NANDITA PATODIA, MUMBAI V. ITO WD 16(1)(1), MUMBAI

ITA 5982/MUM/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7870 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 17-02-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 09-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Deduction for capital gain; Capital asset; Rule of consistency; Cost of acquisition; Benefit of exemption
• Section: 54

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNALB BENCH, MUMB AI . . , , , , ! BEFORE SHRI G.S.PANNU, AM AND SHRI AMARJIT SINGH, J M / I.T.A. NO.5982/MUM/2013 ( '# $# / ASSESSMENT YEAR: 2010-11) SMT. NANDITA PATODIA 72, MOUNT UNIQUE, 62A, PEDDAR ROAD, MUMBAI 400 026 / VS. INCOME TAX OFFICER WARD 16(1)(1) MATRU MANDIR, TARDEO ROAD MUMBAI - 400007 ./ ./ PAN/GIR NO. : AADPP0811D ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING:17.02.2016 /DATE OF PRONOUNCEMENT: 31.03.2017 / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 29.07.2013 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-27, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RE LEVANT TO THE ASSESSMENT YEAR 2010-11. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- ASSESSEE BY: SHRI ANUJ KISNADWALA DEPARTMENT BY: SHRI PRADEEP KUMAR SINGH ITA NO.5982/M/13 A.Y. 2010-11 2 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACT S IN UPHOLDING THE ORDER OF THE ASSESSING OFFICER WHICH IS ILLEGAL AND BAD IN LAW. 2. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE ORDER OF THE ASSESSING OFFICER COMPU TING THE TOTAL INCOME OF THE APPELLANT AT RS.65,12,480/- AS AGAINST THE RETURNED INCOME OF RS.11,16,013/-. 3. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER ASSES SING THE LTCG OFFERED BY THE APPELLANT ON SALE OF RESIDENTIA L PREMISES AT NEELKANTH PALM, THANE AS STCG AND CONSEQUENTLY DENYING THE BENEFIT OF EXEMPTION CLAIM ED U/S.54 OF THE ACT. 4. WITHOUT PREJUDICE TO THE ABOVE AND IN THE ALTERN ATIVE, THE LEARNED CIT(A) OUGHT TO HAVE DIRECTED THE ASSESSING OFFICER TO ADOPT THE MARKET VALUE OF THE RESIDENTIA L PREMISES AS ON THE DATE OF ACQUISITION CONSIDERED B Y HIM AS THE COST OF ACQUISITION FOR THE PURPOSE OF COMPUTAT ION OF CAPITAL GAIN. 5. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND, ALT ER OR DELETE ALL OR ANY OF THE FOREGOING GROUNDS OF APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED RETURN OF INCOME ON 30.07.2010 DECLARING TOTAL INCOME TO THE TUNE OF RS.11,16,013/-. THE RETURN WAS PROCESSED U/S.143(1 ) OF THE INCOME TAX ACT, 1961( IN SHORT THE ACT). THEREAFTER, TH E CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S.143(2) OF THE ACT WAS I SSUED ON 24.08.2011 AND DULY SERVED UPON THE ASSESSEE. THE SOURCE OF I NCOME OF ASSESSEE WAS FROM THE INTEREST INCOME BEING INCOME FROM OTHE R SOURCES, CAPITAL GAIN AND HOUSE PROPERTY. DURING THE SAID ASSESSMEN T YEAR, THE ASSESSEE SHOWED THE LONG TERM CAPITAL GAIN TO THE T UNE OF ITA NO.5982/M/13 A.Y. 2010-11 3 RS.45,58,478/- ON SALE OF TWO REGISTERED FLATS NO.A -801 AND A-802, AT NEELKANTH PALM REALTY. THE ASSESSEE CLAIMED EXEMPT ION UPON THE ENTIRE CAPITAL GAIN U/S.54 OF THE ACT ON THE GROUND OF THAT THE CAPITAL GAIN WAS USED FOR PURCHASE OF CAPITAL ASSET BEING F LAT NO.701, KRISHNA BUILDING, A WING, NEELKJANTH PALM THANE FOR A SUM O F RS.68,26,400/-. ON VERIFICATION OF THE CLAIM OF TH E ASSESSEE, IT WAS FOUND THAT THE ASSESSEE HAS TAKEN THE DATE OF ACQUI SITION OF THE PROPERTY SOLD I.E.NO.A-801 AND A-802, AT NEELKANTH PALM REALTY AND CLAIMED THE BENEFIT ACCORDINGLY. THE CAPITAL GAIN SHOWN BY THE ASSESSEE IS HEREBY REPRODUCED AS UNDER:- SALE CONSIDERATION OF 2 FLATS LESS: INDEXED COST OF ACQUISITION COST OF FLAT NO.A-801 COST OF FLAT NO.A-802 TOTAL COST INDEXED COST = = 26,46,290 X 632 [CII OF 2009-10] 480 [CII OF 2004-05] LONG TERM CAPITAL GAIN EXEMPTION U/S.54 LTCG FOR THE YEAR AMOUNT (RS.) AMOUNT (RS.) 11,19,310 15,26,980 26,46,290 34,84,282 80,42,760 34,84,282 45,58,478 45,58,478 NIL 4. ON GOING THROUGH THE DETAILS FURNISHED BY THE ASSESSEE, IT WAS OBSERVED THAT THE AGREEMENT FOR PURCHASE OF AFORESA ID FLAT NO.A-801 AND A-802, WERE ENTERED INTO BY THE ASSESSEE WITH M /S NEELKANTH PALM REALTY ON 26.03.2009 AND 27.03.2009 RESPECTIVE LY WHEREAS THE ASSESSEE HAS ADOPTED THE DATE OF ACQUISITION OF THE SE PROPERTIES AS ITA NO.5982/M/13 A.Y. 2010-11 4 30.03.2005. IF THE DATE 26.03.2009 AND 27.03.2009 W ERE TO BE ADOPTED ON THE BASIS OF PURCHASE AGREEMENTS THEN IN THE SAI D CIRCUMSTANCES, THE HOLDING PERIOD WOULD BE BELOW THEN THREE YEARS HENCE THE CAPITAL GAIN WAS REQUIRED TO BE CONSIDERED AS SHORT TERM CA PITAL GAIN, HENCE NOTICE DATED 17.12.2012 WAS ISSUED AND SERVED UPON THE ASSESSEE. THEREAFTER, BY CONSIDERING THE REPLY OF THE ASSESSE E, THE ASSESSING OFFICER CONSIDERED THE HOLDING OF THE ASSESSEE FROM THE DATE OF AGREEMENT I.E. 27.03.2009 WHICH WAS SOLD ON 28.02.2 010 AND PURCHASED OF NEW ASSET WAS TAKEN INTO CONSIDERATION ON 28.07.2010 HENCE THE SHORT TERM CAPITAL GAIN WAS ASSESSED TO T HE TUNE OF RS.53,96,470 AND ACCORDINGLY ASSESSED THE INCOME OF THE ASSESSEE TO THE TUNE OF RS.65,12,480/-. AGGRIEVED FROM THIS OR DER, THE ASSESSEE FILED THE APPEAL BEFORE THE CIT(A) WHO CONFIRMED TH E ORDER OF THE ASSESSING OFFICER, THEREFORE THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. ISSUE N.1 TO 3 :- 5. ALL THE ISSUES LEAD TO THE QUESTION TH AT WHICH PERIOD IS REQUIRED TO BE CONSIDERED AS HOLDING OF THE SOLD PR OPERTY FOR ASSESSING THE INCOME AS SHORT TERM / LONG TERM CAPITAL GAIN F OR ASSESSING THE ENTITLEMENT OF EXEMPTION U/S 54 OF THE ACT ON ACCOU NT OF PURCHASE OF NEW PROPERTY TO ASSESS THE INCOME ACCORDINGLY AS SH ORT TERM / LONG TERM CAPITAL GAIN. AT THE VERY OUT SET, THE LEARNE D REPRESENTATIVE OF THE ASSESSEE HAS ARGUED THAT IN CASE OF ASSESSEES SISTER TITLED AS MRS. ITA NO.5982/M/13 A.Y. 2010-11 5 ANUPAMA AGARWAL VS. DCIT IN ITA NO.472/MUM/2015 DAT ED 23.09.2016 THE HOLDING PERIOD OF THE SOLD PROPERTY WAS TAKEN IN TO CONSIDERATION FROM THE ALLOTMENT LETTER DATED 30.03 .2005, THEREFORE IN THE SAID CIRCUMSTANCES IN CASE OF ASSESSEE ALSO THE DATE OF THE ALLOTMENT LETTER AS WELL AS THE DATE OF THE PAYMENT OF FIRST INSTALLMENT IS REQUIRED TO BE CONSIDER TO ASSESS THE LONG TERM / SHORT TERM CAPITAL GAIN AT THE TIME OF THE SALE OF THE SAID PR OPERTY HENCE THE ORDER OF THE CIT(A) IN QUESTION IS WRONG AGAINST LA W AND FACTS AND IS LIABLE TO BE SET ASIDE. IN SUPPORT OF HER CLAIM, T HE LEARNED REPRESENTATIVE OF THE ASSESSEE HAS ALSO PLACED RELI ANCE UPON THE JUDGMENT OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF MRS. MADHU KAUL VS. CIT AND ANOTHER [ 363 ITR 54] A ND THE JUDGMENT OF THE HONBLE MADRAS HIGH COURT IN THE C ASE OF CIT VS. S.R.JEYSHANKAR [373 ITR 120] AND THE ORDER OF HON BLE TRIBUNAL IN THE CASE OF ACIT VS. SHARAD TADANI [104 TTJ 567 ETC . HOWEVER, THE LD DEPARTMENTAL REPRESENTATIVE HAS SUPPORTED THE OR DER PASSED BY THE CIT(A) IN QUESTION. ON APPRAISAL OF THE ORDER PASS ED BY THE MUMBAI TRIBUNAL IN CASE OF MRS. ANUPAMA AGARWAL VS. DCIT I N ITA NO.472/M/2015 DATED 23.09.2016, IT IS QUITE CLEAR T HAT IN THE CASE OF THE SISTER OF THE ASSESSEE THE DATE OF ALLOTMENT AN D PAYMENT OF FIRST INSTALLMENT WAS CONSIDERED BY THE ITAT, MUMBAI BENC H WHILE ASSESSING THE LONG TERM / SHORT TERM CAPITAL GAIN A T THE TIME OF SALE OF THE SAID PROPERTY. THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE CASE OF MRS. ANUPAMA AGARWAL (SUPRA) IN WHICH T HE DATE OF THE ITA NO.5982/M/13 A.Y. 2010-11 6 ALLOTMENT I.E.30.03.2005 HAS BEEN CONSIDERED TO ASS ESS THE LONG TERM / SHORT TERM CAPITAL GAIN AT THE TIME OF THE SALE O F THE PROPERTY. WE ALSO FIND NECESSARY TO ADVERT THE FINDING OF THE HO NBLE ITAT, MUMBAI BENCH IN CASE OF MRS. ANUPAMA AGARWAL:- 7. ON HEARING BOTH THE PARTIES, WE FIND THERE IS NO DISPUTE ON THE FACTS. HOWEVER, THE DISPUTE EXISTS WITH REFERE NCE TO THE HOLDING PERIOD QUA THE DATE OF BOOKING / DATE OF ALLOTMENT. IN THIS REGARD, WE HAVE PERUSED THE ORDERS OF THE T RIBUNAL CITED ABOVE. FOR THE SAKE OF COMPLETENESS OF THIS ORDER, RELEVANT PARAS 6 TO 8 OF THE TRIBUNALS ORDER IN TH E CASE OF RICHA BAGRODIA (SUPA) ARE EXTRACTED AS UNDER:- 6. WE HEARD BOTH THE PARTIES AND PERUSED THE ORDER S OF THE REVENUE AUTHORITIES AS WELL AS THE JUDGMENTS OF THE HONBLE HIGH COURT AND THE DECISIONS OF THE TRIBUNA L CITED BY LEARNED REPRESENTATIVES OF BOTH THE PARTIES. THE ON LY ISSUE THAT IS TO BE DECIDED IS WHETHER THE DATE OF ALLOTMENT O F THE FLAT OR THE DATE OF POSSESSION OF THE FLAT BY THE ASSESSEE SHOULD BE CONSIDERED AS THE DATE FOR COMPUTING THE HOLDING PE RIOD OF 36 MONTHS. ON PERUSAL OF THE CITED ORDERS OF THE TRIBU NAL (SUPRA), WE FIND THAT AN IDENTICAL ISSUE CAME UP FOR ADJUDIC ATION BEFORE THE TRIBUNAL IN THE CASE OF MEENA A HEMNANI (SUPRA) , ORDER DATED 17 TH JANUARY, 2014 WHEREIN ONE OF US (AM) IS A PARTY AN D THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE BY RELYING ON VARIOUS DECISIONS OF THE TRIBUNAL AS WELL AS THE JU DGMENT OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. A NILABEN UPENDRA SHAH (2003) 262 ITR 657 (GUJ). RELEVANT DI SCUSSION IS GIVEN IN PARAS 3 & 4 OF THE SAID ORDER OF THE TR IBUNAL WHICH READ AS UNDER: 3. THERE ARE COUPLE OF ISSUES RAISED IN THIS APPE AL. REST OF THE GROUNDS RAISED IN THE APPEAL ARE EITHER CONS EQUENTIAL OR GENERAL IN NATURE. ACCORDINGLY, THEY ARE DISMISSED AS GENERAL OR CONSEQUENTIAL. THE ISSUES, WHICH NEED TO BE ADJUDI CATED IN THIS APPEAL ARE (I) IF THE CAPITAL GAINS EARNED BY THE A SSESSEE ARE IN THE NATURE OF THE SHORT TERM AS HELD BY THE AO OR L ONG TERM CAPITAL GAINS AS OFFERED BY THE ASSESSEE IN THE RET URN. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE MENTIONED THAT THE ASSESSEE PURCHASED A FLAT VIDE THE ALLOTMENT LETTER DATED ITA NO.5982/M/13 A.Y. 2010-11 7 9.9.2003 FROM THE BUILDER NAMELY PRESTIGE ESTATES P ROJECTS PVT. LTD. THERE WAS A CONSTRUCTION AGREEMENT BETWEEN THE PARTIES DATED 1.12.2003 AND THE REGISTERED DEED OF THE SAME WAS DATED ON 22.9.2006. THE SAID FLAT WAS SOLD BY THE ASSESSEE TO BENNET COLEMAN & COMPANY ON 10.11.2006. THE ASSESS EE EARNED CAPITAL GAINS ON THIS TRANSACTION AND OFFERE D THE SAME AS LONG TERM CAPITAL GAINS RECKONING THE DATE OF AL LOTMENT I.E., 9.9.2003 FOR THE PURPOSE OF DETERMINING THE HOLDING PERIOD OF THREE YEARS RELEVANT FOR THE LONG TERM CAPITAL GAIN S. HOWEVER, IN THE ASSESSMENT PROCEEDINGS, AO CONSIDERED THE DA TE OF REGISTRATION I.E., 22.9.2006 THE DATE OF REGISTRATI ON AND DETERMINED THE SHORT TERM CAPITAL GAINS. THEREFORE , NOW THE ISSUE TO BE DECIDED BY THE TRIBUNAL RELATES TO IF T HE DATE OF ALLOTMENT SHOULD BE CONSIDERED FOR THE PURPOSE OF C OMPUTING THE SAID LONG TERM CAPITAL GAINS. IN THIS REGARD, LD COUNSEL FILED VARIOUS DECISIONS TO SUGGEST THAT THE DATE OF ALLOTMENT MUST BE CONSIDERED FOR THE PURPOSE OF COMPUTING THE LONG TERM CAPITAL GAINS INSTEAD OF DATE OF REGISTRATION. LD COUNSEL FILED THE ORDER OF THE TRIBUNAL IN THE CASE OF ACIT VS. S MT. VANDANA RANA ROY VIDE ITA NO.6173/M/2011 (AY 2007-2008) DAT ED 7.11.2012, WHEREIN ONE OF US (AM) IS A PARTY, AND S TATED THAT THE DATE OF ALLOTMENT SHOULD BE RECKONED AS RELEV ANT DATE FOR COMPUTING THE HOLDING PERIOD FOR THE PURPOSE OF COM PUTING THE CAPITAL GAINS. IN THIS REGARD, LD COUNSEL BROUGHT OUR ATTENTION TO PARA 7 AND 8 OF THE SAID ORDER OF THE TRIBUNAL T O SUPPORT HIS CASE. THE SAID JUDGMENT WAS DECIDED CONSIDERING TH E JUDGMENT OF THE GUJARAT HIGH COURT IN THE CASE OF C IT VS. ANILABEN UPENDRA SHAH (2003) 262 ITR 657 (GUJ) APAR T FROM OTHER DECISIONS OF THE TRIBUNAL IN THE CASE OF JITE NDRA MOHAN VS. ITO (2007) 11 SOT 594 (DEL) AND ALSO ANOTHER DE CISION OF THE ITAT IN THE CASE OF PRAVIN GUPTA VS. ACIT AND T HE RELEVANT PROPOSITIONS ARE EXTRACTED IN PARA 7 OF THE TRIBUNA LS ORDER DATED 7.11.2012. THE SAID PARAS 7 AND 8 FROM THE O RDER OF THE TRIBUNAL IN THE CASE OF SMT. VANDANA RANA ROY READ AS UNDER: 7. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE CIT ED DECISIONS AND WE FIND THAT THERE IS NO DISPUTE ON T HE FACTS. THE ONLY ISSUE THAT IS TO BE DECIDED IS WHETHER DATE OF ALLOTMENT OF THE FLAT OR THE DATE OF POSSESSION OF THE FLAT BY T HE ASSESSEE SHOULD BE CONSIDERED AS DATE OF HOLDING FOR COMPUTI NG THE HOLDING PERIOD OF 36 MOTHS. IN ALTERNATIVE, THE D ATE OF REGISTRATION SHOULD BE THE RELEVANT DATE. ON PERU SAL OF THE SAID DECISIONS RELIED UPON BY THE LD COUNSEL, WE FIND TH AT THE DECISIONS ARE RELEVANT AND APPLICABLE TO THE FACTS OF THE PRESENT CASE. THE CONCLUSION OF THE HONBLE GUJARAT HIGH COURT JUDGMENT IN THE CASE OF CIT VS. JINDAS PANCHAND GAN DHI READS AS UNDER: ASSESSEE HAVING SOLD THE FLAT ALLOTTED TO HIM BY A CO-OPERATIVE HOUSING SOCIETY AFTER A PERIOD OF 36 MONTHS FROM TH E DATE OF ALLOTMENT, CAPITAL GAINS ARISING TO HIM WERE LONG-T ERM CAPITAL GAINS DESPITE THE FACT THAT THE PHYSICAL POSSESSION OF THE FLAT WAS GIVEN TO THE ASSESSEE MUCH LATER AND, THEREFORE HE WAS ENTITLED TO DEDUCTION FROM SUCH GAINS AS PER LAW. 7.1 THE CONCLUSION OF THE HONBLE GUJARAT HIGH COURT JUDGMENT IN THE CASE OF CIT VS. ANILABEN UPENDRA SHAH READS AS UNDER: ITA NO.5982/M/13 A.Y. 2010-11 8 ASSESSEE HAVING HELD THE SHARES AND ALLOTMENT OF A FLAT IN A CO- OPERATIVE HOUSING SOCIETY FOR A PERIOD OF MORE THAN 36 MOTHS THE CAPITAL GAIN ARISING FROM SALE OF SAID FLAT WAS LON G-TERM CAPITAL GAIN AND ASSESSEE WAS ENTITLED TO BENEFIT OF SECTIO N 80T IRRESPECTIVE OF THE FACT THAT THE ASSESSEE DID NOT GET POSSESSION OF THE FLAT IN QUESTION AT THE TIME OF ALLOTMENT AN D IT WAS CONSTRUCTED LATER ON. 7.2. THE CONCLUSION OF HONBLE ITAT, DELHI BENCH IN THE CASE OF JITENDRA MOHAN VS. ITO READS AS UNDER: ON THE FACTS OF THE CASE, ASSESSEE HELD THE CAPITA L ASSET (SHED) ALLOTTED TO IT ON INSTALLMENT BASIS FROM 28 TH DECEMBER, 1994, THE DATE OF PAYMENT OF SECOND INSTALLMENT AND SALE THER EOF ON 15 TH DECEMBER, 2000, GAVE RISE TO LONG TERM CAPITAL LOSS EVEN THOUGH POSSESSION OF SHED WAS HANDED OVER BY DSIDC TO ASSE SSEE ON 28 TH MAY, 1998. 7.3. THE CONCLUSION OF HONBLE ITAT, DELHI BENCH IN THE CASE OF PRAVEEN GUPTA VS. ACIT READS AS UNDER: ASSESSEE CAN BE SAID TO HAVE HELD THE FLAT WHEN HE MADE THE PAYMENT TO THE BUILDER AND RECEIVED THE ALLOTMENT L ETTER, AND THEREFORE, BENEFIT OF INDEXATION OF COST OF ACQUISI TION OF THE FLAT HAS TO BE GRANTED TO THE ASSESSEE FROM THE DATE (19 95) WHEN HE STARTED MAKING PAYMENT TO THE BUILDER AND NOT FROM THE DATE OF EXECUTION OF CONVEYANCE DEED IN 2001. 8. ALL THE ABOVE DECISIONS ARE UNIFORM IN CONCLUDIN G THAT THE DATE OF ALLOTMENT IS RECKONED AS THE DATE FOR COMPUTING THE HOLDING PERIOD FOR THE PURPOSE OF CAPITAL GAINS . THE DATE OF ALLOTMENT IN THIS CASE BEING 19.11.2001 AND THE DAT E OF SALE IS 23.8.2006, THEREFORE, THE HOLDING PERIOD IS MUCH M ORE THAN 36 MONTHS. IN THIS CASE, THE GAINS EARNED BY THE ASSE SSEE ON THE SALE OF FLAT HAVE TO BE COMPUTED AS CAPITAL GAINS. WITH OUT PREJUDICE, EVEN IF THE DATE OF POSSESSION, BEING 14.8.2003, IS CONSIDERED; THE ASSESSEE IS STILL ENTITLED TO THE BENEFITS OF THE L ONG TERM CAPITAL GAINS. THEREFORE, IN OUR OPINION, ORDER OF THE CIT (A) DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, THE GROUNDS RAI SED BY THE REVENUE ARE DISMISSED. 4. CONSIDERING THE ABOVE SETTLED NATURE OF THIS ISS UE, WE ARE OF THE OPINION THAT THE ASSESSEE MUST SUCCEED O N THIS ISSUE. ACCORDINGLY, THE RELEVANT GROUNDS OF APPEAL ARE ALL OWED. 7. FROM THE ABOVE SETTLED POSITION OF THE ISSUE, IT CAN BE SAFELY CONCLUDED THAT THE DATE OF ALLOTMENT SHOULD BE RECKONED AS THE DATE FOR COMPUTING THE HOLDING PERIOD FOR THE PURPOSE OF CAPITAL GAINS. IN THE IN STANT CASE, THE DATE OF ALLOTMENT IS 11.04.2003 (FY 2003- 2004) AND THE DATE OF SALE OF THE PROPERTY IS 14.10.2007 , THEREFORE THE HOLDING PERIOD IS MORE THAN 36 MONTHS. THEREFORE, THE CAPITAL GAINS EARNED BY THE ASSESSEE ON THE SALE OF THE FLAT HAVE TO BE TREATED AS LONG TERM CAPITAL GAINS. THE ASSESEE PAID THE FIR ST ITA NO.5982/M/13 A.Y. 2010-11 9 INSTALLMENT ON 11.4.2003, THEREBY CONFERRING A RIGH T TO HOLD A FLAT, WHICH WAS LATER IDENTIFIED AND POSSESS ION DELIVERED ON LATER DATE. THE HONBLE PUNJAB & HARY ANA HIGH COURT IN THE CASE OF MRS. MADHU KAUL VS. CIT V IDE INCOME TAX APPEAL NO.89 OF 1999, DATED 17 TH JANUARY, 2014 HELD THAT THE MERE FACT THAT POSSESSION WAS DELIVERED LATER, DOES NOT DETRACT FROM THE FACT THA T THE ALLOTTEE WAS CONFERRED A RIGHT TO HOLD PROPERTY ON ISSUANCE OF AN ALLOTMENT LETTER. THUS, THE LD DRS ARGUMENTS ON NON-EXISTENCE OF THE FLAT AT THE TIME OF ISSUING OF ALLOTMENT LETTER STANDS ANSWERED BY THE SAID JUDGMENT OF THE HONBLE HIGH COURT OF PUNJAB & HARY ANA (SUPRA). THE SAME VIEW WAS SUPPORTED BY VARIOUS DECISIONS OF THE TRIBUNAL AS WELL AS THE JUDGMENTS OF THE HONBLE GUJARAT HIGH COURT AND THE RELEVANT CONCLUS IONS WERE ALREADY EXTRACTED IN THE ABOVE PARAGRAPHS OF T HIS ORDER. REGARDING THE JUDGMENTS OF THE HONBLE JURISDICTIONAL HIGH COURT RELIED ON BY THE LD DR AR E DISTINGUISHABLE ON FACTS. THEREFORE, CONSIDERING TH E ABOVE SETTLED NATURE OF THE ISSUE AS WELL AS THE FO LLOWING THE PRINCIPLE OF CONSISTENCY, WE ARE OF THE CONSIDE RED OPINION THAT THE GROUND NO.1 RAISED BY THE ASSESSEE SHOULD BE ALLOWED. ACCORDINGLY, GROUND NO.1 IS ALLOWED . 6. THE FACTS AND CIRCUMSTANCES OF THE P RESENT CASE IS QUITE SIMILAR. MOREOVER, THE ABOVE SAID CASE IS THE CASE OF THE SISTER OF THE ASSESSEE IN WHICH THE DATE OF ALLOTMENT IS THE SAME IN THE SAME VICINITY AND ACCORDINGLY SHE IS ENTITLED TO GET THE EXEMPTION U/S.54 OF THE ACT. MOREOVER, THE RATIO GIVEN IN THE CASE TIT LED MRS. MADHU KAUL VS. CIT AND ANOTHER [ 363 ITR 54] (SUPRA) AND CIT V S. S.R.JEYSHANKAR [373 ITR 120] (SUPRA) ARE ALSO QUITE APPLICABLE TO THE FACTS OF THE PRESENT CASE IN WHICH THE DATE OF ALLO TMENT LETTER WAS CONSIDERED TO ASSESS THE HOLDING PERIOD TO ASCERTAI N THE ENTITLEMENT OF EXEMPTION U/S.54 OF THE ACT. IN VIEW OF THE SAID C IRCUMSTANCES WE ARE OF THE VIEW THAT THE FINDING OF THE CIT(A) ON THIS SAID ISSUE IS WRONG ITA NO.5982/M/13 A.Y. 2010-11 10 AGAINST LAW AND FACTS AND IS NOT LIABLE TO BE SUSTA INABLE IN THE EYES OF LAW. HENCE, WE SET ASIDE THE FINDING OF THE CIT(A) ON THIS ISSUE AND DIRECT THE ASSESSING OFFICER TO CONSIDER THE ALLOTM ENT LETTER DATED 30.03.2005 TO DETERMINE THE LONG TERM / SHORT TERM CAPITAL GAIN AND ACCORDINGLY ENTITLEMENT OF EXEMPTION U/S.54 OF THE ACT. ACCORDINGLY THESE ISSUES ARE DECIDED IN FAVOR OF AS SESSEE AGAINST THE REVENUE. ISSUE NO. 4:- 7. SINCE THE ABOVE SAID ISSUES HAVE BEEN DECIDED IN FAVOUR OF ASSESSEE THEREFORE THERE IS NO NEED TO DECIDE THIS ISSUE BEING ACADEMIC IN NATURE. ISSUE NO.5 :- THIS ISSUE IS FORMAL IN NATURE NOWHERE REQUIRES AD JUDICATION. 8. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS HE REBY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST MARCH, 2017 SD/- SD/- (G.S.PANNU) (AMARJIT SINGH) ! / ACCOUNTANT MEMBER ' #! /JUDICIAL MEMBER MUMBAI; DATED : 31 ST MARCH, 2017 MP MP MP MP ITA NO.5982/M/13 A.Y. 2010-11 11 %&'$ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. & ( ) / THE CIT(A)- 4. & / CIT 5. #' (###) , #) , / DR, ITAT, MUMBAI 6. ( *+, / GUARD FILE. / BY ORDER, ## //TRUE COPY// / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI