AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (3) TMI 375
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....he learned Commissioner(Appeals) failed to appreciate that the assessee had exercise his option under section 23(4)(a) and treated his property at Arlington USA as self occupied and the said option could not be changed in the course of assessment proceeding. (2) (a). On the facts and in the circumstances of the case and in law, the learned Commissioner (Appeals) erred in holding that the assessee had acquired the right in the property at Gurgaon on 19.03.2007 and period of holding on the right in the property has started from 19.03. 2007 to 10.09.2010 which is more than 36 months and, hence, the right in the property is a long-term right and so the capital gain arisen is also longterm capital gain. (2)(b). On the facts and in the circumstances of the case and in law, learned Commissioner (Appeals)erred in only relying on the letter dated the 19.03.2007 and ignoring the buyers agreement dated 07.11.2007 whereby the assessee was vested with the right in the property at Gurgaon and hence the period from 07.11.2007 to 31.05.2010, when the property was sold by the assessee was less than 36 month, and hence, the assessing officer had rightly taxed the gain on sale of th....
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....ssessee was allowed long-term capital loss on transfer of asset, however, the action of assessing officer in determining the gross annual value of self occupied property at Mumbai was confirmed. Therefore, aggrieved by the order of Commissioner (Appeals) both the parties have filed their cross appeal raising the grounds of appeal as referred above. 4. We have heard the submission of ld. Representative of the parties and gone through the orders of authorities below. The grounds of appeal raised by assessee and the ground of appeal raised by revenue in its Ground No. (1)(a) & 1(b) are interconnected; therefore, all these grounds are taken together for discussion. The ld Authorised Representative (AR) of the assessee submits that during the year the assessee has two house properties, one at 888 N, Quincy Street, Unit No.1311, Arlington VA 22203, ph 2, Liberty Centre Condo in USA, which is a jointly owned property along with his wife, and other property at Flat No.11, Rambha Co-operative Group Housing Society, at Nepean Sea Road, Mumbai. Both the properties were not to let out during the year. The assessee being resident of India in the current year resided in Mumbai property and tr....
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....ee should be allowed to changes 'self occupied property' to deemed let out property, especially where the assessing officer change the method of computation of annual letting value. The option exercise in the course of assessment proceeding may be directed to be accepted by the assessing officer. In support of his submission the ld. AR of the assessee relied upon the decision of Tribunal in Venkatavarthan N Iyanger Versus ACIT in ITA No. 5616/M/2015 dated 23 May 2018, Asha Bhosle Vs ITO in ITA No. 2552 /M/2010 dated 21 September 2011. In alternative submission the ld. AR submits that municipal rateable value may be accepted as one bonafide rentable value of the property in absence of any other information brought on record by the assessing officer. In support of his submission the ld. AR of the assessee relied upon the decision of Bombay High Court in case of CIT Vs Tip Top Typography 368 ITR 330(Bombay). The ld AR for assessee again submits that the decision of jurisdictional High Court is a binding precedent, however the assessing officer relied on the decision of Ahmedabad Tribunal in Emtici Engineering Ltd Vs ACIT (58 TTJ 27) (Ahd Tri) therefore, the assessing officer is erred ....
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....s of appeal realted to the substitution of property for the purpose of self occupied and deemed let out held as under: "8. The last issue relates to substitution of Self occupied property for the purpose of sec. 23 of the Act. The assessee was owning three house properties, viz., house located at Juhu, Santacruz (E) and Vasai. The assessee declared notional rental income from Santacruz property. In the return of income, the assessee declared Vasai property as self occupied property. However, before the AO, the assessee sought to substitute Juhu Property as self occupied property. The AO took the view that the change of self occupied property is not permissible at that stage and accordingly rejected the same. The Ld CIT(A) also confirmed the same. 9. The contention of Ld A.R is that the Income tax Act does not prohibit substitution of self occupied property, since the option is given to the assessee to determine the same. There is also no bar that the option once exercised cannot be changed. The Ld D.R, on the contrary, supported the order passed by Ld CIT(A). 10. Since the provisions of the Act nowhere states that the option of selecting self occupied pro....
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....s substituted by him at 8% of the cost of construction, the A.O., in our opinion should have considered the flat at Vikas Anand as self occupied property since it was more beneficial to the assessee. In this view of the matter, we set aside the order of the ld. CIT(A) and direct the A.O. to consider the Vikas Anand property as self occupied property as against flat at Maryland property. Ground No. 1 by the assessee is accordingly allowed." 10. Considering the factual and the legal discussions as narrated above the this ground of appeal is restored to the file of assessing officer to treat the USA property as deemed let out and determine the ALV of the said property. Needless to order that the assessing officer shall provide opportunity of hearing to the assessee before passing the order in accordance with law. 11. Hence, the grounds of appeal No.1 to 3 in assessee's appeal and grounds are allowed for statistical purpose. Consequently, the Ground No. 1(a) &1(b) in revenue's appeal are dismissed. 12. Ground No.4 in the assessee's appeal is consequential, therefore need no specific adjudication. 13. In the result the appeal of the assessee is partly allowed. 14. Ground ....
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.... the final sale deed was to be registered as per the agreement. The assessing officer erroneously observed that on 12th February 2007, the seller had merely given her booking to the assessee and had neither transferred the property nor the title of the property to the assessee. The assessing officer held that apartment buyer's agreement dated 7th November 2007 was the document by virtue of which the assessee's name came on record on the all documents. The assessing officer held that the agreement of whatever nature receipt would be of no consequences and no right could be acquired by buyer in an apartment without entering into buyer's agreement. The learned Commissioner (Appeals) correctly appreciated the fact of the case after considering the confirmation of the builder dated 19th March 2007 that the said property had been transferred in the name of assessee and therefore the period of holding started from 19th March 2007 and hence there was a long-term gain (loss). The ld. AR further submits that as per agreement dated 12th February 2007 the transfer charges was paid to the builder on 3rd March 2007, copy of which is filed at page No. 46 of the paper book, consideration was paid ....
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.... Crore. On the sale of said property the assessee declared long-term capital loss of Rs. 1,28,94,076/-. The assessee was asked to furnish the detail along with the documents of purchased and sold. The assessee furnished the complete details along with the documentary evidences. The assessee along with its reply dated 12th October 2012 furnished copy of the document related to purchase and sale of the said property. The assessee contended that assessee Mrs Kajal Aijaz booked the property at Garden villa From the Builder M/s Emmar MGF Land Private Limited, thereafter Mrs Kajal Aijaz sold her booking to the assessee. The assessee furnished agreement of sale dated 12th February 2017. The assessee also furnished the payment receipt of Rs. 2.07 Crore, which is a scanned by assessing officer at page 14 of the assessment order. The assessee also furnished copy of buyer's agreement dated 7th November 2007. The assessing officer to took the view that Mrs Kajal Aijaz transferred her booking right to the assessee. The contention of the assessee that acquired / purchased property on 12 February 2007 was not accepted by assessing officer. The assessing officer concluded that the title of the pro....