9911796707
TMI Blog2016 (8) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... tical set of facts, therefore, same were heard together and are being disposed off by way of this consolidated order. For the sake of ready reference, we will first take-up appeal in ITA No.7117/Mum/2013 vide which following ground has been raised:- "1. On facts and in law, the CIT(A) erred in confirming the action of the AO of treating the capital gain arising on sale on an Industrial Gala as Short Term Capital Gain instead of Long Term Capital Gain claimed by the appellant". 2. Facts in brief are that, originally the assessment was completed under section 143(3) vide order dated 31.12.2008, by assessing the long-term-capital-gain of Rs. 17,82,519/- arising out of sale of a 'Industrial Gala' in Chandivili, Saki Naka road, Andheri (East) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 26,93,000/-. The short-term capital gain was thus computed at Rs. 17,82,519/-, that is, (26,93,000- 9,10,481). In the First Appellate Stage, the objection of shortterm- capital gain stood confirmed. In the second appeal filed before the Tribunal, this issue was set aside to the file of the AO for verification and examination of the documents, mainly occupation certificate from the Bombay Municipal Corporation (BMC), dated 10.03.1998 which was a vital evidence produced before the Tribunal. 3. Now in pursuance of the order of the Tribunal, the AO initiated the assessment proceedings on the issue of determination of long-term-capital-gain / short-term-capital gain. In the set aside proceedings also, the AO, completed the assessment withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the appellant is determined from the date when it took over the property by a Registered Deed. The said date is 01/01/2005 i.e. much after the occupancy certificate was issued. Therefore, the right of ownership was acquired by the appellant is on that date. It is right of ownership that stands transferred and not the right to possession. Therefore, the right of ownership was acquired by the appellant is on that date. It is of ownership that stands transferred and not the right to possession. Therefore, I do not find any infirmity in the order of the Assessing Officer and the same is confirmed and the grounds of appeal are dismissed". 5. Before us, the Ld. Counsel after explaining the entire facts and the background of the case subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee became absolute owner of the said property from the date of possession. The keys were with the builder only for the purpose of maintenance for which the assessee had also paid maintenance amount. Since the builder could not take care or properly maintain the property, then it was decided that keys should be taken from the builder which was received on 01.01.2005. Thus, mere handing over the key by the builder to the assessee cannot be reckoned as the date for considering the period of holding of the property. 6. On the other hand, Ld. DR strongly relied upon the order of the CIT(A). 7. We have heard the rival submissions and also perused the relevant finding given in the impugned order as well as material placed before us. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied by the fulfillment of the covenants in the agreement by making the payment as per the time schedule. This further the possession was also given by issuance of occupation certificate on 10.03.1998. Thus, in all the aspect, the assessee not only became the owner of the property but also had all the rights in the said property much prior to 01.05.2005 in fact even prior to financial year 1998-99. Mere handing over the keys by the builder to the assessee does not in any manner prejudice or jeopardized the assessee's right in the property when the builder has received the full consideration in FY 1998-99 and handed over the property with all rights and possession and was merely caretaker of the property. Thus, on the facts of the case, we ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
