Case Law Details
ITO (International Taxation) Vs Monish Kaan Tahilramani (ITAT Mumbai)
The only surviving question that arise for consideration is manner of computation of the gains. It is noted that the assessee has paid upfront payment to the extent of 5% upon allotment and the balance payment has been spread over by way of installment during the year 2005 to 2010. As against the same, the assessee has sought indexation of full cost on the basis of index for 2005, which, in our considered opinion, is not justified. Logically, the indexation was to be done by applying the indexes of the respective years in which the payments were actually made by the assessee which is in line with the decision of this Tribunal rendered in Lakshman M.Charanjiva Vs ITO [ITA No. 28/Mum/2017 dated 03/10/2018],
FULL TEXT OF THE ITAT JUDGMENT
1. Aforesaid appeal by revenue for Assessment Year [AY] 2011-12 contest the order of the Ld. Commissioner of Income-Tax (Appeals)-55 [CIT(A)], Mumbai, Appeal No. CIT(A)-55/ITO(IT)-2(1)/IT-224/14-15 dated 13/03/2015 on various grounds of appeal. The revenue has also filed an additional ground of appeal on 06/09/2018 which concerns with manner of computation of capital gains. Since the same do not require appreciation of new facts, the same is taken on record as ground no.5. Finally, the grounds of appeal read as under: –
1. “Whether on the facts and circumstances of the case and in law, the Id. CIT(A| erred in holding that capital gain earned by assessee on sale of flat in July, 2010 was a long term capital gain, when the commencement certificate itself for construction of flat sold was issued by MCGM to builder only 08.04.2009 and the purchase agreement was registered in December 2009? The CIT(A) failed to appreciate that in absence of CC and OC for the impugned flat, the same could not be said to be held or in possession of assessee and has thus erred in treating acquisition of property by assessee from 2005 i.e. the date of first advance made?.
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