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TMI Blog2022 (8) TMI 1570X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 by observing as under: "9. Therefore, while keeping in view the principles laid down by the Hon'ble Supreme Court in the aforementioned two judgements, we are of the view that there is „mistake apparent from record', therefore, we recall our decision on ground no. 2 of the appeal in order dated 19.03.18 and direct the Registry to fix the matter for re-hearing on ground no. 2 and as such this ground of appeal will be heard afresh on merits. 10. Before parting we make it clear that we have not expressed any opinion in one way or the other and not stated anything on merits of the matter. Therefore the regular Bench of the Tribunal will hear ground no. 2 and will decide on its own merits without being influenced by any observation made in the above order. Order accordingly." Hence, the appeal is before us to decide ground No.2 of the appeal only. 2. The ground No.2 of appeal reads as under: "2. The CIT(A) erred in upholding the action of the Assessing Officer in allowing indexation on basis of the year of payments of installments which ought to have been on the basis of the letter of allotment dated 23.12.2004 given by the builder which also specifies the "cost of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of payment. Therefore, what is relevant is when was the asset first held. The ld. Authorized Representative for the assessee argued that the conjoint reading of the above definitions would make it clear that the assessee had acquired the rights in the flat which was under construction on the date of issuance of allotment letter. Thus, the assessee held the asset when the assessee paid initial amount and booked the flat and got letter of allotment. Therefore, the assessee is entitled to claim the benefit of indexation from the date the assessee held the property i.e. rights in the flat upon receipt of allotment letter. To support his contentions the ld. Authorized Representative for the assessee placed reliance on various decisions including the following decisions: (i) Lata G. Rohra vs. DCIT, 21 SOT 541(Mum) (ii) Divine Holdings Pvt. Ltd., ITA No.6423/Mum/2008 (iii) M/s. Pooja Exports, ITA No.2222/Mum/2010 (iv) Mr. Ramprakash Bubna, ITA No. 6578/Mum/2010 4. On the other hand, Shri Tharian Oommen representing the Department vehemently defended the impugned order. The ld. Departmental Representative submitted that the letter of allotment cannot be considered as title of owne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra vs. DCIT(Supra) the Co-ordinate Bench upheld the method of computing indexed cost of acquisition from the year of allotment of flat. In the said case, the assessee therein had paid installments over a period of time. The assessee claimed indexation on the entire consideration from the first year of allotment/payment of installment. The Assessing Officer accepted assessee's method of computation. The CIT in exercise of his revisional powers rejected assessee's manner of computation of indexation and computed indexation on the basis of actual year of payment. The Tribunal upholding assessee's manner of computation of indexation held: "10. We have considered the submissions made by both sides, material on record and orders of authorities below. As per section 2(14) read with section 2(14)(iv) of the Act, the rights in flat, acquired by the assessee on execution of purchase agreement on 7-81993, 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and above the premium of Rs.1,34,75,000/- which is payable to the Govt. of Maharashtra as per page, 8 of the said agreement (paper book page 57). According to the AO, the indexation should be on the basis of the actual payment, whereas, according to the assessee, the indexation is to be on the basis of the date of agreement. We find the Coordinate Bench of the Tribunal in the case of Smt. Lata G. Rohra (supra) has held that under the provisions of sec. 48 benefit of indexation should be given on the basis of date of cost of acquisition of asset and not on the basis of dates of actual payments made. Similarly, the Ahmedabad Bench of the Tribunal in the case of Smt Kashmiraben M. Parikh (supra) has held as under : ".........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 mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, the assessee was to pay the amount due in installments and the final amount was paid on February 10, 1973. The assessee sold the property on February 10, 1973, and claimed that the gains arising from the transfer were long-term capital gains. His claim was accepted by the Tribunal. Held, that the Tribunal was right in law in holding that the capital gain was a long-term capital gain." In view of the decisions cited above, we are of the considered opinion that the assessee is entitled to indexation benefit on the NCPA flat from the date of agreement and not on the basis of actual payment. The order of the CIT(A) on this issue is accordingly set aside and the ground raised by the assessee in ground no.4 Is allowed." 8. In the case of Pooja Exports the Co-ordinate Bench following the ratio laid down in the case of Lata G. Rohra vs. DCIT(supra) and various other decisions concluded that the benefit of indexation will be from the date of acquisition notwithstanding the fact that cost of immovable property acquired was paid over a period of time i.e. subsequent to the date of acquisition. Similar view has been expressed by Co-ordinate Bench in the case of ACIT vs. Mr. Ramp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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