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TMI Blog2021 (4) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... re fact that possession was delivered later does not detract from the fact that the allottee was conferred a right to hold property on issuance of an allotment letter. The payment of balance instalments, identification of a particular flat and delivery of possession are consequential acts that relate back to and arise from the rights conferred by the allotment letter. The capital gain arising in that case was long-term capital gain. The Delhi Bench of the Tribunal in the case of Praveen Gupta [ 2010 (8) TMI 820 - ITAT DELHI] 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 flat from the builder and that right of the assessee itself is a capital asset. The word 'held' used in Section 2 (14) as well as Explanation to Section 48 clearly depicts that assessee must have some right in the capital asset which is subject to transfer. The various other decisions relied on by assessee also supports his case to the proposition that for determining the taxability of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of assessment proceedings, you have sold commercial shop bearing No. DCT-112, on 1st Floor, having covered area 123.800 sq. mtrs in the multi storied building known as DLF CITY COURT for a sale consideration of ₹ 2,50,00,000/-. (ii) As per computation of income you have shown 50% share as sale consideration of ₹ 1,25,00,000/- and also claimed expenditure on transfer ₹ 1,25,000/-. (iii) As per index cost of acquisition you have claimed the indexation of ₹ 1,33,29,917/- and your share in the same comes to ₹ 66,64,958/- the index cost acquisition has been applied of F.Y. 200708 (the year of allotment). (iv) As per detail submitted by you, the assessee has made the payment towards the property from F.Y. 2007-08 to 2010-11 amounting to ₹ 80,33,579/-. Please explain as to why the indexation should not be allowed on the basis of date of payments (Financial Year wise) as against your claim of the entire amount in the F.Y. 2007-08. Case was fixed for hearing on 10.03.2016 at 11:30AM. 3. The assessee, relying on various decisions, submitted that the date of allotment has to be treated as the date of acquisition. However, the AO was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant craves leave to add, amend or alter any of the grounds of appeal. 6. The ld. Counsel for the assessee strongly challenged the order of the CIT(A) in directing the AO to treat the gain on transfer of asset as short-term capital gain. He submitted that the issue in the instant case stands decided in favour of the assessee by a plethora of decisions wherein it has been held that to determine the taxability of capital gain arising from sale of property, it is the date of allotment of property which is relevant for the purpose of computing the holding period and not the date of registration of conveyance deed. Referring to the decision of the coordinate Bench of the Tribunal in the case of Ranjana Bammi vs. ACIT, reported in 2017 (8) TMI 338, he submitted that the Tribunal, relying on various decisions including the decision of the Hon ble jurisdictional High Court in the case of CIT vs. K. Ramakrishna, reported in 363 ITR 59, held that in order to determine the taxability of capital gain arising from sale of property, it is the date of allotment of property which is relevant for the purpose of computing holding period and not the date of registration of conveyance deed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the other hand, heavily relied on the order of the CIT(A). He submitted that the ld.CIT(A) has rightly held that the property was allotted to the assessee on 30th October, 2007 and the assessee entered into commercial space buyer s agreement with DLF City on 22.01.2008 and made the payments during the period from 30th October, 2007 to 18th May, 2010 amounting to ₹ 80,33,579/-. The conveyance deed in favour of the assessee was registered on 24th May, 2011 and the possession was taken by the assessee on 19.01.2011. Since this property was sold on 21.09.2012 for a sale consideration of ₹ 1,25,00,000/-, therefore, the property was sold within 16 months of the purchase of the property and, therefore, the gain arising from this property is short-term capital gain and not long-term capital gain and the assessee is not entitled to any indexation benefit. He accordingly submitted that the order of the CIT(A) being in accordance with the law should be upheld and the grounds raised by the assessee should be dismissed. 9. I have considered the rival arguments made by both the sides, perused the orders of the AO and the CIT(A) and the paper book filed on behalf of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is relevant for the purpose of computing holding period and not the date of registration of conveyance deed. I find, the Hon ble Punjab Haryana High Court in the case of Mrs. Madhu Kaul vs. CIT, reported in 363 ITR 54, has held the mere fact that possession was delivered later does not detract from the fact that the allottee was conferred a right to hold property on issuance of an allotment letter. The payment of balance instalments, identification of a particular flat and delivery of possession are consequential acts that relate back to and arise from the rights conferred by the allotment letter. The Hon ble High Court accordingly held that the capital gain arising in that case was long-term capital gain. I find, the Delhi Bench of the Tribunal in the case of Praveen Gupta vs. ACIT reported in 2010 (8) TMI 820, while deciding an identical issue has observed as under:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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