TaxTMI 
TaxTMI 
2026 (7) TMI 1396
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....pital asset as short term in nature and making addition of Rs. 1,704,705 without appreciating that the underlying asset was booked way back in the year 2006-07, and Your Appellant gave all the necessary documents to establish claim of the asset being long term in nature eligible for indexation benefit in terms of section 48 of the Income-tax Act 1961. 2. On the facts, and in circumstances of the case, and in law, learned Commissioner of Income-tax (Appeal) erred in coming to conclusion that underlying asset was short term in nature by treating ledger account of the flat in books of your Appellant as in the books of builder, and thereby coming to conclusion that, although the investment was made in financial year 2006-07, since the builder allotted flat on March 31, 2011, and the said flat was sold within a period of 36 months from that date, the underlying asset was short term in nature. 3. Your Appellant craves leave to add to, amend, alter, modify, and / or delete any of the above grounds of appeal at or before final disposal of appeal." 2. Brief facts of the case are as under:- The assessee filed her return of income for A.Y. 2014-15 on 30.07.2014 declari....
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....ths as the surrender took place on 15.03.2014. Accordingly, the Ld.AO treated the gain arising from surrender of rights in the flat as Short Term Capital Gain instead of Long Term Capital Gain and rejected the assessee's claim. Aggrieved by the order of Ld.AO the assessee preferred appeal before the Ld.CIT(A). 3. After considering the submissions by the assessee the Ld.CIT(A) held that the property was acquired by the appellant on 31.03.2011, as per the letter of allotment and ledger account of the builder, and accordingly the period of holding being less than 36 months, the gain arising from sale of the property was rightly treated by the Ld.AO as Short Term Capital Gain. The Ld.AO further noted that the Ld.AO had allowed deduction towards brokerage expenses and set-off of short-term capital loss of Rs.35,59,125/-. The Ld.CIT(A) thus upheld the computation by the Ld.AO on sale of the impugned property during the year under consideration. 3.1. The Ld.CIT(A) further observed that although the Ld.AO allowed set-off of current year short-term capital loss of Rs.35,59,125/-, the claim of brought forward short-term capital loss was not allowed. It was noted that the assessee ha....
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....tly to the developer through cheque dated 11.01.2007 and the balance amount was paid to Mrs. Kalavati R. Trivedi on behalf of the developer. The said payments were duly reflected in the assessee's books of account. 4.5. The Ld.AR further submitted that during the course of hearing, the assessee was directed to reconcile the payments reflected in the bank statement with the confirmation issued by the developer. In this regard, it was submitted that the payment of Rs.2,62,000/- was duly reflected in the assessee's bank statement and matched with the developer's confirmation. Further, an amount of Rs.16,28,470/- was paid to Mrs. Kalavati R. Trivedi on 20.01.2007, which was also confirmed by the developer. 4.5. It was submitted that the developer had credited Rs.17,50,670/- in the assessee's account towards the payment made to Mrs. Kalavati R. Trivedi. The difference amount of Rs.1,22,200/- was adjusted by the developer against advances relating to other flats booked by the assessee. Therefore, the difference in amounts was only due to internal adjustment of ledger balances maintained by the developer and could not alter the fact that the assessee had acquired the rights in the f....
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.... the journal entry recording acquisition/allotment of the flat was passed only on 31.03.2011. Since the surrender consideration of Rs.74,25,000/- was received on 15.03.2014, the period of holding was less than 36 months and the asset did not qualify as a Long Term Capital Asset. 4.12. The Ld.DR contended that the assessee failed to conclusively establish that the amount of Rs.20,12,670/- was actually paid towards acquisition of the flat in F.Y. 2006-07. The payment details furnished by the assessee were not fully reconciled with the developer's confirmation and ledger accounts, and therefore the claim of acquisition from F.Y. 2006-07 was not substantiated. 4.13. It was further submitted that the assessee had only surrendered rights in the flat and had not acquired ownership of the property. Hence, the date reflected in the books was rightly considered for determining the period of holding. The reliance placed on CBDT Circulars regarding allotment of flats was stated to be not applicable to the facts of the present case. Accordingly, the Ld.DR supported the orders of the lower authorities and submitted that the gain arising from surrender of rights in the flat was rightly a....