2021 (6) TMI 944

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....d CIT(A) has grievously erred in confirming the assessment order made by the assessing officer. 2. On the fact & circumstances of the case as well as law on the subject, your appellant prays that the assessing officer may be directed to take the dated of allotment for the purpose of long term capital gain. 2. Brief facts of the case are that the assessee is a Non-resident Indian (NRI). No return of income was filed by assessee for the year under consideration. The case of assessee was re-opened under section 147 of the Income Tax Act, 1961 [hereinafter referred to as 'the Act']. Notice under section 148 of the Act dated 28.04.2014 was served upon the assessee. The case of assessee was re-opened on the basis of information received that....

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....ished by assessee find that Municipal Corporation of Greater Mumbai (MCGM) issued Occupancy Certificate on 20.09.2000. On the basis of Occupancy Certificate, the AO took his view that assessee obtained the possession of property in Financial Year 2000-01 on the basis of aforesaid fact, the AO has taken further view that the Long Term Capital Gain (LTCG) declared by assessee is not correct and acceptable. The AO on the basis of value determined by DVO worked out the LTCG in the following manner; "Sale consideration as per DVO Rs. 80,99,000/- Less : indexed cost of advance payment of Rs. 6,54,000/-   On 25/02/1997 = Rs. 654,000 X 582/305 Rs. 12,47,960/-   Rs. 68,51,040/- Less: total cost as per allotment letter Rs. 42,12,00....

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....bedkar Road, Khar (West), Mumbai. The assessee was allotted flat vide allotment letter dated 25.02.1997. Before the occupation of flat, the assessee has made substantial amount of consideration. The assessee sold a flat on 22.07.2008. On sale consideration of Rs. 72,00,000/-. The assessee worked out the LTCL by taking the date of acquisition in 1997. However, the AO determined the LTCG on the basis of value determined by DVO and further on the basis of index cost for AY 2000-01 instead of 1997- 98. The ld. AR submits that working of LTCG, index cost to be taken for AY 1997-98 as per the allotment letter. The assessee booked the flat in Joint names and the name of his wife name is mentioned at first holder. Whereas all payments were made by....

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....ders of lower authorities carefully. In our considered view is very narrow dispute involved in the present appeal is whether the holding period is treated from the date of allotment or from the date of occupation of the property. There is no dispute about the date of allotment letter dated 25.09.1997. Further, we find that AO in para-6 of the assessment order has recorded that at the time of allotment, the assessee paid Rs. 6,52,000/-. The assessee vehemently contended that substantial part of the sale consideration was paid from the date of possession. This fact is not disputed by lower authorities. Further, the date of transfer of asset/flat is also not in dispute. We find that the Hon'ble Punjab & Haryana High Court in MadhuKaul v/s. ....