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TMI Blog2016 (11) TMI 1454X X X X Extracts X X X X X X X X Extracts X X X X ..... cember, 2009 passed by the learned Assessing Officer (hereinafter called "the AO") u/s 143(3) of the Income-tax Act,1961 (Hereinafter called "the Act"). 2. The grounds of appeal raised by the assessee in the memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called "the Tribunal") read as under:- "1] On the facts and circumstances of the case and in law the CIT(A) erred in holding the long-term capital gains on the sale of residential premises as short-term capital gains. 2] On the facts and circumstances of the case and in law the CIT(A) erred in not allowing the additional grounds of appeal arising from the assessment order raised by the Appellant during the course appellate proceedings." 3. The Brief fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year 2007-08, the assessee's wife Smt. Malini Raod declared 90% share in the proposed flat and was claiming carried forward of loss of Rs. 1,30,633/- as long term capital loss on sale of the said flat. The assessee's wife was Director of a company Mosaic Advertising and Marketing Private Limited , which was registered at the residence address of the assessee and she was receiving salary income from the said company , while assessee has a salary income of Rs. 9,55,700/- from MNC and her wife net salary income was Rs. 2,37,500/- . The A.O. observed that the ratio of ownership declared by the assessee and his wife did not match their income, hence, notice was issued u/s 142(1) of the Act to show cause that why only 10% of the capit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that the letter of allotment does not give any right to the assessee nor create any obligation on the builder more so builder is a private body rather than being a statutory body like DDA or MHADA. It was also observed that by paying this 10% of cost of the flat at the time of letter of allotment by a private builder, the assessee is also not even member of the Accolade Cooperative society and it will not create any right on the land owned by the society on which the project is constructed . Thus, the AO observed that the assessee has not owned the flat for more than 36 months as the AO calculated the date of acquisition from the date of agreement to sale i.e. 30-12-2003 and date of sale agreement dated 24/11/2006 , instead of taki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment in the flat nor has obtained a domain over the flat from the date of letter of allotment issued by the builder, hence, the property cannot be said to have been purchased on the date of letter of allotment and the A.O. has correctly concluded that the property was purchased by the assessee on the date of agreement of sale i.e. 30th December 2003 and the holding period comes to less than 36 months as the property has been sold on 24th November, 2006. The ld. CIT(A) accordingly upheld the A.O.'s action vide appellate order dated 23.05.2014. 6. Aggrieved by the appellate order dated 23-05-2014 passed by the ld. CIT(A), the assessee filed second appeal before the Tribunal. 7. At the time of hearing before us, none appeared on behalf of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority - Whether to be treated as construction for the purposes of capital gains 1. Sections 54 and 54F provide that capital gains arising on transfer of a longterm capital asset shall not be charged to tax to the extent specified therein, where the amount of capital gain is invested in a residential house. In the case of purchase of a house, the benefit is available if the investment is made within a period of one year before or after the date on which the transfer took place and in case of construction of a house, the benefit is available if the investment is made within three years from the date of the transfer. 2. The Board had occasion to examine as to whether the acquisition of a flat by an allottee under the Self-Financing S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of these facts, it has been decided that cases of allotment of flats under the Self-Financing Scheme of the D.D.A. shall be treated as cases of construction for the purpose of capital gains. Circular : No. 471 [F. No. 207/27/85-IT(A-II)], dated 15-10-1986. We would like to also make it clear that the assessee will be entitled for cost inflation index(CII) based on the actual payments made and date of payment, accordingly CII will be worked out with reference to amount of payment and date of payment, on progressive payments. Further it is observed that the assessee has raised additional grounds before the learned CIT(A) which were not admitted by the ld. CIT(A) and rejected at the threshold and hence consequently not adjudicated while ..... X X X X Extracts X X X X X X X X Extracts X X X X
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