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Issues involved: Determination of whether the gain arising from the transfer of an asset is a long-term capital gain or short-term capital gain.
Issue 1: The appellant contested the assessment made by the Assessing Officer of sale of asset as short-term capital gain instead of long-term capital gains. - The appellant argued that the asset transferred was the right to acquire the flat, not the flat itself. - The possession of the flat was handed over to the appellant after the date of sale, indicating that the nature of the asset held was certain rights in a flat. - Cited case law to support the argument that the date of acquisition should be considered as the date of entering into the agreement for purchase. - Relying on the judgment in CIT v. Abrar Alvi, it was established that the nature of the asset transferred determines the date of acquisition. - Consequently, the gain in question should be treated as a long-term capital gain. Issue 2: Verification of the fact that the appellant never took possession of the flat and only sold the right in the flat. - The appellant had evidence to show that the builder delivered possession of the flat after the sale. - The contention was that the date of acquisition should be the date of the agreement for purchase, i.e., 15-2-1992. - The argument was supported by case laws and the nature of the asset transferred was determined to be certain rights in a flat. - Therefore, the gain should be assessed as a long-term capital gain. Issue 3: Holding the sale of the flat as a short-term capital gain by treating the date of possession as the date of acquisition. - The appellant's position was that the date of acquisition should be the date of entering into the agreement for purchase. - The possession of the flat was handed over after the sale, indicating that the asset transferred was the right to acquire the flat. - Relying on legal precedents and case laws, it was established that the gain should be considered a long-term capital gain. - The appeal filed by the assessee was allowed based on the above findings.
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