2016 (7) TMI 162

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....). The impugned order relates to Assessment Year 1989-90. 2. This appeal was admitted on 1st April, 2004 on the following substantial question of law:- "Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in coming to the conclusion that the capital gains arising to the appellant on the transfer of the impugned plot of land vide agreement dated 29th November, 1988 is short term capital gains and not long term capital gains as contended by the appellant?" 3. The revenue was represented at the time of admission and even waived service. However none appears today for the Revenue. The revenue has also not filed any affidavit in reply. 4. The issue that arises in this Petition lies within a narrow c....

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.... and he was assessed accordingly. 6. In appeal the CIT(A) by order dated 25th March, 1991 allowed the appeal of the appellant. The CIT(A) directed the Assessing Officer to treat the gain on sale of the said land as long term capital gain. 7. Being aggrieved, the Revenue-Responent challenged the order dated 25th March, 1991 of the CIT(A) before the Tribunal. By the impugned order dated 30th August, 2001 the Tribunal dismissed the assessee's appeal. 8. Mr. Dalal contended before us that the original appellant-assessee Mr. Malkani 'held' the property effectively from the date of the suit agreement. Mr. Dalal states that in order to constitute long term capital gain the assessee should have held the property for more than 3 years before ....

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.... D. A. Irani's case were that the assessee was a tenant who took a flat on a lease and later acquired ownership of such flat. The Court found that the tenancy was an inferior right which led to the assessee acquiring a superior right upon purchase and that the tenancy being inferior right merged into the superior right. Accordingly applying the doctrine of merger it resulted in the "drowning" and "sinking" of the inferior tenancy into the superior right of ownership and therefore this Court held in that case that the property could be said to be held only upon the purchase and the assessee could not be said to have held the premises during the period of tenancy. Similarly in these facts, the right to specific performance merged into the....