TaxTMI 
TaxTMI 
2019 (5) TMI 1599
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....gaon. This was reflected in the fixed asset in the books of accounts. The said pent house was jointly owned by the assessee company with Shri Satish Batra who had 50% share in the property. The assesee has purchased the pent house from M/s. DLF, vide allotment letter dated 13.10.2005 and also 'Buyers agreement' was also entered vide agreement dated 8.3.2006. A copy of such agreement are being placed before us in the paper book from pages 72 to 146 and also the agreement to sell dated 29th January, 2015. The assesee has acquired the property by taking a loan of Rs. 3.5 crore from ICIC Bank who directly made payment to DLF on 30.11.2005 and further payment of Rs. 1,23,36,200/- has been made by Shri Satish Batra in respect of share in property to DLF on 30.11.2005. During the year under consideration both the co owners who had sold the property to Shri Pankaj Munjal, son of Shri O.P. Munjal, resident of B-5, Greater Kailash Part-1, New Delhi for a total consideration of Rs. 23,09,08,220/- . Being 50% the owner of the property, the value of sale consideration in respect of the share owned by the assesee came to Rs. 11,54,54,110/-. The assesee besides other expenses has capitalized the ....
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....the expenses leading to double addition. " 4. Before us Ld. Counsel for the assessee Shri Ajay Wadwa first of all submitted that here in this case the period of holding of the pent house has to be reckoned from the date of allotment of the property i.e 13.10.2005 and not from the date of possession in 2012. The allegation of the revenue authorities is that, since assessee has received the possession of the flat in July 2012, therefore, the flat itself came into existence only in July, 2012 and prior to this period it was mere right in the property and hence according to them the capital asset which was sold by the assessee was a flat and not the right and therefore, the holding period should be computed from the date of possession to the date of sale. In this regard he submitted that even from the perusal of the agreement to sale dated 29.1.2015 and the buyers agreement dated 8.3.2006, it is clearly borne out that assessee was allotted a flat vide allotment letter dated 13.10.2005. Thus, assessee right in the property had accrued on the date of allotment itself. He further pointed out that assesee immediately made the entire payment of Rs. 5.10 crore to M/s. DLF on 30.11.2005 its....
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..... Jindas Panchand Gandhi (2005) 279 ITR 552 (Gujarat) i. CIT vs. Anilaben Upendra Shah (2003) 262 ITR 657 (Guj) j. Hon'ble Kolkata Tribunal in the case of ACIT vs. Mrs. Sheela Chopra in ITA No. 169/Kol/2014 7. He submitted that all the aforesaid judgments clearly laid down the ratio that if Assessee gets the right to hold the flat on issuance of an allotment letter and merely on the fact that possession was delivered letter it cannot be held that prior to the date of possession the assessee was not holding the flat. The payment of balance instalments, delivery of possession are only consequential acts that relate back to and arise from the rights conferred by the allotment letter. 8. Without prejudice, he submitted that in any case the date of apartment buyer agreement by which the DLF has passed on the entire rights in the said property and has agreed to sell the property at an agreed consideration, then same should be treated as the date of owner of rights in the property and is to be reckoned as acquisition of capital asset. He also tried to distinguish the judgment and relied upon by the AO in the case of Gulshan Malik v. CIT (2014) 43 taxmann.com.200 (Delhi High Court). ....
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....wil not apply here. 11. We have heard the rival submissions , perused the relevant findings given in the impugned orders as well as the material referred to before us at the time of hearing. From the facts as discussed in the foregoing paragraphs, it is an undisputed fact that assessee had acquired a flat being 50% owner with DLF Ltd. The acquisition of flat has been stated by way of allotment letter dated 13.10.2005 by which assessee was allotted a particular unit with specified price consideration and immediately after the allotment of the letter the assessee has made the entire payment of the flat. Thereafter, Buyer's agreement was entered into with DLF Limited, whereby assesee got all the rights on the same flat vide agreement dated 8.3.2006 and the entire consideration was paid much prior to the agreement dated which has also been acknowledged by the party in the said agreement. This is evident from not only the buyer's agreement but also from the sale agreement dated 29th January, 2015, the details of which are given at pages 56-57 of the paper book. Now in the year under consideration assessee alongwith the other co-owner had sold the property and the assessee's 50% share w....
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....apital gain and whether after the possession of the flat the nature of capital assets gets changed. Such a view cannot be accepted, because possession of the flat is flowing from the terms and conditions mentioned in the buyer's agreement itself. Thus, in our opinion the date of possession cannot be reckoned as a date of the acquisition of the flat for the purpose of computing the period of short term or long term. We are in tandem with the contention of Mr. Ajay Wadhwa that, even if the date of allotment is not to be treated as the date of acquisition, but the date of buyer's agreement dated 8.3.2006 is the date in which the assesee has acquired the rights in the property. Accordingly we direct the AO to treat the date of acquisition of the flat / property on 8.3.2006. 10. Coming to the judgment of Hon'ble Supreme Court in the case of CIT vs Balbir Singh Maini (supra), in that case, in terms of joint development agreement of a particular land entered between the assessee and another two parties and as per the said JDA , developer would undertake to develop the land owned in the name of the assessee's society. Later on, due to certain disputes with regard to necessary permission ....
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....he date of possession, as raised in ground No. 8, the same also gets covered in view of our finding given above. We find that, reason for disallowing of interest cost by the AO is as under :- i. "Cost of improvement consists of only interest paid to the financial institutions and not payment to M/s. DLF for any addition or alteration. ii. The Assessee raised excess loan from ICICI to pay on behalf of Sh. Satish Batra iii. Excess amount of Rs. 1,11,94,655/- was shown as advance to Sh. Satish as on 31.3.2006 iv. Advance repaid by Sh. Satish Batra on 27.02.2008 was not used to repay excess loan but was invested in share of M/s. Vimal Plast. v. Assessee was paying huge interest on loan and making interest free advances to sister concerns. vi. Loans granted to the related parties were not for business purpose." 15. Ld. CIT(A) has upheld the action of the AO to allow the interest of ownership of the property in July 2012 and also directed the AO to verify the actual figure of interest disallowance. 16. After hearing both the parties and on perusal of the relevant findings given in the impugned order as well as material referred to at the time of hearing, we find that there ....
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....HVAC Charges Set-off with Timely Payment Rebate & Compensation DLF Limited 01.04.2013 1,106,524.00 Govt.Tax Set-off with Timely Payment Rebate & Compensation DLF Limited 01.04.2013 1,496,000.00 Cost of Increase in Area Set-off with Timely Payment Rebate & Compensation DLF Limited 01.04.2013 42,800.00 Cost of BTU Meter Set-off with Timely Payment Rebate & Compensation DLF Limited 01.04.2013 57,150.00 Cost of Electric Meter Set-off with Timely Payment Rebate & Compensation DLF Limited 01.04.2013 197,542.00 Service Tax Charged by DLF Set-off with Timely Payment Rebate & Compensation DLF Homes Services Pvt. Ltd. 31,10,2013 2,000.00 Other Charges Paid vide Ch No. 000018 Total B 4,782,492.00 3. 2014-15 ANJLIKA KRIPLANI DESIGN 20.10.2014 449,440.00 Interior Charges Paid through Account Payee cheque DESIGN EDGE 30.11.2014 100,000.00 Interior Charges P....