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TMI Blog2012 (12) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... owing the decision in case of Madathil Brothers (2007 (10) TMI 234 - MADRAS HIGH COURT) that holding period has to be reckoned from the date of possession of the property. Therefore, AO has to take the holding period from the date of possession after necessary verification of possession date. Appeal decides in favour of revenue & remand back to AO. - ITA No.5720/Mum/2010 - - - Dated:- 25-7-2012 - SHRI B.R. MITTAL AND SHRI RAJENDRA SINGH, JJ. Appellant by : Shri V.V. Shastri Respondent by : Shri Jitendra Jain ORDER PER RAJENDRA SINGH, AM: This appeal by the revenue is directed against the order dated 16.4.2010 of CIT(A) for the assessment year 2006-07. The only dispute raised by the revenue in this appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther submitted that with the execution of the said agreement, the assessee had acquired all the rights in the said property on 8.4.1997. It was pointed out that though, the assessee had entered into another agreement dated 28.12.2004, but that was only because of the fact that the previous agreement was not adequately stamped. Thus, it was only for the purpose of stamp duty that the second agreement was entered into and there were no differences in terms and conditions nor any new right was created. The assessee referred to the judgment of Hon'ble High Court of Madras in the case of Madathil Brothers vs. Dy. CIT (301 ITR 345) in support of the proposition that holding period should be accounted from the date of agreement. The AO however di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pliance of various formalities. Thus, the assessee was holding right in the flat since 8.4.1997. Therefore, capital gain arising on sale of flat should be considered as long term capital gain. The assessee also submitted copy of letter dated 20.12.2000 of the developer handing over possession of the flat subject to honouring of post dated cheques issued by the assessee. After considering the submissions of the assessee and material on record, CIT(A) observed that the assessee had taken possession of the flat on 20.12.2000 which had been ignored by the AO. He, therefore, agreed with the assessee that period of holding has to be reckoned from 20.12.2000 and flat being sold in the year 2005, capital gain had to be considered as long term cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort term capital gain by AO. As regards claim of the assessee that he had taken possession of the property in the year 2000, the ld. DR submitted that the AO had given a clear finding that the assessee had not produced any evidence regarding taking over of the property. It was accordingly urged that the order of CIT(A) should be accordingly upheld. 5. We have perused the records and considered the rival contentions carefully. The dispute raised in this appeal is regarding nature of capital gain earned by the assessee i.e. whether short term or long term from sale of flat. The assessee had booked the flat on 11.4.1994 and the payment for the flat had been made in instalments aggregating to Rs.8,66,325/- during the period 11.4.94 to 28.2.04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of the flat after making part payments by instalments as the assessee became owner of the flat under section 53A of the transfer of property right Act. The AO had taken the holding period from 28.12.2004 as assessee had not produced any evidence regarding taking possession of the flat before him. In view of the contradictory finding of AO and CIT(A) regarding taking possession, in our view this aspect requires verification by AO and in case it is found that the possession had been taken by the assessee on 20.12.2000, the holding period has to be reckoned from that date and capital gain has to be treated as long term capital gain. The ld. AR for the assessee has argued that the holding period should be reckoned from 8.4.1997 i. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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