2019 (3) TMI 534

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....e of full payment) as date of acquisition without appreciating the fact that the date to registered document, i.e. 30/09/2009 is the correct date of acquisition as per the provisions of the IT Act, 1961 and therefore by selling out the property (vide sale agreement dated 29/07/2011), the gain arises in the hands of assessee is in the nature of Short Term Capital Gain. 2. Whether on facts and circumstances of the case CIT(A) was correct in NOT relying upon the case of Gulshan Mlik Vs CIT [2014] 43 taxmann.com 200 (Delhi) wherein the facts and circumstances are similar to the case of assessee. The assessment for impugned AY was framed by Ld. Assistant Commissioner of Income Tax-Circle-3, Thane [AO] u/s 143(3) on 27/02/2015 wherein the in....

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....y considered facts of the case, findings of the AO in the assessment order, submissions of the Ld. AR and material placed on record. From the facts of the case, It is noticed that during the year under appeal, the appellant had sold the right to acquire the flat No. 1202, in Sarvodaya Heights, Mulund vide agreement to sale dated 29.07.2011. Which was registered on 02.08.2011, for total consideration of Rs. 1,18,64,300/-. The said flat was booked with M/s Nahar & Seth Enterprise, by paying Rs. 11,00,000/- on 10.03.2008, for total consideration of Rs. 83,30,000/-. The balance amounts of Rs. 29,00,000/- on 28.03.2008. Rs. 8,00,000/- on 25.06.2008 and Rs. 35,30,000/- on 25.06.2008 were also paid. However, the purchase agreement dated 29.09.2009....

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....ue to service compulsion, as stated above, the registration of the flat was done on 29.09.2009, by paying the due stamp duty, as applicable on the date of purchase. The right in the said flat was sold for Rs. 1,18,64,300/- on 02.09.2011. In view of these facts, it is seen that the appellant had held the rights in the said flat, for a period of more than 3 years (02.08.2010 to 10.03.2008/26.06.2008). Hence, the contention of the AO is incorrect to treat the said right as Short term asset. It is further noticed that the AO had not even allowed the set off of cost of flat i.e. Rs. 83,30,000/- against sale consideration of Rs. 1,18,64,300/-, thereby wrongly assessed the entire sale consideration as STCG. Considering the facts in entirety, CBDT ....