TaxTMI 
TaxTMI 
2015 (9) TMI 376
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....d in deviating from the findings given by the A.O. in the assessment order after having accepted the same in principle that the assessee was not in the possession of the said flat prior to the family declaration / confirmation dated 8.8.2008 and hence the assessee was not entitled to indexed cost of acquisition for working of capital gains. 2. The learned CIT(A) has erred in law as well as on fact by not sustaining the addition made on account of denying the exemption claimed under section 54 by treating the LTCG claimed by the assessee as STCG, as the assessee has held the ownership of the flat for less than 36 months." 2. The solitary issue involved in this appeal filed by the Revenue is that the holding period of the flat sold by the....
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....at the plot was standing in the name of father late Chaturvedi Hasraj Pethani as on 21.08.1980 and the name was deleted and same name of the legal heirs have been inserted there in with effect from 19.05.1991 ( five co-owner as per BMC records). The same plot was further developed after having mutual agreement declaration of the five owners and constructing of building with 14 flats took place in the year 1995 as approved plan being No. CE/6720/BS/R/A dated 07.01.1995, out of 14 flats 7 flats were sold to various purchasers and 7 flat sold retained and allotted themselves in the month of April 1996 in the building of Shri Ashirwad Co-operative Housing Society Ltd. Out of 7 flats flat NO.502 got allotted to assessee Mr. Ratansinh C. Pethani ....
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....y of only on the date of registration not on the retrospectively. Further the taking claimed benefit and transfer the name of the society are not relevant at all to the decide the ownership of property. Assessee become sole owner only after family declaration executed on 08.08.2008. Hence, assessee submission claiming the same as long term capital assets and capital gain on the sale of the same in long term capital gain in the hand of the assessee not acceptable. In this regards jurisdictional High Court decision in the case of Manjula J. Shah vide judgment dated 11.10.2011 held that the objection cannot be defeated by excluding the period for which the said assets was held by the previous owner determining the indexed cost of acquisition o....
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....he case, I find that the A.O. has made the addition based on the family declaration / confirmation dated 08.08.2008 which was duly registered with the registration authorities. On going through the copy of said document submitted by the appellant, I find specifically mentioned there that the co-owners had mutually agreed and allotted flat no.502 to the appellant at the time of the construction in the year 1996, in lieu of old premises (old bungalow) possessed and occupied by him. It is also a fact that no consideration has been mentioned in the aforesaid registered document. The letter dated 15.04.1996 in favour of the appellant allotting the flat no.502 is a part of the registered document. It is not disputed that the appellant was not in ....
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....on of construction of building, I find no infirmity in the calculation of indexed cost by the appellant. 5.1 In view of the above, I uphold the contention of the appellant to treat the capital gain as long term capital gain, which was claimed exempted by making investment in new flat u/s 54 of the Act. Consequently, the addition made of Rs. 45,03,838, by treating the capital gain as short term capital gain is deleted and, therefore, the ground of appeal is allowed." Aggrieved by the aforesaid order of the learned CIT(A), the Revenue is in appeal before the Tribunal. 5. Before us, the learned Departmental Representative relied upon the assessment order and contended that the impugned flat sold by the assessee was short term capital asse....