9911796707
TMI Blog2016 (7) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... see has raised the following concise grounds:- 1) For that without prejudice to any other ground taken herein, the Ld. Commissioner of Income tax (Appeals) - XVI, Kolkata, erred both in law and in the facts and circumstances of the case to have dismissed the appeal of the appellant assessee. 2) For that without prejudice to any other ground taken herein, both the Ld. Income Tax Officer and the Ld. Commissioner of Income tax (Appeals) - XVI, Kolkata erred both in law and in the facts and circumstances of the case to have disallowed assessee's claim of Long Term Capital Gains arising from the effective sale with regard to Apartment No. 302 on 3rd floor in building 'E' in the multi-storeyed residential complex named as "Pearl Ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r sources". The assessee purchased a flat No. 302, 3rd floor, Building "E", Sector 44, Noida, Dist. Gutam Budh Nagar, Uttar Pradesh from M/s Pearls Infrastructure Projects Ltd. The assessee made payment of Rs. 10 lakh on application for booking of said flat on 10.02.2006 and as per agreement balance payment to the tune of 85% of the basic price plus other charges was to be paid within 45 days from the date of agreement. The second payment was made by assessee on 24.05.2006 so the Assessing Officer construed that the agreement must have been made in the month of April'06 i.e. 45 days prior to the first date of payment i.e 24.5.2006. During the year under consideration, assessee has sold the said flat on 07.03.2009 and claimed as Long Term Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee has never shown in his books of account as assets but treated as advance against flat. (iv) That the principle of allotment of flat under self finance scheme of DDA Project is not applicable in this case as the flat in the instant case was not allotted by the authority within the meaning of Circular No. 471 dated 15.10.1986 and Circular No. 672 dated 16.12.1993. Considering the above facts, AO treated the gains as STCG and consequently provision of Sec. 54 of the Act was not available to the assessee. 3. Aggrieved assessee preferred an appeal before Ld. CIT(A) who confirmed the action of AO by observing as under:- "I carefully considered the assessment order, submission of the ape, additional evidenced, remand report of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase are different with cited case laws. In this case the appellant made second payment after the application money on 24/05/2006 which should be within 45 days of agreement. That also established that agreement was made in the month of April, 2006. The property was sold on 07/-3/2009 or Rs. 2,13,56,250/-. The above facts clearly prove that the property was held for less than three years and there was a short term capital gain of Rs. 52,47,000/-." Being aggrieved by this order of Ld. CIT(A) assessee preferred second appeal before us. 4. Before us Ld. submitted paper book which is running pages from 1 to 40 and various case laws. He stated that in the instant case assessee has sold the right of ownership in the flat which was required by m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contentions and perused the materials available on record. From the aforesaid discussion we find that assessee in the instant case has sold the right vested before taking the possession of the property but Authorities Below have not treated the transactions as sale of the right but treated the transactions as sale of the property. Now the issue before us to adjudicate is so as to whether the date of allotment should be taken for the period of holding for the working of capital gain. From the facts of this case, we find that there is no separate agreement executed by assessee for the purchase of the flat and the letter of allotment which is in the paper book at pages 23 to 33 is the only document which gives right of ownership in the flat. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee] 3) Vinod Kumar Jain v. CIT (2010) 195 taxmann 174 (P & H) where headnote:- Section 2(29A) red with section 54, of the Income-tax Act, 1961 - capital gains - long-term capital gains/assets - assessment year 1989-90 - assessee was allotted a flat under scheme of DDA on 27.2.1982 - delivery of possession of said flat took place on 15.5.1986 when actual flat number was allocated to assessee - assessee sold said flat on 6.1.1989- He claimed that capital gains arising on sale of flat was a long term capital gain but according to revenue authorities, flat was allotted on15.5.1986 and, therefore, capital gain was short-term capital gain - whether under self-financing scheme, an allottee gets title to property on issuance of an allotment l ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
