RAMESH A RADHAKRISHNAN, MUMBAI V. ACIT RG 35(2), MUMBAI

ITA 1244/MUM/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0354 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 22-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI LD SR DR
• Assessee Lawyers: HIRO RAI LD
• Keywords: Capital asset; Cost of acquisition
• Section: 54F; 54

Judgement Text

ITA.NO.1244/MUM/2017 RAMESH A. RADHAKRISHNAN ASSESSMENT YEAR- 2012-13 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI , BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM I.T.A. NO.1244/MUM/2017 ( ASSESSMENT YEAR: 2012-13) RAMESH A. RADHAKRISHNAN G-306, OBEROI SPLENDOR GRANDE, JVLR, OPPOSITE MAJAS DEPOT ANDHERI (E),MUMBAI - 400 060 VS. ASSISTANT COMMISSIONER OF INCOME TAX RANGE-35(2) MUMBAI ! ' PAN/GIR NO. ADLPR-4380-C ( !# APPELLANT ) : ( $%!# RESPONDENT ) ASSESSEE BY : HIRO RAI, LD.AR REVENUE BY : RAM TIWARI, LD. SR. DR & DATE OF HEARING : 24/07/2018 '() / DATE OF PRONOUNCEMENT : 12/09/2018 O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2012-13 CONTEST THE ORDER OF LD. COMMISSIONER OF INCOME-TAX (APPEALS)-46 [CIT(A)], MUMBAI, APPEAL NO.CIT(A)-46/ACIT-35(2)/64/2015-16 DATED 02/01/2017 BY RAISING FOLLOWING GROUNDS OF APPEAL:- 1. THE LEARNED CIT(A) ERRED IN CONSIDERING RESIDENT IAL PROPERTY SOLD DURING THE YEAR AS SHORT TERM CAPITAL ASSET AND THEREBY TREATING TH E GAIN ON ITS SALE AS SHORT TERM CAPITAL ASSET. ITA.NO.1244/MUM/2017 RAMESH A.RADHAKRISHNAN ASSESSMENT YEAR- 2012-13 2 2. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE APPELLANT HAS ENTERED IN AGREEMENT FOR PURCHASE OF THE RESIDENTIAL PROPERTY ON 06.10.2008 AND HAS ENTERED INTO AGREEMENT FOR ITS SALE ON 08.11.2011, HOLDING THE SAID RESIDENTIAL PROPERTY FOR MORE THAN 36 MONTHS, AND CONSEQUENTLY, A LONG TERM CAPITAL ASSET. 3. THE LEARNED CIT(A) ERRED IN DENYING THE BENEFIT OF DEDUCTION U/S 54 TO THE APPELLANT AGAINST CAPITAL GAINS FROM SALE OF RESIDE NTIAL PROPERTY. 4. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, MODIFY OR ALTER THE ABOVE GROUNDS OF APPEAL TO ANY STAGE OF APPELLATE PROCEEDINGS. THE ASSESSMENT FOR IMPUGNED AY WAS FRAMED BY LD. ASSISTANT COMMISSIONER OF INCOME TAX-35(2), MUMBAI [AO] U/S 1 43(3) OF THE INCOME TAX ACT, 1961 ON 30/03/2015 WHEREIN THE INCO ME OF THE ASSESSEE HAS BEEN DETERMINED AT RS.177.60 LACS AFTE R CERTAIN DISALLOWANCES AS AGAINST RETURNED INCOME OF RS.79.7 3 LACS FILED BY THE ASSESSEE ON 30/09/2012. AS EVIDENT FROM GROUNDS OF APPEAL, THE SUBJECT MATTER OF THE APPEAL IS THE NATURE OF CERTAIN CAPITAL GAINS EARNED BY THE ASSESSEE DURING THE YEAR AND ADMISSIBILITY OF DEDUC TION U/S 54 AS CLAIMED BY THE ASSESSEE, BUT DENIED BY THE LOWER AU THORITIES. 2.1 DURING ASSESSMENT PROCEEDINGS, IT WAS NOTED THA T THE ASSESSEE SOLD ONE PROPERTY SITUATED AT FLAT NO. 308/1, 3RD FLOOR, D WING, OBEROI SPLENDOR, ANDHERI (E), MUMBAI [IN SHORT PROPERTY] ON 08/11/2011 FOR SALE CONSIDERATION OF RS.197.80 LACS. AGAINST THE S AME, THE ASSESSEE CLAIMED EXPENSES ON TRANSFER FOR RS.3.97 LACS AND I NDEXED COST OF INDEXATION AS RS.131.41 LACS. ON THE BALANCE CAPITA L GAINS OF RS.62.40 LACS, EXEMPTION U/S 54 WAS CLAIMED. 2.2 THE LD. AO, UPON PERUSAL, NOTED THAT THE FLAT W AS SOLD IMMEDIATELY AFTER TAKING POSSESSION. THE ASSESSEE POINTED OUT T HAT THE FLAT WAS PURCHASED FROM DEVELOPER VIDE AGREEMENT DATED 06/10 /2008 BY MAKING PAYMENTS AS PER THE TERMS OF THE AGREEMENT AND THE ASSESSEE OBTAINED POSSESSION ON 04/07/2011 WHICH WAS IN CONTINUATION OF ITS HOLDING RIGHT ITA.NO.1244/MUM/2017 RAMESH A.RADHAKRISHNAN ASSESSMENT YEAR- 2012-13 3 IN THE PROPERTY. THEREFORE, THE EARLIER PERIOD WAS ALSO TO BE COUNTED FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAINS . HOWEVER, NOT CONVINCED, LD. AO NOTED THAT THE FLAT WAS SOLD IMMEDIATELY AFTER T AKING POSSESSION AND FURTHER THE ASSESSEE WAS STAYING IN RENTED ACCOMMOD ATION AND THEREFORE THE SOLD FLAT WAS NOT BEING USED FOR RESIDENTIAL PU RPOSES AND THEREFORE, NOT ENTITLED FOR EXEMPTION U/S 54. THE LD. AO FURTH ER OPINED THAT FOR A FLAT THAT WAS CONSTRUCTED AND READY FOR OCCUPATION, THE DATE OF TAKING POSSESSION OF THE FLAT WOULD BE THE PURCHASE DATE F OR THE PURPOSE OF DETERMINING THE HOLDING PERIOD. SINCE, THE HOLDING PERIOD, AS COUNTED FROM THE DATE OF POSSESSION, WAS LESS THAN 3 YEARS, THE RESULTANT GAINS WERE TREATED AS SHORT TERM CAPITAL GAINS AND ACCORDINGLY, INDEXATION OF COST OF ACQUISITION AS WELL AS DEDUCTION U/S 54 WAS DENIED TO THE ASSESSEE, WHICH RESULTED INTO IMPUGNED ADDITIONS. 3. AGGRIEVED, THE ASSESSEE AGITATED THE SAME WITHOU T ANY SUCCESS BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 02/01/2 017 WHEREIN THE RELIANCE WAS PLACED ON CERTAIN JUDICIAL PRONOUNCEME NTS. THE LD.CIT(A), AFTER PERUSAL OF AGREEMENT DATED 06/10/2008 NOTED T HAT THE DEVELOPER WAS ENTITLED TO TERMINATE THE CONTRACT AND COULD SE LL THE PREMISE TO ANOTHER PARTY AND THEREFORE THE COMPLETE RIGHT, TIT LE, DOMAIN GOT CONVEYED TO THE ASSESSEE UPON POSSESSION ONLY AND T ILL THEN THE RIGHT IN THE PROPERTY WAS NOT ABSOLUTE RIGHT. IN OTHER WORDS , THE AGREEMENT DID NOT CONFER ABSOLUTE RIGHT IN THE PROPERTY AND THE A SSESSEE COULD NOT CLAIM TO HAVE AN ABSOLUTE DOMAIN AND CONTROL ON THE PROPERTY TILL THE OCCUPANCY OR POSSESSION OF THE PROPERTY. IT WAS FUR THER NOTED THAT THE ASSESSEE HAD MADE PAYMENT TO THE EXTENT OF APPROX. 66% ONLY TILL THE DATE OF ALLOTMENT. THE LD. CIT(A) ALSO NOTED THE RA TIO OF THIS TRIBUNAL ITA.NO.1244/MUM/2017 RAMESH A.RADHAKRISHNAN ASSESSMENT YEAR- 2012-13 4 RENDERED IN JAIMAL K. SHAH [ITA NO. 6966/MUM/2010 30/05/2012] & SUSHIL KUMAR AGGARWAL [ITA NO. 5720/MUM/2010 DATED 25/07/2012] & CBDT CIRCULAR NUMBERS 471 & 672 DATED 15/10/1986 & 16/12/1993 RESPECTIVELY. FINALLY, THE STAND OF LD. AO WAS CONF IRMED BY MAKING THE FOLLOWING OBSERVATIONS:- 7.10 AS IN THE CASE OF THE ASSESSEE, THE AGREEMENT ENTERED ON 06-10-2008 AND LATER REGISTERED ON 14-10-2008, IT DID NOT GIVE ANY ABSOLUTE RIGHT IN THE PROPERTY UNDER PURCHASE. AS EXTRACTED ABOVE IN PARA 6.4, THERE ARE SPECIFIC CLAUSES WHICH GIVE THE BUILDERS THE RIGHT TO TERMIN ATE AND SELL THE PREMISES TO A NEW PURCHASER. AS ON THE DATE OF AGREEMENT, THE A SSESSEE HAD PAID ONLY 66.20%, THE FUTURE PAYMENTS IN TIME WERE MATERIAL A S PER THE TERMS AND PERCENTAGE OF PAYMENTS MADE, THE ASSESSEE CANNOT BE HELD TO BE OWNING ABSOLUTE RIGHT. EVEN ON THE LEGAL ASPECT, THE DECIS ION RELIED REQUIRE THE PERIOD OF HOLDING TO BE CONSIDERED FROM DATE OF POSSESSION . 7.11 AS PER THE FACTS OF THE CASE AND THE ABOVE DEC ISIONS, THE PERIOD BETWEEN POSSESSION AND SALE WOULD BE RELEVANT FOR TRANSFER OF RIGHT AND OCCUPANCY TITLE AS IN THE CASE OF ASSESSEE. AS THE ASSESSEE G OT POSSESSION ON 04-07- 2011 AND SOLD IT ON 08-11-2011, THE PERIOD OF HOLDI NG WAS ONLY 3 MONTHS, AND THUS THE CAPITAL GAIN WAS SHORT TERM 7.12 IN LIGHT OF THE ABOVE, THE DECISION OF THE ASS ESSING OFFICER IN TREATING THE CAPITAL GAINS AS SHORT TERM CAPITAL GAINS IS UPHELD AND GROUND OF APPEAL ON THIS ISSUE IS DISMISSED. AS A LOGICAL CONSEQUENCE, THE ACTION OF LD. AO IN D ENYING DEDUCTION U/S 54 WAS ALSO CONFIRMED. AGGRIEVED, THE ASSESSEE IS I N FURTHER APPEAL BEFORE US. 4. THE LD. AUHTORIZED REPRESENTATIVE FOR ASSESSEE [ AR], SHRI HIRO RAI, SUBMITTED THAT THE ISSUE STOOD COVERED IN ASSESSEE S FAVOR BY SUBSEQUENT JUDICIAL PRONOUNCEMENTS OF THIS TRIBUNAL AS WELL AS OF HIGHER JUDICIAL AUTHORITIES, THE COPIES OF WHICH HAVE BEEN PLACED IN THE PAPER- BOOK. AT THE SAME TIME, THE CASE LAWS BEING RELIED UPON B Y LD. CIT(A) WERE SOUGHT TO BE DISTINGUISHED ON FACTUAL MATRIX. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE [DR], SHRI RAM TIWARI, SUBMITTED THAT THE ASSESSEE HAD SOLD A FLAT AND NOT A RIGHT TO ACQUIRE THE FLAT, THE HOLDING ITA.NO.1244/MUM/2017 RAMESH A.RADHAKRISHNAN ASSESSMENT YEAR- 2012-13 5 PERIOD OF WHICH WAS LESS THAN 3 YEARS AND THEREFORE , THE STAND OF LOWER AUTHORITIES WAS JUSTIFIED. 5.1 WE HAVE CAREFULLY HEARD THE RIVAL SUBMISSIONS A ND PERUSED RELEVANT MATERIAL IN RECORD INCLUDING THE PREMISES OWNERSHIP AGREEMENT BETWEEN ASSESSEE AND THE BUILDER AND JUDICIAL PRONOUNCEMENTS CITED BEFORE US. THE UNDISPUTED FACTS ARE THAT THE PROPER TY IN QUESTION HAS BEEN SOLD ON 08/11/2011, THE RIGHT IN THE SAME WAS ACQUIRED BY THE ASSESSEE BY AGREEMENT DATED 06/10/2008 AND THE POSS ESSION OF THE SAME WAS OBTAINED ON 04/07/2011. AS PER ASSESSEES CONTENTION, THE HOLDING PERIOD SHOULD BE COUNTED FROM DATE OF AGREE MENT I.E. 06/10/2008 WHEREAS THE STAND OF THE REVENUE IS THAT THE PERIOD OF HOLDING SHOULD BE COUNTED FROM DATE OF POSSESSION I.E. 04/07/2011. 5.2 FROM THE PERUSAL OF DOCUMENTS ON RECORD, IT IS EVIDENT THAT THE ORIGIN OF THE SUBJECT PROPERTY IN ASSESSEES FAVOR SPRING FROM PREMISES OWNERSHIP AGREEMENT DATED 06/10/2008 ENTERED INTO BETWEEN THE ASSESSEE AND THE DEVELOPER NAMELY OBEROI CONSTRUCTIONS PRIVATE LIMITED. THE SAID AGREEMENT HAS BEEN DULY REGISTERED ON 13/1 0/2008 UPON PAYMENT OF STAMP DUTY OF RS.4.29 LACS. AS PER RECITAL Y, THE ASSESSEE HAS EXPRESSED DESIRE TO ACQUIRE THE AFORES AID FLAT AND APPROACHED THE BUILDER TO ALLOT THE SPECIFIC PROPER TY FLAT NO. 308, AD- MEASURING 889 SQUARE FEETS CARPET AREA ON 3 RD FLOOR WING-D OF BUILDING NO.-1 OF OBEROI SPLENDOR. THE PERUSAL OF THE RECITAL REVEALS THAT THE PROPERTY BEING ACQUIRED BY THE ASSESSEE WAS SPECIFI C & A UNIQUE PROPERTY WHICH WAS CLEARLY IDENTIFIED UNDER THE AGR EEMENT. THE AGREED SALE CONSIDERATION OF THE SAME HAS BEEN FIXED AS RS .89.34 LACS, THE SCHEDULE OF WHICH HAS ALREADY BEEN PROVIDED IN CLAU SE 3(B) OF THE ITA.NO.1244/MUM/2017 RAMESH A.RADHAKRISHNAN ASSESSMENT YEAR- 2012-13 6 AGREEMENT. THE ASSESSEE, AT THE TIME OF EXECUTION O F AGREEMENT, OUT OF AGREED CONSIDERATION, HAD ALREADY PAID AMOUNT OF RS .57.75 LACS I.E. APPROX. 64% OF THE AGREED CONSIDERATION. 5.3 AS PER CLAUSE-7 OF THE AGREEMENT, THE DEVELOPER COULD TERMINATE THE AGREEMENT IN CERTAIN EVENT OF DEFAULT AS ENUMER ATED THEREIN. UPON SUCH EVENT OF DEFAULT, IN TERMS OF CLAUSE-8 , THE DEVELOPER COULD TERMINATE THE AGREEMENT AND FORFEIT THE SPECIFIED AMOUNT TOWA RDS LOSSES / DAMAGES AND REFUND THE BALANCE AMOUNT TO THE PURCHA SER. IT IS THE TERMS OF CLAUSES 7 & 8 , WHICH HAS LED THE LD. FIRST APPELLATE AUTHORITY T O CONCLUDE THAT THE ASSESSEE DID NOT HAVE ABSOLUTE DO MAIN AND CONTROL ON THE PROPERTY TILL THE OCCUPANCY OR POSSESSION OF TH E PROPERTY. HOWEVER, THE AFORESAID CLAUSES, IN OUR OPINION, WAS NOTHING MORE THAN TO SAFEGUARD THE INTEREST OF THE PARTIES THEREIN IN TH E EVENTUALITY OF DEFAULT BEING MADE BY THE OTHER PARTY AND DID NOT OPERATE S O AS TO CIRCUMVENT THE RIGHT OR TITLE OF THE ASSESSEE, IN ANY MANNER. 5.4 THE LD. CIT(A), IN OUR OPINION, GOT MISLED BY T REATING THE RIGHT TO ACQUIRE THE PROPERTY AND ACTUAL POSSESSION OF THE PROPERTY AS TWO SEPARATE / DISTINCT CAPITAL ASSETS WHILE FORGETTING THE FACT THAT THE RIGHT OF POSSESSION TO THE PROPERTY ESSENTIALLY SPRANG ONLY FROM THE PREMISES OWNERSHIP AGREEMENT DATED 06/10/2008 AND WAS IN FURTHERANCE OF THE AFORESAID AGREEMENT ONLY. THE POSSESSION OF THE PRO PERTY WAS OBTAINED PURSUANT TO THE AGREEMENT, WHICH WAS DISTINCTLY IDE NTIFIED / EARMARKED BEFORE HAND AT THE TIME OF ENTERING OF AGREEMENT AN D THEREFORE, PART & PARCEL OF THE SAME TRANSACTION. NOTHING IN THE AGRE EMENT SUGGEST THAT THE ASSESSEE GAVE UP THE RIGHT TO ACQUIRE THE PROPERTY AT THE TIME OF POSSESSION AND GOT A NEW CAPITAL ASSET IN THE SHAPE OF FLAT, IN EXCHANGE ITA.NO.1244/MUM/2017 RAMESH A.RADHAKRISHNAN ASSESSMENT YEAR- 2012-13 7 RATHER IT WAS THE CASE, WHERE THE RIGHT / TITLE OF THE ASSESSEE OVER THE SUBJECT PROPERTY GOT BETTER AND MORE PERFECT. 5.5 SO FAR AS THE STATUTORY PROVISIONS ARE CONCERNE D, WE FIND THAT SHORT TERM CAPITAL GAINS AS DEFINED IN SECTION 2(42A) IN THE INCOME-TAX ACT , 1961 READS AS UNDER:- (42A) 'SHORT-TERM CAPITAL ASSET' MEANS A CAPITAL AS SET HELD BY AN ASSESSEE FOR NOT MORE THAN THIRTY- SIX MONTHS IMMEDIATELY PRECEDING THE DATE OF ITS TRANSFER': WE FIND THAT THE EXPRESSION USED IS 'HELD' AS AGAIN ST 'ACQUIRED' OR 'PURCHASED' AS USED IN OTHER SECTIONS LIKE SECTION 54 / 54F WHICH SHOWS THAT LEGISLATURES WERE CONSCIOUS WHILE MAKING USE O F THIS EXPRESSION. THE EXPRESSIONS LIKE 'OWNED' / ACQUIRED HAS NOT B EEN USED FOR THE PURPOSE OF DETERMINING THE NATURE OF ASSET AS SHORT TERM CAPITAL ASSET OR LONG TERM CAPITAL ASSET. THUS, THE INTENTION OF THE LEGISLATURE WAS CLEAR THAT FOR THE PURPOSE OF DETERMINING THE NATURE OF C APITAL GAIN, THE PERIOD DURING WHICH THE ASSET WAS HELD BY THE ASSESSEE FOR ALL PRACTICAL PURPOSES ON DE-FACTO BASIS WAS TO BE CONSIDERED AND NOT THE DATE OF OBTAINING ABSOLUTE LEGAL OWNERSHIP OF THE ASSET FOR DETERMINING THE HOLDING PERIOD. THE TERM 'HELD' HAS BEEN INTERPRETE D BY THE COURTS WHEREIN UNANIMOUS VIEW HAS BEEN THAT THE SAID TERM 'HELD' IS DIFFERENT FROM THE TERM 'ACQUIRE'. THE HONBLE PUNJAB AND HAR YANA HIGH COURT, IN THE CASE OF CIT VS. VED PRAKASH & SONS (HUF) 207 ITR 148, STATED THAT THE TERM 'HELD' IS DELIBERATELY USED AS AGAINST TER M 'OWNED'. HENCE, A PERSON CAN HOLD THE ASSET AS OWNER, LESSEE, TENANT, ETC. THEREFORE, THE RIGHT TO THE PROPERTY IS HELD BY A PERSON FROM THE DATE WHEN HE ENTERS INTO AN AGREEMENT FOR PURCHASE AND NOT WHEN HE ACQU IRES POSSESSION. A SIMILAR PHRASE HAS BEEN USED IN THE EXPLANATION ( III ) TO SECTION 48 WHICH ITA.NO.1244/MUM/2017 RAMESH A.RADHAKRISHNAN ASSESSMENT YEAR- 2012-13 8 DEFINES THE TERM 'INDEXED COST OF ACQUISITION'. THE SAID PHRASE IS REPRODUCED HEREUNDER:- ( III ) 'INDEXED COST OF ACQUISITION' MEANS AN AMOUNT WHI CH BEARS TO THE COST OF ACQUISITION THE SAME PROPORTION AS COST INFLATION I NDEX FOR THE YEAR IN WHICH THE ASSET IS TRANSFERRED BEARS TO THE COST INFLATION INDEX FO R THE FIRST YEAR IN WHICH THE ASSET WAS HELD BY THE ASSESSEE OR FOR THE YEAR BEGINNING ON THE 1ST DAY OF APRIL, 1981, WHICHEVER IS LATER; (EMPHASIS ADDED) A PERUSAL OF THE ABOVE PROVISION REVEALS THAT EVEN FOR CALCULATING INDEXATION THE BASE YEAR IS TO BE TAKEN AS THE YEAR FROM WHICH THE CAPITAL ASSET IS 'HELD' BY THE TRANSFEROR AND NOT THE YEAR IN WHICH THE ASSET IS ACQUIRED BY THE TRANSFEROR. SUCH A DIFFERENCE CANNO T BE IGNORED. 5.6 SO FAR AS THE CASE LAWS ARE CONCERNED, WE FIND THAT IN THE CASE OF SUSHIL KUMAR AGGARWAL, THE DATE OF POSSESSION WAS EARLIER THEN THE DATE OF THE AGREEMENT AND THE TRIBUNAL CONFIRMED THE STA ND OF FIRST APPELLATE AUTHORITY TO RECKON THE PERIOD OF HOLDING FROM THE DATE OF POSSESSION. THEREFORE, THE SAME IS CLEARLY DISTINGUISHABLE ON F ACT. THE CASE OF JAIMAL K.SHAH DEALT WITH A SITUATION WHERE THE ASSESSEE ENTERED I NTO DEVELOPMENT AGREEMENT WITH THE BUILDER AND THEREFOR E, THE FACTS OF THE SAME DO NOT DIRECTLY APPLY TO THE FACTS OF THE CASE UNDER HAND. FURTHER, POST JAIMAL K.SHAH, WE FIND THAT VARIOUS HIGHER JUDICIAL AUTHORITIES, I N CATENA OF JUDGMENT, TAKEN A VIEW FAVORABLE TO THE A SSESSEE. FEW OF WHICH ARE LISTED BELOW:- 1. MADHU KAUL VS CIT (P & H HC) 363 ITR 54 2. CIT VS RAMAKRISHNAN (DELHI HC) 363 ITR 59 3. CIT VS S R JEYASHANKAR (MADRAS HC) 373 ITR 120 5.7 VIEWED FROM ANY ANGLE, WE ARE UNABLE TO FIND OU RSELVES IN AGREEMENT WITH THE CONCLUSION OF LD. FIRST APPELLAT E AUTHORITY THAT THE ITA.NO.1244/MUM/2017 RAMESH A.RADHAKRISHNAN ASSESSMENT YEAR- 2012-13 9 CAPITAL GAINS EARNED WERE SHORT TERM IN NATURE AND THEREFORE, WE REVERSE THE SAME. THE RESULTANTLY GAIN AS COUNTED F ROM DATE OF AGREEMENT, IN OUR OPINION, WAS LONG TERM CAPITAL GAIN ELIGIBLE FOR INDEXATION BENEFIT. THIS GROUND STANDS ALLOWED. 5.8 SO FAR AS THE DEDUCTION U/S 54 IS CONCERNED, WE FIND THAT THE LOWER AUTHORITIES HAVE DENIED THE SAME PRIMARILY BY CONCL UDING THAT THE SAME WAS NOT AVAILABLE SINCE THE NATURE OF CAPITAL GAINS WAS SHORT TERM CAPITAL GAINS. THEREFORE, ON FACTUAL MATRIX, THE MATTER STAND REMI TTED BACK TO THE FILE OF LD. AO FOR RE-ADJUDICATION & VE RIFICATION OF DEDUCTION U/S 54 WITH A DIRECTION TO THE ASSESSEE TO SUBSTANT IATE THE SAME WITH DOCUMENTARY EVIDENCES / REQUISITE INFORMATION. 6. RESULTANTLY, THE APPEAL STANDS PARTLY ALLOWED IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH SEPTEMBER, 2018. SD/- SD/- (SAKTIJIT DEY) (MAN OJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER *& MUMBAI; DATED :12.09.2018 SR.PS:-THIRUMALESH ! COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. / THE CIT(A) 4. / CIT CONCERNED 5. + ,$ - -) *& / DR, ITAT, MUMBAI 6. , ./0 & GUARD FILE ' / BY ORDER, # '$% (DY./ASSTT.REGISTRAR) *& / ITAT, MUMBAI