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TMI Blog2012 (5) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... nst ₹ 1,08,24,593/- determined by the Assessing Officer, and that the indexed cost of acquisition of the assets should be reckoned with reference to the date of agreement for purchase of property as against the date of payment as determined by the Assessing Officer. 2. The relevant facts for the solitary issue involved is that the assessee is an individual having income from Directors remuneration, house property, capital gains and income from other sources. The assessee had acquired two properties located at Malad and Worli during the financial year 1995-1996 and 1994-1995 for the consideration ₹ 13,54,000/- and ₹ 32,24,910/- respectively. The said properties were sold during the relevant assessment year and in the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the ITAT Mumbai Bench passed in the case of Lata G. Rohira (supra) 4. Before the CIT(A), the assessee reiterated the same explanation and the facts as have been narrated above and submitted that long term capital gain should be assessed after working out the cost of acquisition from the date of agreement and not from the date of the various dates of payments. Learned CIT(A) duly appreciated the contention of the assessee and after analysing the provisions contained under Section 48 and relying upon the decision of the ITAT Mumbai Bench passed in the case of Lata G.Rohira (supra), directed the Assessing Officer to assess the long term capital gain at ₹ 69,50,424/- i.e. as claimed in the revised return. 5. Learned Senior DR, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights in flat, acquired by the assessee on execution of purchase agreement on 7-8-1993, come within the purview of the term 'capital asset'. From the perusal of language used in Explanation (iii) to section 48 of the Act, which provides for manner of computation of indexed cost of acquisition, it is apparently clear that it refers only to cost of acquisition and not actual payments made by the assessee, hence, there is no merit in the alternate contention of the revenue that the benefit of indexation should be given on the basis of dates of actual payments made by the ITA No : 6578/Mum/2010 assessee. We are further of the opinion that the asset is held by the assessee from 7-8-1993 because when the assessee sold the house prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inding are reproduced herein below :- .........Similarly, the Ahmedabad Bench of the Tribunal in the case of Smt.Kashmiraben M. Parikh (supra) has held as under :- ITA No : 6578/Mum/2010 ..........The right in any immovable property which has already been constructed or is yet to be constructed is a capital asset which admittedly was acquired by her in November,1978. The mere fact that possession of the flat was received in February, 1981 would not lead to the conclusion that the assessee became entitled to such rights in the flat only in the month of February, 1981 when possession was taken. The possession was taken by her pursuant to the booking made in November, 1978 and in accordance with the agreement executed in the month of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, as it stood at the relevant time makes it clear that a capital asset would be deemed to be a short-term capital asset in case such a capital asset is held by the assessee for not more than 24 months immediately preceding the date of transfer. Emphasis is upon the words held by an assessee . The word owner has designedly not been used bythe Legislature. The word hold , according to the dictionary, means to possess, be the owner, holder or tenant of (property, stock, land........). Thus, a person can be said to be holding the property as an owner, as a lessee, as a mortgagee or on account of part performance of an agreement, etc. The assessee entered into an agreement for purchase of a flat in New Delhi on May,29, 1970. Pursuant to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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