Smt. Bachupally Laxmi (alias Routhu Laxmi) Vs ITO (ITAT Hyderabad)
For the purpose of computation of LTCG arising out of the development agreement cum GPA, the Assessing Officer has accepted that the assessee has acquired the flats as on 9.11.2009 and therefore, in the year 2012 when the assessee has sold the flat, the holding period has to be held as more than 3 years and the provisions of sub-section 3 of section 54F are not applicable. Similarly, the gain arising out of the sale of flat also has to be held as LTCG and not STCG as held by the Assessing Officer. She further submitted that in the case of co-owners i.e. Smt. Devi Reddy Renuka and Smt. Nallapattu Saraswati, the respective CIT (A)s have held the issue in favour of the assessees and the Revenue has not filed any appeals to the Tribunal. Therefore, according to her, the rule of uniformity and consistency has to be adopted and the same decision is to be taken in the case of the present assessees as well.
ITAT observed that the assessees have given their landed property for development and their share of flats have been identified and allotted by way of the said agreement itself. Therefore, the respective CIT (A)’s in the case of Smt. Devi Reddy Renuka and Smt. Nallapattu Saraswati have held that the assessees therein are deemed to have acquired the property on the date of development agreement itself and thus, the period of holding has to be held to be more than 3 years. In the case of co-owners, the Revenue cannot take a different stand. If the Revenue has accepted the decision of the CIT (A)’s, in the cases of Renuka and Saraswati, I am of the opinion that the same decision has to be taken in the case of the assessees before this Tribunal also. Therefore, by adopting the principles of consistency and uniformity, I hold that the exemption u/s 54F cannot be withdrawn in the relevant A.Ys and the capital gain arising out of sale of flat has to be treated as LTCG as done in the case of co-owners. Thus, the appeals of both the assessees are allowed.
