Case Law Details
Micheal Jude Fernandes Vs. ACIT (ITAT Mumbai)
Revenue has not disputed the date of execution of agreement to sale dated 16-11-2006, executed by builder in favor of the assessee. The revenue has two fold objections. Number one that the assessee acquired the right in the property only on registration of the agreement on 6-10-2007 and not on 16-11-2006. Secondly, while executing the agreement to sale in favor of buyer, the assessee has intentionally waited till 18-11-2009, though the stamp duty was paid on 6-11-2009. The learned Commissioner (Appeals) also concluded that assessee has intentionally and deliberately waited for mechanical lapse of 36 months and deliberately put the date on agreement as 18-11-2009 to avoid the payment of tax.
The objection of the revenue that the assessee intentionally waited for mechanical lapse of 36 months and deliberately put the date on agreement as 18-11-2009 to avoid the payment of tax is not tenable. Every individual has a right to deal his asset as per his own choice and convenience and the revenue cannot dictate any particular way unless otherwise the transaction is prohibited by law. Thus, in our considered view the assessee acquired the capital asset on 16-11-2006 and transferred it on 18-11-2009. Hence, qualified for Long term Capital Gain (LTCG).
FULL TEXT OF THE ITAT ORDER IS AS FOLLOWS:-
This appeal by assessee under section 253 of the Income Tax Act (the Act) is directed against the order of learned Commissioner (Appeals)-27, Mumbai dated 28-2-2014 for assessment year 2010-11. The assessee has raised the following grounds of appeal :–
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