER PER RAVISH SOOD, JM The present cross appeals are directed against the order passed by the CIT(A)-30, Mumbai, dated 10.12.2015, which in turn arises from the order passed by the A.O under Sec. 143(3) of the Income Tax Act, 1961 (for short Act ), dated 25.03.2014 for A.Y. 2011-12. As a common issue is involved in the captioned appeals, therefore, the same ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on 16.12.2010. 6. Whether on the facts and in the circumstances of the case and as per law, the ld. CIT(A) has erred in not following the ration applied by Hon'ble Bombay High Court in the case of CIT Vs. Smt. R.R. Sood [1986] 161 ITR 92.? 7. The appellant craves leave to amend alter any ground or add a new ground which may be necessary. 8. The appellant prays that the order of the CIT(A) on the above ground be set aside and that of the Assessing Officer be restored. 3. Briefly stated, the assessee firm which is engaged in the business of manufacturing, import and export of diamonds had e-filed its return of income on 30.09.2011, declaring its total income at Rs.4,46,087/-. The return of income filed by the assessee was processed as such under Sec.143(1) of the Act. Subsequently, the case of the assessee was selected for scrutiny assessment under Sec.143(2) of the Act. 4. During the course of the assessment proceedings it was observed by the A.O that the assessee had transferred the occupancy rights of its office premises i.e EE6011, Bharat Diamond Bourse (alongwith parking space) for an aggregate consideration of Rs.9,72,00,000/-, and had offered f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. EE6011, Bharat Diamond Bourse, as a Short Term Capital Asset , and worked out STCG on the transfer of the same at Rs.1,67,63,555/-. 5. Aggrieved, the assessee carried the matter in appeal before the CIT(A). After perusing the facts, the CIT(A) was not persuaded to subscribe to the claim of the assessee that it had acquired the occupancy rights of the office premises i.e EE6011, Bharat Diamond Bourse, as on the date on which it had applied for allotment of the same in the year 1991. At the same time, the CIT(A) also did not find favour with the view taken by the A.O that the acquiring of the rights in the property could not have taken place prior to the date of the letter of allotment of the occupancy rights issued by Bharat Diamond Bourse in the year 2010. As a final and binding allotment of the office premises i.e EE6011, Bharat Diamond Bourse was carried out on 03.12.299, therefore, the CIT(A) was of the view, that the assessee on the said date could safely be deemed to be vested with the ownership of the specific area in the constructed building. Accordingly, the CIT(A) not finding favour with either the observations of the A.O or the claim of the assessee, therein conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition of the property under consideration. It was submitted by the ld. A.R, that the assessee since the year 1991 (from the date of application) had paid substantial amount prior to the date of allotment on 03.12.1999. Also, in order to fortify his claim that the property under consideration i.e EE6011, Bharat Diamond Bourse (built up area: 5,750 sq.ft.) was identified on the date of final and binding allotment i.e on 03.12.1999, the ld. A.R had drawn our attention to Page 11 of the assesse's Paper Book (for short APB ). Also, reliance was placed by the ld. A.R on the order of the ITAT, Mumbai Bench H in the case of Anita D. Kanjani Vs. ACIT-23(1), Mumbai (2017) 163 ITR 451 (Mum). The ld. A.R drawing support from the aforesaid order submitted, that it was observed by the Tribunal, that the holding period of the property has to be computed from the date of issuance of the allotment letter and not from the date when the agreement to sell was registered. It was submitted by the ld. A.R, that the Tribunal in the aforesaid case had deliberated upon the judgment of the Hon'ble Supreme Court in the case of Suraj Lamps Industries Pvt. Ltd. Vs. State of Haryana (2012) 340 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount, we are afraid that the said claim of the assessee does not find favour with us. As rightly observed by the CIT(A), that as no premises were identified or allotted to the assessee in the year 1991, i.e when it had applied for allotment of office premises at Bharat Diamond Bourse, therefore, it is beyond comprehension as to on what basis it is claimed by the assessee that it had been holding the rights in the aforesaid office premises since the year 1991. 10. We shall now advert to the claim of the revenue that the date of acquisition of the occupancy rights in the property were to be reckoned from 02.08.2010 i.e the date on which occupation rights were vested with the assessee, vide a registered document. As is discernible from the records, the revenue in order to fortify its aforesaid claim, had observed, that as Bharat Diamond Bourse itself had acquired the leasehold rights from MMRDA on 31.03.2010, therefore, the date of acquisition of the occupancy rights in the aforesaid property could not be related to a date prior to the same. We are unable to accept the aforesaid misconceived view of the revenue. Although the lease deed between Bharat Diamond Bourse and MMRDA wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration towards the cost of acquisition of the property under consideration. Our aforesaid view is further fortified from the observation of the CIT(A), wherein he had observed, that a transfer application dated 22.11.2000 filed by a different concern for transfer of its property was allowed by Bharat Diamond Bourse from the beginning. As such, the aforesaid fact in itself evidences that the said transferor concern on 22.11.2000 was vested with a right which could be transferred in favour of a third party. On the basis of our aforesaid deliberations, we are of the considered view that as the case of the assessee is no different from the aforesaid concern, therefore, it can safely be concluded that pursuant to the final and binding allotment of the office premises i.e EE6011, Bharat Diamond Bourse (built up area of 5,750 sq. ft.) on 03.12.1999, the assessee got vested with the ownership of the rights in respect of the property under consideration. Our aforesaid view is supported by the judgment of the Hon'ble High Court of Bombay in the case of PCIT-3, Vs. Vembo Vaidyanathan (2019) 261 taxman 376 (Bom). Issue raised by the revenue in its appeal before the Hon'ble High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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