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Income Tax Appellate Tribunal, MUMBAI “E” BENCH, MUMBAI
Before: SHRI SHAILENDRA KUMAR YADAV, JUDICIAL & SHRI RAJESH KUMAR.
This appeal has been filed by assessee against the order of Commissioner of Income-Tax (Appeals)-35, Mumbai, dated 07.08.2012 for A.Y. 2007-08 on following ground:
A.Y. 2007-08 [Surinder Mohan Khanna vs. ITO] Page 2
“The learned CIT(A) has seriously erred in holding that the flat no.A-701, of the assessee in Sheetal Vihar, Dwarka, New Delhi – 110075 which was sold on 5th June 2006 was a short term capital asset He failed to appreciate and ought to have held that the asset in question was a Long Term Capital Asset, the sale of which is to be taxed as Long Term Capital Gains. The learned CIT(A) has erred in coming to the conclusion that the decision in the case of ITO Vs. Smt. Kashmiraben H. Parikh is not applicable to the case as the facts are different. He failed to appreciate and ought to have held that all the relevant facts in the case of the appellant are identical to the facts in the above decision and the flat sold by the appellant was rightly claimed to be a long term capital asset.”
Issue before us is regarding whether the asset transferred is of a Long Term Capital Gain or Short Term Capital Gain. The issue of Capital Gain is with regard to flat no.701, of the assessee in Sheetal Vihar, Dwarka, New Delhi which was booked in the year 1986 and was sold on 5th June, 2006. Meanwhile, assessee has discharged his responsibilities by paying entire cost in March, 2006. Now question is whether date of booking will be taking for the purpose of computation of capital gain or date of final payment for the flat in question. We find that the Hon’ble Gujarat High Court in the case of CIT Vs. Anilaben Upendra Shah, (2003) 262 ITR 658 has held that assessee acquired shares in the co-operative housing society and was allotted the flat on November 15, 1979. Possession of the flat obtained in October, 1981 and sold the same in December, 1982, shares in capital housing society was held for more than 36 months. Accordingly, the capital gain in question A.Y. 2007-08 [Surinder Mohan Khanna vs. ITO] Page 3 was held to be Long Term Capital Gain. Thus in case of CIT Vs. Anilaben Upendra Shah (supra), the date of allotment was taken for the purpose of computation of capital gain and not possession.
2.1. Nothing contrary was brought to our knowledge on behalf of Revenue. Facts being similar, so, following same reasoning, we are not inclined to concur with the finding of CIT(A) because date of acquisition of flat in question will be first booking i.e. 1986 and possession of flat will relate back to 1986 for purpose of computation of capital gain. Assessing Officer is directed accordingly.
In the result the appeal filed by the assessee is allowed as indicated above.
Pronounced in the open Court on this the 19th day of August, 2016.
Sd/- Sd/- (RAJESH KUMAR) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai: Dated 19/08/2016 Prabhat kesarwani True Copy आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. राज�व / Revenue 2. आवेदक / Assessee 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त- अपील / CIT (A) 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड� फाइल / Guard file. By order/आदेश से, A.Y. 2007-08 [Surinder Mohan Khanna vs. ITO] Page 4
उप/सहायक पंजीकार, आयकर अपील�य अ�धकरण, मुंबई ।