Govind Singh Grewal , New Delhi V. ITO, Ward- 61(1), New Delhi

ITA 3232/DEL/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 7940 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 04-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJIV MAHAJAN
• Keywords: Capital asset; Cost of acquisition; Set aside
• Section: 2(14); 201; 48; 13; 54

Judgement Text

IN TH E INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC - 1 : NEW DELHI (THROUGH VIRTUAL HEARING) BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO . 3232 /DEL/201 8 ASSESSMENT YEAR : 20 13 - 14 GOVIND SINGH GREWAL, 8 - A, PANCHSHEEL MARG, CHANAKYA PURI, NEW D ELHI. PAN: A GHPG7795D VS ITO, WARD - 61 ( 1 ) , NEW DELHI. (APP ELL A NT ) (RESPONDENT) A SSESSEE BY : SHRI VED JAIN, ADVOCATE RE VENUE BY : SHRI SANJIV MAHAJAN, SR. DR DATE OF HEARING : 2 7 . 0 1 . 20 2 1 DATE OF PRONOUNCEMENT : 31 . 0 3 . 20 2 1 ORDER TH IS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 31 ST MARCH, 201 8 OF THE CIT(A) - 20 , NEW DELHI, RELATING TO ASSESSMENT YEAR 20 13 - 14 . 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A N INDIVIDUAL AND DER IVES INCOME FROM PROFESSION, CAPITAL GAIN AND INCOME FROM OTHER SOURCES. HE FILED HI S RETURN OF INCOME ON 31 ST JULY, 20 13 DECLARING THE TOTAL INCOME AT RS. 8,89,482 / - . THE AO, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, NOTED THAT THE ASSESSEE HAS SOLD T HE COMMERCIAL PROPERTY BEARING SHOP NO.DCT - 11 2 ON FIRST FLOOR, HAVING COVERED AREA OF 123.800 SQ. MTRS. I N THE MULTI - STORIED BUILDING KNOWN AS DLF CITY ITA NO. 3232 /DEL/201 8 2 COURT VIDE SALE DEED DATED 21.09.2012 FOR A SALE CONSIDERATION OF RS.2,50,00,000/ - AND SHOWN CAPITAL GAI N OF HIS 50% SHARE WHICH COMES TO RS.57,10,042/ - AFTER TAKING THE INDEXATION. FURTHER, EXEMPTION U/S 54 HAS BEEN CLAIMED BY THE ASSESSEE. HE FURTHER NOTED THAT THE ASSESSEE HAS DEPOSITED THE SAME IN CAPITAL GAIN ACCOUNT WITH CANARA BANK , MALCHA MARG, CHA NAKYAPURI, NEW DELHI. SUBSEQUENTLY, IN F.Y. 2013 - 14, I.E., ASSESSMENT YEAR 2014 - 15, THE ASSESSEE HAS WITHDRAWN THE CAPITAL GAIN AMOUNT AND DECLARED RS.57,10,042/ - AS INCOME FOR A.Y. 2014 - 15. HOWEVER, WHILE CALCULATING THE CAPITAL GAIN, THE ASSESSEE HAS C LAIMED INDEXED COST OF ACQUISITION AND APPLIED THE COST INFLATION INDEX OF F.Y. 2007 - 08 FOR THE ENTIRE AMOUNT OF RS.86,20,638/ - DEPOSITED FROM 30 TH OCTOBER, 2007 TO 18 TH MAY, 2010 ALONG WITH COST OF TRANSFER CHARGES. IN VIEW OF THE ABOVE, THE AO ASKED THE ASSESSEE TO SUBMIT THE FOLLOWING DETAILS: - (I) AS PER COPY OF SALE DEED AND COMPUTATION OF INCOME FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS, YOU HAVE SOLD COMMERCIAL SHOP BEARING NO. DCT - 112, ON 1ST FLOOR, HAVING COVERED AREA 123.800 SQ. MTRS IN THE M ULTI STORIED BUILDING KNOWN AS DLF CITY COURT FOR A SALE CONSIDERATION OF RS. 2,50,00,000/ - . (II) AS PER COMPUTATION OF INCOME YOU HAVE SHOWN 50% SHARE AS SALE CONSIDERATION OF RS. 1,25,00,000/ - AND ALSO CLAIMED EXPENDITURE ON TRANSFER RS. 1,25,000/ - . ITA NO. 3232 /DEL/201 8 3 (II I) AS PER INDEX COST OF ACQUISITION YOU HAVE CLAIMED THE INDEXATION OF RS. 1,33,29,917/ - AND YOUR SHARE IN THE SAME COMES TO RS. 66,64,958/ - THE INDEX COST ACQUISITION HAS BEE N APPLIED OF F.Y. 200708 (THE YEAR OF ALLOTMENT). (IV) AS PER DETAIL SUBMITTED B Y YOU, THE ASSESSEE HAS MADE THE PAYMENT TOWARDS THE PROPERTY FROM F.Y. 2007 - 08 TO 20 10 - 11 AMOUNTING TO RS. 80,33,579/ - . PLEASE EXPLAIN AS TO WHY THE INDEXATION SHOULD NOT BE ALLOWED ON THE BASIS OF DATE OF PAYMENTS (FINANCIAL YEAR WISE) AS AGAINST YOUR CL AIM OF THE ENTIRE AMOUNT IN THE F.Y. 2007 - 08. CASE WAS FIXED FOR HEARING ON 10.03.2016 AT 11:30AM . 3. THE ASSESSEE, RELYING ON VARIOUS DECISIONS, SUBMITTED THAT THE DATE OF ALLOTMENT HAS TO BE TREATED AS THE DATE OF ACQUISITION. HOWEVER, THE AO WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE AND DETERMINED THE LONG - TERM CAPITAL GAIN OF RS.5,34,328/ - 4. IN APPEAL , THE LD.CIT(A), ON THE BASIS OF VARIOUS ARGUMENTS ADVANCED BY THE ASSESSEE, ISSUED ENHANCEMENT NOTICE TO THE ASSESSEE AND HELD THA T THE TRANSFER OF THE ASSET IN THIS CASE IS SHORT - TERM CAPITAL ASSET AND THE ASSESSEE IS NOT ENTITLED FOR INDEXATION BENEFIT. HE, THEREFORE, DIRECTED THE AO TO TREAT THE GAIN ARISING ON THE TRANSFER AS SHORT - TERM CAPITAL GAIN AND CALCULATE SHORT - TERM CAPI TAL GAIN WITHOUT GRANTING ANY INDEXATION BENEFIT. ITA NO. 3232 /DEL/201 8 4 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY LEARNED COMM ISSIONER OF INCOME TAX (APPEALS) [CIT(A)] IS BAD BOTH IN THE EYE OF LAW AND ON FACTS. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN ENHANCING THE INCOME OF THE ASSESSEE WITHOUT FOLLOWING DUE PROCEDURE AS PRESCRIBED UNDER THE LAW. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN TREATING THE TRANSACTION OF SALE OF CAPITAL ASSET AS SHORT - TERM CAPITAL GAIN AS AGAINST LONG TERM - CAPITAL GAIN DECLARED BY THE ASSESSEE 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN MISINTERPRETING THE PROVISIONS OF SECTION 2(42A) OF THE INCOME TAX ACT. 5 I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN IGNORING THE SETTLED POSITION OF LAW THAT HOLDING PERIOD HAS TO BE COMPUTED FROM DATE OF ISSUE OF ALLOTMENT LETTER AND NOT FROM DATE WHEN AGREEMENT TO SELL WAS REGISTERED II) ON THE FACTS AND CIRCUMSTANCES O F THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN IGNORING THE FACT THAT THE RIGHTS, TITLE AND INTEREST IN THE PROPERTY WAS ITSELF FROM THE DATE OF ALLOTMENT LETTER OF PROPERTY, 6) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARN ED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN NOT CONSIDERING THE JUDICIAL PRECEDENTS RELIED UPON BY THE 7) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED, BOTH ON FACTS AND IN LAW, IN ENHANCING THE INCOME OF THE ASSESSEE BY A RBITRARILY INDULGING INTO SURMISES AND CONJECTURES. 8) THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTER ANY OF THE GROUNDS OF APPEAL. 6 . THE LD. COUNSEL FOR THE ASSESSEE STRONGLY CHALLENGED THE ORDER OF THE CIT(A) IN DIRECTING THE AO TO TREAT THE GAIN ON TRANSFER OF ASSET AS SHORT - TERM CAPITAL GAIN. HE SUBMITTED THAT THE ISSUE IN THE INSTANT CASE STANDS DECIDED IN FAVOUR OF THE ITA NO. 3232 /DEL/201 8 5 ASSESSEE BY A PLETHORA OF DECISIONS WHEREIN IT HAS BEEN HELD THAT TO DETERMINE THE TAXABILITY OF CAPITAL GAIN ARISING FRO M SALE OF PROPERTY, IT IS THE DATE OF ALLOTMENT OF PROPERTY WHICH IS RELEVANT FOR THE PURPOSE OF COMPUTING THE HOLDING PERIOD AND NOT THE DATE OF REGISTRATION OF CONVEYANCE DEED. R EFERRING TO THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CAS E OF RANJANA BAMMI VS. ACIT, REPORTED IN 2017 (8) TMI 338, HE SUBMITTED THAT THE TRIBUNAL, RELYING ON VARIOUS DECISIONS INCLUDING THE DECISION OF THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. K. RAMAKRISHNA, REPORTED IN 363 ITR 59, HELD THAT IN ORDER TO DETERMINE THE TAXABILITY OF CAPITAL GAIN ARISING FROM SALE OF PROPERTY, IT IS THE DATE OF ALLOTMENT OF PROPERTY WHICH IS RELEVANT FOR THE PURPOSE OF COMPUTING HOLDING PERIOD AND NOT THE DATE OF REGISTRATION OF CONVEYANCE DEED. REFERRING TO TH E DECISION OF THE HON BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF MRS. MADHU KAUL VS. CIT, REPORTED IN 363 ITR 54, HE SUBMITTED THAT THE HON BLE HIGH COURT IN THE SAID DECISION HAS HELD THAT THE MERE FACT THAT POSSESSION WAS DELIVERED LATER DOES NOT DET RACT FROM THE FACT THAT THE ALLOTTEE WAS CONFERRED A RIGHT TO HOLD PROPERTY ON ISSUANCE OF AN ALLOTMENT LETTER . REFERRING TO THE DECISION OF THE COORDINATE BENCH IN THE CASE OF B.R. ASSOCIATES PVT. LTD. VS. ACIT 2014 (6) TMI 933, HE SUBMITTED THAT THE TRI BUNAL IN THE SAID DECISION HAS HELD THAT IN ORDER TO CALCULATE THE THREE YEARS FOR THE PURPOSE OF COMPUTING THE CAPITAL GAIN, ONE HAS TO TAKE INTO ACCOUNT THE DATE OF ALLOTMENT OF THE FLAT FROM THE BUILDER TO THE ASSESSEE AND FROM THAT DATE ONWARDS THE RIG HT TO THE SAID PROPERTY IS ACQUIRED BY THE ASSESSEE. ITA NO. 3232 /DEL/201 8 6 7. SIMILAR VIEW HAS BEEN TAKEN BY THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF PRAVEEN GUPTA VS. ACIT REPORTED IN 2010 (8) TMI 820 WHEREIN IT HAS BEEN HELD: GOING INTO THE PROVISIONS, IT IS NOT NECE SSARY THAT TO CONSTITUTE A CAPITAL ASSET THE ASSESSEE MUST BE THE OWNER BY WAY OF A CONVEYANCE DEED IN RESPECT OF THAT ASSET FOR THE PURPOSE OF COMPUTING CAPITAL GAIN. THE WORD HELD USED IN SECTION 2(14) AS WELL AS EXPLANATION TO SECTION 48 CLEARLY DEPI CTS THAT ASSESSEE MUST HAVE SOME RIGHT IN THE CAPITAL ASSET WHICH IS SUBJECT TO TRANSFER. BY MAKING THE PAYMENT TO THE BUILDER AND HAVING RECEIVED ALLOTMENT LETTER IN LIEU THEREOF, THE ASSESSEE WILL BE HOLDING CAPITAL ASSET AND, THEREFORE, THE BENEFIT OF INDEXATION HAS TO BE GRANTED TO THE ASSESSEE ON THE BASIS OF PAYMENTS MADE BY HIM FOR ACQUIRING THE SAID ASSET. THEREFORE, THE ASSESSEE SHOULD BE GIVEN THE BENEFIT OF INDEXATION. SIMILAR VIEW HAS BEEN TAKEN BY THE DELHI BENCH OF THE TRIBUNAL IN THE CASE O F JITENDRA MOHAN VS. ITO REPORTED IN 2006 (11) TMI 371, THE HON BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. ANILABEN UPENDRA SHAH (2003) 262 ITR 657, CIT VS. JINDAS PANCHAND GANDHI, REPORTED IN 279 ITR 552 AND VARIOUS OTHER DECISIONS. HE ACCORDINGLY SUB MITTED THAT THE ORDER PASSED BY THE LOWER AUTHORITIES BEING BAD IN THE EYE OF LAW HAS TO BE SET ASIDE AND THE GAIN ON THE SALE OF FLAT SHOULD BE TREATED AS LONG - TERM CAPITAL GAIN BY ALLOWING INDEXATION BENEFIT FROM THE DATE OF ALLOTMENT/DATE OF BUYER S AGR EEMENT AND NOT FROM THE DATE OF PAYMENTS/DATE OF REGISTRATION. 8. THE LD. DR, ON THE OTHER HAND, HEAVILY RELIED ON THE ORDER OF THE CIT(A). HE SUBMITTED THAT THE LD.CIT(A) HAS RIGHTLY HELD THAT THE PROPERTY WAS ALLOTTED TO THE ITA NO. 3232 /DEL/201 8 7 ASSESSEE ON 30 TH OCTOBER, 2 007 AND THE ASSESSEE ENTERED INTO COMMERCIAL SPACE BUYER S AGREEMENT WITH DLF CITY ON 22.01.2008 AND MADE THE PAYMENTS DURING THE PERIOD FROM 30 TH OCTOBER, 2007 TO 18 TH MAY, 2010 AMOUNTING TO RS.80,33,579/ - . THE CONVEYANCE DEED IN FAVOUR OF THE ASSESSEE W AS REGISTERED ON 24 TH MAY, 2011 AND THE POSSESSION WAS TAKEN BY THE ASSESSEE ON 19.01.2011. SINCE THIS PROPERTY WAS SOLD ON 21.09.2012 FOR A SALE CONSIDERATION OF RS.1,25,00,000/ - , THEREFORE, THE PROPERTY WAS SOLD WITHIN 16 MONTHS OF THE PURCHASE OF THE P ROPERTY AND, THEREFORE, THE GAIN ARISING FROM THIS PROPERTY IS SHORT - TERM CAPITAL GAIN AND NOT LONG - TERM CAPITAL GAIN AND THE ASSESSEE IS NOT ENTITLED TO ANY INDEXATION BENEFIT . HE ACCORDINGLY SUBMITTED THAT THE ORDER OF THE CIT(A) BEING IN ACCORDANCE WIT H THE LAW SHOULD BE UPHELD AND THE GROUNDS RAISED BY THE ASSESSEE SHOULD BE DISMISSED. 9 . I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES , PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. I HA VE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE ME. I FIND, THE ASSESSEE IN THE INSTANT CASE WAS ALLOTTED A PROPERTY AT DLF CITY COURT ON 30 TH OCTOBER, 2007 AND THE ASSESSEE ENTERED INTO A COMMERCIAL SPACE BUYER S AGREEMENT WITH DLF CITY ON 22.01.20 08 AND STARTED MAKING PAYMENTS FROM 30 TH OCTOBER, 2007 TO 18 TH MAY, 2010, TOTALING TO RS.80,33,579/ - . THE CONVEYANCE DEED IN FAVOUR OF THE ASSESSEE FOR THE SAID PROPERTY WAS REGISTERED ON 24 TH MAY, 2011 AND THE POSSESSION OF THE PROPERTY WAS ALSO TAKEN ON 19.01.2011. THE ASSESSEE SOLD THE PROPERTY ON 21 ST SEPTEMBER, 2012 FOR A SALE CONSIDERATION OF RS.1,25,00,000/ - . I ITA NO. 3232 /DEL/201 8 8 FIND, THE ASSESSEE WHILE COMPUTING THE LONG - TERM CAPITAL GAIN CLAIMED THE INDEXATION BENEFIT OF THE ENTIRE AMOUNT IN THE F.Y. 2007 - 08 WHER EAS THE AO ALLOWED THE BENEFIT OF INDEXATION ON THE BASIS OF THE PAYMENTS MADE TOWARDS THE PROPERTY FROM F.Y. 2007 - 08 TO 2010 - 11 AND COMPUTED THE LONG - TERM CAPITAL GAIN AT RS.5,34,328/ - , THE DETAILS OF WHICH ARE AS UNDER: - 10. I FIND, IN APPEAL, THE LD.C IT(A) HELD THAT SINCE THE PROPERTY WAS HELD BY THE ASSESSEE FOR A PERIOD OF 16 MONTHS FROM THE DATE OF REGISTRATION TILL THE DATE OF TRANSFER, THEREFORE, THE PROPERTY IN QUESTION IS SHORT - TERM CAPITAL ASSET AND PROFIT ON SUCH TRANSFER IS SHORT - TERM CAPITAL GAIN AND THE ASSESSEE IS NOT ENTITLED TO ANY INDEXATION BENEFIT. ITA NO. 3232 /DEL/201 8 9 11. IT IS THE SUBMISSION OF THE LD. COUNSEL THAT FOR THE PURPOSE OF CALCULATING THE PERIOD OF HOLDING FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAIN, IT IS THE DATE OF AGREEMENT WITH THE BU ILDER THAT HAS TO BE CONSIDERED AS THE DATE OF ACQUISITION AND NOT THE DATE OF ACTUAL REGISTRATION IN FAVOUR OF THE ASSESSEE. I FIND, THE ISSUE STANDS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HON BLE JURISDICTIONAL HIGH COURT IN T HE CASE OF CIT VS. K. RAMAKRISHNA, REPORTED IN 363 ITR 59, WHEREIN IT HAS BEEN HELD THAT IN ORDER TO DETERMINE THE TAXABILITY OF CAPITAL GAIN ARISING FROM SALE OF PROPERTY, IT IS THE DATE OF ALLOTMENT OF THE PROPERTY WHICH IS RELEVANT FOR THE PURPOSE OF CO MPUTING HOLDING PERIOD AND NOT THE DATE OF REGISTRATION OF CONVEYANCE DEED. I FIND, FOLLOWING THE ABOVE DECISION, THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF RANJANA BAMMI VS. ACIT HAS HELD THAT FOR DETERMINING THE TAXABILITY OF CAPITAL GAIN ARISI NG FROM SALE OF PROPERTY, IT IS THE DATE OF ALLOTMENT OF PROPERTY WHICH IS RELEVANT FOR THE PURPOSE OF COMPUTING HOLDING PERIOD AND NOT THE DATE OF REGISTRATION OF CONVEYANCE DEED. I FIND, THE HON BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF MRS. MADHU KAUL VS. CIT, REPORTED IN 363 ITR 54, HAS HELD THE MERE FACT THAT POSSESSION WAS DELIVERED LATER DOES NOT DETRACT FROM THE FACT THAT THE ALLOTTEE WAS CONFERRED A RIGHT TO HOLD PROPERTY ON ISSUANCE OF AN ALLOTMENT LETTER. THE PAYMENT OF BALANCE INSTALMENTS, IDENTIFICATION OF A PARTICULAR FLAT AND DELIVERY OF POSSESSION ARE CONSEQUENTIAL ACTS THAT RELATE BACK TO AND ARISE FROM THE RIGHTS CONFERRED BY THE ALLOTMENT LETTER. THE HON BLE HIGH COURT ACCORDINGLY HELD THAT THE CAPITAL GAIN ARISING IN THAT CASE WAS LONG - TERM CAPITAL GAIN. I FIND, THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF ITA NO. 3232 /DEL/201 8 10 PRAVEEN GUPTA VS. ACIT REPORTED IN 2010 (8) TMI 820, WHILE DECIDING AN IDENTICAL ISSUE HAS OBSERVED AS UNDER: - 29. ACCORDING TO THE AFOREMENTIONED DEFINITION, CAPITAL ASSET MEA NS PROPERTY OF ANY KIND HELD BY AN ASSESSEE WHETHER OR NOT CONNECTED WITH THE BUSINESS OR PROFESSION AND IT EXCLUDES CERTAIN ITEMS WHICH WHILE CONSIDERING THE FACTS OF THE PRESENT CASE ARE NOT RELEVANT. THEREFORE, IT HAS TO BE SEEN THAT WHETHER BY ENTERING INTO AN AGREEMENT VIDE WHICH THE ASSESSEE WAS ALLOTTED A PARTICULAR FLAT BY ALLOTMENT LETTER WHETHER THE ASSESSEE HAS HELD ANY ASSET OR NOT? BY ENTERING INTO AN AGREEMENT TO ALLOT A FLAT, THE ASSESSEE HAS IDENTIFIED A PARTICULAR PROPERTY WHICH HE IS INTEN DED TO BUY FROM THE BUILDER AND THE BUILDER IS ALSO BOUND TO PROVIDE THE APPLICANT WITH THAT PROPERTY BY ACCEPTING CERTAIN ADVANCE AMOUNT AND MAKING AGREEMENT FOR BALANCE PAYMENT AS SCHEDULED IN THE AGREEMENT. THUS, GOING INTO THE PROVISIONS, IT IS NOT NEC ESSARY THAT TO CONSTITUTE A CAPITAL ASSET THE ASSESSEE MUST BE THE OWNER BY WAY OF A CONVEYANCE DEED IN RESPECT OF THAT ASSET FOR THE PURPOSE OF COMPUTING CAPITAL GAIN. THE ASSESSEE HAD ACQUIRED A RIGHT TO GET A PARTICULAR FLAT FROM THE BUILDER AND THAT RI GHT OF THE ASSESSEE ITSELF IS A CAPITAL ASSET. THE WORD 'HELD' USED IN SECTION 2 (14) AS WELL AS EXPLANATION TO SECTION 48 CLEARLY DEPICTS THAT ASSESSEE MUST HAVE SOME RIGHT IN THE CAPITAL ASSET WHICH IS SUBJECT TO TRANSFER. BY MAKING THE PAYMENT TO THE BU ILDER AND HAVING RECEIVED ALLOTMENT LETTER IN LIEU THEREOF, THE ASSESSEE WILL BE HOLDING CAPITAL ASSET AND, THEREFORE, THE BENEFIT OF INDEXATION HAS TO BE GRANTED TO THE ASSESSEE ON THE BASIS OF PAYMENTS MADE BY HIM FOR ACQUIRING THE SAID ASSET AND THE ASS ESSEE HAS RIGHTLY CLAIMED THE INDEXATION BENEFIT FROM THE DATES WHEN HE HAS MADE THE PAYMENTS TO THE BUILDER. THEREFORE, WE SEE FORCE IN THE CLAIM OF THE ASSESSEE. THE ASSESSING OFFICER IS DIRECTED TO PROVIDE THE BENEFIT OF INDEXATION TO THE ASSESSEE IN TH E MANNER IN WHICH THE ASSESSEE HAS CLAIMED. 12. THE VARIOUS OTHER DECISIONS RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE ALSO SUPPORTS HIS CASE TO THE PROPOSITION T HAT FOR DETERMINING THE TAXABILITY OF CAPITAL GAIN ARISING FROM SALE OF PROPERTY, IT IS T HE DATE OF ALLOTMENT OF THE PROPERTY WHICH IS RELEVANT FOR THE PURPOSE OF COMPUTING THE HOLDING PERIOD AND NOT THE DATE OF REGISTRATION OF CONVEYANCE DEED. IN THIS VIEW OF THE MATTER, I HOLD THAT THE ASSET IN QUESTION IS A LONG - TERM CAPITAL ASSET AND THE ASSESSEE IS ENTITLED TO THE BENEFIT OF INDEXATION FROM THE DATE OF ALLOTMENT/AGREEMENT. IN THIS VIEW OF THE MATTER, I SET ITA NO. 3232 /DEL/201 8 11 ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE AO TO ACCEPT THE AMOUNT OF LONG - TERM CAPITAL GAIN AS WORKED OUT BY THE ASSESSEE. 13 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED . THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 31 .0 3 .20 21 . SD/ - ( R. K. PANDA ) ACCOUNTANT MEMBER DATED: 31 ST MARCH, 2021. DK COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI