MIHIR BHARAT DALAL, MUMBAI V. ASST CIT 17(2), MUMBAI

ITA 1581/MUM/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6139 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Assessment Year: 2012-2013
• Appeal Filed On: 07-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIASRDR
• Assessee Lawyers: DIPAK J SHUKLACA
• Keywords: Capital asset; Additional evidence; Question of law; Cost of acquisition; Capital Gains
• Section: 143(3); 54F; 2(14); 251; 64; 27; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'D' BENCH, MUMBAI BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO. 1581/MUM/2017 (ASSESSMENT YEAR: 2012-13) SHRI MIHIR BHARAT DALAL 16, BHARTIYA BHAVAN 72 NEETAJI SUBHASH ROAD MARINE DRIVE, MUMBAI-020 VS. A C I T - 17(2) EANEST HOUSE NARIMAN POINT MUMBAI 400021 PAN AAEPD6659C APPELLANT RESPONDENT APPELLANT BY: SHRI DIPAK J. SHUKLA-CA RESPONDENT BY: SHRI CHAITANYA ANJARIA-SRDR DATE OF HEARING: 24.12.2018 DATE OF PRONOUNCEMENT: 16.01.2019 O R D E R PER PAWAN SINGH, JUDICIAL MEMBER: THIS APPEAL FILED BY ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE CIT(A)-28, MUMBAI DATED 03.01.2017 AND IT RELATES T O A.Y. 2012-13. 2. ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T(A) ERRED IN CONCLUDING THAT THE APPEL LANT HAD NOT RECEIVED POSSESSION OF PUNE FLAT BEFORE ITS SALE. (II) THE LEARNED C.I.T.(A) FURTHER ERRED IN CON FIRMING ASSESSMENT BY A.O. OF SURPLUS/PRO FIT RECEIVED ON SALE OF SAID PUNE FLAT OF RS.7,81,181/- AS INCOME FROM OTHER SOURCES AND FURT HER ERRED IN DISALLOWING CLAIM OF THE APPELLANT OF LONG TERM CAP ITAL LOSS OF RS.(-)4,58.390/- ON SALE OF SAID PUNE FLAT. 2. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C.I.T.(A) ERRED IN CONFIRMING ACTION OF THE A.O. OF ASSESSING SURPLUS OF RS.1,32,89,122/- RECEIVED ON C ANCELLATION OF AGREEMENT FOR PURCHASE OF FLAT NO.901-902, VIVAR EA BLDG AS INCOME FROM OTHER SOURCES. (II) THE LEARNED C.I.T(A) FURTHER ERRED IN DISA LLOWING CLAIM OF THE APPELLANT THAT THE APPELLANT HAD SUFFERED LONG TERM CAPITAL LOSS OF RS. (-)1,04,26,310/- ON CANCELLATION OF AGR EEMENT FOR PURCHASE OF FLAT NO.901 AND 902 IN VIVAREA BLDG. ITA NO. 1581/MUM/2017 SHRI MIHIR BHARAT DALAL/A C I T - 17(2) 2 3. THE LEARNED C.I.T(A) OUGHT TO HAVE DIRECTED THE A.O. TO COMPUTE LONG TERM CAPITAL GAINS IN RESPECT OF SALE OF SAID PUNE FLAT AND ALSO IN RESPECT OF CANCELLATION OF AGREEMENT FOR PU RCHASE OF FLAT NO.901 AND 902, VIVAREA BLDG AND TAXED ACCORDINGLY AS LONG TERM CAPITAL GAINS. WITHOUT PREJUDICE TO ABOVE IT IS RESPECTFULLY SUBM ITTED THAT LONG TERM CAPITAL GAINS, IF ANY RECEIVED/ACCRUED ON TRAN SFER OF PUNE FLAT AND CANCELLATION OF AGREEMENT FOR FLAT NO. 901 -902 HAD BEEN INVESTED BY THE APPELLANT IN PURCHASE OF ANOTHER RE SIDENTIAL FLAT IN ACCORDANCE WITH PROVISIONS OF SEC. 54/54F OF THE IN COME TAX ACT, 1961 AND THE LEARNED A.O. BE DIRECTED TO GRANT EXEM PTION AS PER LAW U/S. 54/54F OF THE I.T. ACT, 1961. 3. BRIEF FACTS OF THE CASE AS EXTRACTED FROM THE ORDER S OF THE LOWER AUTHORITIES ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME FOR A.Y. 2012- 13 ON 29.09.2012 DECLARING TAXABLE INCOME OF RS 89,60,900/-. THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF TH E ACT ON 27.03.2015 ASSESSING THE TOTAL INCOME AT RS. 2,31,02,830/-. TH E ASSESSING OFFICER (AO), WHILE PASSING THE ASSESSMENT ORDER TREATED THE LONG TERM CAPITAL GAIN AS INCOME FROM OTHER SOURCES CLAIMED BY THE ASSESSEE . THE ASSESSING OFFICER NOTED THAT THE ASSESSEE CLAIMED LONG TERM CAPITAL G AIN ON SALE OF FLAT NO. 407 BUILDING-G, GERA EMERALD CITY, KHARADI, PUNE. T HE ASSESSEE PURCHASED FLAT NO. 407, BUILDING-G, GERA EMERALD CI TY, KHARADI, PUNE VIDE AGREEMENT DATED 19.07.2007 AND SOLD ON 10.03.2011 B Y WAY OF REGISTERED AGREEMENT TO SALE. THE ASSESSEE BOOKED ANOTHER/ SE COND PROPERTIES I.E. FLAT NO. 901& 902 VIVERA, DR. A.L. NAIR ROAD, MUMBA I 400011, ON 12.12.2007 AND SUBSEQUENTLY CANCELLED IT, VIDE CANC ELLATION DEED DATED 06.04.2011. THUS, ON RECEIPT OF SURPLUS THE ASSESSE E CLAIMED LONG TERM CAPITAL GAIN WITH REGARD TO THE SAID PROPERTY. DURI NG THE ASSESSMENT THE ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE THE REGISTERED AGREEMENT OF PURCHASE OF FIRST FLAT. THE ASSESSEE FAILED TO PROD UCE THE REGISTERED AGREEMENT OF PURCHASE, THUS, THE ASSESSING OFFICER TOOK THE VIEW THAT THE BOOKING OF THE FLATS BY ASSESSEE WERE NEVER CONVERT ED IN TO OWNERSHIP. SIMILARLY, FOR RECEIPT OF SURPLUS RECEIVED ON CANCE LLATION OF BOOKING OF FLAT NO. 901 & 902 THE ASSESSING OFFICER TOOK THE VIEW T HAT FLATS BY ASSESSEE WERE NEVER CONVERTED IN TO OWNERSHIP. THE ASSESSING OFFICER TREATED THE SURPLUS AS INCOME FROM OTHER SOURCES IN PLACE OF LO NG TERM GAIN. THE ITA NO. 1581/MUM/2017 SHRI MIHIR BHARAT DALAL/A C I T - 17(2) 3 ASSESSING OFFICER, RESULTANTLY DISALLOWED THE CLAIM / EXEMPTION UNDER SECTION 54/54F ON PURCHASE OF RESIDENTIAL FLAT NO. 11A, B WELLINGTON VIEW TULSIWADI TARDEV ROAD MUMBAI. 4. ON APPEAL BEFORE THE CIT (A) THE ACTION OF THE AO W AS CONFIRMED. THEREFORE, FURTHER AGGRIEVED, ASSESSEE HAS FILED TH E PRESENT APPEAL BEFORE US. 5. WE HAVE HEARD THE SUBMISSIONS OF THE LEARNED AUTHOR ISED REPRESENTATIVE (AR) OF THE ASSESSEE AND LEARNED DEP ARTMENTAL REPRESENTATIVE (DR) FOR REVENUE AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. GROUND NO. 1 RAISED IN TWO PARTS, (I) THE L D CIT(A) ERRED IN CONCLUDING THAT THE ASSESSEE NOT RECEIVED POSSESSIO N OF FLAT AND (II) TREATING THE LONG TERM CAPITAL GAIN AS INCOME FROM OTHER SOURCES. THE LEARNED A.R. OF THE ASSESSEE SUBMITS THAT THE ASSES SEE HAS ENTERED INTO AGREEMENT WITH THE BUILDER ON 19.06.2007 FOR PURCHA SE OF FLAT NO. G-407, GERA EMERALD CITY, KHARADI, PUNE FOR RS 27,70,800/-. THE AGREEMENT WAS REGISTERED ON 19.06.2007. THE ASSESSEE SOLD THE SAI D FLAT AS PER REGISTERED AGREEMENT DATED 10.03.2011. THE ASSESSEE EXECUTED D EED OF ASSIGNMENT AND TRANSFER DEED DATED 07.05.2011. THE LEARNED AR SUBMITS THAT COPY OF REGISTERED AGREEMENT FOR PURCHASE OF FLAT DATED 19. 06.2007 AND AGREEMENT FOR SALE OF THE SAID FLAT DATED 10.03.2011 AND DEED OF ASSIGNMENT DATED 07.05.2011 ARE PLACED ON RECORD. THE LEARNED A.R. S UBMITS THAT THE ASSESSEE COMPUTED THE LONG TERM CAPITAL GAIN AS THE ASSET WAS ACQUIRED ON 19.06.2007. ASSESSEE INCURRED/ INVESTED THE TOTAL A MOUNT OF RS.29,18,819/- INCLUDING THE COST OF STAMP AND OTHE R EXPENSES. ON SALE OF THE SAID ASSET ON 07.05.2011 THE ASSESSEE CLAIMED I NDEXATION COST AT RS. 41,58,390/- AND BY DEDUCTING SALE PROCEEDS OF RS. 3 7,00,000/- THE ASSESSEE CLAIMED LONG TERM CAPITAL GAIN LOSS OF (-) RS. 4,58,390/-. 6. THE LEARNED A.R. FURTHER SUBMITS THAT DURING THE AS SESSMENT AND FIRST APPELLATE STAGE THE ASSESSEE COULD NOT PRODUC E THE REGISTERED PURCHASE AGREEMENT DATED 19.06.2007 AND THE POSSESS ION LETTER AS THE SAME WERE MISPLACED. THEREFORE, THE ASSESSEE HAS NO W FILED AN APPLICATION ITA NO. 1581/MUM/2017 SHRI MIHIR BHARAT DALAL/A C I T - 17(2) 4 FOR FILING ADDITIONAL EVIDENCES TO SUBSTANTIATE HIS CLAIM. THE LOWER AUTHORITIES DENIED THE CLAIM TO THE ASSESSEE HOLDIN G THAT THE ASSESSEE HAS NOT FILED NECESSARY EVIDENCES. THE LEARNED A.R. SUB MITS THAT THERE WAS SUFFICIENT REASON FOR NOT FURNISHING THE EVIDENCES BEFORE THE LOWER AUTHORITIES AND THE ASSESSEE MAY BE ALLOWED TO FILE THE ADDITIONAL EVIDENCES. THE ADDITIONAL EVIDENCE IS RELEVANT FOR EFFECTIVE AND COMPLETE ADJUDICATION OF THE ISSUE INVOLVED IN GROUND NO. 1 OF THE APPEAL. 7. ON THE OTHER HAND, THE LEARNED D.R. FOR REVENUE, AF TER GOING THROUGH THE CONTENTS OF THE APPLICATION FOR ADDITIONAL EVID ENCE AND THE DOCUMENT, I.E. REGISTERED AGREEMENT DATED 19.06.2007 FOR PURC HASE OF FLAT NO. G-407, GERA EMERALD CITY, KHARADI, PUNE, SUBMITS THAT THIS ISSUE MAY BE RESTORED TO THE FILE OF THE AO FOR VERIFICATION OF FACT AND TO PASS ORDER AFRESH. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIES A ND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE AO DURING THE ASSESSMENT ASKED THE ASSESSEE TO PRODUCE THE REGISTERED PURCHA SE AGREEMENT AS WELL AS SALE AGREEMENT FLAT NO. G-407, GERA EMERALD CITY , KHARADI, PUNE. THE ASSESSEE EXPRESSED HIS INABILITY TO PRODUCE THE REG ISTERED AGREEMENT FOR PURCHASE OF SAID FLAT AS THE SAME WAS NOT TRACEABLE . IN THE ABSENCE OF REGISTERED AGREEMENT THE AO CONCLUDED THAT THE BOOK ING OF THE FLAT WAS NEVER CONVERTED IN TO OWNERSHIP AND TREATED THE AMO UNT RECEIVED ON SALE OF THE ASSET AS INCOME FROM OTHER SOURCES. THE LEARN ED CIT(A) ALSO CONFIRMED THE ACTION OF THE AO ON HIS OBSERVATION THAT THE AS SESSEE COULD NOT PRODUCE THE REGISTERED PURCHASE AGREEMENT. 9. WE HAVE NOTED THAT THE ASSESSEE HAS NOW FILED COPY OF THE REGISTERED PURCHASE AGREEMENT DATED 19.06.2007 AND THE POSSESS ION LETTER DATED 04.12.2010. IN OUR VIEW THE DOCUMENTS, WHICH CONSIS T OF REGISTERED PURCHASE AGREEMENT AND POSSESSION LETTER IS RELEVAN T FOR DETERMINING THE CONTROVERSY OF THE ISSUE. THEREFORE, WE ACCEPT THE PRAYER OF THE ASSESSEE FOR ADMISSION OF THE ADDITIONAL EVIDENCES, ADMIT THE EV IDENCE AND RESTORE THE ISSUE TO THE FILE OF THE AO TO EXAMINE THE ISSUE AF RESH AFTER CONSIDERING THE DOCUMENTARY EVIDENCES FURNISHED BY THE ASSESSEE AND PASS ORDER IN ITA NO. 1581/MUM/2017 SHRI MIHIR BHARAT DALAL/A C I T - 17(2) 5 ACCORDANCE WITH LAW. THE ASSESSEE IS ALLOWED TO RAI SE AND SUBSTANTIATE ALL HIS CONTENTION REGARDING THE ELIGIBILITY OF HOLDING PERIOD AND TREATMENT OF HEAD OF INCOME. NEEDLESS TO SAY THAT BEFORE DECIDIN G THE ISSUE THE AO SHALL GRANT OPPORTUNITY OF HEARING TO THE ASSESSEE. IN TH E RESULT, GROUND NO. 1 OF THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. 10. GROUND NO. 2 RELATES TO TREATING THE COMPENSATION R ECEIVED ON CANCELLATION OF AGREEMENT OF FLAT NO. 901-902, VIVE RA BUILDING SANE GURUJI MARG, JACUB CIRCLE, MUMBAI, AS INCOME FROM OTHER S OURCES. THE LEARNED A.R. OF THE ASSESSEE SUBMITS THAT THE ASSESSEE ALON G WITH HIS WIFE SMT SHILPA MIHIR DALAL BOOKED FLAT NOS. 901 & 902 IN VI VERA, GENEXT HARDWARE & PARTS LTD. ON 12.12.2007 AND PAID BOOKING AMOUNT OF RS. 50,00,000/- THE TOTAL AMOUNT PAYABLE BY ASSESSEE FOR FLAT NO, 9 01 WAS RS. 2.93 CRORES AND FOR FLAT NO. 902 WAS RS. 2.67 CRORES. THE AGREE MENT FOR PURCHASE OF FLATS WAS EXECUTED ON 16.10.2010 AND REGISTERED ON 18.10.2010, UP TO OCTOBER, 2010 ASSESSEE HAS PAID RS. 5.27 CRORES AGA INST THE TOTAL CONSIDERATION OF RS. 5.26 CRORES AGAINST BOTH THE F LATS. IN MARCH, 2011 THE ASSESSEE DISCUSSED WITH THE DEVELOPER FOR CANCELLAT ION OF THE AGREEMENT. ON 06.04.2011 THE DEVELOPER AND THE ASSESSEE EXECUT ED A DEED OF CANCELLATION. THE DEVELOPER PAID A COMPENSATION OF RS.1.63 CRORES. THE ASSESSEE CLAIMED LONG TERM CAPITAL GAIN ON ACCOUNT OF RECEIPT OF SURPLUS ON CANCELLATION OF RIGHTS IN FLAT NOS. 901 & 902. T HE ASSESSEE DETERMINED THE TAXABLE LONG TERM CAPITAL GAIN AT (-) RS. 1.04 CRORES. THE AO REJECTED THE CLAIM OF THE ASSESSEE ON THE VIEW THAT THE ASSE SSEE HAS NOT ACTUALLY OWNED THE FLATS. THE LEARNED CIT(A) CONFIRMED THE A CTION OF THE AO ON THE VIEW THAT BOOKING WAS NEVER CONVERTED TO OWNERSHIP. THE TRANSACTION SHOULD BE TREATED AS NOT ON ACCOUNT OF TRANSFER OF ASSET QUALIFYING UNDER SECTION 45 OF THE ACT BUT MERELY AN ADVENTURE WHICH IS NOT TRADE BUT WHICH HAS RESULTED IN A GAIN WHICH IS NOT CLASSIFIABLE UN DER THE REGULAR HEADS OF INCOME. THE LEARNED A.R. OF THE ASSESSEE SUBMITS TH AT THE ASSESSEE BOOKED THE FLATS ON 12.12.2007 AND THIS FACT WAS CONFIRMED BY THE BUILDER VIDE ITS CONFIRMATION DATED 25.01.2008. BOOKING OF THE FLAT WAS CANCELLED ON 06.04.2001. ON CANCELLATION OF BOOKING THE ASSESSEE RECEIVED ADDITIONAL ITA NO. 1581/MUM/2017 SHRI MIHIR BHARAT DALAL/A C I T - 17(2) 6 AMOUNT OF RS. 1.63 CRORES. IN SUPPORT OF HIS SUBMIS SION THE LEARNED A.R. OF THE ASSESSEE RELIED UPON THE DECISION OF THE TRIBUN AL IN CASES OF ACIT VS. MADHAVI AMEET HARIANI IN ITA NO. 8276/MUM/2011 DATE D 22.11.2013, ANITA D. KANJANI VS. ACIT IN ITA NO. 2291/MUM/2014 DATED 13.02.2017 AND VIRBAN T. CHELLANI VS. DCIT IN ITA NOS. 5452 & 5680/MUM/2011 DATED 30.09.2015. 11. ON THE OTHER HAND, THE LEARNED D.R. SUPPORTED THE ORDER OF THE LOWER AUTHORITIES. 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PAR TIES AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. W E HAVE NOTED THAT THERE IS NO DISPUTE THAT THE ASSESSEE ALONG WITH HIS WIFE SMT SHILPA MIHIR DALAL BOOKED FLAT NOS. 901 & 902 IN VIVERA, GENEXT HARDWA RE & PARTS LTD. ON 12.12.2007 AND PAID BOOKING AMOUNT OF RS. 50,00,000 /- THE TOTAL AMOUNT PAYABLE RS. 2.93 CRORE FOR FLAT NO, 901 AND RS. 2. 67 CRORE FOR FLAT NO. 902 (TOTAL RS. 5.60 CRORE APPROX). THE AGREEMENT FOR PU RCHASE OF FLATS WAS EXECUTED ON 16.10.2010 AND REGISTERED ON 18.10.2010 . UP TO EXECUTION OF AGREEMENT IN OCTOBER, 2010 ASSESSEE ALONG WITH HIS WIFE HAS PAID RS. 5.27 CRORES AGAINST THE TOTAL CONSIDERATION OF RS. 5.26 CRORES FOR BOTH THE FLATS. THE BOOKING OF THE FLATS WERE CANCELLED VIDE CANCEL LATION DEED DATED 6 TH APRIL 2011. WE HAVE NOTED THAT THE BUILDER HAS ACKN OWLEDGED THE RECEIPT OF RS.5.27 CRORE PAID BY THE ASSESSEE AND HIS WIFE. TH E BUILDER HAS ALSO ACKNOWLEDGED PAYMENT OF COMPENSATION OF RS. 1.64 CR ORE (APPROX) PAID TO THE ASSESSEE AND HIS WIFE. WE HAVE FURTHER NOTED TH AT THE ASSESSEE AND HIS HAS PAID AMOUNT OF RS.5.27 CRORE THROUGH CHEQUES, DETAILS OF WHICH IS PROVIDED BY THE ASSESSEE AS PER PAGE NO. 59 & 60 OF PAPER BOOK. THESE PAYMENTS ARE OTHERWISE NOT DISPUTED BY THE LOWER AU THORITIES. 13. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. TATA SERVICES LTD. [1979] 1 TAXMAN 427/[1980] 122 ITR 594 (BOM.) HELD THAT ANY RIGHT WHICH CAN BE CALLED PROPERTY WILL BE INCLUDED IN TH E DEFINITION OF 'CAPITAL ASSET'. A CONTRACT FOR SALE OF LAND IS CAPABLE OF S PECIFIC PERFORMANCE WILL BE INCLUDED IN THE DEFINITION OF 'CAPITAL ASSET'. HIGH COURT IN THE SAID CASE ITA NO. 1581/MUM/2017 SHRI MIHIR BHARAT DALAL/A C I T - 17(2) 7 OBSERVED THAT WHEN MORE THAN 90 PER CENT OF THE PAY MENTS MADE FOR THE PROPERTY HAS BEEN MADE THAT WILL TANTAMOUNT TO A RI GHT WHICH WAS TRANSFERABLE AND WILL BE TERMED AS A CAPITAL ASSET. 14. THE COORDINATE BENCH OF DELHI TRIBUNAL IN JAGDISH C HANDER VS ITO [1998] 64 ITD 251 (DELHI), WHILE CONSIDERING ALMOST SIMILAR GROUND OF APPEAL HAS TAKEN A FOLLOWING VIEW; 5. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MADE BY THE LD. REPRESENTATIVES OF THE PARTIES AND HAVE GONE THROUG H THE ORDERS OF THE LD. DEPARTMENTAL AUTHORITIES. WE HAVE ALSO GONE THR OUGH ALL THE JUDGMENTS CITED BY THE LD. REPRESENTATIVES OF BOTH SIDES. 6. LET US FIRST EXAMINE THE RATIO OF JUDGMENT OF HON BLE DELHI HIGH COURT, WHICH ACCORDING TO THE LD. SR. D.R. SQUARELY SUPPORTS THE REVENUES CONTENTION. THE HONBLE DELHI HIGH COURT IN THE CASE OF R. DALMIA (DECD.) ( SUPRA ) HAS HELD THAT THE RIGHT ACQUIRED ON AGREEMENT TO SELL IS NOT A PROPRIETARY RIGHT AND HENCE IT IS NOT A CAPITAL ASSET. CONSEQUENTLY, RECEIPTS ATTRIBUTABLE TO SUCH A RIGHT IS NOT ASSESSABLE TO CAPITAL GAIN. THIS JUDGMENT RELATES TO THE RIGHTS A CQUIRED BY THE ASSESSEE UNDER THE AGREEMENT TO SELL DATED 21ST MAY , 1955 AND 31ST AUGUST, 1959. THE HONBLE HIGH COURT HAS TAKEN THEI R AFORESAID VIEWS BY FOLLOWING JUDGMENT IN THE CASE OF J. DALMIA ( SUPRA ). IN THAT CASE, THE HONBLE DELHI HIGH COURT HAS HELD AS UNDER : FROM 149 ITR 215 : 'HELD, THAT IN ORDER THAT A RECEIPT OR ACCRUAL OF I NCOME MAY ATTRACT TAX ON CAPITAL GAINS THE SINE QUA NON IS THAT THE RECEIPT OR ACCRUAL MUST HAVE ORIGINATED IN A 'TRANSFER'. THE RIGHT TO RECEI VE DAMAGES WAS A MERE RIGHT TO SUE AND, WHETHER IT WAS PROPERTY OR N OT, IT COULD NOT BE TRANSFERRED IN VIEW OF SECTION 6( E ) OF THE TRANSFER OF PROPERTY ACT, 1882. THOUGH THE WORD 'TRANSFER' IN RELATION TO CAP ITAL ASSETS HAD BEEN DENIED IN SECTION 2(47) OF THE IT ACT, 1961, N O EXCEPTION WAS MADE THEREIN TO THE APPLICABILITY OF SECTION 6( E ) OF THE TRANSFER OF PROPERTY ACT. SINCE THERE COULD NOT BE ANY TRANSFER OF THE RIGHT TO RECEIVE DAMAGES, THE AMOUNT OF RS. 1,02,500 RECEIVE D BY THE ASSESSEE AS DAMAGES WAS NOT ASSESSABLE TO TAX AS CAPITAL GAI NS. THE DAMAGES WHICH WERE RECEIVED BY THE ASSESSEE COULD NOT BE SA ID TO BE ON AMOUNT OF RELINQUISHMENT OF ANY OF ITS ASSETS OR ON ACCOUNT OF EXTINGUISHMENT OF ITS RIGHT TO SPECIFIC PERFORMANCE UNDER THE CONTRACT FOR SALE.' IT IS APPARENT FROM AFORESAID DECISION THAT THE HON BLE DELHI HIGH COURT HAD TAKEN INTO CONSIDERATION THE DEFINITION O F 'TRANSFER IN RELATION TO CAPITAL ASSET' AS DEFINED IN SECTION 2( 47) OF INCOME-TAX ACT, 1961, AS IT EXISTED IN THE RELEVANT PREVIOUS YEAR. THE DEFINITION OF 'TRANSFER' GIVEN IN SECTION 2(47) OF INCOME-TAX ACT , 1961 HAS UNDERGONE SIGNIFICANT AMENDMENTS BY THE TAXATION LA WS (AMENDMENT) ACT, 1984 WITH EFFECT FROM 1-4-1985 AS WELL AS BY THE FINANCE ACT, 1987 W.E.F. 1-4-1988. IT WILL BE WORTH WHILE TO REPRODUCE THE PROVISIONS OF SECTION 2(47) AS IT EXISTED W.E.F . 1-4-1988 : ITA NO. 1581/MUM/2017 SHRI MIHIR BHARAT DALAL/A C I T - 17(2) 8 ' SECTION 2(47) 'TRANSFER', IN RELATION TO A CAPITAL ASSET, INCLUD ES, ( I )THE SALE, EXCHANGE OR RELINQUISHMENT OF THE ASSET; OR ( II )THE EXTINGUISHMENT OF ANY RIGHTS THEREIN; OR ( III )THE COMPULSORY ACQUISITION THEREOF UNDER ANY LAW; OR ( IV )IN A CASE WHERE THE ASSET IS CONVERTED BY THE OWNE R THEREOF INTO, OR IS TREATED BY HIM AS STOCK-IN-TRADE OF A BUSINESS CARR IED ON BY HIM, SUCH CONVERSION OR TREATMENT; OR ( V )ANY TRANSACTION INVOLVING THE ALLOWING OF THE POSS ESSION OF ANY IMMOVABLE PROPERTY TO BE TAKEN OR RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A O F THE TRANSFER OF PROPERTY ACT, 1882 (4 OF 1882); OR ( VI )ANY TRANSACTION (WHETHER BY WAY OF BECOMING A MEMB ER OF, OR ACQUIRING SHARES IN A CO-OPERATIVE SOCIETY, COMPANY OR OTHER ASSOCIATION OF PERSONS OR BY WAY OF ANY AGREEMENT O R ANY ARRANGEMENT OR IN ANY OTHER MANNER WHATSOEVER) WHIC H HAS THE EFFECT OF TRANSFERRING, OR ENABLING THE ENJOYMENT O F, ANY IMMOVABLE PROPERTY. EXPLANATION :- FOR THE PURPOSES OF SUB-CLAUSES ( V ) AND ( VI ), 'IMMOVABLE PROPERTY' SHALL HAVE THE SAME MEANING AS IN CLAUSE ( D ) OF SECTION 269UA:' 6.1. THE PROVISIONS OF SECTION 269UA( D ), WHICH HAVE BEEN INCORPORATED IN THE AFORESAID DEFINITION OF TRANSFER W.E.F. 1-4- 1988 ARE ALSO REPRODUCED HERE AS UNDER : ' SECTION 269UA( D ) 'IMMOVABLE PROPERTY' MEANS (I) ANY LAND OR ANY BUILDING OR PART OF BUILDING, AND I NCLUDES, WHERE ANY LAND OR ANY BUILDING OR PART OF A BUILDING IS T O BE TRANSFERRED TOGETHER WITH ANY MACHINERY, PLANT, FURNITURE, FITT INGS OR OTHER THINGS, SUCH MACHINERY, PLANT, FURNITURE, FITTINGS OR OTHER THINGS ALSO. EXPLANATION. - FOR THE PURPOSES OF THIS SUB-CLAUSE, 'LAND, BUILD ING, PART OF A BUILDING, MACHINERY, PLANT, FURNITURE, FI TTINGS AND OTHER THINGS' INCLUDE ANY RIGHTS THEREIN; (II) ANY RIGHT IN OR WITH RESPECT TO ANY LAND OR ANY BUI LDING OR A PART OF A BUILDING (WHETHER OR NOT INCLUDING ANY MACHINE RY, PLANT, FURNITURE, FITTINGS OR OTHER THINGS THEREIN) WHICH HAS BEEN CONSTRUCTED OR WHICH IS TO BE CONSTRUCTED, ACCRUING OR ARISING FROM ANY TRANSACTION (WHETHER BY WAY OF BECOMING A MEMBER OF, OR ACQUIRING SHARES IN, A CO-OPERATIVE SOCIETY, COM PANY OR OTHER ASSOCIATION OF PERSONS OR BY WAY OF ANY AGREEMENT O R ANY ARRANGEMENT OF WHATEVER NATURE), NOT BEING A TRANSA CTION BY WAY OF SALE, EXCHANGE OR LEASE OF SUCH LAND, BUILDING O R PART OF A BUILDING;' A PLAIN READING OF THE AFORESAID PROVISIONS DEALING WITH THE DEFINITION OF TRANSFER IN RELATION TO A CAPITAL ASSET CLEARLY IND ICATES THAT IF ANY RIGHTS IN OR WITH RESPECT TO ANY BUILDING OR A PART OF THE BUILDING WHICH HAS BEEN CONSTRUCTED OR WHICH IS TO BE CONSTRUCTED, ACC RUING OR ARISING FROM ANY TRANSACTIONS BY WAY OF ANY AGREEMENT OR ANY ARR ANGEMENT OF WHATEVER NATURE WILL ALSO BE TREATED AS A TRANSFER OF A CAPITAL ASSET. IN THE PRESENT CASE, THE RIGHTS ACQUIRED BY THE ASSESS EE BY WAY OF BOOKING THE AFORESAID TWO FLATS SITUATED IN A PROPERTY LOCA TED AT PUNJABI BAGH ITA NO. 1581/MUM/2017 SHRI MIHIR BHARAT DALAL/A C I T - 17(2) 9 WERE RELINQUISHED IN FAVOUR OF THE BUILDER VIDE AGR EEMENT FOR CANCELLATION OF BOOKING MADE IN FINANCIAL YEAR 1988 -89 RELATING TO ASSESSMENT YEAR 1989-90, THE YEAR UNDER CONSIDERATI ON. SINCE THE TRANSACTION OF CANCELLATION OF THE BOOKING OF THE F LATS TOOK PLACE IN THE YEAR UNDER CONSIDERATION, THE POINT IN ISSUE WILL H AVE TO BE DETERMINED IN ACCORDANCE WITH THE DEFINITION OF TRANSFER GIVEN IN SECTION 2(47) AS AMENDED WITH EFFECT FROM 1-4-1988. IN THIS CONNECTI ON IT WILL BE ALSO WORTHWHILE TO CAREFULLY GO THROUGH THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF PODAR CEMENT (P.) LTD. ( SUPRA ). AT PAGE 650, THE HONBLE SUPREME COURT HAS CONSIDERED THE IMPACT AND EFFECT OF AMENDMENT MADE IN SECTION 27 OF INCOME-TAX ACT, 196 1 BY THE FINANCE ACT, 1987 BY WHICH THE MEANING OF 'OWNER OF HOUSE P ROPERTY' USED IN SECTIONS 22 TO 27 OF THE ACT HAVE BEEN ENLARGED. WH ILE EXAMINING THE AFORESAID AMENDMENT, THE HONBLE SUPREME COURT HAVE ALSO OBSERVED THAT CORRESPONDING AMENDMENT HAVE ALSO BEEN PROPOSE D IN REGARD TO THE DEFINITION OF 'TRANSFER' IN SECTION 2(47) OF IN COME-TAX ACT. THE HONBLE SUPREME COURT THEREAFTER CONSIDERED AS TO W HAT WOULD BE THE EFFECT OF SUCH AMENDMENT. AFTER CONSIDERING THE VAR IOUS JUDGMENTS RELATING TO DECLARATORY STATUTE, THE HONBLE SUPREM E COURT HAS RECORDED THE FOLLOWING FINDINGS (AT PAGE 653) : 'FROM THE CIRCUMSTANCES NARRATED ABOVE AND FROM THE MEMORANDUM EXPLAINING THE FINANCE BILL, 1987 ( SEE (1987) 165 ITR (ST.) 161), IT IS CRYSTAL CLEAR THAT THE AMENDMENT WAS INTENDED TO SU PPLY AN OBVIOUS OMISSION OR TO CLEAR UP DOUBTS AS TO THE MEANING OF THE WORD 'OWNER' IN SECTION 22 OF THE ACT. WE DO NOT THINK THAT IN THE LIGHT OF THE CLEAR EXPOSITION OF THE POSITION OF A DECLARATORY/CLARIFI CATORY ACT, IT IS NECESSARY TO MULTIPLY THE AUTHORITIES ON THIS POINT . WE HAVE, THEREFORE, NO HESITATION TO HOLD THAT THE AMENDMENT INTRODUCED BY THE FINANCE BILL, 1987, WAS DECLARATORY/CLARIFICATORY IN NATURE SO FAR AS IT RELATES TO SECTION 27( III ), ( IIIA ) AND ( IIIB ). CONSEQUENTLY, THESE PROVISIONS ARE RETROSPECTIVE IN OPERATION. IF SO, THE VIEW TAKEN B Y THE HIGH COURTS OF PATNA, RAJASTHAN AND CALCUTTA, AS NOTICED ABOVE, GE TS ADDED SUPPORT AND CONSEQUENTLY THE CONTRARY VIEW TAKEN BY THE DEL HI, BOMBAY AND ANDHRA PRADESH HIGH COURTS IS NOT GOOD LAW. WE ARE CONSCIOUS OF THE SETTLED POSITION THAT UNDER THE COMMON LAW, 'OWNER' MEANS A PERSON WHO HAS GOT VALID TITLE LEGA LLY CONVEYED TO HIM AFTER COMPLYING WITH THE REQUIREMENTS OF LAW SUCH A S THE TRANSFER OF PROPERTY ACT, REGISTRATION ACT, ETC. BUT, IN THE CO NTEXT OF SECTION 22 OF THE INCOME-TAX ACT, HAVING REGARD TO THE GROUND REA LITIES AND FURTHER HAVING REGARD TO THE OBJECT OF THE INCOME-TAX ACT, NAMELY, 'TO TAX THE INCOME', WE ARE OF THE VIEW, 'OWNER' IS A PERSON WH O IS ENTITLED TO RECEIVE INCOME FROM THE PROPERTY IN HIS OWN RIGHT.' 6.2. IN VIEW OF THE AFORESAID AMENDMENT MADE IN SECTION 2(47), AND THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF PODAR CEMENT (P.) LTD. ( SUPRA ), IT WILL HAVE TO BE CONCLUDED THAT THE JUDGMENT O F THE HONBLE DELHI HIGH COURT RELIED UPON BY THE LD. D.R. WILL N OT BE APPLICABLE TO THE FACTS OF THE PRESENT CASE RELATING TO ASSESSMEN T YEAR 1989-90. THE ASSESSEE BY ACQUIRING THESE TWO FLATS IN THE PROPER TY AT PUNJABI BAGH, IN THE YEARS 1983 AND 1984, ACQUIRED A CAPITAL ASSET, NAMELY, THE RIGHT TO HAVE THESE TWO FLATS TRANSFERRED IN HIS FAVOUR. 6.3. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF VIJAY FLEXIBLE CONTAINERS ( SUPRA ) HAS HELD AS UNDER : ITA NO. 1581/MUM/2017 SHRI MIHIR BHARAT DALAL/A C I T - 17(2) 10 'THE RIGHT TO OBTAIN A CONVEYANCE OF IMMOVABLE PROP ERTY FALLS WITHIN THE EXPRESSION 'PROPERTY OF ANY KIND' USED IN SECTION 2 (14) OF THE INCOME- TAX ACT, 1961, AND IS, CONSEQUENTLY, A CAPITAL ASSE T. THE PAYMENT OF EARNEST MONEY IN ORDER TO OBTAIN SUCH A RIGHT CONST ITUTES ITS COST OF ACQUISITION. WHERE SUCH A RIGHT IS GIVEN UP, THERE IS A TRANSFER OF A CAPITAL ASSET.' THE AFORESAID VIEW TAKEN BY THE HONBLE BOMBAY HIGH COURT HAS BEEN GIVEN A STATUTORY RECOGNITION AS A RESULT OF AMENDM ENT MADE IN SECTION 2(47) WITH EFFECT FROM 1-4-1988 AND SUCH A VIEW IS ALSO FORTIFIED BY THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE O F PODAR CEMENT (P.) LTD. ( SUPRA ). 6.4. IN VIEW OF THE AFORESAID FACTS, THE RELEVANT PROVI SIONS OF LAW AND THE ABOVE REFERRED JUDGMENTS, WE ARE OF THE CONSIDERED OPINION THAT THE RIGHTS ACQUIRED BY THE ASSESSEE IN THE AFORESAID TW O FLATS CONSTITUTED 'CAPITAL ASSETS' WITHIN THE MEANING OF SECTION 2(14 ) AND THE AGREEMENT FOR CANCELLATION OF THE BOOKING RESULTING IN A SURP LUS AMOUNT RECEIVED BY THE ASSESSEE AMOUNTED TO TRANSFER OF SUCH CAPITAL A SSETS. THE SURPLUS DERIVED BY THE ASSESSEE AS A RESULT OF SUCH TRANSFE R WILL, THEREFORE, BE CLEARLY ASSESSABLE TO TAX AS CAPITAL GAINS. 7. THE NEXT QUESTION WHICH THEN ARISES FOR OUR CONSID ERATION IS WHETHER THE ASSESSEE IS ENTITLED TO GRANT OF EXEMPTION UNDE R SECTION 54F OF THE INCOME-TAX ACT IN RESPECT OF PROFIT/GAIN DERIVED ON THE SALE OF INTEREST IN THE AFORESAID TWO FLATS SITUATED IN THE PROPERTY AT PUNJABI BAGH. THE PROVISIONS OF SECTION 54F PROVIDES THAT WHERE IN TH E CASE OF AN ASSESSEE BEING AN INDIVIDUAL OR HUF, THE CAPITAL GAIN ARISES FROM THE TRANSFER OF ANY LONG-TERM CAPITAL ASSET, NOT BEING A RESIDENTIA L HOUSE, AND THE ASSESSEE HAS, WITHIN A PERIOD OF ONE YEAR BEFORE OR TWO YEARS AFTER THE DATE ON WHICH THE TRANSFER TOOK PLACE, PURCHASED, O R HAS WITHIN THE PERIOD OF THREE YEARS AFTER THAT DATE CONSTRUCTED, A RESIDENTIAL HOUSE, THE CAPITAL GAIN SHALL BE ELIGIBLE FOR GRANT OF EXEMPTI ON AS PROVIDED IN SECTION 54F. IT WILL, THEREFORE, BE NECESSARY TO DE TERMINE AS TO WHETHER THE CAPITAL ASSET, NAMELY, THE INTEREST IN THE TWO FLATS TRANSFERRED BY THE ASSESSEE CAN BE TREATED AS A RESIDENTIAL HOUSE AND WHETHER SUCH CAPITAL ASSET WAS A LONG-TERM CAPITAL ASSET OR A SHORT-TERM CAPITAL ASSET. 7.1. IT IS TRUE THAT THE DEFINITION OF 'TRANSFER' IN RE LATION TO CAPITAL ASSET AS GIVEN IN SECTION 2(47) REGARDS SUCH RIGHTS OR IN TERESTS IN A BUILDING OR A PART OF THE BUILDING CONSTRUCTED OR YET TO BE CON STRUCTED COMES WITHIN THE DEFINITION OF 'IMMOVABLE PROPERTY' AS DEFINED I N SECTION 269UA( D ) WHICH HAS BEEN INCORPORATED IN THE DEFINITION OF 'T RANSFER' GIVEN IN SECTION 2(47)( V ) AND ( VI ) BUT THAT BY ITSELF WOULD NOT MEAN THAT SUCH AN INTEREST, WHICH IS DEEMED TO BE AN IMMOVABLE PROPER TY WILL ASSUME THE CHARACTER OF A RESIDENTIAL HOUSE. THE EXPRESSION US ED IN SECTION 54F WHICH DEALS WITH THE CAPITAL GAIN ARISING FROM THE TRANSFER OF ANY LONG- TERM CAPITAL ASSET, NOT BEING A RESIDENTIAL HOUSE C LEARLY INDICATES THAT THE CAPITAL GAIN ARISING FROM THE TRANSFER OF ANY L ONG-TERM CAPITAL ASSET, WILL BE ELIGIBLE FOR GRANT OF EXEMPTION UNDER SECTI ON 54F, IF THE AMOUNT OF SUCH CAPITAL GAIN IS INVESTED FOR PURCHASE OR CO NSTRUCTION OF A RESIDENTIAL HOUSE WITHIN THE PRESCRIBED PERIOD. THE EXEMPTION UNDER SECTION 54F WILL NOT APPLY IN RELATION TO CAPITAL G AIN ARISING FROM THE TRANSFER OF A RESIDENTIAL HOUSE. WHAT WAS TRANSFERR ED BY THE ASSESSEE, WAS HIS INTEREST IN THE TWO FLATS, WHICH HAD NOT YE T BEEN CONSTRUCTED. THE ASSESSEE DID NOT ACQUIRE POSSESSION OF THOSE FL ATS. THE FLATS IN ITA NO. 1581/MUM/2017 SHRI MIHIR BHARAT DALAL/A C I T - 17(2) 11 QUESTION WERE NOT FIT FOR HUMAN HABITATION. THEREFO RE, SUCH INTEREST IN THESE TWO FLATS CANNOT BE TREATED AS TRANSFER OF A RESIDENTIAL HOUSE. IF THAT BE SO, THE ASSESSEE WILL BE CLEARLY ENTITLED T O GRANT OF EXEMPTION UNDER SECTION 54F PROVIDED THE VARIOUS OTHER CONDIT IONS PRESCRIBED IN THE SAID SECTION HAVE BEEN FULFILLED. THE ASSESSEE ACQUIRED A NEW RESIDENTIAL HOUSE NO. F-3, NITIN APARTMENTS, 17, BE LA ROAD, CIVIL LINES FOR RS. 8,50,000 VIDE SALE DEED EXECUTED ON 24TH JA NUARY, 1989. IT IS NOT THE CASE OF THE REVENUE THAT THE VARIOUS OTHER CONDITIONS PRESCRIBED IN SECTION 54F DO NOT STAND FULFILLED IN THE CASE O F THE ASSESSEE. THE ASSESSEE HAS INVESTED THE AMOUNT OF CAPITAL GAIN FO R PURCHASE OF THE AFORESAID RESIDENTIAL HOUSE WITHIN THE TIME PRESCRI BED UNDER SECTION 54F. THE PROVISIONS OF SECTION 54F WILL THEREFORE, BE CLEARLY APPLICABLE ON THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, IF THE CAPITAL ASSET, NAMELY, INTEREST IN TWO FLATS IN THE PROPERTY AT PU NJABI BAGH ARE HELD TO BE LONG-TERM CAPITAL ASSET. 7.2. THE LD. D.R. ARGUED THAT THE PAYMENTS FOR BOOKING OF THE AFORESAID TWO FLATS WERE MADE BY THE ASSESSEE DURING THE PERI OD FROM 1983 TO 1988 AND EACH PAYMENT WOULD CONSTITUTE A PAYMENT FO R ACQUIRING THE CAPITAL ASSET. SINCE SOME PAYMENTS HAVE BEEN MADE W ITHIN A PERIOD OF 36 MONTHS PRECEDING THE DATE OF ITS TRANSFER, THE A MOUNT OF CAPITAL GAIN DERIVED BY THE ASSESSEE SHOULD BE TREATED AS SHORT- TERM CAPITAL GAIN AS THE INTEREST IN THE FLAT AT PUNJABI BAGH WAS SURREN DERED BY THE ASSESSEE IN THE YEAR 1988 ITSELF. WE ARE NOT INCLINED TO ACC EPT SUCH A CONTENTION ADVANCED BY THE LD. SR. D.R. ON BEHALF OF THE REVEN UE. THE ASSESSEE ACQUIRED SUCH CAPITAL ASSET, NAMELY, THE RIGHTS OR INTEREST IN THE AFORESAID TWO FLATS AT PUNJABI BAGH AS SOON AS THOS E FLATS WERE BOOKED AND THE ALLOTMENT OF THOSE FLATS WERE MADE IN FAVOU R OF THE ASSESSEE BY THE BUILDERS IN THE YEAR 1983 AND 1984. THE MERE FA CT THAT FURTHER INSTALMENTS WERE PAID BY THE ASSESSEE DURING THE YE ARS 1983 TO 1988, WILL NOT LEAD TO THE CONCLUSION THAT THE CAPITAL AS SET IN QUESTION, NAMELY, THE RIGHT OR INTEREST IN THE SAID FLATS WAS HELD BY THE ASSESSEE FOR A PERIOD OF LESS THAN 36 MONTHS. THE ASSESSEE H ELD SUCH CAPITAL ASSET EVER SINCE THOSE TWO FLATS WERE BOOKED AND AL LOTMENT OF THOSE FLATS WERE MADE IN FAVOUR OF THE ASSESSEE BY THE BUILDERS IN THE YEARS 1983 AND 1984. SUCH A VIEW IS CLEARLY FORTIFIED BY THE J UDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. VIMAL LALCHAND MUTHA [1991] 187 ITR 613 . THE HEAD NOTE OF THE SAID JUDGMENT IS REPRODUCED HEREUNDER : 'HELD, THAT THE ASSESSEE HAD ENTERED INTO AN AGREEM ENT FOR THE PURCHASE OF A FLAT IN NOVEMBER, 1977, AND HAD EXECUTED A FOR MAL AGREEMENT IN DECEMBER, 1978. SHE TRANSFERRED HER RIGHT, TITLE AN D INTEREST IN THE FLAT BY AN AGREEMENT TO C IN APRIL, 1983. THE TRIBUNAL W AS, THEREFORE, RIGHT IN HOLDING THAT THE RIGHTS UNDER THE SAID TWO AGREE MENTS OF NOVEMBER, 1977/DECEMBER, 1978, HAD BEEN HELD FOR MORE THAN 36 MONTHS AND THAT THE GAINS ARISING FROM THE TRANSFER OF HER RIG HTS UNDER THE AGREEMENT IN APRIL, 1983, CONSTITUTED LONG-TERM CAP ITAL GAINS. NO QUESTION OF LAW AROSE FROM THE ORDER OF THE TRIBUNA L.' 7.3. IN VIEW OF THE AFORESAID JUDGMENT AND THE FACTS, W E ARE OF THE VIEW THAT THE CAPITAL GAIN DERIVED BY THE ASSESSEE RELAT ES TO A CAPITAL ASSET HELD BY HIM FOR A PERIOD OF MORE THAN 36 MONTHS AND , THEREFORE, THE GAINS ARISING FROM THE TRANSFER OF HIS RIGHTS IN TH E SAID FLATS CONSTITUTED LONG-TERM CAPITAL GAINS. WE HAVE ALREADY HELD THAT THE ASSESSEE WOULD BE ENTITLED TO GRANT OF EXEMPTION UNDER SECTION 54F IN RESPECT OF SUCH ITA NO. 1581/MUM/2017 SHRI MIHIR BHARAT DALAL/A C I T - 17(2) 12 LONG-TERM CAPITAL GAIN. THE GROUND NO. 1 RAISED BY THE ASSESSEE IN HIS APPEAL, THEREFORE, DESERVES TO BE ALLOWED. THE ASSE SSING OFFICER IS DIRECTED TO GRANT RELIEF ACCORDINGLY. 15. FURTHER THE COORDINATE BENCH OF MUMBAI TRIBUNAL IN ANITA D. KANJANI (SUPRA) HELD AS UNDER: 8. WE HAVE GONE THROUGH THE FACTS AND CIRCUMSTANCE S OF THE CASE, ORDERS PASSED BY THE LOWER AUTHORITIES, SUBMISSIONS MADE AND JUDGEMENTS RELIED UPON BEFORE US BY BOTH THE SIDES. THE CHRONOLOGY OF RELEVANT EVENTS IN THIS REGARD IS AS UNDER:- 1. DATE OF ALLOTMENT OF OFFICE UNIT TO THE ASSESSEE - 11-04-2005 2. DATE OF SIGNING OF THE AGREEMENT TO SELL - 28-12 -2007 3. DATE OF REGISTRATION OF THE AFORESAID PROPERTY W ITH THE REGISTRAR 24- 04-2008 4. DATE OF SALE OF AFORESAID PROPERTY - 11-03-2011 THE AO HAS COMPUTED THE HOLDING PERIOD FROM THE DATE OF REGISTRATION, I .E. 24-04-2008 AND ACCORDINGLY IT WAS HELD THAT WHEN THE PROPERTY WAS SOLD ON 11-03-2011 IT WAS HELD FOR LESS THAN 36 MONTHS AND, THEREFORE, IT WAS 'SHORT TERM CAPITAL ASSET'. ON THE OTHER HAND, ASSESSEE HAS CLA IMED THAT THE PROPERTY WAS HELD BY THE ASSESSEE SINCE WHEN ALLOTM ENT LETTER WAS ISSUED TO THE ASSESSEE OF THE SAID PROPERTY, I.E. O N 11-04-2005; WHEN THE PROPERTY WAS DULY IDENTIFIED AND PART PAYMENT WAS M ADE. IT WAS ALTERNATIVELY ARGUED THAT IN ANY CASE, IF THE DATE OF TRANSFER OF PROPERTY IS TO BE TAKEN AS THE BEGINNING POINT OF HOLDING PE RIOD, THEN THE DATE OF SIGNING OF THE AGREEMENT I.E. 28-12-2007 SHOULD BE TAKEN INTO ACCOUNT AND NOT THE DATE OF REGISTRATION OF THE AGREEMENT I N TERMS OF SECTION 47 OF REGISTRATION ACT, 1908 AS HAS ALSO BEEN CLARIFI ED BY THE HON'BLE SUPREME COURT IN THE ABOVE MENTIONED TWO JUDGEMENTS . 9. WITH A VIEW TO RESOLVE THIS DISPUTE, WE HAVE FIR STLY ANALYSED THE PROVISIONS OF SECTION 2(42A) WHICH DEFINES 'SHORT TERM CAPITAL ASSET' AS UNDER:- 'SECTION 2(42A) IN THE INCOME- TAX ACT, 1961 (42A) 'SHORT- TERM CAPITAL ASSET' MEANS A CAPITAL ASSET HELD BY AN ASSESSEE FO R NOT MORE THAN THIRTY- SIX MONTHS IMMEDIATELY PRECEDING THE DATE O F ITS TRANSFER': PERUSAL OF AFORESAID DEFINITION SHOWS THAT THE LEGI SLATURE HAS USED THE EXPRESSION 'HELD'. IT IS FURTHER NOTED BY US THAT I N VARIOUS OTHER ALLIED OR SIMILAR SECTIONS, THE LEGISLATURE HAS PREFERRED TO USE THE EXPRESSION 'ACQUIRED' OR 'PURCHASED' E.G. IN SECTION 54 / 54F . THUS, IT SHOWS THAT THE LEGISLATURE WAS CONSCIOUS WHILE MAKING USE OF THIS EXPRESSION. THE EXPRESSIONS LIKE 'OWNED' HAS NOT BEEN USED FOR THE PURPOSE OF DETERMINING THE NATURE OF ASSET AS SHORT TERM CAPIT AL ASSET OR LONG TERM CAPITAL ASSET. THUS, THE INTENTION OF THE LEGISLATU RE IS CLEAR THAT FOR THE PURPOSE OF DETERMINING THE NATURE OF CAPITAL GAIN, THE LEGISLATURE WAS CONCERNED WITH THE PERIOD DURING WHICH THE ASSET WA S HELD BY THE ASSESSEE FOR ALL PRACTICAL PURPOSES ON DE FACTO BAS IS. THE LEGISLATURE WAS APPARENTLY NOT CONCERNED WITH ABSOLUTE LEGAL OWNERS HIP OF THE ASSET FOR ITA NO. 1581/MUM/2017 SHRI MIHIR BHARAT DALAL/A C I T - 17(2) 13 DETERMINING THE HOLDING PERIOD. THUS, WE HAVE TO AS CERTAIN THE POINT OF TIME FROM WHICH IT CAN BE SAID THAT ASSESSEE STARTE D HOLDING THE ASSET ON DE FACTO BASIS. 10. IT IS NOTED THAT THE LETTER OF ALLOTMENT WAS IS SUED TO THE ASSESSEE ON 11-04- 2005, THE LETTER OF ALLOTMENT MAKES A MENTIO N OF THE IDENTITY OF THE FLAT AS OFFICE UNIT NO.107, LOCATED AT FIRST FL OOR OF EVEREST GRANDE. IT ALSO MAKES A MENTION THAT TOTAL CONSIDERATION OF TH E SAID PROPERTY IS A SUM OF RS.29,64,000/- OUT OF WHICH A SUM OF RS.5 LA KHS WAS PAID BY THE ASSESSEE ON 04-04-2005 BY CHEQUE NO.539104 AS P ART PAYMENT AGAINST THE SAID OFFICE UNIT. IT IS FURTHER NOTED B Y US THAT HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS A SURESH RAO 223 TAXMANN 228 (KAR) DEALT WITH SIMILAR ISSUE WHEREIN THE SIGN IFICANCE OF THE EXPRESSION 'HELD' USED BY THE LEGISLATURE HAS BEEN ANALYSED AND EXPLAINED AT LENGTH. HON'BLE HIGH COURT ANALYSED VA RIOUS PROVISIONS OF THE ACT PERTAINING TO COMPUTATION OF CAPITAL GAIN U NDER VARIOUS SITUATIONS AND ALSO CIRCULARS ISSUED BY THE CBDT ON THIS ISSUE. RELEVANT PORTION OF THE OBSERVATION WHEREIN THE ISSUE BEFORE US HAS BEEN PROPERLY ANALYSED IS REPRODUCED HEREUNDER:- 12. 'THE DEFINITION AS CONTAINED IN SECTION 2 (42 A) OF THE ACT , THOUGH USES THE WORDS, 'A CAPITAL ASSET HELD AN ASSESSEE F OR NOT MORE THAN THIRTY-SIX MONTHS IMMEDIATELY PRECEDING THE DATE OF ITS TRANSFER', FOR THE PURPOSE OF HOLDING AN ASSET, IT IS NOT NECESSAR Y THAT, HE SHOULD BE THE OWNER OF THE ASSET, WITH A REGISTERED DEED O F CONVEYANCE CONFERRING TITLE ON HIM. IN THE LIGHT OF THE EXPAND ED DEFINITION AS CONTAINED IN ITA NO.2291/MUM/2015 SECTION 2(47) , EVEN WHEN A SALE, EXCHANGE, OR RELINQUISHMENT OR EXTINGUISHMENT OF ANY RIGHT, UNDER A TRANSACTION THE ASSESSEE IS PUT IN POSSESSI ON OF AN IMMOVABLE PROPERTY OR HE RETAINED THE SAME IN PART PERFORMANCE OF THE CONTRACT UNDER SECTION 53-A OF THE TRANSFER OF PROPERTY ACT, IT AMOUNTS TO TRANSFER. NO REGISTERED DEED OF SALE IS REQUIRED TO CONSTITUTE A TRANSFER. SIMILARLY, ANY TRANSACTION W HETHER BY WAY OF BECOMING A MEMBER OF OR ACQUIRING SHARES IN A CO-OP ERATIVE SOCIETY, COMPANY OR OTHER ASSOCIATION OF PERSONS OR BY WAY O F ANY AGREEMENT OR ANY ARRANGEMENT OR IN ANY OTHER MANNER WHATSOEVE R, WHICH HAS THE EFFECT OF TRANSFERRING, OR ENABLING THE ENJOYME NT OF ANY IMMOVABLE PROPERTY, ALSO CONSTITUTES TRANSFER AND T HE ASSESSEE IS SAID TO HOLD THE SAID PROPERTY FOR THE PURPOSE OF T HE DEFINITION OF 'SHORT-TERM CAPITAL GAIN'. IN FACT, THE CIRCULAR NO .495 MAKES IT CLEAR THAT TRANSACTIONS OF THE NATURE REFERRED TO ABOVE A RE NOT REQUIRED TO BE REGISTERED UNDER THE REGISTRATION ACT, 1908. SUCH ARRANGEMENTS CONFER THE PRIVILEGES OF OWNERSHIP WITHOUT TRANSFER OF TITLE IN THE BUILDING AND ARE COMMON MODE OF ACQUIRING FLATS PAR TICULARLY IN MULTISTORIED CONSTRUCTIONS IN BIG CITIES. THE AFORE SAID NEW SUB- CLAUSES (V) AND (VI) HAVE BEEN INSERTED IN SECTION 2(47) TO PREVENT AVOIDANCE OF CAPITAL GAINS LIABILITY BY RECOURSE TO TRANSFER OF RIGHTS IN THE MANNER REFERRED TO ABOVE. A PERSON HOLDING THE POWER OF ATTORNEY IS AUTHORIZED THE POWERS OF OWNER, INCLUDING THAT O F MAKING CONSTRUCTION THOUGH THE LEGAL OWNERSHIP IN SUCH CAS ES CONTINUES TO BE WITH THE TRANSFEROR. THE INTENTION OF LEGISLATUR E IS TO TREAT EVEN SUCH TRANSACTIONS AS TRANSFERS AND THE CAPITAL GAIN ARISING OUT OF SUCH TRANSACTIONS ARE BROUGHT TO TAX. FURTHER, THE CIRCULAR NO.471 ITA NO. 1581/MUM/2017 SHRI MIHIR BHARAT DALAL/A C I T - 17(2) 14 GOES TO THE EXTENT OF CLARIFYING THAT FOR THE PURPO SE OF INCOME-TAX ACT , THE ALLOTTEE GETS TITLE TO THE PROPERTY ON THE IS SUANCE OF THE ALLOTMENT LETTER AND THE PAYMENT OF INSTALLMENTS IS ONLY A FOLLOW UP ACTION AND TAKING THE DELIVERY OF POSSESSION IS ONL Y A FORMALITY. IN CASE OF CONSTRUCTION AGREEMENTS, THE TENTATIVE COST OF CONSTRUCTION IS ALREADY DETERMINED AND THE AGREEMENT PROVIDES FOR P AYMENT OF COST OF CONSTRUCTION IN INSTALLMENTS SUBJECT TO THE COND ITION THAT THE ALLOTTEE HAS TO BEAR THE INCREASE, IF ANY, IN THE C OST OF CONSTRUCTION. THEREFORE, FOR THE PURPOSE OF CAPITAL GAINS TAX THE COST OF THE NEW ASSET IS THE TENTATIVE COST OF CONSTRUCTION AND THE FACT THAT THE AMOUNT WAS ALLOWED TO BE PAID IN INSTALLMENTS DOES NOT AFFECT THE LEGAL POSITION. THEREFORE, IN CONSTRUING SUCH TAXAT ION PROVISIONS, WHAT SHOULD BE THE APPROACH OF THE COURTS AND THE I NTERPRETATION TO BE PLACED IS CLEARLY SET OUT BY THE APEX COURT IN T HE CASE OF SMT. SAROJ AGGARWAL VS CIT 156 ITA NO.2291/MUM/2015 ITR 497 WHEREIN IT IS HELD AS UNDER: 'FACTS SHOULD BE VIEWED IN NATURAL PERSPECTIVE, HAV ING REGARD TO THE COMPULSION OF THE CIRCUMSTANCES OF A CASE. WHERE IT IS POSSIBLE TO DRAW TWO INFERENCES FROM THE FACTS AND WHERE THERE IS NO EVIDENCE OF ANY DISHONEST OR IMPROPER MOTIVE ON THE PART OF THE ASSESSEE, IT WOULD BE JUST AND EQUITABLE TO DRAW SUCH INFERENCE IN SUC H A MANNER THAT WOULD LEAD TO EQUITY AND JUSTICE. TOO HYPER-TECHNIC AL OR LEGALISTIC APPROACH SHOULD BE AVOIDED IN LOOKING AT A PROVISIO N WHICH MUST BE EQUITABLY INTERPRETED AND JUSTLY ADMINISTERED...... .........COURTS SHOULD, WHENEVER POSSIBLE UNLESS PREVENTED BY THE EXPRESS L ANGUAGE BY ANY SECTION OR COMPELLING CIRCUMSTANCES OF ANY PARTICUL AR CASE, MAKE A BENEVOLENT AND JUSTICE ORIENTED INFERENCE. FACTS MU ST BE VIEWED IN THE SOCIAL MILIEU OF A COUNTRY.' THEREFORE, KEEPING THE AFORESAID PRINCIPLES IN MIND , WHEN WE LOOK AT SECTION 48 , THE LANGUAGE EMPLOYED IS UNAMBIGUOUS. THE INTENTI ON IS VERY CLEAR. WHEN A CAPITAL ASSET IS TRANSFERRED, IN ORDER TO DETERMINE THE CAPITAL GAIN FROM SUCH TRANSFER, WHAT IS TO BE SEEN IS, OUT OF FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING, TH E COST OF ACQUISITION OF THE ASSET, THE COST OF IMPROVEMENT AND ANY EXPEN DITURE WHOLLY OR EXCLUSIVELY INCURRED IN CONNECTION WITH SUCH TRANSF ER IS TO BE DEDUCTED. WHAT REMAINS THEREAFTER IS THE CAPITAL GAIN. IT IS NOT NECESSARY THAT AFTER PAYMENT OF COST OF ACQUISITION, A TITLE DEED IS TO BE EXECUTED IN FAVOUR OF THE ASSESSEE. EVEN IN THE ABSENCE OF A TI TLE DEED, THE ASSESSEE HOLDS THAT PROPERTY AND THEREFORE, IT IS T HE POINT OF TIME AT WHICH HE HOLDS THE PROPERTY, WHICH IS TO BE TAKEN I NTO CONSIDERATION IN DETERMINING THE PERIOD BETWEEN THE DATE OF ACQUISIT ION AND DATE OF TRANSFER OF SUCH CAPITAL GAIN IN ORDER TO DECIDE WH ETHER IT IS A SHORT- TERM CAPITAL GAIN OR A LONG-TERM CAPITAL GAIN.' THUS, FROM THE AFORESAID JUDGMENT, IT IS CLEAR THAT FOR THE PURPOSE OF HOLDING AN ASSET, IT IS NOT NECESSARY THAT THE ASS ESSEE SHOULD BE THE OWNER OF THE ASSET BASED UPON A REGISTRATION OF CON VEYANCE CONFERRING TITLE ON HIM. 11. SIMILARLY, IN THE CASE OF MADHU KAUL (SUPRA), T HE HON'BLE PUNJAB & HARYANA HIGH COURT ANALYSED VARIOUS CIRCULARS AND P ROVISIONS OF THE ACT ITA NO. 1581/MUM/2017 SHRI MIHIR BHARAT DALAL/A C I T - 17(2) 15 THAT ON ALLOTMENT OF FLAT AND MAKING FIRST INSTALLM ENT THE ASSESSEE WAS CONFERRED WITH A RIGHT TO HOLD A FLAT WHICH WAS LAT ER IDENTIFIED AND POSSESSION DELIVERED ON LATER DATE. THE MERE FACT T HAT POSSESSION WAS DELIVERED LATER, WOULD NOT DETRACT FROM THE FACT TH AT ASSESSEE (ALLOTTEE) WAS CONFERRED A RIGHT TO HOLD THE PROPERTY ON ISSUA NCE OF AN ALLOTMENT LETTER. THE PAYMENT OF BALANCE AMOUNT AND DELIVERY OF POSSESSION ARE CONSEQUENTIAL ACTS THAT RELATE BACK TO AND ARISE FR OM THE RIGHTS CONFERRED BY THE ALLOTMENT LETTER UPON THE ASSESSEE . 13. IN THE CASE OF VINOD KUMAR JAIN VS CIT 344 ITR 501 IT WAS HELD BY HON'BLE PUNJAB & HARYANA HIGH COURT THAT CONJOINED READING OF SECTION 2(14) , 2(29A) AND 2(42A) CLARIFIES THAT HOLDING PERIOD OF THE ASSESSEE STARTS FROM THE DATE OF ISSUANCE OF ALLOTMENT LETTE R. SINCE ALLOTTEE GETS TITLE OF THE PROPERTY ON THE ISSUANCE OF ALLOTMENT LETTER AND PAYMENT OF FIRST INSTALLMENT IS ONLY A CONSEQUENTIAL ACTION UP ON WHICH DELIVERY OF POSSESSION FLOWS. EVEN IF THE SALE DEED OR AGREEMEN T TO SELL IS EXECUTED OR REGISTERED SUBSEQUENTLY BUT THE ASSESSEE ALWAYS HAD A RIGHT IN THE PROPERTY SINCE THE DATE OF ISSUANCE OF ALLOTMENT LE TTER. THEREFORE, IT CAN BE SAID THAT ASSESSEE HELD THE PROPERTY IMMEDIATELY FROM THE DATE OF ALLOTMENT LETTER. 14. IN THE CASE OF CIT VS K RAMAKRISHNAN (SUPRA), HON'BLE DELHI HIGH COURT ANALYSED THE PROVISIONS OF THE ACT AND HELD T HAT DATE OF ALLOTMENT IS RELEVANT FOR THE PURPOSE OF COMPUTING HOLDING PE RIOD AND NOT THE DATE OF REGISTRATION OF CONVEYANCE DEED. SIMILARLY IN TH E CASE OF CIT VS S.R. JEYASHANKAR (SUPRA), HON'BLE MADRAS HIGH COURT TOOK A SIMILAR V IEW FOLLOWING THE AFORESAID JUDGMENT AND HELD THAT HOL DING PERIOD SHALL BE COMPUTED FROM THE DATE OF ALLOTMENT. IT IS NOTED BY US THAT SIMILAR VIEW HAS BEEN TAKEN BY OTHER HIGH COURTS IN THE JUDGMENT S WHICH HAVE BEEN RELIED UPON BY THE LD. COUNSEL BEFORE US AND MENTIO NED IN EARLIER PART OF OUR ORDER. 15. IN THE ASSESSMENT ORDER, THE LD. AO HAS PLACED RELIANCE UPON THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF SU RAJ LAMPS & INDUSTRIES PVT LTD (SUPRA) FOR THE PROPOSITION THAT TRANSFER OF A PROPERTY SHALL BE EFFECTIVE ONLY ON REGISTRATION OF CONVEYAN CE DEED IN VIEW OF SECTION 54 OF TRANSFER OF PROPERTY ACT. IN OUR VIEW, IT IS A SETTLED PROPOSITION OF LAW AND THERE IS NO DISPUTE ON THAT. THE ABSOLUTE LEGAL OWNERSHIP OF AN IMMOVABLE PROPERTY SHALL TAKE PLACE IN TERMS OF VARIOUS PROVISIONS OF TRANSFER OF PROPERTY ACT WHICH NEEDS TO BE READ WITH PROVISIONS OF SECTION 2(47) OF INCOME-TAX ACT, 1961 FOR THE PURPOSE OF COMPUTING TAX LIABILITY ARISING ON ACCOUNT OF SALE / PURCHASE OF IMMOVABLE PROPERTIES UNDER INCOME-TAX ACT . BUT THE ISSUE HERE BEFORE US IS DIFFERENT. AS DISCUSSED EARLIER, THE HOLDING PERIOD IS TO BE DETERMINED IN TERMS OF SECTION 2(42A) OF THE ACT WHICH HAS BEEN REPRODUCED AND DISCUSSED ABOVE. THE ISSUE OF TRANSF ER OF OWNERSHIP IS NOT THE ISSUE TO BE DECIDED HERE FOR COMPUTING THE HOLDING PERIOD. THEREFORE, WE FIND THAT APPLICATION OF THE RATIO OF AFORESAID JUDGMENT WOULD NOT BE APPROPRIATE HERE. 16. THUS, RESPECTFULLY FOLLOWING THE JUDGMENTS OF V ARIOUS HIGH COURTS WHEREIN THIS VERY ISSUE HAS BEEN ANALYSED IN DETAIL AS DISCUSSED ABOVE AT LENGTH, WE FIND THAT HOLDING PERIOD SHOULD BE CO MPUTED FROM THE DATE ITA NO. 1581/MUM/2017 SHRI MIHIR BHARAT DALAL/A C I T - 17(2) 16 OF ISSUE OF ALLOTMENT LETTER. IF WE DO SO, THE HOLD ING PERIOD BECOMES MORE THAN 36 MONTHS AND CONSEQUENTLY, THE PROPERTY SOLD BY THE ASSESSEE WOULD BE LONG TERM CAPITAL ASSET IN THE HANDS OF TH E ASSESSEE AND THE GAIN ON SALE OF THE SAME WOULD BE TAXABLE IN THE HA NDS OF THE ASSESSEE AS LONG TERM CAPITAL GAIN. WE DIRECT ACCORDINGLY. 16. IN VIEW OF THE AFORESAID LEGAL AND FACTUAL DISCUSSI ONS AND FOLLOWING THE DECISION OF TRIBUNAL AS REFERRED ABOVE, WE HOLD THAT THE PERIOD OF HOLDING OF FLATS SHOULD BE COMPUTED FROM THE DATE OF ALLOTM ENT LETTER. BY TAKING THE PERIOD OF HOLDING FROM DATE OF ALLOTMENT I.E 12.12.2007 TH E HOLDING PERIOD BECOMES MORE THAN 36 MONTHS AND CONSEQUENTLY THE ASSESSEE IS ENT ITLED FOR CLAIMING THE BENEFIT OF LONG TERM CAPITAL GAIN. SINCE, THE ASSES SEE CLAIMED TO HAVE INVESTED THE SALE PROCEED IN ACQUISITION OF NEW RES IDENTIAL PROPERTY WITHIN THE PRESCRIBED PERIOD AS PROVIDED UNDER SECTION 54 THE ASSESSEE IS ALSO ENTITLED FOR EXEMPTION. THEREFORE, WE ALLOW THE GRO UND NO.2 & 3 OF APPEAL AND DIRECT THE ASSESSING OFFICER TO COMPUTE THE LON G TERM CAPITAL GAIN AND FURTHER ALLOW THE EXEMPTION UNDER SECTION 54F IN RE SPECT OF SHARE OF THE ASSESSEE FROM THE COMPENSATION RECEIVED BY THE ASSE SSEE FROM THE BUILDER, IN ACCORDANCE WITH LAW. 17. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH JANUARY, 2019. SD/- SD/- (N.K. PRADHAN) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 16 TH JANUARY, 2019 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -28, MUMBAI 4. THE PR.CIT - 17, MUMBAI 5. THE DR, D BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.