ITO-16(1)(4), MUMBAI vs. THAKERSHI A. VEERA, MUMBAI
In favour of the Revenue: the Revenue's appeal was allowed. From the AI summary of this appeal.
What did the Tribunal hold?
The Tribunal held that the date of the sale agreement is relevant for computing the holding period, as the buyer was already in possession of the property as the spouse of the tenant. Therefore, the CIT(A)'s order was reversed.
What were the facts?
The assessee sold a flat to the wife of the tenant who was already residing in the flat. The Assessing Officer (AO) considered the date of the sale agreement as relevant for computing capital gains, while the assessee argued for the date of possession after the license termination. The CIT(A) initially ruled in favor of the assessee.
What were the issues?
The key issue was determining the relevant date for computing the holding period of the property for capital gains tax purposes, specifically whether it was the date of the sale agreement or the date of actual possession after a license period.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cases cited in this judgment(2)Show listHide list
Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.
- Chaturbhuj Dwarkadas Kapadia v. CIT150 citing260 ITR 491 · 2003 · HC
- CIT v. Geetadevi Pasari10 citing17 DTR 280 · 2009 · HC
Income Tax Appellate Tribunal, “E” BENCH, MUMBAI
Before: SHRI D. KARUNAKARA RAO & SHRI RAM LAL NEGI
सुनवाई की तायीख / Date of Hearing : 03.11.2016 घोषणा की तायीख /Date of Pronouncement : 11.11.2016 आदेश / O R D E R
PER D. KARUNAKARA RAO, AM:
This appeal filed by the Revenue on 7.11.2013 is against the order of the CIT (A)-27, Mumbai dated 7.8.2013 for the assessment year 2009-2010. In this appeal, Revenue raised the following grounds which read as under:- “1. On the facts and circumstances of the case and in law, the Ld CIT (A) erred in deleting the addition on account of short term capital gain and sustaining the future claim of long term capital gain even though the transfer of flat u/s 2(47) had taken place as per Registered Agreement and subsequent stamp duty paid by transferee.
2. On the facts and in the circumstances of the case and in law, the Ld CIT (A) erred to hold that the flat was let out by the assessee under the leave and license agreement and such agreement does not perpetrate to be sale agreement and hence, transfer u/s 2(47) has not taken place even though 98% of total consideration was paid by transferee.”
2. Briefly stated relevant facts of the case are that the assessee owns a flat in a redeveloped building in July, 2008. The said flat was rented out for a period of three years and earned rent in advance vide rental agreement dated 1.8.2008. The lease period is for three years. The agreement is signed between the assessee and Shri Chetan R. Shah (Chetan). During the period of this license agreement on 6.1.2009, assessee sold the said flat to Mrs. Neeta Chetan Shah (Neeta), wife of Shri Chetan R. Shah, tenant of the property. She paid a sum of Rs. 49,41,000/- out of the total consideration of Rs. 52,11,000/- in the month of January, 2009. At the time of sale, the buyer of the flat, Mrs. Neeta is living in the said Flat No.303 in „Kinja Heights‟ and along with her husband (Chetan). The balance amount of Rs. 2,70,000/- was subsequently paid at the termination of license agreement period. On these facts, AO considered the date of agreement to sale ie 6.1.2009 is not relevant date for computing the holding period of 36 months, rather AO considered the last payment of Rs. 2.7 lakhs paid on the termination of the license agreement period and offered the gains under the head „long term capital gains‟ and paid taxes accordingly. But, assessee is of the view that the date of possession of the property becomes relevant legally ie when the license period of three years ends in 31.7.2011. As per the license agreement dated 12.8.2008, the three years period starts from 1.8.2008 and ends on 31.7.2011. The long term capital gains were offered by the assessee on this sale of flat in the AY 2012-13. In the scrutiny assessment, the Assessing Officer restricted his attention to the method of computing the holding period of the asset and relied heavily on the date of sale agreement ie 6.1.2009 and computed the gains under the head short term capital gains. This gave raise to the dispute / litigation before us. CIT (A) granted relief to the assessee relying heavily on various decisions including the judgment of the Hon‟ble jurisdictional High Court in the case of Chaturbhuj Dwarkadas Kapadia vs. CIT (260 ITR 491) (Bom.) and another decision of the Bombay High Court in the case of CIT vs. Geetadevi Pasari (2009) (17 DTR 280) (Bom.) apart from many other decisions. Para 2.4.4 of the CIT (A)‟s order is relevant in this regard. CIT (A) opined that the facts of the present case are in parimateria with the above cited decisions (Para 2.4.5 is relevant). However, CIT (A) has remarked that the assessee had planned to transfer the flat only to save taxes and also highlighted the AO‟s failure in bringing some facts to the records in this regard. Eventually, CIT (A) granted relief and allowed the appeal of the assessee. Aggrieved with the same, Revenue is in appeal before us.
After narrating the facts of the case, Ld Counsel for the assessee argued that the CIT (A) has rightly relied on the binding judgments in the cases of Dwarakadas Kapadia (supra) and Geetadevi Pasari (supra). He also submitted that the actual possession of the flat is given to the buyer (Mrs. Neeta) only after the termination of the license agreement and the same should matter, in substance, a lot for deciding
More judgments on Section 2(47)
- Shailendra Kumar Sogani, Bhopal vs Deputy Commissioner of Income Tax 4(1)…ITA 1076/IND/2025[2012-13]Status: Disposed12 Oct 2026AY 2012-13
- Fireeye Ireland Limited, Ireland vs Assistant Commissioner of Income Tax…ITITA 1431/DEL/2025[2022-2023]Status: Disposed30 Sept 2026AY 2022-2023
- Hiteshkumar Mohanlal Desai, Daman vs The Assessment Unit, ITO, Daman Ward, DamanITA 962/SRT/2025[2018-19]Status: Disposed29 Sept 2026AY 2018-19
- Yousuf Shariff, Bangalore vs ACIT, Circle-1(2)(2), BangaloreITA 2636/BANG/2025[2016-17]Status: Disposed29 Sept 2026AY 2016-17
- Yousuf Shariff, Bangalore vs ACIT, Circle-1(2)(2), BangaloreITA 2635/BANG/2025[2015-16]Status: Disposed29 Sept 2026AY 2015-16
Recent GST High Court judgments
Search GST case law →- Dipanshu Aggarwal vs. Director General Of GST IntelligenceDelhi · 28 Oct 2026
- Dezinetree Projects PVT. LTD. vs. Spokes Digital Inc And AnrDelhi · 28 Oct 2026
- Jaydeep Jayantilal Hudaka vs. State Of GujaratGujarat · 28 Oct 2026
- Commissioner/Additional Commissioner Of Central Tax vs. M/S INDIA Agro Exports Private LimitedKarnataka · 28 Oct 2026
- Manoj Kumar Prop M K Steel Traders vs. Additional Commissioner, Central Goods And Services Tax & Anr.Delhi · 28 Oct 2026