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| The Tax Publishers2019 TaxPub(DT) 1737 (Mum-Trib) : (2019) 175 ITD 0552 INCOME TAX ACT, 1961
Section 2(29A)
Where date of allotment was 11-4-2003 and the date of sale of property was 14-10-2007, therefore the holding period was more than 36 months and capital gains earned by assessee on the sale of the flat have to be treated as 'long-term capital gains'.
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Capital gains - Long-term or short-term - Sale of immovable property -
During assessment AO noticed that assessee claimed long-term capital gains on sale of property and short-term capital gains on sale of shares and mutual funds after setting off of brought forward losses. AO did not allow the said capital gains on sale property as long term capital gains and treated them as short-term capital gains on the reason that the said property was not held by assessee for a period more than 36 months. CIT(A) dismissed the appeal by upholding the order of AO. Held: Date of allotment should be reckoned as the date for computing the holding period for the purpose of capital gains. In the instant case, date of allotment was 11-4-2003 and the date of sale of property was 14-10-2007, therefore, the holding period was more than 36 months. Thus, capital gains earned by assessee on the sale of the flat have to be treated as 'long-term capital gains'.
Followed:Meena A Hemnani v. ITO [IT Appeal No. 5998 (Mum.) of 2010, dt. 17-1-2014] and Ms. Madhu Kaul v. CIT (2014) 225 Taxman 86 (Punj. & Har.) : 2014 TaxPub(DT) 1520 (P&H-HC)Relied:CIT v. Vijay Flexible Containers (1990) 186 ITR 693 (Bom.) : 1990 TaxPub(DT) 0540 (Bom-HC), CIT v. Tata Services Ltd. (1980) 122 ITR 594 (Bom.) : 1980 TaxPub(DT) 0534 (Bom-HC) and CIT v. Anilaben Upendra Shah (2003) 262 ITR 657 (Guj.) : 2003 TaxPub(DT) 0122 (Guj-HC)
REFERRED :
FAVOUR : In assessee's favour.
A.Y. : 2008-09
IN THE ITAT, MUMBAI 'D' BENCH
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