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TMI Blog2018 (10) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... s, in this regard, have been placed on record. We find that this issue has not been considered even by AO. Therefore, the matter stand remitted back to the file of AO to consider this claim with a direction to the assessee to substantiate the same. This ground stand allowed for statistical purposes. It is also noted that the figures of stamp duty & Registration has wrongly been picked by AO as 18,32,137/- as against correct figures of ₹ 18,49,700/-. - I.T.A. No.28/Mum/2017 - - - Dated:- 3-10-2018 - Shri C.N. Prasad, JM And Shri Manoj Kumar Aggarwal, AM For the Revenue : Rajesh Kumar Yadav, Ld.DR For the Assessee : Biren Gabhawala, Ld. AR ORDER PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. Aforesaid appeal by assessee for Assessment Year [AY] 2013-14 contest the order of the Ld. Commissioner of Income-Tax (Appeals)-55 [CIT(A)], Mumbai, Appeal No.CIT(A)-55/IT-114/2015-16 dated 05/10/2016 by raising following grounds of appeal:- 1. On the facts and in the circumstances of the case and in law, the Learned Commissioner of Income-tax (Appeals) erred in holding that for the purpose of computation of Long Term Capital gains, the indexed cost of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome from capital gains other sources. 2.1 Brief facts are that during impugned AY, the assessee sold a property Flat No. 8002 situated at Lodha Bellissimo, 30th Floor, A-wing, Jivraj Boricha Marg, Off. N.M.Joshi Marg, Mahalaxmi, Mumbai-400 011 on 25/07/2012 for sale consideration of ₹ 732 Lacs, which is undisputed. The said property was stated to be purchased by the assessee for ₹ 367.14 Lacs (excluding incidental expenses) in the year 2007 vide registered Agreement dated 18/10/2007. The purchase price was construction linked and paid to the builder in installments during period between financial years 2006-07 to 2011-12, the schedule of which has been extracted at para-4.1 of the quantum assessment order. However, the assessee indexed the full cost of ₹ 419.32 Lacs by applying index of FY 2007-08 (index=551) and worked out cost of acquisition for the purpose of capital gains as ₹ 648.38 Lacs. From the computations, it is evident that broker fees as well as Tax Advisor Fees aggregating to ₹ 8.88 Lacs paid by the assessee at the time of sale / transfer , have also been indexed by applying the index for FY 2007-08. Similarly, incide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed indexation as on the date of first transaction. After considering the facts of the assessee, the AO allowed indexation as per the details of payments made. Similar facts have been dealt by the Hon ble ITAT in the below mentioned judgment. 6.3 In the case of Shri Vikas P. Bajaj vs. ACIT in ITA No.6120/Mum/2010 dated 08.02.2013, it is held that the benefit of indexation has to be granted to the assessee on the basis of payments made by him for acquiring the asset. The relevant paragraphs of the said order reproduced below: - 6. We have considered the rival submissions and also perused the relevant material on record. It is observed that the issue involved in the present case as well as all the facts relevant thereto are similar to that of the case of Praveen Gupta (supra) inasmuch as the assessee in the said case had entered into an agreement for purchase of flat in the year 1995-96 and after paying the purchase price of the flat in installments in the year 1996-97, 1997-98, 1999-2000 and 2001-02, the possession of the flat was taken in December, 2001. The said flat was subsequently sold by the assessee in the previous year relevant to assessment year 2007-08 and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : (b) Archaeological collections; (c) Drawings; (d) Paintings; (e) Sculptures; or (f) Any work of article. 29. According to the aforementioned definition capital asset means property of any kind held by an assessee whether or not connected with the business or profession and it excludes certain items which while considering the facts of the present case are not relevant. Therefore, it has to be seen that whether by entering into an agreement vide which the assessee was allotted a particular flat by allotment letter whether the assessee has held any asset or not By entering into an agreement to allot a flat, the assessee has identified a particular property which he intended to buy from the built and the builder is also bound to provide the applicant with that property by accepting certain advance amount and making agreement for balance payment as scheduled in the agreement. Thus, going into the provisions, it is not necessary that to constitute a capital asset the assessee must be the owner by way of a conveyance deed in respect of that asset for the purpose of computing capital gain. The assessee had acquired a right to get a particular fla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erused the relevant material on record including cited judicial pronouncements. We find that Ld. CIT(A) has referred to two decisions of this Tribunal. Upon perusal, it is found that in the case of Ramprakash Bubna (supra), the benefit of indexation has been provided from the date of agreement for acquisition of the property whereas the decision rendered by this Tribunal in Vikas P.Bajaj (supra) has primarily drawn strength from the decision of Delhi Tribunal rendered in Praveen Gupta Vs ACIT 137 TTJ (Del.) 307. The case of Vikas P.Bajaj as well as Praveen Gupta dealt with a situation in which the assessee himself offered capital gains by indexing the actual payments made in the respective AYs by applying the indexes for those years and therefore, is not directly on the issue under hand since the Tribunal, in both the case laws, has confirmed the workings / computations adopted by the assessee. 6. So far as the statutory provisions as contained in Section 48, Explanation (iii) as extracted in the impugned order is concerned, we find that indexed cost of acquisition has been defined to mean an amount which bears to the cost of acquisition the same proportion as cost i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Srinivasa Rao [1987] 166 ITR 593 / 31 Taxman 466 (AP) the expression of cost of acquisition is exhaustive and the language employed is peremptory. It is not open to the Court to introduce any other facts of meaning to the expression cost of acquisition . 10. From the record, it also appears that the actual amount was paid from time to time after the date of issuance of allotment letter, which has to be considered for the purpose of indexation with reference to the date of payments. The Tribunal has rightly asked to compute the long term capital gain as per the payment schedule. There is nothing wrong in the Tribunal's order, which is based on the well established legal position as well as the CBDT Circular, which have already been mentioned in the impugned order passed by the Tribunal. 11. During the course of argument, we were told that the long term capital gain has already been deposited as per the computation made by the A.O. in the manner claimed by the assessee. When it is so then nothing survives in the appeal. 12. Hence, we decline to interfere with the impugned order passed by the Tribunal, which is hereby sustained along with the reas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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