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Mere Change in Allotted flat without determining any consideration is not transfer

Merely change in the flat without determining any consideration for the old flat cancelled and new flat transferred, it cannot be said that the old flat was sold and new flat was purchased on the date of change.

Objection of the Assessing Officer is that the assessee has earned Rs.40 lac on transfer of flat No. SV­1-06-SF on 11/10/2005 which was allotted to assessee after cancelling allotment of flat No. C-3GF on 24/01/2004 and therefore, the assessee has held the property in question for less than three years and therefore, the gain is not long term capital gain. In this regard, we are of the considered opinion that when the flat No. SV-1-06-SF was allotted to the assessee in continuation of old flat No. C-3GF, allotted to him on 13/08/2001, the date of acquisition of flat sold by the assessee should be considered as 13/08/2001 and hence, the gain in question is to be accepted as long term capital gain. Merely change in the flat without determining any consideration for the old flat cancelled and new flat transferred, it cannot be said that the old flat was sold and new flat was purchased on the date of change.

Assessee  placed reliance on the Tribunal decisions rendered in the case of Mukesh G. Desai (HUF) vs. Income Tax Officer [2009] 120 TTJ (Mumbai) 792 and  Jagan Nath Singh Lodha vs. Income Tax Officer [2004] 85 TTJ (Jd) 173. Reliance was also placed on the judgment of Hon’ble A.P. High Court rendered in the case of M. Syamala Rao vs. CIT [1998] 234 ITR 140 (AP).

Categories: Income Tax
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