ANITA VENUGOPALCHAR, GUJRAT V. ITO 17(2)(2), MUMBAI

ITA 3667/MUM/2010

• Counselvise Citation: 366719914 RSA 2010
• Duration Of Justice: 1 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 02-05-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 07-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KUSUM INGALE
• Assessee Lawyers: ANCHAL PODDAR
• Keywords: Depreciation
• Section: 27; 263; 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, J, MUMBAI BEFORE SHRI R.S. SYAL (A.M.) AND SHRI D.K.AGARWAL ( JM) ITA NO.3667/MUM/2010 (ASSESSMENT YEAR: 2003-04) SMT.ANITA VENUGOPALCHAR, 203, ISHAN APARTMENT, B-WING, HALAR, VASI FALIYA, VALSAD, GUJARAT PAN:ABXPV4694D INCOME TAX OFFICER 17(2)(2), INCOME TAX DEPARTMENT, ROOM NO.202, 2ND FLOOR, PIRAMAL CHAMBERS, LAL BALUG, MUMBAI-400013. APPELLANT V/S RESPONDENT DATE OF HEARING : 6.2.2012 DATE OF PRONOUNCEMENT : 10.2.2012 APPELLANT BY : MS.ANCHAL PODDAR RESPONDENT BY : SMT.KUSUM INGALE O R D E R PER D.K.AGARWAL (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 30.12.2009 PASSED BY THE LD.CIT(A) FOR THE ASSESSMENT YEAR 2003-04. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL DERIVES INCOME FROM PROPERTY, CAPITAL GAINS, AGRICULTURAL INCOME AND OT HER ITA NO.3667/MUM/2010 (ASSESSMENT YEAR: 2003-04) 2 SOURCES. THE RETURN WAS FILED SHOWING AN INCOME OF RS.2,30,154/- AND AGRICULTURAL INCOME OF RS.14,82,438/-. THE ORIGINAL ASSESSMENT WAS COMPLETED ON 25.1.2006 DETERMINING TOTAL INCOME OF THE ASSESSEE AT RS.3,30,150/- AND AGRICULTURAL INCO ME OF RS.13,82,458/-. THEREAFTER, THE LD. CIT HAS SE T ASIDE THE ORDER U/S 263 GIVING THE SPECIFIC DIRECTI ONS FOR RE-VALUATION OF CAPITAL GAIN AND ALSO TO VERIFY THE STATUS OF THE AGRICULTURAL INCOME. CONSEQUENTLY, THE AO ISSUED STATUTORY NOTICE U/S 142(1) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). DURING THE COURS E OF ASSESSMENT PROCEEDINGS, THE AO OBSERVED THAT THE ASSESSEE HAS ACQUIRED THE PROPERTY IN BANGALORE ON LEASE IN OCTOBER 1990. THE PROPERTY WAS TAKEN ON LEASE FOR A PERIOD OF 10 YEARS AND THE ASSESSEE HEL D THE PROPERTY AS TENANT FROM THE DATE OF TAKING ITS POSSESSION AND TILL THE DATE OF TERMINATION OF LEAS E. THE ASSESSEE WAS SUPPOSED TO PAY LEASE RENT OF RS. 5 PER YEAR APART FROM RS.13,944/- PAID AT THE BEGINNI NG. THE PROPERTY COULD BE TRANSFERRED IN THE NAME OF TH E ASSESSEE ONLY AT THE END OF 10 TH YEAR. THE ASSESSING OFFICER CONCLUDED THAT THE ASSESSEE BECAME THE OWNE R OF THE PROPERTY ONLY AFTER STAMP DUTY PAID AND ITA NO.3667/MUM/2010 (ASSESSMENT YEAR: 2003-04) 3 PAYMENT OF REGISTRATION CHARGES AT THE END OF 10 TH YEAR. THE PROPERTY HAS BEEN TRANSFERRED BY THE ASSESSEE ON 3.1.2003 FOR A CONSIDERATION OF RS.24,00,000/- THE ASSESSING OFFICER HELD THAT S INCE THE ASSESSEE BECAME OWNER OF THE PROPERTY ON 30.12.2002 THE CAPITAL GAIN HAS TO BE TREATED AS SH ORT TERM CAPITAL GAIN. THE AO AFTER RELYING ON THE DECISION IN THE CASE OF IN THE CIT V/S DR. V.V. MODY (1996) 218 ITR 1 (KAR) COMPUTED THE SHORT TERM CAPITAL GAIN AT RS.22,23,028/- AND THEREBY COMPLETE D THE ASSESSMENT AT AN INCOME OF RS.25,53,180/- + AGRICULTURAL INCOME OF RS.13,82,458/- VIDE ORDER DA TED 29.12.2008 PASSED UNDER SECTION 143(3) READ WITH SECTION 263 OF THE ACT. 3. ON APPEAL, THE LD. CIT(A) WHILE OBSERVING THAT EVEN THOUGH THE APPELLANT WAS IN POSSESSION OF THE PROPERTY FOR LONG YEARS, SHE HAD NO RIGHTS TO ALIEN ATE THE PROPERTY AND IN SUCH CASE SHE CANNOT BE SAID A S OWNER PRIOR TO THE DEED OF REGISTRATION, UPHELD THE VIEW OF THE AO AND DISMISSED THE ASSESSEES APPEAL . 4. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US CHALLENGING I N ALL ITA NO.3667/MUM/2010 (ASSESSMENT YEAR: 2003-04) 4 THE GROUNDS IN TREATING THE SHORT TERM CAPITAL GA IN ARISING FROM SALE OF PROPERTY AS AGAINST THE LONG T ERM CAPITAL GAINS CLAIMED BY THE ASSESSEE. 5. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE RESIDENTIAL SITE NO. 3/6 1/12 IN KADIRENAHALLY, LAYOUT II, BMC WARD NO.55, BANGALORE-560070 WAS ACQUIRED BY THE ASSESSEE FROM JAYANAGARA HOUSING CO-OPERATIVE SOCIETY ON LEASE- CUM-SALE AGREEMENT REGISTERED ON 30.10.1990. THE ASSESSEE HAD PAID FULL COST OF THE SITE ON 30.10.19 90 AND THE POSSESSION THEREOF WAS GIVEN ON 2.1.1991 AS PER POSSESSION CERTIFICATE NO. PC 205/K1568/II STAG E DATED 2.1.1991. THE ABOVE LEASE WAS CONVERTED INTO SALE DEED ON 30.12.2002 BUT NO FURTHER PAYMENTS WERE MADE FOR THE ABOVE PURPOSE. THE SITE WAS SOLD TO ONE SMT. SHOBHA RANI, WIFE OF SHRI VENKATACHALAPATHY, BANGLORE ON 3.1.2003. THE AO HAS TREATED THE SAID TRANSACTION AS SHORT TERM CAPITAL GAIN AND THE SAME WAS CONFIRMED BY THE LD. CIT(A). SHE FURTHER SUBMITS THAT THE ASSESSING OFFICER IN ORDE R PASSED IN PURSUANCE OF ORDER U/S 263 DATED 29.12.2008, AFTER DISCUSSING THE RELEVANT PROVISION S OF THE INCOME- TAX ACT, HAS HELD THAT CAPITAL GAIN ARI SING ITA NO.3667/MUM/2010 (ASSESSMENT YEAR: 2003-04) 5 ON SUCH SALE IS SHORT TERM CAPITAL GAIN AS DISCUSSE D IN PARAGRAPH 4 OF THE ASSESSMENT ORDER AGAINST THE CLAIM OF LONG TERM CAPITAL GAIN MADE BY THE ASSESSE E. THE AO ALSO RELIED ON THE JUDGMENT OF THE HONBLE KARANTAKA HIGH COURT IN CASE OF DR. V.V. MODI (SUPR A). THE ASSESSING OFFICER TOOK THE VIEW THAT THE DATE O F TRANSFER AS PER SECTION 2(47) OF THE ACT WAS 3.1.20 03 AND PROPERTY WAS HELD FOR LESS THAN 36 MONTHS. SHE FURTHER SUBMITS THAT AS PER CLAUSE (1) OF LEASEC UM- SALE AGREEMENT THE LESSEE OR THE PURCHASER IS PUT IN POSSESSION OF THE PROPERTY AND THE ASSESSEE HAS FUL LY PAID THE CONSIDERATION. THE ASSESSEE WAS THUS IN A POSITION TO ENABLE THE ENJOYMENT OF THE ABOVE PROPERTY. THE SALE DEED EXECUTED ON 30.12.2002, ALS O REITERATES IN CLAUSE (3) THAT THE PROPERTY WAS ALLO TTED TO THE ASSESSEE WHO HAD PAID THE FULL VALUE OF THE PROPERTY LONG BACK AND SECURED THE POSSESSION ON 2.1.1991. SHE FURTHER SUBMITS THAT ON EXECUTION OF LEASE-CUM-SALE AGREEMENT DATED 1.10.1990, THE ASSESSEE WHO IS DESCRIBED AS LESSEE/PURCHASER, ACQUIRED RIGHTS FROM THE VERY TERM DESCRIBING HER A S LESSEE/PURCHASER. THIS AGREEMENT THEREFORE, CANNOT SIMPLY DUBBED AS MERE LEASE AGREEMENT. BY ITS VERY ITA NO.3667/MUM/2010 (ASSESSMENT YEAR: 2003-04) 6 HEADING, IT IS REFERRED TO AS LEASE-CUM-SALE-AGREEM ENT TO SALE. AS PER CLAUSE (1), THE LESSEE- PURCHASER I .E THE ASSESSEE IS PUT IN POSSESSION OF THE PROPERTY A ND SHE HAS PAID FULL CONSIDERATION ON THAT DAY AND ALL THAT SHE WAS REQUIRED TO PAY FURTHER RS.5/- PER YEAR. TH E INTERPRETATION OF THE WHOLE DOCUMENT VERY CLEARLY ESTABLISHES THAT THE PROPERTY CAME INTO POSSESSION OF THE ASSESSEE AS EARLY AS IN 1990 AS PER THE AGREEME NT TO SELL AND ON PAYMENT OF FULL CONSIDERATION. THE LD. COUNSEL FOR THE ASSESSEE WHILE RELYING ON THE DECIS IONS IN (A) CIT V/S PODAR CEMENT PVT. LTD. (1997) 226 I TR 625 (SC), (B) MYSORE MINERALS LTD. V/S CIT (1999) 239 ITR 775 (SC) AND (C) SMT.SUSHMA RANI BANSAL V/S ACIT (2007) 165 TAXMAN 145 (DEL) (TRIBUNAL) (MAG.) SUBMITS THAT THE DECISION IN THE CASE OF DR.V.V.MODY (SUPRA) IS PRIOR TO THE TWO DECISIONS O F THE HONBLE APEX COURT (SUPRA), THEREFORE, THE SAME IS NOT APPLICABLE TO THE ASSESSEES CASE. SHE, THEREF ORE, SUBMITS THAT THE TRANSACTION OF SALE OF THE PROPER TY MAY BE TREATED AS LONG TERM CAPITAL GAIN AND NOT AS SHORT TERM CAPITAL GAIN AND, HENCE, THE ADDITION MA DE BY THE AO AND CONFIRMED BY THE LD. CIT(A) BE DELETE D. ITA NO.3667/MUM/2010 (ASSESSMENT YEAR: 2003-04) 7 6. ON THE OTHER HAND, THE LD. DR WHILE RELYING ON THE ORDERS OF THE AO AND THE LD. CIT(A) ALSO RELIED ON THE DECISION IN THE CASE OF DR.V.V.MODY(SUPRA). SHE , THEREFORE, SUBMITS THAT THE ORDER PASSED BY THE AO AND UPHELD BY THE LD.CIT(A) BE UPHELD. 7. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND PERUSED THE MATERIAL AVAILABL E ON RECORD. WE FIND IN THIS CASE, THE ASSESSEE VIDE LE ASE- CUM-SALE AGREEMENT DATED 31.10.1990 ACQUIRED THE SITE FROM JAYANAGARA HOUSING CO-OPERATIVE SOCIETY KNOWN AS SITE NO.3/61/2 FORMED BY THE LESSOR/VENDOR IN THE KADIRENAHALLI LAYOUT, II STAGE, ADJOINING TH E BAHASHANKARI II STAGE LAYOUT OF THE BANGALORE DEVELOPMENT AUTHORITY, BANGALORE-560070 ON PAYMENT OF RS.13,944.50 TOWARDS PART PERFORMANCE OF THE S ITE CONSIDERATION. THE SAID LEASE-CUM-SALE AGREEMENT DATED 31.10.1990 WAS REGISTERED AS DOCUMENT NO.3619 OF 90-91 AND THE POSSESSION OF THE SCHEDULE PROPERTY WAS TAKEN VIDE POSSESSION CERTIFICATE NO.P C 205/K 1568/II DATED 2.1.1991 ISSUED BY THE VENDOR. THE ASSESSEE HAS ALSO AGREED TO PAY THE SUM OF RS.5 PER YEAR AS LEASE RENT ON OR BEFORE 30 TH JUNE OF EACH YEAR DURING THE LEASE PERIOD. IT HAS ALSO BEEN AGR EED ITA NO.3667/MUM/2010 (ASSESSMENT YEAR: 2003-04) 8 THAT THE PROPERTY SHALL NOT BE PUT TO USE EXCEPT RESIDENTIAL PURPOSES WITHOUT THE CONSENT IN WRITING OF THE LESSOR/VENDOR. WE FURTHER FIND THAT THE ABOVE LEASE WAS CONVERTED INTO SALE DEED VIDE REGISTERED SALE-DEED DATED 30.12.2002, WHEREIN IT HAS BEEN MENTIONED THAT THE PURCHASER (ASSESSEE) HAS PAID T HE FULL VALUE OF THE PROPERTY RS.15944.50 (13,944 + 2000 PENALTY). WE FURTHER FIND THAT THE SAID PROP ERTY WAS SOLD BY THE ASSESSEE VIDE REGISTERED SALE DEED DATED 3.1.2003 FOR RS.24,00,000/-. ACCORDING TO TH E AO SINCE THE SALE DEED OF THIS PROPERTY BETWEEN JAYANAGARA HOUSING CO-OPERATIVE SOCIETY AND THE ASSESSEE WAS EXECUTED ON 30.12.2002 THEREFORE THE ASSESSEE BECAME THE OWNER OF THE SAID PROPERTY ON 30.12.2002 AND SINCE THE SAID PROPERTY WAS SOLD BY THE ASSESSEE ON 3.1.2003 FOR RS.24,00,000/-, THEREFORE, THE ASSESSEE IS LIABLE TO TAX FOR SHORT TERM CAPITAL GAINS AS THE ASSESSEE HELD THE PROPERTY MER ELY FOR A PERIOD THREE DAYS ONLY. PER CONTRA, ACCORDIN G TO THE ASSESSEE, THE ASSESSEE BECAME THE OWNER OF THE PROPERTY ON 30.10.1990 VIDE LEASE-CUM-SALE- AGREEMENT REGISTERED ON 31.10.1990 AND THE ASSESSEE HAS PAID FULL COST OF THE SITE ON THE SAME DATE I. E. ITA NO.3667/MUM/2010 (ASSESSMENT YEAR: 2003-04) 9 31.10.1990 AND THE POSSESSION THEREOF WAS ALSO TAKE N ON 2.1.1991 AS PER POSSESSION CERTIFICATE DATED 2.1.1991. THE SAID PROPERTY WAS SOLD TO ONE SMT. SHOBHA RANI, WIFE OF SHRI VENKATACHALAPATHY, BANGLO RE ON 3.1.2003. 8. THE FINANCE ACT, 1987 INSERTED CLAUSE (V) AND (VI) ALONG WITH THE EXPLANATION WITH EFFECT FROM 1.4.1988 I.E. FOR AND FROM THE ASSESSMENT YEAR 198 8- 89. THE SCOPE AND EFFECT OF THE NEW PROVISIONS WAS EXPLAINED BY THE BOARD CIRCULAR NO.495, DATED 22.9.1987 (1987) 168 ITR (ST) 87 AT 92 AS UNDER : DEFINITION OF TRANSFER WIDENED TO INCLUDE CERTAI N TRANSACTIONS.11.1 THE EXISTING DEFINITION OF THE WORD TRANSFER IN SECTION 2(47) DOES NOT INCLUDE TRANSFER OF CERTAIN RIGHTS ACCRUING TO A PURCHASE, BY WAY OF BECOMING A MEMBER OF OR ACQUIRING SHARES IN A CO-OPERATIVE SOCIETY, COMPANY, OR ASSOCIATION OF PERSONS OR BY WAY OF ANY AGREEMENT OR ANY ARRANGEMENT WHEREBY SUCH PERSON ACQUIRES ANY RIGHT IN ANY BUILDING WHICH IS EITHER BEING CONSTRUCTED OR WHICH IS TO BE CONSTRUCTED. TRANSACTIONS, OF THE NATURE REFERRED TO ABOVE ARE NOT REQUIRED TO BE REGISTERED UNDER THE REGISTRATION ACT, 1908. SUCH ARRANGEMENTS CONFER THE PRIVILEGES OF OWNERSHIP WITHOUT TRANSFER OF TIT LE IN THE BUILDING AND ARE A COMMON MODE OF ACQUIRING FLATS PARTICULARLY IN MULTI-STOREYED CONSTRUCTIONS IN BIG CITIES. THE DEFINITION ALSO DO ES NOT COVER CASES WHERE POSSESSION IS ALLOWED TO BE TAKEN OR RETAINED IN PART PERFORMANCE OF A CONTRACT, OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1882. NOW SUB- CLAUSES (V) AND (VI) HAVE BEEN INSERTED IN SECTION ITA NO.3667/MUM/2010 (ASSESSMENT YEAR: 2003-04) 10 2(47) TO PREVENT AVOIDANCE OF CAPITAL GAINS LIABILITY BY RECOURSE TO TRANSFER OF RIGHTS IN THE MANNER REFERRED TO ABOVE. 11.2 THE NEWLY INSERTED SUB-CLAUSE (VI) OF SECTION 2(47) HAS BROUGHT INTO THE AMBIT OF TRANSFER, THE PRACTICE OF ENJOYMENT OF PROPERTY RIGHTS THROUGH WHAT IS COMMONLY KNOWN AS POWER OF ATTORNEY ARRANGEMENTS. THE PRACTICE IN SUCH CASES IS NORMALLY WHERE TRANSFER OF OWNERSHIP IS LEGALLY NOT PERMITTED. A PERSON HOLDING THE POWER OF ATTORNEY IS AUTHORIZED THE POWERS OF OWNER, INCLUDING THAT OF MAKING CONSTRUCTION. THE LEGAL OWNERSHIP IN SUCH CASES CONTINUES TO BE WITH THE TRANSFEROR. 9. THUS, AFTER THE AMENDMENT BY THE FINANCE ACT, 1987, THAT REGISTRATION FOR COMPLETING THE TRANSFER WAS DONE AWAY WITH. CAPITAL GAINS COULD BE CHARGED MERE LY ON HANDING OVER OF POSSESSION AND ON PART PERFORMANCE AS PER AGREEMENT. 10. IN PODAR CEMENT PVT. LTD.(SUPRA) IT HAS BEEN HELD(HEADNOTE): FROM THE MEMORANDUM EXPLAINING THE FINANCE BILL, 1987, IT IS CLEAR THAT THE AMENDMENT TO SECTION 27 OF THE 1961 ACT WAS INTENDED TO SUPPLY AN OBVIOUS OMISSION OR TO CLEAR UP DOUBTS AS TO THE MEANING OF THE WORD OWNER IN SECTION 22. THE AMENDMENT INTRODUCED BY THE FINANCE BILL, 1987, WAS DECLARATORY/CLARIFICATORY IN NATURE SO FA R AS IT RELATES TO SECTION 27(III), (IIIA) AND (IIIB) . CONSEQUENTLY, THESE PROVISIONS ARE RETROSPECTIVE IN OPERATION. HENCE, THOUGH UNDER THE COMMON LAW 'OWNER' MEANS A PERSON WHO HAS GOT VALID TITLE LEGALLY CONVEYED TO HIM AFTER COMPLYING WITH THE ITA NO.3667/MUM/2010 (ASSESSMENT YEAR: 2003-04) 11 REQUIREMENTS OF LAW SUCH AS THE TRANSFER OF PROPERTY ACT, THE REGISTRATION ACT, ETC., IN THE CONTEXT OF SECTION 22 OF THE INCOME-TAX ACT, 1961, HAVING REGARD TO THE GROUND REALITIES AND FURTHER HAVING REGARD TO THE OBJECT OF THE INCOME-TAX ACT, NAMELY, TO TAX THE INCOME, 'OWNER' IS A PERSON WHO IS ENTITLED TO RECEIVE INCOME FROM THE PROPERTY IN HIS OWN RIGHT. THE REQUIREMENT OF REGISTRATION OF THE SALE DEED IN THE CONTEXT OF SECTION 22 IS NOT WARRANTED. 11. IN MYSORE MINERALS LTD. (SUPRA), IT HAS BEEN HE LD (HEADNOTE): HELD, REVERSING THE JUDGMENT OF THE HIGH COURT, THAT THE FINDING OF FACT ARRIVED AT IN THE CASE AT HAND WAS THAT THOUGH A DOCUMENT OF TITLE WAS NOT EXECUTED BY THE HOUSING BOARD IN FAVOUR OF THE ASSESSEE, THE HOUSES WERE ALLOTTED TO THE ASSESSEE BY THE HOUSING BOARD, PART PAYMENT RECEIVED AND POSSESSION DELIVERED SO AS TO CONFER DOMINION OVER THE PROPERTY ON THE ASSESSEE WHEREAFTER THE ASSESSEE HAD IN ITS OWN RIGHT ALLOTTED THE QUARTERS TO THE STAFF AND THEY WERE BEING ACTUALLY USED BY THE STAFF OF THE ASSESSEE. THE ASSESSEE WAS ENTITLED TO DEPRECIATION IN RESPECT OF THE SEVEN HOUSES IN RESPECT OF WHICH THE ASSESSEE HAD NOT OBTAINED A DEED FOR CONVEYANCE FROM THE VENDOR ALTHOUGH IT HAD TAKEN POSSESSION AND MADE PART PAYMENT OF THE CONSIDERATION.' 12. APPLYING THE AFORESAID AMENDMENT U/S 2(47) (V) AND (VI) INSERTED BY THE FINANCE ACT, 1987 AND TH E RATIO OF THE DECISIONS OF THE HONBLE SUPREME COUR T TO THE FACTS OF THE PRESENT CASE, WE FIND THAT ON THE COMBINED READING OF LEASE-CUM-SALE AGREEMENT DATED 31.10.1990, POSSESSION CERTIFICATE DATED 2.1.1991 A N ITA NO.3667/MUM/2010 (ASSESSMENT YEAR: 2003-04) 12 SALE DEED DATED 30.12.2002, THE ASSESSEE ACQUIRED THE POSSESSION OF THE SAID PROPERTY ON 2.1.1991 A FTER MAKING THE PAYMENT OF RS.13,944.50 + PENALTY OF RS.2,000 = RS.15,444.50). MERELY BECAUSE THE ABOVE LEASE WAS CONVERTED INTO SALE-DEED ON 30.12.2002 DOES NOT MEAN THAT THE ASSESSEE BECAME THE OWNER OF THE PROPERTY ON 30.12.2002 AND NOT FROM THE DATE OF POSSESSION OF THE PROPERTY I.E. 2.1.1991 AND THE FA CT THAT THE ASSESSEE HAS TAKEN THE POSSESSION OF THE PROPERTY ON 2.1.1991 WAS NOT CONTROVERTED BY THE REVENUE EVEN AT THIS STAGE. SINCE THE PROPERTY W AS SOLD ON 3.1.2003 I.E. BEYOND 36 MONTHS, THE INCOME IS CHARGEABLE UNDER THE HEAD CAPITAL GAINS AS LONG TERM CAPITAL GAINS AND NOT AS SHORT TERM CAPITAL GA IN. THE DECISION RELIED ON BY THE LD.DR IN DR.V.V.MODY (SUPRA) IS PRIOR TO THE AMENDMENT AND THE DECISION IN CIT V/S PODAR CEMENT PVT. LTD.(SUPRA) AND MYSORE MINERALS LTD. V/S CIT (SUPRA), THEREFORE, THE SAME IS DISTINGUISHABLE AND NOT APPLICABLE TO THE FACTS O F THE PRESENT CASE. ACCORDINGLY THE AO IS DIRECTED TO ASS ESS THE CAPITAL GAIN AS LONG TERM CAPITAL GAIN AND NOT SHORT TERM CAPITAL GAIN. THE GROUNDS TAKEN BY THE ASSESSEE ARE, THEREFORE, ALLOWED. ITA NO.3667/MUM/2010 (ASSESSMENT YEAR: 2003-04) 13 13. IN THE RESULT, THE ASSESSEES APPEAL STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10TH FEB.,20 12. SD SD (R.S. SYAL) (D.K.AG ARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, 10TH FEBRUARY, 2012 SRL: COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILE. BY ORDER TRUE COPY ASSTT. 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