SURINDER MOHAN KHANNA, MUMBAI V. ITO 19(2)(4), MUMBAI

ITA 6505/MUM/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3449 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 13-08-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 25-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJNEESH K ARVINDDR
• Keywords: Capital asset

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI E BENCH, MUMBAI BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER. ITA. NO. 6505/MUM/2012 (ASSESSMENT YEAR: 2007-08) SURENDRA MOHAN KHANNA APPELLANT B SAMRUDHI RELIEF ROAD, SANTACRUZ (W) MUMBAI VS. ITO 19(2)(4) RESPONDENT C-11 PRATYAKSHAKAR HAVAN, BANDRA KURLA COMPLEX, BANDRA (E) MUMBAI PAN: AQVPK 7984J /BY APPELLANT : SHRI NEERAJ SHETH, /BY RESPONDENT:SHRI RAJNEESH K. ARVIND,DR /DATE OF HEARING : 16.08.2016 /DATE OF PRONOUNCEMENT : 19.08.2016 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-35, MUMBAI, DA TED 07.08.2012 FOR A.Y. 2007-08 ON FOLLOWING GROUND: ITA NO.6505/MUM/12 A.Y. 2007-08 [SURINDER MOHAN KHA NNA VS. ITO] PAGE 2 THE LEARNED CIT(A) HAS SERIOUSLY ERRED IN HOLDING THAT THE FLAT NO.A-701, OF THE ASSESSEE IN SHEETAL VIHAR, DWARKA, NEW DELHI 110075 WHICH WAS SOLD ON 5 TH JUNE 2006 WAS A SHORT TERM CAPITAL ASSET HE FAILED TO APPRECIATE AND OUGHT TO HAVE HELD THA T THE ASSET IN QUESTION WAS A LONG TERM CAPITAL ASSET , THE SALE OF WHICH IS TO BE TAXED AS LONG TERM CAPIT AL GAINS. THE LEARNED CIT(A) HAS ERRED IN COMING TO THE CONCLUSION THAT THE DECISION IN THE CASE OF ITO VS. SMT. KASHMIRABEN H. PARIKH IS NOT APPLICABLE TO THE CASE AS THE FACTS ARE DIFFERENT. HE FAILED TO APPRECIATE AND OUGHT TO HAVE HELD THAT ALL THE RELEVANT FACTS IN THE CASE OF THE APPELLANT ARE IDENTICAL TO THE FACTS IN THE ABOVE DECISION AND TH E FLAT SOLD BY THE APPELLANT WAS RIGHTLY CLAIMED TO B E A LONG TERM CAPITAL ASSET. 2. ISSUE BEFORE US IS REGARDING WHETHER THE ASSET T RANSFERRED IS OF A LONG TERM CAPITAL GAIN OR SHORT TERM CAPITA L GAIN. THE ISSUE OF CAPITAL GAIN IS WITH REGARD TO FLAT NO.701 , OF THE ASSESSEE IN SHEETAL VIHAR, DWARKA, NEW DELHI WHICH WAS BOOKED IN THE YEAR 1986 AND WAS SOLD ON 5 TH JUNE, 2006. MEANWHILE, ASSESSEE HAS DISCHARGED HIS RESPONSIBILI TIES BY PAYING ENTIRE COST IN MARCH, 2006. NOW QUESTION IS WHETHER DATE OF BOOKING WILL BE TAKING FOR THE PURPOSE OF C OMPUTATION OF CAPITAL GAIN OR DATE OF FINAL PAYMENT FOR THE FLAT IN QUESTION. WE FIND THAT THE HONBLE GUJARAT HIGH COURT IN THE CAS E OF CIT VS. ANILABEN UPENDRA SHAH, (2003) 262 ITR 658 HAS HELD THAT ASSESSEE ACQUIRED SHARES IN THE CO-OPERATIVE HOUSIN G SOCIETY AND WAS ALLOTTED THE FLAT ON NOVEMBER 15, 1979. POS SESSION OF THE FLAT OBTAINED IN OCTOBER, 1981 AND SOLD THE SAM E IN DECEMBER, 1982, SHARES IN CAPITAL HOUSING SOCIETY W AS HELD FOR MORE THAN 36 MONTHS. ACCORDINGLY, THE CAPITAL GAIN IN QUESTION ITA NO.6505/MUM/12 A.Y. 2007-08 [SURINDER MOHAN KHA NNA VS. ITO] PAGE 3 WAS HELD TO BE LONG TERM CAPITAL GAIN. THUS IN CASE OF CIT VS. ANILABEN UPENDRA SHAH (SUPRA), THE DATE OF ALLOTMEN T WAS TAKEN FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAI N AND NOT POSSESSION. 2.1. NOTHING CONTRARY WAS BROUGHT TO OUR KNOWLEDGE ON BEHALF OF REVENUE. FACTS BEING SIMILAR, SO, FOLLOWING SAM E REASONING, WE ARE NOT INCLINED TO CONCUR WITH THE FINDING OF C IT(A) BECAUSE DATE OF ACQUISITION OF FLAT IN QUESTION WILL BE FIR ST BOOKING I.E. 1986 AND POSSESSION OF FLAT WILL RELATE BACK TO 198 6 FOR PURPOSE OF COMPUTATION OF CAPITAL GAIN. ASSESSING OFFICER I S DIRECTED ACCORDINGLY. 3. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE I S ALLOWED AS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS THE 19 TH DAY OF AUGUST, 2016. SD/- SD/- ( RAJESH KUMAR ) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBE R MUMBAI: DATED 19/08/2016 PRABHAT KESARWANI TRUE COPY / COPY OF ORDER FORWARDED TO:- / REVENUE !# / ASSESSEE $ %&%'( ) / CONCERNED CIT * )+ / CIT (A) ,-./00'(1 '( 12 %& / DR, ITAT, MUMBAI 3/4567 / GUARD FILE. BY ORDER / #8 1 ITA NO.6505/MUM/12 A.Y. 2007-08 [SURINDER MOHAN KHA NNA VS. ITO] PAGE 4 9: ;% 1 '( 12 %&<