Case Law Details
Dilshad Ahmed Rangrej Vs CIT (ITAT Mumbai)
The only issue in this appeal is whether the date of acquisition of the property is to be considered from the date of allotment issued by the builder. In this case, the fact shows that the letter of allotment was issued to the assessee on 20/7/2009, the project was commenced on 12/12/2011, agreement to sale, was entered on 23/12/2011, therefore, what should be the date of acquisition of the property for the purpose of considering whether the property transferred is a longterm capital asset or Short term capital asset. The claim of the assessee is that date of allotment letter i.e. 20/7/2009 should be the date of allotment/acquisition of the property. The claim of the AO is that the property was not in existence on 20/7/2009, but the construction commenced only on 12/12/2011. Therefore, the date of acquisition of the property cannot be considered of 20/7/2009. Therefore, the learned that AO considered the date of acquisition of property at 23/12/2011 and as the property is sold on 04/01/2014, it was considered as transfer of a short-term capital asset. Accordingly, the deduction u/s 54 on account of purchase of new property on 20/2/2014 was also denied. We find that the issue squarely covered in the favour of the assessee by the decision of the honourable Bombay High Court in case of principal Commissioner of income tax vs Vembu Vedhyanathan in ITA number 1459 of 2016 dated 22 January 2019[2019] 101 taxmann.com 436 (Bombay) wherein the honourable High Court after considering the circular issued by the central board of direct taxes has held that the allotment letter by the builder is the date of acquisition of the property as the period of holding for the purpose of determining whether the asset is a long-term capital asset or a short-term capital asset, is to be taken therefrom. Honourable Supreme Court has dismissed the special leave petition filed by the by the revenue in [2019] 108 taxmann.com 339 (SC)/ [2019] 265 Taxman 535 (SC). Therefore, we direct the learned assessing officer to consider the date of acquisition of the property sold on 4/1/2014 from the date of allotment letter i.e. 20/7/2009 and consider the asset transferred as a long-term capital asset. Accordingly, the assessee is also eligible for deduction u/s 54 of the act.
FULL TEXT OF THE ORDER OF ITAT MUMBAI
01. This appeal is filed by the assessee for A.Y. 2014-15 against the appellate order passed by the National Faceless Appellate Centre [The learned CIT (A)] dated 13/03/2022 wherein assessee preferred an appeal against Assessment order passed by the Income Tax Officer 28(1) (3) Mumbai [the ld AO] under Section 143(3) of the Income Tax Act [The Act] dated 20/12/2016 was dismissed. The assessee has preferred appeals on following grounds :
“Being aggrieved by the order of the Assessing Officer, your appellant submits herewith the following grounds of appeal (which are taken up without prejudice to each other) for your sympathetic consideration:
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