Case Law Details
Now, coming to the question, which relates to the date from which the indexed cost of acquisition is to be computed. Here, it has been the case of the assessee that on the date of allotment of flat, the property was identified. The assessee got the right over the said property and from that date the indexation benefit has to be given to the assessee. Explanation (iii) to s. 48 reads as under which makes entitle the assessee to the indexation benefit:-
“(iii) ‘indexed cost of acquisition’ means an amount which bears to the cost of acquisition the same proportion as cost inflation index for the year in which the asset is transferred bears to the cost inflation index for the first year in which the asset was held by the assessee or for the year beginning on the 1st day of April, 1981, whichever is later.”
According to the aforementioned definition, capital asset means property of any kind held by an assessee whether or not connected with the business or profession and it excludes certain items which while considering the facts of the present case are not relevant. Therefore, it has to be seen that whether by entering into an agreement vide which the assessee was allotted a particular flat by allotment letter whether the assessee has held any asset or not? By entering into an agreement to allot a flat, the assessee has identified a particular property which he is intended to buy from the builder and the builder is also bound to provide the applicant with that property by accepting certain advance amount and making agreement for balance payment as scheduled in the agreement. Thus, going into the provisions, it is not necessary that to constitute a capital asset the assessee must be the owner by way of a conveyance deed in respect of that asset for the purpose of computing capital gain. The assessee had acquired a right to get a particular flat from the builder and that right of the assessee itself is a capital asset. The word ‘held’ used in Section 2 (14) as well as Explanation to Section 48 clearly depicts that assessee must have some right in the capital asset which is subject to transfer. By making the payment to the builder and having received allotment letter in lieu thereof, the assessee will be holding capital asset and, therefore, the benefit of indexation has to be granted to the assessee on the basis of payments made by him for acquiring the said asset and the assessee has rightly claimed the indexation benefit from the dates when he has made the payments to the builder.
IN THE INCOME TAX APPELLATE TRIBUNAL
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Reaction (impromptu):
The view canvassed on behalf of the taxpayer and accepted in second appeal is strikingly amazing; by any standard, is bound to go deep down in the history of tribunal decisions, – marking a clean departure from the thus far accepted, without blemish, concept of ‘BASE YEAR’ relevant for INDEXATION OF “COST OF ACQUISITION” of the ‘capital asset” !!!
The view taken accepting the apparently odd stance of the asessee, to put it with all humility but in the least offensive manner, seems to have the effect of shaking the very ‘base – of the legal concept of ‘BASE YEAR’- on which, one would have so far thought,- there was no scope whatsoever for any such view being canvassed much less accepted.
In one’s firm conviction,- had the scheme of the Act dealing with taxation of ‘capital gains’, so also the terms/language of the applicable sections, been properly read and understood, the view taken could have been just the opposite.
What all the more important in any such immovable property related issue is that,- the fundamental principles and their overriding implications of the ‘property law’ ought to be duly taken into consideration. As, the property herein is a ‘flat’, being a ‘UNIT’ OF A BUILDING, AS OPPOSED TO AN INDEPENDENT HOUSE PROPERTY, THE SPECIAL LAW EXCLUSIVELY APPLICABLE THERETO WOULD HAVE BEEN OF MORE RELEVANCE AND HENCE REQUIRED TO HAVE BEEN TAKEN INTO ACCOUNT.
ASIDE: WHOSOEVER SAID – LAW IS AN ‘ass’, would, in one’s belief, HAVE NONETHELESS HAD IN VISION A STILL ‘LIVE’ ass; certainly, not a ‘dead’ one, so as to deserve to be flogged (OR KICKED AT)according to one’s own will and wish OR whims and fancies.
In this context, one is provoked to observe that, in the newly conceived Real Estate BIll (still in the Draft stage), the term ‘ALLOTTEE’ has been very liberally used IN MANY CONTEXTS. It is anybody’s guess as to what is store for one and all concerned, including the tax gatherer; especially, wrt its own immense potentials for giving rise to disputes and inconclusive litigation; in one’s perception, that is not unlikely, in the event the term ‘allottee’, seemingly used in several places, without giving much thought, is going to be retained same way in the final enactment, and were to be relied on, for all related purposes, not barring TAXATION.
i have purchased a flat in jun,2010 and register it but i got the possession in nov.11(allotment letter on 4.11.11) now can i claim the benefit of exemption u/s 54 or not as it says that i have to purchase a flat one year before or 2 year after but in my case the period is more than one year before.
and now i am selling my old flat ,purchased in 1992.
can i rely on this case and claim exemption of buying a residential premises
please reply
considering as urgent