9911796707
TMI Blog2019 (5) TMI 1386X X X X Extracts X X X X X X X X Extracts X X X X ..... COURT] has held that even where the assessee has executed an agreement of sale, the date of holding of property has to be reckoned from the date of agreement of sale. While expressing such opinion, the Hon'ble Jurisdictional High Court did not accept the contention of the Department that the holding period of the property should be reckoned from the date of issuance of occupation certificate by the Municipal Corporation. Thus assessee was holding the properties from the date of execution of registered sale deeds i.e., 23rd December 2005. Hence, the assessee held the property for a period of more than 36 months prior to the date of transfer. That being the case, the gain derived from the sale of properties have to be assessed as long term capital gain. Deduction u/s 48(1) - cost of improvement and expenditure incurred in connection with the transfer of property - HELD THAT:- Claim of the assessee requires verification on the basis of evidences furnished by the Assessing Officer. If the assessee can demonstrate through supporting evidences that the expenditure was incurred prior to the date of sale of property, the deduction claimed can be allowed. Accordingly, we restore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Unit no.1A, 1st Floor, KempShoppe Commercial Premi ses, Cadastral, Survey Nos. 603 569 of Malabar Cumballa Hill, Mumbai 400 038 633.84 23/12/2005 60,84,880 2. Columbia Realtors Pvt. Ltd. Unit no.1A, 1st Floor, KempShoppe Commercial Premi ses, Cadastral, Survey Nos. 603 569 of Malabar Cumballa Hill, Mumbai 400 038 720.30 23/12/2005 69,14,880 3. Cambridge Realtors Pvt. Ltd. Unit no.1A, 1st Floor, KempShoppe Commercial Premi ses, Cadastral, Survey Nos. 603 569 of Malabar Cumballa Hill, Mumbai 400 038 897.25 23/12/2005 86,13,600 4. Cresent Realtors Pvt. Ltd. Unit no.1A, 1st Floor, KempShoppe Commercial Premi ses, Cadastral, Survey Nos. 603 569 of Malabar Cumballa Hill, Mumbai 400 038 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal gain. He submitted, since the assessee could not have taken the possession prior to completion of the building, there cannot be any transfer in terms of section 53A of the Income Tax Act, 1961 (for short the Act ) of the Transfer of Property Act, 1882. 7. The learned Authorised Representative submitted that the assessee had acquired the property on 23rd December 2005, through registered sale deeds, therefore, the assessee acquired the right over the property on the date of execution of registered sale deeds. In this context, he relied upon the decision of the Hon'ble Supreme Court in Suraj Lamp and Industries Pvt. Ltd. v/s State of Haryana, [2012] 340 ITR 001 (SC). The learned Authorised Representative submitted that once registered sale deed is executed title basis, hence, it cannot be said that the assessee has not acquired right, title, interest over the properties since the occupation certificate was issued at a subsequent date. He submitted that even Courts have gone to the extent in holding that on the issuance of allotment letter by the builder the buyer acquires right, title and interest over the property and holding period of the property as the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f sale, the date of holding of property has to be reckoned from the date of agreement of sale. While expressing such opinion, the Hon'ble Jurisdictional High Court did not accept the contention of the Department that the holding period of the property should be reckoned from the date of issuance of occupation certificate by the Municipal Corporation. The Hon'ble Jurisdictional High Court in Vembu Vaidyanathan (supra) has held that even on issuance of allotment letter by a builder the allottee gets title over the property and period of holding of the property has to be reckoned from the date of allotment letter. Thus, keeping in view the ratio laid down in the aforesaid decisions, the only conclusion one can draw is, the assessee was holding the properties from the date of execution of registered sale deeds i.e., 23rd December 2005.Hence, the assessee held the property for a period of more than 36 months prior to the date of transfer. That being the case, the gain derived from the sale of properties have to be assessed as long term capital gain. In view of the aforesaid, we do not find any infirmity in the order of the learned Commissioner (Appeals) on the issue. Grounds are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before the Departmental Authorities. Thus, he submitted, assessee s claim of deduction should be allowed. 14. The learned Departmental Representative submitted, before the Departmental Authorities the assessee had not furnished supporting evidence to substantiate its claim.Therefore, assessee s claim of deduction cannot be allowed. 15. We have considered rival submissions and perused the material on record. It is evident, out of the amount claimed towards cost of improved, learned Commissioner (Appeals) has made part disallowance of ₹ 35,00,045, since they were debited after the date of sale of property. However, in the course of hearing before us, learned Authorised Representative drew our attention to certain evidences including bills showing purchase of material, etc. to demonstrate that the work relating to such expenditure was done prior to the date of sale. In our view, the aforesaid claim of the assessee requires verification on the basis of evidences furnished by the Assessing Officer. If the assessee can demonstrate through supporting evidences that the expenditure of ₹ 35,00,045, was incurred prior to the date of sale of propert ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
