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TMI Blog2016 (7) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... gain. - Decided in favour of the Revenue and against the assessee - Income Tax Appeal No. 75 of 2001 - - - Dated:- 29-6-2016 - M. S. Sanklecha And A. K. Menon, JJ. For the Appellant : Mr. Sameer Dalal a/w Subhash Shetty For the Respondent : None JUDGMENT ( Per A. K. Menon, J. ) 1. This appeal under Section 260A of the Income Tax Act, 1961(the Act) assails the order dated 30th August, 2001 passed by the Income Tax Appellate Tribunal (Tribunal). The appellants are heirs of the original assessee-appellant ( the appellant ). The impugned order relates to Assessment Year 1989-90. 2. This appeal was admitted on 1st April, 2004 on the following substantial question of law:- Whether on the facts and in the circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land to one M/s. Associated Estate and Investment Corporation vide agreement dated 29th November, 1988 for a price of ₹ 37,70,000/- resulting in capital gain to him. According to the appellant, he was holding the said land since 1980 i.e. from the date of the agreement dated 18th May, 1980 and hence the gain was long term in nature. The Assessing Officer, however, found that the appellant came into possession only pursuant to the Consent Terms and therefore the amount of consideration received on sale by the appellant is to be treated as short term capital gain and he was assessed accordingly. 6. In appeal the CIT(A) by order dated 25th March, 1991 allowed the appeal of the appellant. The CIT(A) directed the Assessing Officer to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1980, all that the appellant had was a right to seek specific performance which he sought to enforce by filing the suit. The appellant did not have possession of the said land. It is only on the Consent Terms being filed in Court that the appellant got ownership and possession. 10. We find that the issue in question arose before this Court in CIT v/s. Dr. D. A. Irani 234 ITR 850. In the case of D.A. Irani (supra) it was held that where a sale of property took place within 5 months of acquiring ownership, the gains arising on sale were short term capital gains. The facts in D. A. Irani's case were that the assessee was a tenant who took a flat on a lease and later acquired ownership of such flat. The Court found that the tenancy was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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