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TMI Blog2017 (1) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... against the assessee's claim that it was Long Term Capital Gains (LTCG) and consequently disallowing the assessee's claim for exemption under section 54 of the Act. 2.2 Aggrieved by the order of assessment dated 28.01.2013 for A.Y. 2010-11, the assessee preferred an appeal before the CIT(A)-32, Mumbai which was dismissed vide order dated 06.08.2013. 3. Aggrieved by the order of the CIT(A)-32, Mumbai dated 06.08.20123 for A.Y. 2010-11, the assessee has preferred this appeal, raising the following grounds: - "1. On the facts and circumstances of the case and in law, the Assessing Officer erred in considering the Capital Gain on sale of flats in Torino Building of Rs. 2,47,24,250/- as Short Term Capital Gain arrived before the deduction of cost of acquisition instead of treating it as a Long Term Capital Gain as declared by the appellant. 2. On facts and circumstances of the case and in law, the Assessing Officer erred in not allowing the deduction in respect of indexed cost of Rs. 79,42,888/- of Torino Flats. 3. On facts and circumstances of the case and in law, the Assessing Officer erred in not allowing the deduction / exemption under section 54 against sale of Torino Flats ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said capital gains of Rs. 1,67,81,382/- on sale of the flat at Torino Building as LTCG as declared by the assessee in the return of income and treated the same as STCG for the reason that the said sold property was not held by the assessee for a period of more than 36 months. Accordingly, the AO computed the capital gains at Rs. 1,82,01,530/- and brought the same to tax as STCG. Consequently, the exemption under section 54 of the Act in respect of investment in the new flat at Amenda 'B', Hiranandani Meadows, Thane restricted by the AO to Rs. 64,92,50/- as against Rs. 74,11,110/- claimed by the assessee, was not allowed. This is the subject matter of appeal in the appeal in grounds 1 to 3 (supra). 4.3 At the outset, the learned A.R. of the assessee mentioned that an identical issue had come up for consideration before a Coordinate Bench of the Tribunal in the case of Richa Bagrodia vs. DCIT, wherein the Coordinate Bench in its order in ITA No. 3601/Mum/2012 dated 24.04.2014, following other Coordinate Bench orders, has decided the issue in favour of the assessee, i.e. that the date of allotment is relevant for computation of capital gains. The learned A.R. of the assessee placed s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der: "3. There are couple of issues raised in this appeal. Rest of the grounds raised in the appeal are either consequential or general in nature. Accordingly, they are dismissed as general or consequential. The issues, which need to be adjudicated in this appeal are (i) if the capital gains earned by the assessee are in the nature of the short term as held by the AO or long term capital gains as offered by the assessee in the return. At the outset, Ld Counsel for the assessee mentioned that the assessee purchased a flat vide the allotment letter dated 9.9.2003 from the builder namely Prestige Estates Projects Pvt. Ltd. There was a construction agreement between the parties dated 1.12.2003 and the registered deed of the same was dated on 22.9.2006. The said flat was sold by the assessee to Bennet Coleman & Company on 10.11.2006. The assessee earned capital gains on this transaction and offered the same as long term capital gains reckoning the date of allotment i.e., 9.9.2003 for the purpose of determining the holding period of three years relevant for the long term capital gains. However, in the assessment proceedings, AO considered the date of registration i.e., 22.9.2006 the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore he was entitled to deduction from such gains as per law." 7.1 The conclusion of the Hon'ble Gujarat High Court judgment in the case of CIT vs. Anilaben Upendra Shah reads as under: "Assessee having held the shares and allotment of a flat in a co-operative housing society for a period of more than 36 moths the capital gain arising from sale of said flat was long-term capital gain and assessee was entitled to benefit of section 80T irrespective of the fact that the assessee did not get possession of the flat in question at the time of allotment and it was constructed later on." 7.2. The conclusion of Hon'ble ITAT, Delhi Bench in the case of Jitendra Mohan vs. ITO reads as under: "On the facts of the case, assessee held the capital asset (shed) allotted to it on installment basis from 28th December, 1994, the date of payment of second installment and sale thereof on 15th December, 2000, gave rise to long term capital loss even though possession of shed was handed over by DSIDC to assessee on 28th May, 1998." 7.3. The conclusion of Hon'ble ITAT, Delhi Bench in the case of Praveen Gupta vs. ACIT reads as under: "Assessee can be said to have held the fla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jab & Haryana (supra). The same view was supported by various decisions of the Tribunal as well as the judgments of the Hon'ble Gujarat High Court and the relevant conclusions were already extracted in the above paragraphs of this order. Regarding the judgments of the Hon'ble jurisdictional High Court relied on by the Ld DR are distinguishable on facts. Therefore, considering the above settled nature of the issue as well as the following the principle of consistency, we are of the considered opinion that the ground no.1 raised by the assessee should be allowed. Accordingly, ground no.1 is allowed." 4.5.2 Following, inter alia, the aforesaid decision of the Coordinate Bench in the case of Richa Bagrodia (supra), it can be safely concluded that the date of allotment should be taken as the date for computing the holding period for computing capital gains. In the case on hand, the date of allotment as per letter of allotment is 29.03.2006 and the date of sale of the said property/flat at Torino Building is 23.10.2009 and therefore it is clear that the holding period is more than 36 months. The assessee paid the first instalment on 29.03.2006, thereby conferring a right to hold a flat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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