Sarika Pankaj Navlakha, Pune V. Income-tax Officer, Ward - 11 (2), Pune

ITA 1768/PUN/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 1087 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 17-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Capital Gains
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “SMC”, PUNE BEFORE SHRI S. S. GODARA, JUDICIAL MEMBER आयकर अपील सं. / ITA No.1768/PUN/2019 िनधाᭅरण वषᭅ / Assessment Year: 2014-15 Sarika Pankaj Navlakha, Plot No.19, Matruchhaya, Audumbar Society, Pune- 411037. PAN : AEVPB2442Q Vs. ITO, Ward-11(2), Pune. Appellant Respondent आदेश / ORDER PER S. S. GODARA, JM: This assessee’s appeal for assessment year 2014-15 arises against the CIT(A)-1 Pune’s order dated 23.09.2019 passed in case no.PN/CIT(A)-1/ITO,Wd.11(2)/PN/712/16-17 involving proceedings u/s 143(3) of the Income Tax Act, 1961; in short the Act. Heard both the parties. Case file perused. 2. Coming to sole substantive issue between the parties regarding the assessee’s holding period of the capital asset forming subject matter of transfer herein, it emerges that the CIT(A) has affirmed the assessment findings holding her to have transferred a short term capital asset as follows :- Assessee by : Smt. J. R. Chandekar Revenue by : Shri Arvind Desai Date of hearing : 24.05.2022 Date of pronouncement : 26.05.2022 ITA No.1768/PUN/2019 2 “5.5.1 I have carefully considered the submission of the appellant in light of the judicial decisions and the facts as brought by the AO. The impugned issue is whether or not the Ld. AO was justified in taking the date of possession as the date for calculation of capital gain. Briefly stated, the facts are that the appellant had purchased a flat from M/s. Vahi Mantra Ventures along with her husband for Rs. 15,93,000/- on 17.02.2011. The possession of the said flat was taken on 17.12.2013. As per the agreement entered with the builder on 17.02.2011, the appellant had, out of the purchased consideration of Rs. 15,93,000/-, paid Rs. 2,39,000/- to the promoter on the date of this execution of agreement of sale i.e., 07.02.2011. The possession of the flat was handed over to the appellant on 17.12.2013. Before the possession of the flat, the appellant had to further make the payment of the remaining amount as per the payment schedule annexed at Second schedule of the agreement. During the course of the appellate proceedings, the Ld. AR of the appellant filed written submission and relied on the decision of the Delhi HC in the case of CIT Vs. K. Rama Krishna (supra) for a proposition that the date of allotment of plot to the assessee to be considered for the purpose of capital gain.” 3. The Revenue vehemently argued that the learned lower authorities have rightly gone by the date of possession in assessee’s case i.e. 17.12.2013 followed by transfer thereof falling in the impugned assessment year itself. Mr. Desai vehemently supported the Revenue stand. He failed to dispute that the assessee in fact has executed the transfer deed cum irrevocable of power of attorney regarding “right, title and interest” in the flat than the flat itself. She had acquired as her said right at the time of first and foremost instalment vide agreement dated 17.02.2011 than the possession and therefore, her share transferred deserves recognized from the date of agreement and first instalment falling on 07.02.2011 only. That being the case, I reject Revenue’s vehement contention supporting the short term capital gains addition of Rs.19,04,960/- and direct the ITA No.1768/PUN/2019 3 learned Assessing Officer to rather compute long term capital gains rather as per law in consequential proceedings. Ordered accordingly. 4. This assessee’s appeal is partly allowed in above terms. Order pronounced on this 26 th day of May, 2022. Sd/- (S. S. GODARA) JUDICIAL MEMBER पुणे / Pune; ᳰदनांक / Dated : 26 th May, 2022. Sujeet (DOC) आदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A)-1, Pune 4. The Pr. CIT-1, Pune. 5. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “SMC” बᱶच, पुणे / DR, ITAT, “SMC” Bench, Pune. 6. गाडᭅ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.