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TMI Blog2023 (8) TMI 1334X X X X Extracts X X X X X X X X Extracts X X X X ..... %. Therefore, accordingly the first second proviso to section 56(2)(vii)(b) of the Act is applicable in the facts of the case. As noted that the assessee along with three (3) of the co- owners has been allotted Flat No. 1306 B Wing of building/flat developed by American Spring And Pressing Works Pvt. Ltd. vide allotment letter dated 25.11.2011 wherein the developer acknowledges advance payment of Rs. 3,00,000/- by cheque no. 342339 dated 15.11.2011; and the assessee along with otherwise agreed to make the payment of balance amount of Rs. 2,08,00,000/- (Rs. 2,08,00,000/- only). According first proviso and second proviso is applicable in the facts of the case. Therefore, as per the first proviso to Section 56(vii)(b) of the Act, the date of agreement fixing the amount of consideration for the transfer of immovable property was on 25.11.2011 (AY. 2012-13). And since the assessee/co-owners has made part payment (part consideration of Rs. 3 Lakhs) by cheque , therefore, the date of agreement as per the proviso to section 56(2)(vii) (b) of the Act should be taken as 25.11.2011. In such a scenario, the stamp duty value as on the date of agreement must be taken for the purpose of taxation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned in the hands of four (4) co-owners. So the Ld. CIT(A) found fault with the AO making the entire addition/entire difference of Rs. 31,12,415/- in the hands of the assessee rather than adding only 1/4th of the same. And therefore, he restricted the addition at Rs. 7,78,104/-. Still not satisfied with by the action of the Ld. CIT(A), the assessee is before this Tribunal. 4. I have heard both the parties and perused the records. The plea of the Ld. AR Shri Nishit Gandhi before me was that to the authorities below did not took into consideration the crucial fact that the property in question [i.e. Flat No. 1306 in 'B' Wing of ad measuring about 150.84 sq. meters equivalent to 162.3 sq.mt on the 13th floor of the property developed by American Spring And Pressing Works Pvt. Ltd.] was allotted to the assessee by letter of allotment dated 25.11.2011 (refer page no. 47 to 50 of PB) wherein the said property (flat) was allotted to four (4) co-owners) including the assessee. And the co-owners (3 among 4) had made a payment of Rs. 3,00,000/- vide cheque no.342339 dated 15.11.2011 of Karnataka Bank Ltd. to M/s American Spring And Pressing Works Pvt. Ltd. (developer) wherein it was agreed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gate value of such sum; 8[(b) any immovable property,-- (i) without consideration, the stamp duty value of which exceeds fifty thousand rupees, the stamp duty value of such property; (ii) for a consideration which is less than the stamp duty value of the property by an amount exceeding fifty thousand rupees, the stamp duty value of such property as exceeds such consideration: Provided that where the date of the agreement fixing the amount of consideration for the transfer of immovable property and the date of registration are not the same, the stamp duty value on the date of the agreement may be taken for the purposes of this sub-clause: Provided further that the said proviso shall apply only in a case where the amount of consideration referred to therein, or a part thereof, has been paid by any mode other than cash on or before the date of the agreement for the transfer of such immovable property;] Provided further that this clause shall not apply to any sum of money or any property received-- (a) from any relative; or (b) on the occasion of the marriage of the individual; or (c) under a will or by way of inheritance; or …………&hell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Vembu Vaidyanathan (ITA. No.5749/Mum/2013 dated 28.10.2015) wherein the Tribunal upheld the action of the Ld. CIT(A) to adopt the date of allotment of the flat for calculation of LTCG claim. The Tribunal held in this regard as under: - "2. The first ground raised by the Revenue pertains to treating the gain arising from sale of capital asset as long term capital gain without appreciating the fact that the date of acquisition of capital asset is date of registration under Maharashtra ownership of flats (regulation of promotion of construction, sale, management and Transfer Act 1963) and not the date of allotment of letter. 2.1. During hearing, the ld. DR, Shri B. Yadagiri, advanced his arguments which is identical to the ground raised by defending the conclusion arrived at in the assessment order by further submitting that while granting relief to the assessee, the ld. Commissioner of Income Tax (Appeals) did not appreciate the fact that the agreement for purchase was entered in 2006 and the date of sale was in 2008. 2.2. On the other hand, the ld. counsel for the assessee, Shri Vijay C. Kothari, defended the conclusion arrived at in the impugned order by contending that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Courts including Hon'ble jurisdictional High Court were considered along with CBDT Circular No. 672 dated 16/12/1993 and Circular no.471 dated 15/10/1986. The issue was decided in favour of the assessee, against which the Revenue is aggrieved and is in appeal before this Tribunal. 2.5. If the observation made in the assessment order, leading to addition made to the total income, conclusion drawn in the impugned order, material available on record, assertions made by the ld. respective counsels, if kept in juxtaposition and analyzed, we note that, under the facts available on record, the basic question to be adjudicated is whether the gain arising on transfer of capital asset is long term capital gain or short term capital gain. We are of the considered opinion that assessee got his right over the capital asset on the date of allotment of letter in respect of flats booked by the assessee. Therefore, the subsequent action of registration of sale agreement is merely an assignment of rights in the property of the assessee with Act of registration under the Stamp Duty Act. Our view is fortified by the decisions of the Tribunal/Hon'ble High Courts in following cases:- a. Pravee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Route permits, for plying buses, issued by authorities under the Motor Vehicle Act, are property for the deprivation of which compensation is payable to the permit holder, hence, such route permits are capital assets in the hands of the transport company. Even, Stock Exchange Membership Card was held to be a capital asset. Thus, it can be said that the term 'capital asset' has an all embarrassing connotation and includes every kind of property as generally understood except those which are expressly excluded from the definition. It includes every conceivable things, right or interest or liability. The definition of capital asset, under the Income Tax Act referring to 'property of any kind' carries no words of limitation, because it is a wide amplitude and includes every possible interest that a person may hold and enjoy. Our view is fortified by the following decisions:- a. Syndicate Bank Ltd. vs Addl. CIT 155 ITR 681 (Kerala), b. Madthil Brothers vs DCIT (2008) 301 ITR 345 (Madr.) c. CIT vs Tata Services ltd. 122 ITR 594 (Bom.) d. Bafna Charitable Trust vs CIT 230 ITR 864 (Bom.) e. V. Rangaswamy Naidu vs CIT 31 ITR 711 (Mad.) f. Addl. CIT vs Ganpati Raju 119 ITR 715 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper and effective right over the capital asset sought to be acquired, but only on execution of an agreement spelling out all the exact terms and conditions for acquisition?" 2. This question arises in following background. The respondent-assessee is an individual. The assessee had filed the return of income for the assessment year 2009-10 and claimed long term capital gain arising out of capital asset in the nature of a residential unit. During the course of assessment the Assessing Officer examined this claim and came to the conclusion that the gain arising out of sale of capital asset was a short term capital gain. The controversy between the assessee and the revenue revolves around the question as to when the assessee can be stated to have acquired the capital asset. The assessee argued that the residential unit in question was acquired on the date on which the allotment letter was issued by the builder which was on 31st December, 2004. The Assessing Officer however contended that the transfer of the asset in favour of the assessee would be complete only on the date of agreement which was executed on 17th May, 2008. 3. CIT appeals and the Tribunal held the issue in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case was materially different from the terms of allotment and construction by D.D.A.. In that view of the matter, CIT appeals of the Tribunal correctly held that the assessee had acquired the property in question on 31st December, 2004 on which the allotment letter was issued. 6. Learned counsel for the revenue has also argued that in any case the assessee was not entitled to exemption under Section 54F of the Income Tax Act, 1961 ("the Act" for short). Since the assessee had held multiple residential units which would disqualify the assessee from claiming the exemption on it as was held by the Assessing Officer. From the record we notice that before the CIT appeals the assessee had produced additional evidence to suggest that the other units previously held by the assessee were discarded earlier and that at the relevant time the assessee did not hold any other residential unit. Quite apart from it being a pure question of fact, we do not find any indication in the impugned judgment of the Tribunal though the revenue had argued such a contention in its appeal before the Tribunal. 7. In the result, the Income Tax Appeal is dismissed." 9. In the light of the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X
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