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TMI Blog2017 (4) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... STCG and consequently denying the benefit of exemption claimed u/s.54 of the Act. 4. Without prejudice to the above and in the alternative, the learned CIT(A) ought to have directed the Assessing Officer to adopt the market value of the residential premises as on the date of acquisition considered by him as the cost of acquisition for the purpose of computation of capital gain. 5. The appellant craves leave to add to, amend, alter or delete all or any of the foregoing grounds of appeal." 3. The brief facts of the case are that the assessee filed return of income on 30.07.2010 declaring total income to the tune of Rs. 11,16,013/-. The return was processed u/s.143(1) of the Income Tax Act, 1961( in short "the Act"). Thereafter, the case was selected for scrutiny and notice u/s.143(2) of the Act was issued on 24.08.2011 and duly served upon the assessee. The source of income of assessee was from the interest income being income from other sources, capital gain and house property. During the said assessment year, the assessee showed the Long Term Capital Gain to the tune of Rs. 45,58,478/- on sale of two registered flats No.A-801 and A-802, at Neelkanth Palm Realty. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing the entitlement of exemption u/s 54 of the Act on account of purchase of new property to assess the income accordingly as Short Term / Long Term Capital Gain. At the very out set, the learned representative of the assessee has argued that in case of assessee's sister titled as Mrs. Anupama Agarwal Vs. DCIT in ITA No.472/Mum/2015 dated 23.09.2016 the holding period of the sold property was taken in to consideration from the allotment letter dated 30.03.2005, therefore in the said circumstances in case of assessee also the date of the allotment letter as well as the date of the payment of first installment is required to be consider to assess the Long Term / Short Term Capital Gain at the time of the sale of the said property hence the order of the CIT(A) in question is wrong against law and facts and is liable to be set aside. In support of her claim, the learned representative of the assessee has also placed reliance upon the judgment of Hon'ble Punjab & Haryana High Court in the case of Mrs. Madhu Kaul Vs. CIT and another [ 363 ITR 54] and the judgment of the Hon'ble Madras High Court in the case of CIT Vs. S.R.Jeyshankar [373 ITR 120] and the order of Hon'ble Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds 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 date of registration and determined the short term capital gains. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 flat when he made the payment to the builder and received the allotment letter, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal 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." 6. The facts and circumstances of the present case is quite similar. Moreover, the above said case is the case of the sister of the assessee in which the date of allotment is the same in the same vicinity and accordingly she is entitled to get the exemption u/s.54 of the Act. Moreover, the ratio given in the case titled Mrs. Madhu Kaul Vs. CIT and another [ 363 ITR 54] (supra) and CIT Vs. S.R.Jeyshankar [373 ITR 120] (supra) are also quite applicable to the facts of the present case in which the date of allotment letter was considered to assess the holding period to ascertain the entitlement of exemption u/s.54 of the Act. In view of the said circumstances we are of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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