2018 (10) TMI 1891

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.... contrary to law and facts of the case. 2. The ld.CIT(A) erred in treating the receipt of Rs. 16.49 crores by the assessee by way of settlement deed for transferring the Intangible asset-Trade Mark- as Long Term Capital Gain. 2.1 The ld.CIT(A) erred in allowing deduction u/s.54F of Rs. 3.50 crores when the capital asset transferred was not a long term capital asset. 2.2 The ld.CJT(A) erred in holding that there is no legal difference between the settlement & gift. 2.3 The ld.CIT(A) erred in holding that explanation 1(b) below section 2(42A) is applicable and the period of holding of the asset by the previous owner also needs to be considered even though the assessee did not receive the asset through gift or will as mentioned in ....

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.... a commercial property. On the other hand, Ld.AR supporting the order of the Ld.CIT(A) submitted that the latter authorities had verified the purchase document of the flat and found it to be a commercial property and not a residential property. Thus, according to him, the Ld. CIT(A) has justified in allowing the claim made by the assessee u/s.54F of the Act, holding that assessee was not having more than one residential property on the date of sale of the trade mark, giving rise to the capital gains. 4. We have heard the rival contentions and perused the orders of the authorities below carefully. The issue whether the gains arising on transfer of trade mark was long term or short term had come up before this Tribunal in the case of Shri ....

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....We find force in the argument of the ld. A.R. In these two cases, the assets got the right, title and interest in the Registered Trade Mark , namely "PREETT" through Settlement Deed dated 19/12/2010 from Settlor namely Mrs. Malathy Rangaswami & Mr. T.T. Ashok. According to AO, date of acquisition of the right / title/ interest over the said registered Trade Mark is only from 19/12/2010, as this is a Settlement Deed and not it is a Gift or Will as mentioned in Sec.49(1)(ii) of the Act. 4.2 In our opinion, the distinction made by the lower authorities is not correct. The Tribunal in the case of Shri S.Krishnan Vs. DCIT in ITA No.2075/Mds./2014 vide order dated 15.05.2015 observed that though the assessee got the landed property while settl....

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....F of the Act. As per the Ld.CIT(A) though this property was a flat, it had to be construed as commercial flat. Ld.CIT(A) has relied on the following preamble appearing in the Sale Deed dated 24.03.2015, through which the said flat was acquired by the assessee. WHEREAS, the Vendor Nos. 1 and 2, have obtained permission from construction of Ground + 3 Floors, from the Commissioner, Municipal Corporation of Hyderabad, Hyderabad Vide its Permit No.239/I, Letter No.214/TP5/SD/88, Dated. 12-9-1989. WHEREAS, the Vendors No.1 & 2, have entered into an Construction Agreement Dated.3-7- 1989, with Vendor No.3, i.e., Builder to Develop and construction of commercial Apartments, in the above said property. WHEREAS, the Builder have constructed....