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The Tax PublishersITA No. 961/Ahd/2015
2021 TaxPub(DT) 0314 (Sur-Trib)INCOME TAX ACT, 1961
Section 45
Where substantial payment of consideration was paid through banking channel on or before 29-09-2006 and no further enquiry was made by AO either from the stamp vendor agency and in absence of any adverse evidence against the documentary evidences furnished by assessee, the suspicion of AO that Sadakhat (agreement) Kabja Receipt is ante-dated document was not sustainable, therefore, property was clearly held for more than 36 months and assessee was clearly entitled for benefits of long term capital gain.
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Capital gains - Transfer of property - Period of holding - Treatment of long-term capital gain as short term capital gain
Assessee had shown a long-term capital gain and also claimed deduction for purchase of flat. AO noted that assessee had purchased immoveable asset/ plot and same was sold. AO was of the view that property was not held by assessee for more than three years to qualify the claim for long-term capital gain and therefore he issued show cause notice to assessee to explain as to why the long term capital gain should not be denied. Assessee contended that the holding period of property should be considered from 29-9-2006 to 29-10-2009, which was 37 months. AO, however, on perusal of Sadakhat Kabja Receipt held that Kabja Receipt/Sadakhat was nothing but after-thought and attempt to set right the wrong claim of long-term capital gain of the assessee. He disallowed the long-term capital gain and repeated the said short-term capital gain. Held: Substantial payment of consideration was paid through banking channel on or before 29-09-2006. Thus, this fact is strengthening the contention of assessee that substantial payment was made before execution of Sadakhat (Agreement) Kabja Receipt. No further enquiry was made by AO either from the stamp vendor agency. In absence of any adverse evidence against the documentary evidences furnished by assessee, suspicion of AO that Sadakhat (agreement) Kabja Receipt dated 29-9-2006 is ante-dated document was not sustainable. Considering that substantial payment of consideration was paid on 29-09-2006 and that property was ultimately transferred by agreement dated 29-09-2006. Thus, property was clearly held for more than 36 months and assessee was clearly entitled for benefits of LTCG.
Followed:Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana & Another (SLP No. 13917 of 2009) dated 11-11-2011 : 2012 TaxPub(DT) 0518 (SC) and CIT v. Ved Parkash Deepak Kumar (1994) 207 ITR 148 (P&H) : 1994 TaxPub(DT) 0466 (P&H-HC).
REFERRED :
FAVOUR : In assessee's favour
A.Y. : 2010-11
INCOME TAX ACT, 1961
Section 54F
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