2015 (7) TMI 103 - AT - Income Tax

Computation of Long Term capital loss - indexation from 24-02-1994 or from 14-02-1999 - Assessing Officer computed loss at ₹ 37,21,902/- by restricting indexation from 1999 i.e. the date of possession 14-2-1999 - Held that - There is no dispute that the request of the assessee for allotting the flat No.401 at fourth floor in proposed residential complex, was accepted by the builder and a consent letter was given, subject to making the payments in installments. The assessee had paid full amount of consideration in the year of 1994, 1995 and 1996. The major payments have been made upto the Financial Year 1995. Only a payment of ₹ 9,44,000/- was made in the year 1996. Various Benches of the Tribunal have held that if allotment has been done, then the right of the person in the allotted flat is accrued. In this case, there is no dispute that builder consented to allot the flat as per the request of the assessee, however, when the flat was constructed then the agreement was entered into and possession was given to the assessee. There is no dispute in these facts. In the case of Praveen Gupta Vs. ACIT, 2010 (8) TMI 820 - ITAT DELHI held that an assessee can be said to have held the flat when he made the payment to the builder and received the allotment letter and, therefore, the benefit of indexation of cost of acquisition of the flat has to be granted from the date of payments when he started making payments to the builder and not from the date of execution of conveyance deed. The ratio of the decision is clearly applicable on the facts of the present case for the simple reason that the assessee requested to allot the flat and the builder consented to allot the same vide letter dated 24-2-1994, copy of which has been placed at page 9 of the paper book. The payments have been made by the assessee regularly from 1993 to 1996. Therefore, in my considered view, the assessee deserves to succeed on this issue and eligible for indexation from the respective dates of payments made against the purchase of flat as the assessee got rights in the flat from the first date of payment made as per the schedule given by the builder. - Decided in favour of assessee. Disallowance of cost benefit on account of Stamp Duty, registration charges, brokerage paid and interest on delayed payments - Held that - The assessee deserves to succeed on this issue also. Whatever the expenditure has been incurred on account of purchase of flat that has to be treated as cost of flat. There is no dispute that interest, Stamp Duty, registration fees and other expenses including brokerage, have been incurred on account of purchase of this flat. Therefore, these expenses cannot be segregated from the cost of flat. Accordingly, I direct the Assessing Officer to treat all these expenses as cost of flat then calculate the gain or loss on account of sale of flat. - Decided in favour of assessee.

Summary

Issues Involved:
1. Allowing indexation from 24-02-1994 or from 14-02-1999.
2. Not allowing the cost benefit on account of Stamp Duty, registration charges, brokerage paid, and interest on delayed payments.

Analysis:

Issue 1: Allowing indexation from 24-02-1994 or from 14-02-1999:
The appeal pertains to the assessment year 2005-06, where the assessee sold a flat and claimed long-term capital loss. The primary contention was regarding the indexation date for cost calculation, whether from 1994 or 1999. The builder agreed to allot the flat on 24-2-1994, with payments made in installments until 1996. The physical possession was granted on 14-2-1999. The Assessing Officer restricted indexation from 1999, disallowing various expenses. The CIT(A) upheld this decision. However, the Tribunal ruled in favor of the assessee, citing past judgments. It was established that the right to the flat accrued upon allotment, not possession. Hence, indexation should begin from the payment dates, not possession. The Tribunal directed indexation from respective payment dates, allowing the appeal on this issue.

Issue 2: Not allowing the cost benefit on account of Stamp Duty, registration charges, brokerage paid, and interest on delayed payments:
The second issue revolved around disallowing certain expenses as part of the flat's acquisition cost. The Assessing Officer rejected these claims, stating they were not part of the acquisition cost. The CIT(A) allowed only society deposits as part of the cost, relying on a Bombay High Court judgment. The Tribunal disagreed, stating that all expenses related to the flat's purchase should be considered part of the acquisition cost. It emphasized that interest, Stamp Duty, registration fees, and brokerage are integral to the flat's cost and cannot be excluded. The Tribunal directed the Assessing Officer to treat all these expenses as part of the flat's cost for calculating the gain or loss on the flat's sale. Consequently, the appeal was allowed on this issue as well.

In conclusion, the Tribunal ruled in favor of the assessee on both issues, allowing indexation from payment dates and considering all relevant expenses as part of the flat's acquisition cost.