TaxTMI 
TaxTMI 
2019 (4) TMI 1657
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.... gains in the facts and circumstances of the case. 3. The brief facts of this issue are that the assessee purchased 7 Nos. of Industrial Galas at Malad, Mumbai from one Builder viz. Homeland Realtors arid Developers Private Limited in the year 2007 jointly with her husband Mr. Bhavesh Natwarlal Ganatra at an agreed consideration of Rs. 53,75,700/-. The details of the same are as follows: Sr. No. Gala No, Consideration Amount (Rs.) 1 118 6,90,000/- 2 121 6,90,000/- 3 123 6,90,000/- 4 1 24 6,90,000/- 5 125 6,90,000/- 6 126 12,35,700/- 7 228 6,90,000/- Total Rs. 53,75,700/- 3.1. The assessee paid the entire consideration for the same as under: Sr. No. Date Amount (Rs.) 1. Amount transferred from Loan Given to M/s. Parikh Builders upto F.Y. 2005-06 36,00,000/- 2. 20/10/2007 34,00,000/- 3. 07/11/2007 5,00,000/- 3.2. Homeland Realtors Mid Developers Private Limited issued the Allotment Letters to the assessee in 2007 allotting the specific Galas with specific Galas with corresponding galas marked on the floor plan. 3.3. The construction of the said Industrial Esta....
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.... the AO in the Assessment order and the submission of the appellant. The issue required to be addressed in this appeal is that whether the Galas sold by the Appellant during the year on which long term capital gain was shown in the return was a 'long term capital asset' or 'short term capital asset' as per section 2 (42A) of the Income Tax Act, 1961. 5.1. The appellant has also demonstrated successfully that the allotment letters of galas were issued on 22/10/2007. It is further observed that the entire consideration for purchase of galas was paid before the allotment letter through adjustment of loan from sister concern and payments from the bank accounts of the husband of the appellant. 5.2 As per Section 2 (42A) of the Act, "Short -term capital asset" means a capital asset held by an assessee for not more than thirty-six months immediately preceding the date of its transfer" 5.3 After going through decisions relied on by the appellant, it is found that for the purpose of holding an asset, it is not necessary that the assessee should be the owner of the asset with a registered deed of conveyance conferring title on him. As per section 2(....
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....an 36 months before the sale, the resultant gain is Long Term Capital Gain. Therefore, the AO is directed to assess the capital gain on sale of 7 nos. of galas by the appellant as Long Term Capital Gain after computing the same as per law. The ground no. 2 is allowed. 4. Aggrieved, the revenue is in appeal before us. 5. We have heard rival submissions. We find that the factual findings recorded by the ld. CIT(A) that the allotment letters of Galas were issued to the assessee on 22/10/2007; that the entire consideration for purchase of said Galas was paid by the assessee before the allotment letter through adjustment of loan from sister concern and payments from the bank accounts of the husband of the assessee, remain uncontroverted by the revenue before us. We find that the ld. CIT(A) had reckoned the specified date to be the date of allotment i.e., 22/10/2007 and accordingly held that assessee had held Galas for more than three years before the date of transfer and accordingly treated the same as long term capital gain and consequently granting benefit of exemption u/s.54F of the Act. It is not in dispute that assessee had indeed made investigation within the prescribed time....
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.... the judgment of this Court in case of Commissioner of IncomeTax, Bombay City I Vs. TATA Services Limited. Reliance was also placed on CBDT circulars. 4. Having heard learned counsel for the parties, we notice that the CBDT in its circular No.471 dated 15th October, 1986 had clarified this position by holding that when an assessee purchases a flat to be constructed by Delhi Development Authority ("D.D.A." for short) for which allotment letter is issued, the date of such allotment would be relevant date for the purpose of capital gain tax as a date of acquisition. It was noted that such allotment is final unless it is cancelled or the allottee withdraw from the scheme and such allotment would be cancelled only under exceptional circumstances. It was noted that the allottee gets title to the property on the issue of allotment letter and the payment of installments was only a followup action and taking the delivery of possession is only a formality. 5.This aspect was further clarified by the CBDT in its later circular No.672 dated 16th December. In such circular representations were made to the board that in cases of allotment of flats or houses by cooperative societ....
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....No.6710/Mum/2017 for A.Y.2013-14 dated 02/11/2019 in the case of ACIT vs. Shri Keyur Hemant Shah wherein it was observed as under:- 1. Aforesaid appeal by revenue for Assessment Year [in short referred to as „AY‟] 2013-14 contest the order of Ld. Commissioner of Income-Tax (Appeals)-37, Mumbai, [in short referred to as „CIT(A)‟], Appeal No. CIT(A)- 37/IT-886/ACIT-25(2)/15-16 dated 27/09/2017 on following grounds of appeals: - "1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition on account of Short-Term Capital Gain stating that the right in a property is created once its title is allotted to the purchaser and more so, if full consideration is paid. As the assessee had received an allotment vide letter dated 26.02.2008 and paid full consideration by 24.07.2008. Therefore, the assessee got the title to the property on the issuance of the allotment letter by the builder / seller." 2. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has erred in allowing the deduction claimed u/s.54F of Rs.l,09,40,072/-, stating that the house was purchased with....
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....subject matter of present appeal is to determine the nature of certain capital gains earned by the assessee in the impugned AY and the assessee‟s eligibility to claim deduction u/s 54F. 2.2 During assessment proceedings, it transpired that the assessee sold a duplex apartment Flat No.1201 with 4 car parking in the building Natura of Tapovan Cooperative Society Ltd., Santa Cruz (W), Mumbai [flat] on 04/04/2012 for a sale consideration of Rs. 1200 Lacs, the assessee‟s share being 50% in the same. The assessee after adjusting the indexed cost of acquisition worked out Long-Term Capital Gains [LTCG] for Rs. 288.73 Lacs and after claiming deduction u/s 54F for Rs. 109.40 Lacs against the same, offered balance LTCG of Rs. 179.33 Lacs to tax. 2.3 It transpired that the said flat was purchased by the assessee vide Registered Agreement for Sale on 25/03/2010 and counted from this date, the assessee‟s holding period was less than 36 months which led to Ld. AO to treat the resultant gains as short-term capital gains [STCG]. The assessee defended the same by submitting that the said flat was purchased vide allotment letter dated 26/02/2008 and substantial pa....
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....3 4. CIT Vs Ram Gopal Hon‟ble Delhi High Court ITA 70/2015 09/02/2015 5. Snehabimal Vs PCIT Mumbai Tribunal ITA 5489/M/ 6. Seeta Prabhu Vs ITO Mumbai Tribunal ITA 1020/M/ The case law of Gulshan Malik Vs. CIT [supra] was held to be distinguishable on facts since in that case the confirmation letter specifically provided that no right to provisional / final allotment accrues until the buyers‟ agreement is signed, which was not the case here. Finally, convinced with factual matrix, Ld. first appellate authority, vide para nos. 5.4 to 5.10 of the impugned order, came to a conclusion that the resultant gains were Long-Term Capital Gains in nature, against which benefit of progressive indexation was available to the assessee. 3.2 Regarding assessee‟s claim u/s 54F, it was noted that the investment in new flat was made on 14/04/2012 which was well within the stipulated time period as envisaged by Section 54F and therefore, the assessee was eligible to claim the said deduction in terms of CBDT circular No. 471 dated 15/10/1986. Reliance was placed on several judicial pronouncements also to arrive at the said conclusio....
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....pply to the factual matrix of the case and therefore, rightly, distinguished by the Ld. first appellate authority. 5.2 We find that the factual matrix of the present case is squarely covered by the recent decision of Hon‟ble Bombay High Court rendered in PCIT Vs. Vembu Vaidyanathan [ITA No. 1459 of 2016 dated 22/01/2019], wherein the issue has succinctly been clinched by Hon‟ble Court in the following manner: - 2. This question arises in following background. The respondent-assessee is an individual. The assessee had filed the return of income for the assessment year 2009-10 and claimed long term capital gain arising out of capital asset in the nature of a residential unit. During the course of assessment, the Assessing Officer examined this claim and came to the conclusion that the gain arising out of sale of capital asset was a short term capital gain. The controversy between the assessee and the revenue revolves around the question as to when the assessee can be stated to have acquired the capital asset. The assessee argued that the residential unit in question was acquired on the date on which the allotment letter was issued by the builder which was on 31st....