TaxTMI 
TaxTMI 
2017 (6) TMI 1076
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....ted the same as short term capital gain. 3. Briefly stated facts are that the assessee in the present case is an individual and is deriving her income from salary, business, house property and other sources. The assessee, in the year under consideration has sold its flat located at Calcutta Green which was purchased from West Bengal Housing Board. The assessee failed to show capital gain income on such transactions in the return of income. The Assessing Officer during the assessment proceedings found that the impugned flat was purchased dated 14th March 2005 in terms of its purchase deed. Similarly the flat was sold on 11th May 2005 in terms of its sale deed. Thus the AO observed that the Short Term Capital Gain (STCG for short) was taxable in the hands of the assessee. On question by the AO for treating the gain as STCG, the assessee submitted that the flat was acquired in September 2000 in terms of the provisions of section 53A of 'Transfer of Property Act' and the provisions of section 2(47)(v) on Income Tax Act recognizes such transaction for the purpose of taxation. Therefore, the same should be treated as Long Term Capital Gain (LTCG for short). The assessee further submit....
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.... consider purchase price of flat at Rs. 29,12,056/- (Rs.23,97,046/- + Rs. 5,15,010/-) and compute long term capital gain accordingly." Being aggrieved by the order of ld CIT(A) Revenue came in second appeal before us. 5. Before us ld DR submitted that that the relief has been given to the assessee on the basis of additional evidences which were submitted before the ld CIT(A). Accordingly, the ld DR requested the bench to restore the issue to the file of AO for fresh adjudication. On the other hand, ld AR before us filed a paper book containing pages from 1 to 144 and stated that the impugned flat was allotted by West Bengal Housing Board dated 28th September 2000 as evident from the letter of allotment placed on page 23 of the paper book. The ld AR relied on the order of ld CIT(A). 6. We have heard the rival contentions of both the parties and perused the materials available on record. The issue in the instant case relates to the period of holding of the capital assets. The AO has taken the date of purchase which was in the purchase deed. However, the ld CIT(A) has taken the date of purchase which is based on the allotment letter issued by the West Bengal Housing Board.....
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.... Circular No.471 dated 15.10.1986 reads as follows: "Circular No.471 Capital gains tax - Whether investment in a flat under the Self-Financing Scheme of the Delhi Development Authority would be construction for the purpose of ss.54 and 54F of the IT Act, 1961 15/10/1986 Capital Gains Sections 54, 54F, Secs. 54 and 54F of the IT Act, 1961, provide that capital gains arising on transfer of a long term capital asset shall not be charged to tax to the extent specified therein, where the amount of capital gain is invested in a residential house. In the case of purchase of a house, the benefit is available if the investment is made within a period of one year before or after the date on which the transfer took place and in case of construction of a house, the benefit is available if the investment is made within three years from the date of the transfer. 2. The Board had occasion to examine as to whether the acquisition of a flat by an allottee under the Self-Financing Scheme of the Delhi Development Authority amounts to purchase or its construction by the Delhi Development Authority on behalf of the allottee. Under the Self-....
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....orded in the aforesaid judgment and the controversy in the present case. Admittedly, the flat was allotted to the appellant on 07.06.1986, vide letter conveyed to the assessee on 30.06.1986. The assessee paid the first installment on 04.07.1986, thereby conferring a right upon the appellant to hold a flat, which was later identified and possession delivered on a later date. The mere fact that possession was delivered later, does not detract from the fact that the allottee was conferred a right to hold property on issuance of an allotment letter. The payment of balance installments, identification of a particular flat and delivery of possession are consequential acts, that relate back to and arise from the rights conferred by the allotment letter. 8. In view of what has been recorded hereinabove, we have no hesitation in holding that the Income Tax Appellate Tribunal has erred in holding that the transaction does not envisage a long term capital gain. Consequently, we allow the appeal, set aside order dated 15.02.1999 and answer the substantial questions of law in favour of the assessee." 3) Vinod Kumar Jain v. CIT (2010) 195 taxmann 174 (P & H) wherein it was held....
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....e adopted. This is a well-accepted rule of construction recognised by this Court in several of its decisions. Hence, all that we have to see is, what is the true effect of the language employed in s. 271(1)(a)(i). If we find that language to be ambiguous or capable of more meanings than one, then we have to adopt that interpretation which favours the assessee, more particularly so because the provision relates to imposition of penalty." In view of above, we find no reason to interfere with the findings arrived by the Ld. CIT(A). Under the circumstances, this issue of Revenue's appeal is dismissed. 7. Next issue raised by Revenue in ground number (iv) to (vii) has challenged the value determined by the ld CIT(A) under the provisions of section 50C of the Act. 8. The assessee, in the year under consideration has sold her flat located at Calcutta Green which was purchased from West Bengal Housing Board. The assessee claimed to have sold the impugned flat for Rs. 33 lacs in terms of its sale deed executed dated 11th May 2005. However, the AO observed that the ADSR has valued the impugned flat for Rs. 59.28 lakh as on 2nd May 2005. Accordingly, the AO has adopted the sale value....
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.... the order of Assessing Officer and he left the issue to the discretion of the Bench. On the other hand the ld. AR drew our attention on page 93 of the paper book where the letter from the office of the Registrar of Assurances, Kolkata was placed. As per this letter the market value of the impugned property is of Rs. 33 lacs in the year 2005 and which is the sale price of the property as per sale deed. He relied on the order of ld CIT(A). 11. We have heard the rival contentions of both the parties and perused the materials available on record. The issue in the instant case relates to the determination of the valuation of the property as per the stamp valuation. The AO has adopted the valuation for Rs. 59.28 Lacs whereas the ld. CIT(A) determined the same at Rs. 33 Lacs. 11.1 At this juncture we find important to reproduce the provisions of section 50C of the Act which reads as under: Special provision for full value of consideration in certain cases. 50C. (1) Where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed by any authority of a Sta....