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TMI Blog2017 (10) TMI 1003X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances of the case, the Ld. CIT(A) erred in note appreciating that the right to property is a capital asset u/s. 2(14) of the Income Tax Act, 1961. He failed to appreciate that the assessee was holding the right to property i.e. Flat No. 502 during the period 1st April, 2002 to 10th February, 2006 i.e. for a period of 4 years and 9 days (exceeding 36 months). 2. The Ld. CIT(A) erred in not appreciating that the permission to redevelop the property was given on 1st April, 2002 and the allotment letter was also issued on the even date, as mentioned by the A.O. in his asstt. Order dated 21st October, 2008." 3. The brief facts of the case are that the AO note4d during the course of assessment proceedings that the assessee has sold an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee was allotted the plot by depositing a sum of Rs. 1,00,000/- through cheque No. 732661 dated 5th April, 2002 in favour of Amrut Dhara Enterprises. This very cheque was cleared and debited in the bank statement of the assessee on 5th April, 2002. The AO without verifying the fact from the developer just observed that the said allotment letter is a fabricated one. In our opinion while making this allegation the onus is on the Revenue to bring evidence on record. In this case the AO just made such observation and rejected the claim of the assessee without bringing any evidence to the contrary on record. Even no notice under section 133(6), etc. was made on the builder. In our opinion the onus is on the Revenue to prove that the do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital asset to mean a property of any kind held by the assessee, whether or not connected with his business of profession. The right by view of an allotment letter is a valuable right and that rights has been created in favour of the assessee when the builder has issued an allotment letter and received the consideration towards booking of the flat, i.e. 1st April, 2002. The assessee's right got extinguished when he transferred the said right vide agreement dated 10th February, 2006. It is a fact that M/s. Amrut Dhara Enterprises before allotting the flat to the assessee has already applied to Mumbai Building Repair and Reconstruction Board for commencement certificate on 18th March, 2002. The Chief Officer of the Mumbai Building Repair a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signed by the assessee as well as M/s. Amrut Dhara Enterprises. The AO, it appears was wanted to just disallow the claim of the assessee. Therefore, without ascertaining and brining any evidence just assumed as if the allotment letter is a fabricated one. In our opinion the AO cannot give such a finding in the absence of any evidence being brought on record. Paras 3 & 4 of the allotment letter dated 1st April, 2002 signed by the development states as under: - "(3) You have satisfied yourselves as regards our title to the plot and shall not raise any regulation or objection thereto. (4) You have examined the sanctioned building plans and other papers in respect of the above flat and approved the same. You consent to the amendments to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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