TaxTMI 
TaxTMI 
2019 (4) TMI 358
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....ruction of flat sold was issued by MCGM to builder only 08.04.2009 and the purchase agreement was registered in December 2009? The CIT(A) failed to appreciate that in absence of CC and OC for the impugned flat, the same could not be said to be held or in possession of assessee and has thus erred in treating acquisition of property by assessee from 2005 i.e. the date of first advance made?. 2. "Whether on the facts and circumstances of the case and in law, the Id. CIT(A) erred in not applying the ratio of the decision of the Hon'ble Bombay High court in case of Chaturbhuj Dwarkadas Kapadia 26O ITR 491(Bom) wherein the date of transfer is the date when part performance u/s 53A of the property Act is made and possession is given. 3. "Whether on the facts and circumstances of the case and in law, the Id. CIT(A) erred in holding the date of making payment of small amount of advance(less than 6% of total cost) as date of acquisition without appreciating that the mere booking of fiat does not confer any right in the property per se; rather it only gives a right to purchase the property in future to assessee on agreed terms and conditions. 4. "Whether on the facts and circumsta....
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....s of Rs. 11.48 Lacs. After indexing the cost of acquisition and transfer charges, the resultant capital gains were worked out at Rs. 85.41 Lacs. The assessee pleaded that since the first installment of Rs. 3.94 Lacs towards acquisition of the property was paid on 16/03/2005 and the property was sold during July, 2010, the resultant gains were Long-Term Capital Gains [LTCG] in nature. However, Ld. AO opined that the period of holding was to be reckoned from December. 2009 i.e. when the purchase documents were registered in assessee's favor and therefore, the gains were to be treated as Short-Term Capital Gains [STCG] only. The perusal of quantum assessment order reveal that the Ld. AR is stated to have conceded to the opinion formed by Ld. AO. Accordingly, the gains were treated as STCG and the indexation benefit was denied to the assessee. Consequently, the set-off of earlier years Long Term Capital Losses for Rs. 6.18 Lacs, as claimed by the assessee, was also denied. Finally, the gains were re-worked as Rs. 122.13 Lacs and the same were treated as STCG in nature. 3.1 However, later on the assessee agitated the stand of Ld. AO before first appellate authority with success befor....
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....R], drawing our attention to the factual matrix submitted that the assessee acquired the stated property only upon execution of purchase documents in its favor when the right to acquire the property was converted into a capital asset i.e. the property under question and said capital asset came into existence only upon execution of purchase documents in assessee's favor. Our attention is drawn to the fact that the assessee acquiesced to this fact even during assessment proceedings. In the alternative, it has been submitted that the benefit of indexation was to be granted when the payments were actually made by the assessee. Per Contra, Ld. Authorized Representative for Assessee [AR], Shri Sanjay Parikh, submitted that the possession was never given to the assessee and the assessee has only sold the right to acquire the stated property. It has been submitted that there is no estoppel against the law and the revenue was obliged to compute the assessee's correct income within statutory framework. 5.1 we have carefully heard the rival submissions and perused relevant material on record. At the outset, we note that there could be no quarrel on the point that assessee's correct income as....
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....e Bombay High Court rendered in CIT Vs Tata Services Ltd. [122 ITR 594] an also in CIT Vs Sterling Investment Corporation Ltd. [123 ITR 441]. Therefore, the conclusion drawn by first appellate authority that the gains were Long-Term Capital Gains in nature as counted from 16/03/2005 would require no interference on our part. The appeal stands dismissed to that extent. 5.3 The revenue has relied upon the decision of this Tribunal rendered in S.Narendrakumar & Co. Vs DCIT [62 Taxman.com 184] which is factually distinguishable since in that case the nature of the transactions, itself was under doubt and surplus received by the assessee was held to be assessable under the head Income from other sources . Similarly, the decision of Hon'ble Kerala High Court in Lachmandas & Sons Vs DCIT [49 Taxmann.com 387] deal the situation wherein the terms of the MOU indicated that the property would not be transferred in the name of the assessee till entire amount was paid. No such covenant is postulated by reservation of allotment letter in the present case. Similarly, the decision of Hon'ble Delhi High Court in Gulshan Malik Vs. CIT [43 Taxman.com 200] deals with a situation wherein the confirma....
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....ed order is concerned, we find that indexed cost of acquisition has been defined to mean an amount which bears to the cost of acquisition the same proportion as cost inflation index for the year in which the asset is transferred bears to the cost inflation index for the first year in which the asset was held by the assessee. We find that the expression used is 'held' as against 'acquired' or 'purchased' as used in other Sections like section 54 / 54F which shows that legislatures were conscious while making use of this expression. The expressions like 'owned' / 'acquired' has not been used for allowing the indexation benefit to the assessee. However, the important question that arises for consideration, at this juncture, is that whether the indexation benefit of even the future installments would also be allowable to the assessee from the year in which the asset is first held by the assessee. For this, our attention has been drawn to the decision of Hon'ble Gujarat High Court rendered in Nirmal Kumar Seth Vs CIT [17 Taxmann.com 127] wherein Hon'ble court has decided the issue as under:- 6. We have heard both the parties at length and gone through t....