Shri Sanjay Kumar Kumath, Indore V. The ACIT 2(1), Indore

ITA 697/IND/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91819 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 08-06-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 04-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: N D PATWA S
• Keywords: Salary income
• Section: 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.A.NO. 697/IND/2013 A.Y. : 2010-11 SHRI SANJAY KUMAR KUMATH, 15/1, SOUTH TUKOGANJ, INDORE. VS. ACIT, 2(1), INDORE APPELLANT RESPONDENT PAN NO. : ACNPK4953D APPELLANT BY : SHRI ASHISH GOYAL AND SHRI N. D. PATWA, ADVOCATES. RESPONDENT BY : SHRI R. A. VERMA, SR. DR DATE OF HEARING : 08 . 0 6 .201 5 DATE OF PRONOUNCEMENT : 10 . 0 6 .201 5 -: 2: - 2 O R D E R PER GARASIA, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-I, INDORE, DATED 13.09.2013 FOR THE ASSES SMENT YEAR 2010-11. 2. THE ASSESSEE IS A SALARIED PERSON WITH M/S. K. RAHE JA UNIVERSAL PRIVATE LIMITED, MUMBAI. HE HAS SHOWN THE INCOME FROM SALARY, HOUSE PROPERTY INCOME, INCOME FROM OTH ER SOURCES AND LONG TERM CAPITAL GAIN. 3. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS SHOWN THE LONG TERM CAPITAL GAIN OF RS. 24,37,704/- AND CLAIMED DEDUCTION OF ENTIRE AMOUNT OF CAPITAL GAIN U/S 54F ON ACCOUNT OF DEPOSIT OF NET CONSIDERATION OF RS. 69,2 1,000/- MADE WITH CAPITAL GAIN CDR WITH OBC, RNT MARG, INDO RE. THE AO HAS EXAMINED AND HE WAS OF THE VIEW THAT THE ASS ESSEE HAS ACQUIRED THE RIGHT TO PURCHASE THE SAID FLAT ON 20. 1.2005 I.E. A LETTER OF ALLOTMENT, WHILE THE AGREEMENT OF THE SHA RE WAS ENTERED INTO 15.7.2009 AND FROM THAT DAY, THE ASSES SEE GOT -: 3: - 3 RIGHT AND THEREAFTER, HE HAS TRANSFERRED THE REGIST ERED AGREEMENT FOR SALE. THEREFORE, THE ASSESSEE HAS ACQ UIRED THE RIGHT ONLY ON 15.07.2009 AND THE DATE OF SALE OF RI GHT IN FLAT WAS ON 19.8.2009, THEREFORE, THE ASSESSEE HAS ACQUI RED THE RIGHT FOR NOT MORE THAN THREE YEARS. THEREFORE, IT IS A SHORT TERM CAPITAL GAIN AND THE AO HAS ASSESSED THE SHORT TERM CAPITAL GAIN OF RS 31,47,168/-. THE AO HAS EXAMINE D THE CLAIM OF THE ASSESSEE DURING THE ASSESSMENT PROCEED INGS AND AFTER CONSIDERING THE TRANSACTION OF THE ASSESSEE A ND THE AGREEMENT OF THE SALE, WORKED OUT THE SHORT TERM CA PITAL GAIN AT RS. 31,47,168/- IN THE ASSESSMENT ORDER. 4. THE MATTER CARRIED TO LD. CIT(A). THE LD. CIT(A) DE LETED THE SAME. 5. DURING THE COURSE OF HEARING, THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT THE SIMILAR ISSUE HAS COME UP BEFORE THE TRIBUNAL IN ASSESSEES OWN CASE IN I.T.A .NO. 448/IND/2013, WHEREIN THE SIMILAR CAPITAL GAIN WAS TREATED AS LONG TERM CAPITAL GAIN BY THE TRIBUNAL AND SIMILAR FACTS ARE IN THIS CASE, THEREFORE, THE APPEAL MAY BE ALLOWED. -: 4: - 4 6. THE LD. SENIOR D.R. RELIED UPON THE ORDER AND CONCEDED THAT THE MATTER IS COVERED BY THE DECISION OF THE TRIBUNAL. 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE IN I.T.A.NO. 448/IND/2013 AND C.O.NO.83/IND/2013, WHER EIN THE TRIBUNAL HAS DECIDED THE SIMILAR FACTS IN PARA 8 OF THE TRIBUNAL, WHICH IS REPRODUCED BELOW :- 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HA VE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AN D ALSO DELIBERATED ON THE JUDICIAL PRONOUNCEMENT CITED BY THE LD. SENIOR D.R. WITH REFERENCE TO THE FACTUAL MATRI X OF THE CASE. HERE, THE QUESTION INVOLVES REGARDING RIGHT A CQUIRED BY THE ASSESSEE THROUGH ALLOTMENT LETTER ISSUED BY THE BUILDER. VIDE THIS ALLOTMENT LETTER, THE ASSESSEE W AS ALLOTTED FLAT NO.1202 AT 12 TH FLOOR OF MULTI-STORIED BUILDING NAMED AS RAHEJA TIPCO, MUMBAI. VIDE THIS ALLOTMENT LETTER, BUILDER M/S. K. RAHEJA UNIVERSAL PVT.LTD. AGREED TO SELL THE FLAT TO THE ASSESSEE FO R RS. 33,15,750/- BESIDES OTHER CHARGES OF RS. 1,32,480/- . -: 5: - 5 AFTER SIGNING THE SAID LETTER OF ALLOTMENT AND PAYI NG THE BOOKING AMOUNT, THE ASSESSEE ACQUIRED THE RIGHT IN THE SAID FLAT. PAYMENT OF FLAT WAS MADE AS UNDER :- DATE PAYMENT (RS.) 22.01.2005 1,00,000 26.01.2005 5,23,150 09.07.2005 3,11,575 28.04.2006 1,40,209 03.01.2007 11,21,672 23.03.2007 1,40,209 24.05.2007 1,40,209 21.09.2007 1,40,209 06.11.2007 1,40,209 31.03.2008 2,80,418 8. WE RESPECTFULLY FOLLOW THE ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE. -: 6: - 6 9. IN THE RESULT, THE APPEAL IS ALLOWED. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 10 TH JUNE, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 10 TH JUNE, 2015. CPU* 8106