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TMI Blog2012 (2) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... als made during the year before the deposit in the books of account and in not allowing the credit of the cash in hand available on the opening deposits. 4. (i) On the facts and in the circumstances of the case, the ld CIT(A) has erred both on facts and in law in confirming the addition of `.3,90,530/- made by the Assessing Officer on account of capital gain on sale of flats. 4 (ii) On the facts and circumstances of the case, the Ld CIT(A) has erred both on facts and in law in holding that capital gain arising on sale of DDA flat is short term capital gain ignoring the date of acquisition of the flat by which the holding period of the flat is more than 36 months and consequently the gain will be a long term capital gain. 4 (iii) That the above said addition has been confirmed rejecting the explanation and evidences brought on record by the appellant. 4. (iv) That the Ld CIT(A) has erred both on facts and in law in not allowing appellant the benefit of indexation of cost of acquisition and the cost of improvement. That the appellant craves leave to add, amend or alter any of the grounds of appeal. 2. The first issue for consideration relates to confirming the addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in Delhi since 1986 as a salaried person and his wife is working in IGNOU and she also supported him financially. The assessee submitted a copy of his account No.68906 in PNB Branch from 1.4.2007 to 31st March, 2008 in which he had claimed that there were cash deposit of ₹ 24,48,500/-. There was cash withdrawal of ₹ 7,72,000/- also and claimed set off for the same. The assessee further claimed the set off cash balance of M/s Roop System for a sum of ₹ 6,85,227/-. The Ld CIT(A) considered the above facts. He observed that the assessee had deposited ₹ 19,85,000/- between 2.6.2007 to 8th October, 2007 before making any withdrawals. Thereafter, he had made withdrawal of ₹ 1,00,000/- on 13.11.2007 and another withdrawal of ₹ 1,20,000/- on 22.12.2007. Thereafter, he had again deposited cash amounting to ₹ 4,99,500/- between 26.12.2007 to 14.1.2008. The intervening gap between withdrawal of ₹ 2,20,000/- and deposit of ₹ 4,99,500/- could not be explained by the assessee. The balance amount of cash withdrawal of ₹ 5,50,000/- (Rs.7,70,000/- - ₹ 2,20,000/- ) was made by the assessee between 18.2.2008 to 14.3.2008. No deposits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able that when the assessee was having bank account, he was keeping his past savings in cash in house for last 17 years. It is settled law that the onus was on the assessee to prove his contention with evidence. Therefore, only set off of ₹ 2,20,000/- against the deposit of ₹ 24,48,500/- can be given. Hence, we uphold the addition of ₹ 22,28,500/- as against ₹ 24,48,500/- made by the and confirmed by the Ld CIT(A). 7. The next issue for consideration relates to confirming the addition of ₹ 3,90,530/- made by the Assessing Officer on account of capital gains on sale of flat. The facts relating to this ground have already been narrated in paragraph 3 above. Before CIT(A) it was contended that short term capital gain has been determined at ₹ 3,90,530/- without giving deduction on account of improvement expenses. The assessee also purchased SFS Flat No.24, Sector-6, Pocket-I, Dwarka, New Delhi vide conveyance deed dated 4.8.2004 and had carried out renovation expenses on the same for an amount of ₹ 60,000/-. However, on perusal of conveyance deed with the DDA revealed that deed was registered by the Sub Registrar, Delhi on 9.11.2005 vide Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 007. Therefore, the date of sale is to be taken as 20th August, 2007. Hence, the assessee held the flat for a period of 3 years 16 days which is more than three years. Hon'ble Gujarat High Court in the case of Amilaben Upendra Shah (supra) held that while computing the capital gain tax in the case of transfer of share by a person who is a Member in a Co-operation Housing Society, the relevant date would be the date on which the Members acquires the shares in the cooperative society and the date on which the Member had sold the share in the said cooperative society will be relevant for calculating the period of holding. In this case, the assessee acquired shares in cooperative society and was allotted on 15.11.1979. She transferred those shares on 4.12.1982. Thus, the assessee held the share and allotment of flat in the said cooperative society for a period of more than 36 months. It was held that capital gain arising from sale of said flat was long term capital gain and the assessee was therefore entitled to benefit of section 80T of the Act. ITAT Delhi Bench F in the case of Praveen Gupta v. ACIT in I.T.A. No. 2558/Del/2010 for assessment year 2007-08 in order dated 13th Aug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. The assessee paid registration money of ₹ 1 lakh and the balance amount was to be paid at ₹ 13,33,930/-. The assessee made payment in installments as per the schedule of payment given in the allotment letter. Therefore, the assessee got right in the flat at least on the day on which the draw was made i.e. on 24.2.2004 when flat No.24 was allotted to the assessee. Therefore, the assessee s case is squarely covered by the decision of Hon'ble Gujarat High Court in the case of Amilaben Upendra Shah (supra) and the decision in the case of Praveen Gupta (supra). Since, the flat was held by the assessee for more than three years, benefit of indexation is to be allowed and the capital gain arising on sale of transfer is liable to be taxed as long term capital gains and not as short term capital gains. 11. In view of the above, the Assessing Officer is directed to compute the capital gains arising on sale of flat as long term capital gain after allowing the benefit of indexation as per law. As regards the contention of the assessee that an amount of ₹ 60,000/- was incurred on renovation, no evidence was filed by the assessee for incurring expenditure on r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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