TaxTMI 
TaxTMI 
2017 (3) TMI 575
X X X X Extracts X X X X
X X X X Extracts X X X X
....- as short term capital gain from sale of flats for the year under consideration. The sale deed although executed in Asst. Year 2010-11 but the sale proceeds were finally received in the next year. Thus, the assessee offered the capital gain for taxation in Asst. Year 2010-11 and confirmed by the CIT(A) is unjustified and needs to be deleted. ii. That the Ld. CIT(A) erred in confirming the disallowance of Brokerage paid for sale of the flats. If the sale of the flats needs to be allowed in computing Capital Gain. 3. The first issue raised by the Revenue in this appeal is that, the Ld. CIT(A) erred in confirming the order of the AO by treating the gain from the sale of flats as short-term capital, ignoring the facts that the same gain ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bserving as under: "4- Ground no. (i) relates to contention of the appellant against charging of short term capital gain on sale of flats. The fact of the case is that the appellant purchased two properties (flats) in FY 2008-09. In flat no. 701, Sagar Heights, Andheri (E), Mumbai, the appellant was having 50% share but in flat no. 702 in the same building, he was having 100% share. The first flat i.e. flat no. 701 was sold as per conveyance deed dated 18.02.2010 for a consideration of Rs. 42,31,500/- in the flat no. 702 was sold vide conveyance deed dated 14.12.2009 for a consideration of Rs. 46,50,000/-. Since both the flats were sold as agreement/conveyance deed signed during the FY 2009-10, the AO concluded that the short term capita....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itself." 6. Being aggrieved by the order of the Ld. CIT(A), the assessee is in second appeal before us. 7. The Ld. AR before us filed a paper book which is running from pages 1 to 255 and submitted that as per the agreement for sale, the assessee was entitled to receive Rs. 25,00,000/- from the transferee only after obtaining No Objection Certificate (NOC) from the developer. NOC from the developer was received in the subsequent F.Y. and consequently the payment of Rs. 25,00,000/- was received by the assessee. 8. On the other hand the Ld. DR submitted that the transfer of impugned flat has taken place in the current year within the meaning of the provisions of Sec. 2(47) of the Act. The Ld. DR vehemently supported the order of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....coming a member of, or acquiring shares in, a co-operative society, company or other association of persons or by way of any agreement or any arrangement or in any other manner whatsoever) which has the effect of transferring, or enabling the enjoyment of, any immov-able property. ^84[Explanation 1].-For the purposes of sub-clauses (v) and (vi), "immovable property" shall have the same meaning as in clause (d) of section 269UA.] ^85[Explanation 2.-For the removal of doubts, it is hereby clarified that "transfer" includes and shall be deemed to have always included disposing of or parting with an asset or any interest therein, or creating any interest in any asset in any manner whatsoever, directly or indirectly, absolutely or conditio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....#39;s share in the one flat was of Rs. 2,00,000/- and in other flat it was for Rs. 4,00,000/- and the total brokerage was claimed for Rs. 6,00,000/-. The appellant submitted that two brokers were engaged by the appellant for sale of two flats, namely M/s Kritika Properties & M/s Achivers Properties. M/s Kritika Properties was paid a sum of Rs. 4,00,000/- by M/s MMP Filteration Pvt Ltd. A sum of Rs. 2, 00,000/- was paid on 14.06.2010 and the balance amount of Rs. 2, 00,000/- was paid on 15.07.2010. As such, a sum of Rs. 4,00,000/- was shown in the balance sheet of the appellant as on 31.03.2011 as unsecured loan taken from M/s MMP Filteration Pvt Ltd. The brokerage of Rs. 4, 00,000/- to M/s Achivers Properties is yet to be paid. From the fac....