TaxTMI 
TaxTMI 
2016 (2) TMI 1410
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.... charges paid to broker namely M/s. Prime Property Managers Pvt Ltd as for an amount of Rs.4,78,000/- out of total amount of Rs. 8,28,000/. 4.1. The brief facts are that the assessee sold a residential flat during the year under consideration. The assessee claimed total amount of Rs.8,28,000/- as brokerage paid to the aforesaid company @ of 5% of the total sale consideration. The AO disallowed the claim on the ground that no supporting evidences were filed for rendering of services by the broker. The Ld. CIT(A) accepted the claim of the assessee partly and allowed the same @ 2% of the sale amount on ad-hoc basis. The assessee has filed an appeal before us for the part disallowance sustained by the Ld. CIT(A). 4.2. Before us, it has been submitted by the Ld. Counsel that genuineness of the claim has not been doubted by the Ld. CIT(A), as part relief has been given. It is further submitted that both the lower authorities have made disallowance on the basis of presumptions and without confronting any doubts to the assessee and without giving any opportunity in this regard, whereas, the assessee could have submitted more evidences, if it was so desired by the AO. ....
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....d NOC was received by the appellant before making the second payment of Rs.5,00,000/-. The total payment made to get the NOC for sale of flat is very high looking at the ale consideration of Rs.1,75,00,000/-. In the case of Damodar Naglia vs. ACIT[2007] 12 SOT 599 (Mum. Trib.), it was held that transfer charges paid to get NOC of society for sale of flat is allowable expenditure u/s 48 of the Act. Relying upon the ratio of said judgment, coupled with aforesaid observations, I allow the first payment made of Rs.7,50,000/- towards NOC charges." 5.1. It has been submitted before us that when the factum of payment has been accepted and genuineness of the transaction is not in doubt, then the claim of the assessee cannot be denied only on the ground that total payment made by the assessee seems to be on higher side. 5.2. We have carefully considered all the facts and submissions made before us. We find that action of Ld. CIT(A) is not justified. It has been shown to us on the basis of documents enclosed in the paper book that full payment of Rs.12,50,000/- has been made to the builder for obtaining NOC. It has been shown that NOC of the Builder was one of the main conditions of th....
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....CIT(A), wherein stand taken by the AO was confirmed. 6.3. Still being aggrieved the assessee has challenged this issue before the Tribunal. 6.4. Before us, it has been argued by the Ld. Counsel that complete facts could not be appreciated by the lower authorities and that is how wrong treatment has been given to the capital gain earned by the assessee. Our attention has been drawn on various documents showing that allotment of the impugned flat was done prior to 15.06.2006. It was further shown on the basis of agreement to sale that possession was also handed over to the assessee before the date of sale. The assessee placed reliance on the following judgments for the proposition that under these circumstances the holding period of the flat sold should be computed from the date of allotment: 1. Judgment of the Hon'ble Punjab and Haryana High Court in the case of Mrs. Madhu Kaul v. CIT and another [363 ITR 54] 2. Judgment of the Hon'ble Madras High Court in the case of CIT v. S.R. Jeyshankar [373 ITR 120] 3. Order of the Hon'ble Tribunal, Lucknow, in the case of ACIT v Sharad Thadani [104 TTJ 567] 4. Order of the Hon'ble Tribunal,....
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....rused the material on record. The question is as to whether the ld. CIT(A) has rightly deleted the additions made while allowing the claim of the assessee for exemption u/s 54F of the Act. 9. The undisputed facts are that the assessee applied for allotment of flats to be constructed under a Group Housing Scheme of M/s. Shweta Builders Pvt. Ltd. Capital gains arose to the assessees on sale of shares. The assessees invested the said sale proceeds of shares jointly with M/s. Shweta Estate Pvt. Ltd., for allotment of a flat, before 31.07.2006. Shweta Estate Pvt. Ltd., vide letter dated 24.11.2006, had made a provisional allotment, on the basis of the available applications, conveying the acceptance of the proposal of the assessees for allotment of a specific house of the Belle Vue Scheme at flat No. 4, on the second floor. The allotment of the flat was made under the Scheme by Shweta Estate Pvt. Ltd. The payment therefore was linked to instalments of the cost of construction. This Scheme was, therefore, found by the ld. CIT(A) to be exactly similar to the SFS of the DDA. CBDT Circular No. 474 dated 15.10.86 was found to have liberally interpreted the provisions of sections 54 ....
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....despite the use of the word 'provisional' in the letter. This was due to the fact that in the letter, Shweta Estate Pvt. Ltd. had specified the Apartment number, the floor number, the type of flat, the Tower number and the phase of the Real Estate Project. It has been turned as 'provisional' allotment, since the said allotment letter was to be succeeded by an Apartment Buyer Agreement, which was to be signed by the allottee within 30 days from the dispatch. This was a legal arrangement between Shweta Estate Pvt. Ltd. and the assessees - allottees, sans which, the transfer of the specific flat could not have been effected. The assessees had paid the initial instalment and had made a proposal with Shweta Estate Pvt. Ltd. for allotment of flat. Shweta Estate Pvt. Ltd. had accepted such proposal and had allotted the specific flat to the assessees and so, there was no 'provisional' allotment. 12. In view of the above facts, finding no error in the well reasoned order passed by the ld. CIT(A), we hereby uphold the same, rejecting the grounds raised by the Department in both the cases." 6.7. In addition to the above, in our considered view the holding period should be co....