TaxTMI 
TaxTMI 
2014 (1) TMI 1770
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....pital gain arising on account of sale of her flat as short term capital gains instead of as long term capital gain, as offered by the appellant. 1.2. While doing so, the Ld CIT (A) erred in (i) failing to appreciate that the appellant had held the property for more than 36 months, within the meaning of section 2(29A) r.w.s 2(42A) of the Act. (ii) taking into account irrelevant and extraneous considerations; and (iii) ignoring relevant material and considerations. 1.3. It is submitted that in the facts and the circumstances of the case and in law, no such action was called for. 2.1. Without prejudice to the above, the Ld CIT (A) erred in confirming the action of the AO in not granting ded....
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....t the assessee purchased a flat vide the allotment letter dated 9.9.2003 from the builder namely Prestige Estates Projects Pvt. Ltd. There was a construction agreement between the parties dated 1.12.2003 and the registered deed of the same was dated on 22.9.2006. The said flat was sold by the assessee to Bennet Coleman & Company on 10.11.2006. The assessee earned capital gains on this transaction and offered the same as long term capital gains reckoning the date of allotment i.e., 9.9.2003 for the purpose of determining the holding period of three years relevant for the long term capital gains. However, in the assessment proceedings, AO considered the date of registration i.e., 22.9.2006 the date of registration and determined the short ter....
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....s. The only issue that is to be decided is whether date of allotment of the flat or the date of possession of the flat by the assessee should be considered as date of holding for computing the holding period of 36 moths. In alternative, the "date of registration" should be the relevant date. On perusal of the said decisions relied upon by the Ld Counsel, we find that the decisions are relevant and applicable to the facts of the present case. The conclusion of the Hon'ble Gujarat High Court judgment in the case of CIT vs. Jindas Panchand Gandhi reads as under: "Assessee having sold the flat allotted to him by a co-operative housing society after a period of 36 months from the date of allotment, capital gains arising to him were long....
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....as to be granted to the assessee from the date (1995) when he started making payment to the builder and not from the date of execution of conveyance deed in 2001." 8. All the above decisions are uniform in concluding that the "date of allotment" is reckoned as the date for computing the holding period for the purpose of capital gains. The date of allotment in this case being 19.11.2001 and the date of sale is 23.8.2006, therefore, the holding period is much more than 36 months. In this case, the gains earned by the assessee on the sale of flat have to be computed as capital gains. Without prejudice, even if the date of possession, being 14.8.2003, is considered; the assessee is still entitled to the benefits of the Long Term Capital Gain....
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....at the CIT (A) has not spoken a word about it in clear terms as to why the said amounts calculated by the builders are not of capital nature. In this regard, we have perused the siid para 3.3. of the impugned order which reads as under: "3.3. I have considered the facts carefully. It is noted that the society maintenance charges are revenue in nature being incurred for year to year. Therefore, these cannot be considered as addition for cost of capital asset nor such expenses are allowable under the provisions of section 48 of the Act. Accordingly, the AO was correct in disallowing the same. Therefore, this ground of appeal is dismissed." 6. From the above, it is evidenced that the finding of the CIT (A) is very cryptic and has not gon....