TaxTMI 
TaxTMI 
2002 (11) TMI 265
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the sale of rights in the DDA flat resulted in income under the head Short Term Capital Gain as against income under the head Long Term Capital Gain as claimed. The adverse finding based on the erroneous view of the factual and legal position, deserves to be quashed. 3. That the determination of income under the head Short Term Capital Gain at Rs. 49,235 deserves to be quashed and deleted and the declared loss of Rs. 16,695 under the head Long Term Capital Gain deserves to be accepted and allowed as deduction." 2. We have heard both the parties and have also perused the orders passed by the tax authorities. The only issue to be decided in this appeal is whether the gain, which arose to the assessee during the assessment year under co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ee became an allottee by virtue of a draw. 5. It was also noted as a fact by the Assessing Officer that no payment had been made to the DDA between the date of registration and the date of allotment whereas one instalment was paid by the assessee after the allotment bad been made but he chose not to retain the property and disposed it of. The Assessing Officer in fact asked the assessee to seek a clarification from the DDA in support of his arguments, which the assessee did not. 6. To support his viewpoint, the Assessing Officer referred to Circular No. 520 issued by the CBDT dated 11-8-1988, which categorically stated that the title to property crystallized only on the issue of a allotment letter. 7. On the aforesaid facts, the As....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cases were not obtained by the persons concerned under Self-Financing Scheme of DDA and the flats in such cases were not dependent on draw to be held subsequently. In the said cases the appellant were assured of flats by the builders etc. on booking, In view of this the determination of short-term capital gain by the Assessing Officer at Rs. 49,235 is upheld." 9. Before us, the ld. counsel for the appellant has reiterated the arguments advanced before the tax authorities. Much stress has been laid on the argument that the right to the property was acquired at the time of registration in 1981 and since the sale took place in assessment year 1993-94, the gain was a long-term one and the loss returned at Rs. 16,695 be accepted. In support o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the draw held on 30-11-1990, he was allotted a flat, vide allotment letter placed at page 15 of the paper book, it is interesting to note that whereas the locality, category, floor as well as the estimated cost and the specific pocket and block is mentioned, the flat is not identified. It appears that even after this allotment letter, a separate draw is held for allotment of a specific identified flat. 12. Coming to the decisions relied upon, in the case of Tata Services Ltd., the assessee had entered into an agreement for purchasing 5000 sq. yards out of a larger plot measuring 7012 sq. yards in Bombay at Rs. 75 per sq. yd. paying Rs. 90,000 as earnest money. The purchase was to be completed within six months and the vendor was to obta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o the rest of the facts of the case since a perusal of the questions posed before their Lordships and appearing at page 598 of the report indicate that the main issue was whether the transfer was one of a capital asset giving rise to capital gains whereas in the present appeal before us, this is not the dispute as it is only to be decided whether it is the case of a long-term capital gain or a short-term capital gain. This decision therefore would not apply. 13. In the decision of the Ahmedabad Bench of the Tribunal in the case of Smt. Kashmiraben M. Parikh the assessee had booked a flat in November 1978 by depositing a sum of Rs. 1,000 with the builder. The construction was completed in January 1981 and the possession was handed over in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....case of a booking with a private builder and not a Government authority such as the DDA. 15. In the final analysis, we uphold the action of the tax authorities in treating the capital gain as short-term. The declared loss of Rs. 16,695 would therefore stand rejected. 16. Before we move to an additional ground raised by the assessee during the course of hearing, we would like to deal with certain other decisions relied upon by the ld. counsel and these are:-- 1. CIT v. T.C. Itty Ipe [2001] 249 ITR 591 (Mad.) 2. Hardiallia Chemicals Ltd v. CIT [1996] 218 ITR 598 (Bom.) 3. CIT v. Abrar Alvi [2001] 247 ITR 312 (Bom.) 4. CIT v. Shakuntala Kantilal [1991] 190 ITR 564 (Bom.). 17. We have minutely gone through the aforesaid jud....