TaxTMI 
TaxTMI 
2016 (8) TMI 1048
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....n both the appeals arising out of identical set of facts, therefore, same were heard together and are being disposed off by way of this consolidated order. For the sake of ready reference, we will first take-up appeal in ITA No.7117/Mum/2013 vide which following ground has been raised:- "1. On facts and in law, the CIT(A) erred in confirming the action of the AO of treating the capital gain arising on sale on an Industrial Gala as Short Term Capital Gain instead of Long Term Capital Gain claimed by the appellant". 2. Facts in brief are that, originally the assessment was completed under section 143(3) vide order dated 31.12.2008, by assessing the long-term-capital-gain of Rs. 17,82,519/- arising out of sale of a 'Industrial Gala' in C....
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....8,200/-. After objections raised by the assessee with regard to the FMV as per Stamp value, the matter was referred to the Valuation Officer who valued the property at Rs. 26,93,000/-. The short-term capital gain was thus computed at Rs. 17,82,519/-, that is, (26,93,000- 9,10,481). In the First Appellate Stage, the objection of shortterm- capital gain stood confirmed. In the second appeal filed before the Tribunal, this issue was set aside to the file of the AO for verification and examination of the documents, mainly occupation certificate from the Bombay Municipal Corporation (BMC), dated 10.03.1998 which was a vital evidence produced before the Tribunal. 3. Now in pursuance of the order of the Tribunal, the AO initiated the assessment....
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.... the appellant. I find that the Assessing Officer's order is perfectly in order. It is not the occupancy certificate that will decide the position of the appellant. The position of the appellant is determined from the date when it took over the property by a Registered Deed. The said date is 01/01/2005 i.e. much after the occupancy certificate was issued. Therefore, the right of ownership was acquired by the appellant is on that date. It is right of ownership that stands transferred and not the right to possession. Therefore, the right of ownership was acquired by the appellant is on that date. It is of ownership that stands transferred and not the right to possession. Therefore, I do not find any infirmity in the order of the Assessing Off....
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....ued on 10.03.1998. Once the final payment was made in 1998-99 and possession was given, then it is at the most this date should at least be treated as relevant date, because the assessee became absolute owner of the said property from the date of possession. The keys were with the builder only for the purpose of maintenance for which the assessee had also paid maintenance amount. Since the builder could not take care or properly maintain the property, then it was decided that keys should be taken from the builder which was received on 01.01.2005. Thus, mere handing over the key by the builder to the assessee cannot be reckoned as the date for considering the period of holding of the property. 6. On the other hand, Ld. DR strongly relied ....
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....lder to the assessee. In fact, when the registered sale agreement was executed on 27.03.1994, the assessee had acquired the right in the property and such right got further fortified by the fulfillment of the covenants in the agreement by making the payment as per the time schedule. This further the possession was also given by issuance of occupation certificate on 10.03.1998. Thus, in all the aspect, the assessee not only became the owner of the property but also had all the rights in the said property much prior to 01.05.2005 in fact even prior to financial year 1998-99. Mere handing over the keys by the builder to the assessee does not in any manner prejudice or jeopardized the assessee's right in the property when the builder has receiv....