NITIN PARKASH, THANE V. DCIT CIR 3, THANE

ITA 817/MUM/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9845 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 1 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 06-02-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR
• Keywords: Capital asset; Cost of acquisition
• Section: 143(3); 234B

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI G. S. PANNU , AM & SH. SANDEEP GOSAIN, JM ./ I.T.A. NO . 817/MUM/2015 ( / ASSESSMENT YEAR: 20 11 - 12 ) NITIN PRAKASH 221/222 SWASTIKPLAZ, POKHRAN RD NO. 2, SUBHASH NAGAR THANE(W) THANE - 400601. / VS. DCIT CIR 3 THANE PIN - ./ ./ PAN NO. AA SPP1411G ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI RAJIV KHANDELWALA& SHRI NEELKANTHK H ANDELWAL / RESPONDENTBY : SHRI SUMAN KUMAR / DATE OF HEARING : 08.02 .1 8 / DATE OF PRONOUNCEMENT : 19/03/2018 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENT APPE AL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF LD. CIT (APPEAL) 2, MUMBAI DATED 01.01 .12 F OR AY 20 11 - 12 ON THE GROUNDS MENTIONED HEREIN BELOW: - 2 I.T.A. NO. 817 /MUM/201 5 NITIN PRAKASH 1. THE COMMISSIONER OF INCOME - TAX (APPEALS) - 2, THANE (HEREINAFTER REFERRED TO ASTHE CIT(A)) ERRED IN UPHOLDING THE ACTION OF THE DEPUTY COMMISSIONER OF INCOME - TAX, CIRCLE 3, THANE (HEREINAFTER REFERRED TO AS THE ASSESSING OFFICER) IN TREATING CAPITAL ASSET BEING 'RIGHT TO ACQUIRE A PROPERTY' AS SHORT - TERM CAPITAL ASSET AND THEREBY CONSIDERING THE GAINS RS 3,25,36,150 ARISING ON SALE OF SUCH RIGHTS AS SHOR T - TERM CAPITAL GAINS INSTEAD OF LONG - TERM CAPITAL GAINS TREATED BY THE APPELLANT. THE APPELLANT CONTENDS THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) OUGHT NOT TO HAVE UPHELD THE ACTION OF THE ASSESSING OFFICER IN TREATING THE CAPITAL ASSET BEING 'RIGHT TO ACQUIRE A PROPERTY' AS SHORT - TERM CAPITAL ASSET INASMUCH AS THE SAID ASSET IS A LONG - TERM CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(29A) R.W.S. 2(42A) AND THUS, THE GAINS RS 3,25,36,150 ARISING ON SALE OF SUCH RIGHTS H AVE TO BE TREATED AS LONG - TERM CAPITAL GAINS. 2. THE CIT(A) ERRED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN ALLOWINGINDEXATION ON BASIS OF THE YEAR OF PAYMENTS OF INSTALLMENTS WHICH OUGHT TO HAVE BEEN ON THE BASIS OF THE LETTER OF ALLOTMENT DATED 3 I.T.A. NO. 817 /MUM/201 5 NITIN PRAKASH 23.12.2004 GIVEN BY THE BUILDER WHICH ALSO SPECIFIES THE 'COST OF ACQUISITION' THE APPELLANT CONTENDS THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) OUGHT NOT TO HAVE UPHELD THE ACTION OF THE ASSESSING OFFICER IN ALLOWING IN DEXATION ON THE BASIS OF THE YEAR OF PAYMENTS OF INSTALLMENTS MADE OF THE COST OF ACQUISITION INASMUCH AS THE INDEXATION HAS TO BE ALLOWED ON THE 'COST OF ACQUISITION' PER THE LETTER OF ALLOTMENT GIVEN BY THE BUILDER. 3 . THE CIT(A) ERRED IN UPHOLDING THE A CTION OF THE ASSESSING OFFICER IN CHARGINGINTEREST UNDER SECTIONS 234A, 234B AND 234C OF THE ACT. THE APPELLANT CONTENDS THAT THE ASSESSING OFFICER OUGHT NOT TO HAVE CHARGED INTEREST UNDER SECTIONS 234A, 234B AND 234C OF THE ACT, RESPECTIVELY. THE APPELLAN T FURTHER, CONTENDS THAT THE ASSESSING OFFICER OUGHT NOT TO HAVE CHARGED INTEREST UNDER SECTIONS 234A, 234B AND 234C INASMUCH AS - (A) THE ASSESSING OFFICER HAS NOT GIVEN AN OPPORTUNITY TO THE APPELLANT BEFORE CHARGING THE SAID INTEREST AS REQUIRED BY THE PRINCIPLES OF NATURE JUSTICE, 4 I.T.A. NO. 817 /MUM/201 5 NITIN PRAKASH (B) THE CHARGING OF INTEREST IS NOT IN ACCORDANCE WITH LAW. THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER OR AMEND THE AFORESTATED GROUND OF APPEAL. 2 . THE B RIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS MADE A REQUEST FOR ALL OTMENT OF APARTMENTS NOS. 0003, 0004 AND 0103, 0104 AND 0105 IN A PROJECT NAMED ASHOK TOWERS CONSISTING OF GROUND FLOOR AND FIRST FLOOR ADMEASURING SALEABLE AREA OF 3730 SQ. FT., A 5 BHK DUPLEX WITH GARDEN ALONG WITH 3 STILT CAR PARKINGS ON 08.06.2004 BY M AKING A PAYMENT OF RS.9,58,850/ - BEING A PAYMENT OF BOOKING AMOUNT REPRESENTING 5% OF THE TOTAL CONSIDERATION OF RS. 1,91,77, 000/ - . THEREAFTER, THE ASSESSEE RECEIVED A LETTER DATED 23.12.2004 FROM THE BUILDER REGARDING RESERVATION OF APARTMENTS NOS 0003 ON THE GROUND FLOOR AND APARTMENT NOS.0103 AND 0104 ON THE FIRST FLOOR IN TOWER 'B' OF AS HOK TOWERS, PAREL. THE ASSESSEE TREATED THIS LETTER AS LETTER OF ALLOTMENT AND CONSIDERED THE SAID DATE AS DATE OF ACQUISITION OF THE 'RIGHT TO A CQUIRE PROPERTY'. THE AS SESSEE THEREAFTER REGISTERED THE AGREEMENTS FOR PUR CHASE OF THE FLAT ON 31.12.2008 5 I.T.A. NO. 817 /MUM/201 5 NITIN PRAKASH AND SOLD RIGHT TO ACQUIRE APARTMENTS IN THE AFORESAID BUILDING UNDER CONSTRUCTION NAMED ASHOK TOWER, VIDE DEED OF TRANSFER DATED 13/08/2010. DURING THE COURSE OF ASSESSMENT PROCEEDING, THE ASSESSEE CLAIMED LTCG ON THE SALE OF RIGHT IN MOVABLE PROPERTY FOR RS. 3,25,36,150/ - . THE AO WHILE PASSING THE ORDER OF ASSESSMENT U/S 143(3) OF THE I.T. ACT, HELD THAT THE ALLOTMENT LETTER DOES NOT GIVE THE RIGHT TO ACQUIRE MOVABLE PROPERTY AND THEREFORE AGREEMENT FOR PURCHASE OF FLAT DATED 31.12.08 WOULD BE APPROPRIATE DATE FOR CONS IDERING, DATE OF ACQUISITION OF THE SAID PROPERTY AND HENCE THE ASSET I N QUESTION IS NOT A LTCG ASSET, BUT A STCG ASSET AND TAX HAS TO BE COMPUTED ACCOR DINGLY. AGGRIE VED BY THE ORDER OF AO, ASSESSEE PREFERRED APPEAL BEFORE LD. CIT(A) AND LD. CIT(A) AFTER CONSIDERING THE CASE OF BOTH THE PARTIES , DISMISSED THE APPEAL OF THE ASSESSEE. NOW BEFORE US, THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BY RAISING THE ABOVE GROUNDS. 6 I.T.A. NO. 817 /MUM/201 5 NITIN PRAKASH GROUND NO. 1. 3 . THIS GROUND RAISED BY THE ASSESSEE RELATES TO CHA LLENGING THE ORDER OF LD. CIT(A) IN UPHOLDING THE ACTION OF THE DEPUTY COMMISSIONER OF INCOME - TAXIN TREATING CAPITAL ASSET BEING 'RIGHT TO ACQUIRE A PROPERTY' AS SHORT - TERM CAPITAL ASSET AND THEREBY CONSIDERING THE GAINS RS 3,25,36,150 ARISING ON SALE OF SUCH RIGHTS AS SHORT - TERM CAPITAL GAINS INSTEAD OF LONG - TERM CAPITA L GAINS TREATED BY THE ASSESSEE . 4 . LD. AR APPEARING ON BEHALF OF THE ASSESSEE REITERATED THE SAME ARGUMENTS WHIC H WERE RAISED BEFORE LD. CIT(A). LD. AR SUBMITTED THAT AS PER THE DETAILS SUBMITTED BEFORE REVENUE AUTHORITIES, THE CAPITAL ASSET TRANSFERRED BY THE ASSESSEE WAS RIGHT TO ACQUIRE APARTMENT IN A BU ILDING UNDER CONSTRUCTION AND THE AGREEMENT FOR SALE ENTERED INTO WITH THE BUILDER WAS JUST FOR FORMALIZING THE BOOKING OF THE APARTMENT AS VIDE LETTER OF ALLOTMENT DATED 08.06.04 , FLATS WERE ALLOTTED TO THE ASSESSEE AND THE SAME WERE RESERVED VIDE LETTER DATED 23.12.04. IT WAS FURTHER SUBMITTED BY LD. AR THAT THE AGREEMENT FOR PURCHASE OF FLATS WAS ULTIMATELY REGISTERED ON 31.12.08 AND THE SAID PROPERTY WAS 7 I.T.A. NO. 817 /MUM/201 5 NITIN PRAKASH FURTHER TRANSFERRED B Y THE REGISTERED DEED OF TRANSFER DATED 13.08.10. LD. AR FURTHER SUBMITTED THAT THE ASSESSEE HAD BOOKED THE SAID APARTMENT ON 08.06.04 AND IN THE SAID LETTER, ALL THE DETAILS REGARDING PROPERTY, PAYMENTS, NAMES OF PURCHASERS ETC, ARE MENTIONED. IT WAS FURTHER SUBMITTED THAT THE SAID LETTER HAS ALSO SIGNED BY THE ASSESSEE AND THE AUTHORIZED SIGNATORY OF THE COMPANY CONSTRUCTING THE SAID BUILDING. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAD MADE PAYMENT OF 5% OF TOTAL COST AS BOOKING AMOUNT ON THE SAME DAY ITSELF. THEREFORE, THE COMPANY CONFIRM THE ALLOTMENT OF FLATS IN THE BUILD ING UNDER CONSTRUCTION BY MENTIONING RESERVATION OF APARTMENTS . IT WAS FURTHER SUBMITTED THAT MAJORITY OF THE PAYMENT WAS MADE AS PER THE TERMS MENTIONED IN THE ALLOTMENT LETTER TITLED AS REQUEST FOR ALLOTMENT. IT WAS FURTHER SUBMITTED THAT THE ASSESSE E HAD TRANSFERRED THE SAID RIGHT TO ACQUIRE EVEN BEFORE TAKING THE POSSESSION OF THE SAID APARTMENT AS PER DEED OF TRANSFER DATED 13.08.10, THEREFORE THE PROPERTY WHICH WAS ACQUIRED BY THE ASSESSEE ON 08.06.04 WAS TRANSFERRED ON 13.08.10 AND AS SUCH THE SAID ASSET WAS CAPITAL ASSET FOR A PERIOD EXCEEDING 36 MONTHS AND 8 I.T.A. NO. 817 /MUM/201 5 NITIN PRAKASH THEREFORE THE ASSESSEE HAS CORRECTLY TREATED THE RESULTANT CAPITAL GAINS LONG TERM CAPITAL GAINS. IN SUPPORT TO HIS CONTENTIONS, LD. AR RELIED UPON THE JUDGMENTS CITED BY HIM BEFORE THE REV ENUE AUTHORITIES. APART FROM THAT, LD. AR ALSO RELIED UPON THE LATEST ORDER OF COORDINATE BENCH OF HONBLE ITAT IN THE CASE OF ANITA D. KANJANIVRS. ACIT (2017) 79 TAXMANN.COM 67 (MUM. TRIB) . 5 . ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS PASSED BY RE VENUE AUTHORITIES. 6 . WE HAVE HEARD COUNSELS FOR BOTH THE PARTIES AT LENGTH AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES. NOW THE QUESTION BEFORE US IS THAT AS TO WHETHER THE GAIN EARNED BY THE ASSESSEE CAN BE TREATED AS LTCG OR NOT. AFTER HAVING GONE THROUGH THE FACTS OF THE PRESENT CASE AND THE JUDGMENT RELIED UPON BY BOTH THE PARTIES, WE FIND THAT THE REVENUE AUTHORITIES CONSIDERED THE SUBMISSIONS AND REJECTED THE SAM E BY HOLDING THAT MERELY GIVING BOOKING AMOUNT TO THE 9 I.T.A. NO. 817 /MUM/201 5 NITIN PRAKASH BUILDER CANNOT TANTAMOUNT TO ACQUISITION OF THE SAID PROPERTY . IT WAS HELD BY THE REVENUE AUTHORITIES THAT THE DATE OF ACQUISITION OF THE FLAT IN THE INST ANT CASE FOR THE PURPOSE OF COMPUTING LTCG IS THE DATE , WHEN THE FLAT IN QUESTION WAS ACTUALLY ACQUIRED BY THE AS SESSEE ON THE DATE OF ACQUISITION OF A GREEMENT FOR THE PURCHASE OF PROPERTY I.E. 31.12.08. THE REVENUE AUTHORITIES FURTHER HELD THAT WHEN A FLAT IS BOOKED WITH BUILDER UNDER A LETTER OF ALLOTMENT, THIS WOULD REPRESENT ONLY A RIGHT TO PURCHASE OF FLAT WITH CERTAIN CONDITIONS AND ONLY AFTER FULFILLING AND ADHERING TO CO NDITIONS PRESCRIBED THEREIN, THE A GREEMENT COMES INTO EXISTENCE. THEREFORE, IT WA S HELD THAT ASSESSEE COULD NOT HAVE SOLD THE RIGHT TO ACQUIRE PROPERTY UNTIL AND UNLESS THE PROP ERTY WAS REGISTER ON 31.12.08. HENCE, THE ALLOTMENT LETTER COULD NOT BE CONSIDERED AS THE DATE OF ACQUISITION. AFTER ANALYZING THE FACTUAL POSITION IN THE PR ESENT CASE, WE FIND THAT IN FACT THE FLAT IN QUESTION WAS ALLOTTED TO THE ASSESSEE VIDE LETTER DATED 8 TH J UNE 2004 WHICH IS TITLED AS REQUEST FOR ALLOTMENT. IT IS AN UNDISPUTED FACT THAT THE REQUEST FOR ALLOTMENT IS ON THE PROFORMA PREPARED BY THE BUILDER AND THE SAME ALSO 10 I.T.A. NO. 817 /MUM/201 5 NITIN PRAKASH CONTAINS THE PAYMENT SCHEDULE, DETAILS AND SIGNATURE S OF BOTH THE CONTRACTING PARTIES. SUBSEQUENTLY, VIDE LETTER DATED 07.09.2004, BUILDER AGAIN REQUESTED THE ASSESSEE TO ARRANGE FOR THE BALANCE PAYMENT AS THE BUILDER HAD OBTAINED COMMENCEMENT CERTIFICATE IN RESPECT OF THE TOWER IN WHICH THE FLAT WAS ALLOTTED. BUT THE REGISTERED AGREEMENT FOR SALE OF FLAT HAS BEEN EXECUTED ON 31.12.08 . T HE SAID DOCUMENT CANNOT BE READ IN ISOLATION BUT IS TO BE CONSIDERED IN CONTINUATION O F THE EARLIER LETTER OF ALLOTMENT DATED 08.06.04. ON THIS PROPOSITION , WE DRAW STRENGTH FROM THE ORDER OF COORDINATE BENCH OF HONBLE ITAT IN THE CASE OF ANITA D. KANJANI VRS. ACIT (2017) 79 TAXMANN.COM 67 (MUM. TRIB) , WHEREIN IT WAS HELD THAT IN ORDER TO DETERMINE NATURE OF ASSET IN TERMS OF SECTION 2(42A), HOLDING PERIOD HAS TO BE COMPUTED FROM DATE OF ISSUE OF ALLOTMENT LETTER AND NOT FROM DATE WHEN AGREEMENT TO SELL WAS REGISTERED. THE COORDINATE BENCH OF HONBLE ITAT HAS HELD THAT WHETHER IN VIEW OF PR OVISIONS OF SECTION 2(42A), HOLDING PERIOD HAS TO BE COMPUTED FROM DATE OF ISSUE OF ALLOTMENT LETTER AND SINCE IT WAS UNDISPUTED THAT WHEN PERIOD WAS COMPUTED FROM SAID DATE, ASSESSEE HELD CAPITAL ASSET FOR MORE THAN 36 MONTHS, ASSET IN QUESTION WAS TO BE REGARDED AS 11 I.T.A. NO. 817 /MUM/201 5 NITIN PRAKASH LONG TERM CAPITAL ASSET AND, CONSEQUENTLY GAIN ARISING FROM SALE OF IT WAS TAXABLE AS LONG TERM CAPITAL GAIN. THE REVENUE AUTHORITIE S WHILE DECIDING THIS ISSUE HAS HELD THAT ASSESSEE COULD NOT HAVE SOLD THE RIGHT TO ACQUIRE PROPERTY UNTIL AND UNLESS THE PROPERTY WAS REGISTERED ON 31.12.08. WE WOULD LIKE TO POINT OUT HERE , THAT THE ACT OF REGISTRATION OF AGREEMENT TO SAL E ON 31.12.08 WO ULD RELATE BACK TO THE ALLOTMENT OF THE FLAT W.E.F. 08.06.04 , AS IN THE SAID ALLOTMENT LETTER CONTAINS NECESSARY DETAILS REGARDING PROPERTIES, PARTIES AND PAYMENT SCHEDULE INCLUDING SIGNATURES OF THE PARTIES THEREBY MAKING THE AGREEMENT AS CONTRACT;. ON C AREFUL PERUSAL OF THE AFORESAID ORDER PASSED BY HONBLE ITAT IN THE CASE OF ANITA D. KANJANI VRS. ACIT (2017) 79 TAXMANN.COM 67 (MUM. TRIB) , WE FIND THAT HONBLE ITAT HAS CONSIDERED NUMBER OF JUDGMENTS AND ALSO CIRCULAR NO. 471 DATED 15.10.86 AND CIRCULAR NO. 672 DATED 16.12.1993AS MENTIONED IN PARA NO. 5 OF ITS ORDER . IN THE PRESENT CASE, LD DR COULD NOT POINT OUT ANY MATERIAL TO SHOW THAT THERE WAS ANY CONTRARY FACTS TO SHOW THAT THE FLATS WHICH WERE ALLOTTED AND DETAILED IN THE LETTER OF ALLOTMENT DATED 08.06.04 WERE NOT THE 12 I.T.A. NO. 817 /MUM/201 5 NITIN PRAKASH SAME AS MENTIONED IN REGISTERED AGREEMENT FOR SALE DATED 31.12.08. EVEN THE JUDGMENT IN THE CASE OF GULSHAN MALIK VRS. CIT RELIED U PON BY THE REVENUE IS OF NO HELP, BECAUSE THE FACTS OF THAT CASE SPECIFICALLY STATES THAT NO RIGHT TO PROVISIONAL /FINAL ALLOTMENT ACCRUED , TILL BUYERS AGREEMENT IS SIGNED. HENCE THE FACTS OF THE ABOVE MENTIONED CASE (SUPRA) ARE DISTINGUISHABLE. THEREFORE , RESPECTFULLY FOLLOWING THE JUDGMENT OF HONBLE ITAT IN THE CASE OF ANITA D. KANJANI VRS. ACIT , WE HOLD THAT THE PERIOD FOR DETERMINING NATURE OF ASSET IN TERMS OF SECTION 2(42A) IN THE PRESENT CASE HAS TO BE COMPUTED FROM THE DATE OF ISSUANCE OF ALLOTMENT LETTER I.E. 08.06.04 AND NOT FROM THE REGISTERED AGREEMENT FOR SALE DATED 31.12.08. RESULTANTLY, T HIS GROUND RAISED BY THE ASSESSEE STANDS ALLOWED. GROUND NO. 2. 7 . THIS GROUND RAISED BY THE ASSESSEE RELATES TO CHALLENGING THE ORDER OF LD. CIT(A) IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN ALLOWING INDEXATION ON BASIS OF THE YEAR OF PAYMENTS OF INSTALLMENTS WHICH OUGHT TO HAVE BEEN ON THE BASIS OF THE LETTER 13 I.T.A. NO. 817 /MUM/201 5 NITIN PRAKASH OF ALLOTMENT DATED 23.12.2004 GIVEN BY THE BUILDER WHICH ALSO SPECIFIES THE 'COST O F ACQUISITION . 8 . WE HAVE HEARD COUNSELS FOR BOTH THE PARTIES AT LENGTH AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES. WE FIND THAT THE REVENUE AUTHORITIES MERELY THE AO HAS CONSIDERED THE FACTS OF THE PRESENT CASE AND WHILE DECIDING THIS GROUND HAS CATEGORICALLY HELD THAT THE ASSESSEE HAS NOT COMPUTED EVEN LONG TERM CAPITAL GAIN CORRECTLY. IT IS SEEN THAT THE ASSESSEE HAS CLAIMED INDEXATION ON PURCHASE PRICE OF RS 2,03,36,000/ - FROM THE F.Y. 200 4 - 05. THE TOTAL COST ARRIVED AFTER INDEXATION WORKS OUT TO RS3,01,22,700/ - . HOWEVER, FROM PAYMENT SCHEDULE, IT IS SEEN THAT THE ASSESSEE HAS MADE PAYMENT OVER A PERIOD OF 5 YEARS. DURING THE F.Y. 2004 - 05, THE ASSESSEE HAD PAID ONLY RS . 28 , 76,550/ - , BUT TO EVADE THE TAX ADMITTED AT HIS OWN, INDEXATION HAS BEEN TAKEN ON THE WHOLE AMOUNT OF RS . 2,03,36,000/ - FROM F.Y. 2004 - 05 I.E. FROM THE DATE OF 1ST PAYMENT EVEN WHEN THE SALE DEED WAS EXECUTED DURING F.Y. 2009 - 10. THERE IS NO PROVISION IN THE ACT WHICH SUGGE STTHAT INDEXATION IS ALLOWED FROM DATE OF ADVANCE PAYMENT ON THE 14 I.T.A. NO. 817 /MUM/201 5 NITIN PRAKASH WHOLE AMOUNT.NOTWITHSTANDING TO THE ABOVE, IF INDEXATION IS DONE AS PER THE SCHEDULE OF THE PAYMENT IT WILL BE AS UNDER: - SI NO DATE AMOUNT COST INFLATION INDEXED COST 1 . 11/06/2004 9,58,850 480 1420297 2 06/10/2004 19,17,700 480 2840593 3 13/06/2006 9,58,850 519 1313569 4 27/11/2006 19,17,700 519 2627138 5 29/01/2007 14,38,275 519 1970354 6 24/03/2007 14,38,275 519 1970354 7 21/04/2007 14,38,275 551 1855923 8 16/05/2007 14,38,2 75 551 1855923 - 9 24/07/2007 9,58,851 551 1237283 10 04/07/2007 9,58,850 551 1237282 11 18/08/2007 9,58,849 551 1237281 12 11/09/2007 9,58,850 551 1237282 13 21/07/2008 9,58,850 582 1171379 14 29/09/2008 9,58,851 582 1171380 15 13/05/2009 9,58,849 632 1078705 16 STAMP DUTY 11,59,000 632 13,03,875/ - & REGISTRATION CHARGES 17/04/2009 ________________ TOTAL 1,93,77,150/ - THUS TOTAL INDEXED COST OF ACQUISITIO N WORKS OUT TO RS 2,55,28,616/ - (2,42,24,741/ +13,03,875/ - )AND NOT RS. 3 ,01,22,700/ - AS CLAIMED BY THE ASSESSEE DURING COMPUTATION OF LTCG. IT IS PERTINENT TO NOTE THAT ASSESSEE DID NOT PAY BALANCE 9,58,850/ - OF 2,03,36,000/ - WHICH WAS ACTUALLY PAID BY THE PURCHASER TO WHOM THE FLAT WAS SOLD BUT CALCULATED INDEXED COST 15 I.T.A. NO. 817 /MUM/201 5 NITIN PRAKASH ON THIS AMOUNT TOO AND DEDU CTED 9,58,850/ - FROM TOTAL SALE CONSIDERATION AS THE SAME WAS PAID BY THE PURCHASE R. MOREOVER, N O NEW FACTS OR CONTRARY JUDGMENTS HAVE BEEN BROUGHT ON RECORD BEFORE US I N ORDER TO CONTROVERT OR REBUT THE FINDINGS SO RECORDED BY LD CIT(A ). THEREFORE, THERE ARE NO REASON S FOR US TO INTERFERE INTO OR DEVIATE FROM THE FINDINGS RECORDED BY THE LD.CIT(A). HENCE , WE ARE OF THE CONSIDERED VIEW THAT THE FINDINGS SO RECORDED BY THE LD. CIT (A) ARE JUDICIOUS AND ARE WE LL REASONED. RESULTANTLY, THIS GROUND S RAISED BY THE ASSESSEE STANDS DISMISSED . GROUND NO. 3 9 . THIS GROUND IS GENERAL IN NATURE, THUS REQUIRES NO SPECIFIC ADJUDICATION. 10 . IN THE NET RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH MARCH , 2018 SD/ - SD/ - ( G. S. PANNU ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 19 . 03 .201 8 SR.PS . DHANANJAY 16 I.T.A. NO. 817 /MUM/201 5 NITIN PRAKASH / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI