Jagmohan Singh Rawat, New Delhi v. ITO, New Delhi

ITA 3297/DEL/2011 | 2008-2009
Pronouncement Date: 29-02-2012 | Result: Partly Allowed

Appeal Details

RSA Number 329720114 RSA 2011
Assessee PAN SINCE1986A
Bench Delhi
Appeal Number ITA 3297/DEL/2011
Duration Of Justice 8 month(s) 7 day(s)
Appellant Jagmohan Singh Rawat, New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 29-02-2012
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 29-02-2012
Date Of Final Hearing 04-01-2012
Next Hearing Date 04-01-2012
Assessment Year 2008-2009
Appeal Filed On 21-06-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D NEW DELHI) BEFORE SHRI RAJ PAL YADAV J.M. & SHRI K.D. RANJ AN A. M. I.T.A. NO.3297 /DEL/2011 ASSESSMENT YEAR : 2008-09 SHRI JAG MOHAN SINGH RAWAT V. ITO K-5 GANGA BLDG. STAFF QUARTER WARD-26 (2) IGNOU MAIDANGARHI N.DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) ( PAN /GIR/NO.AENPR-0306-K) APPELLANT BY : SHRI VED JAIN C.A. RESPONDENT BY : MS. Y.KAKKAR SR. DR. ORDER PER K.D. RANJAN AM: THIS APPEAL BY THE ASSESSEE ARISES FOR ASSESSMENT YEAR 2008-09 ARISES OUT OF ORDER OF LD CIT(A)-XIV NEW DELHI. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ORD ER PASSED BY THE LD CIT(A) IS BAD BOTH IN THE EYE OF LAW AND ON FACTS. ITA NO3297/DEL/11 2 2. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LD CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE AD DITION OF `.24 48 500/- MADE BY THE ASSESSING OFFICER ON ACCO UNT OF DEPOSITS IN THE BANK ACCOUNT. 2(II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE T HE LD CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE ABOVE AD DITION IGNORING THE EVIDENCES AND EXPLANATION FURNISHED BY THE APPELLAN T TO PROVE THE SAME. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN NOT ALLOWING THE SET OF F OF CASH WITHDRAWALS MADE DURING THE YEAR BEFORE THE DEPOSIT IN THE BOOKS OF ACCOUNT AND IN NOT ALLOWING THE CREDIT OF THE CASH IN HAND AVAILABLE ON THE OPENING DEPOSITS. 4. (I) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE AD DITION OF `.3 90 530/- MADE BY THE ASSESSING OFFICER ON ACCOU NT OF CAPITAL GAIN ON SALE OF FLATS. 4 (II) ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN HOLDING THAT CAPI TAL GAIN ARISING ON SALE OF DDA FLAT IS SHORT TERM CAPITAL GAIN IGNORIN G THE DATE OF ACQUISITION OF THE FLAT BY WHICH THE HOLDING PERIOD OF THE FLAT IS MORE THAN 36 MONTHS AND CONSEQUENTLY THE GAIN WILL BE A LONG TERM CAPITAL GAIN. 4 (III) THAT THE ABOVE SAID ADDITION HAS BEEN CONFI RMED REJECTING THE EXPLANATION AND EVIDENCES BROUGHT ON RECORD BY THE APPELLANT. ITA NO3297/DEL/11 3 4. (IV) THAT THE LD CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN NOT ALLOWING APPELLANT THE BENEFIT OF INDEXATION OF COS T OF ACQUISITION AND THE COST OF IMPROVEMENT. THAT THE APPELLANT CRAVES LEAVE TO ADD AMEND OR AL TER ANY OF THE GROUNDS OF APPEAL. 2. THE FIRST ISSUE FOR CONSIDERATION RELATES TO CON FIRMING THE ADDITION OF RS.24 48 500/- MADE BY THE ASSESSING OFFICER ON ACC OUNT OF DEPOSITS IN THE BANK ACCOUNT. THE FACTS OF THE CASE STATED IN BRIE F ARE THAT THE ASSESSEE DURING THE RELEVANT PREVIOUS YEAR ENGAGED IN THE BU SINESS OF SOFTWARE DEVELOPMENT DATA REPAIRING JOB AND DATA PROCESSING UNDER THE NAME & STYLE OF M/S ROOP SYSTEM. THE ASSESSING OFFICER SELECTED THE CASE FOR SCRUTINY UNDER CASS ON THE BASIS OF AIR INFORMATION. AS PER AIR INFORMATION THE ASSESSEE HAS DEPOSITED CASH OF RS.43 66 894/- IN TW O BANK ACCOUNTS DETAILED AS UNDER:- 1. PNB ASAF ALI ROAD BRANCH RS.18 82 394/- 2. PNB IGNOU MAIDAN GARHI BRANCH. RS.24 48 500/- THE ASSESSEE VIDE AFFIDAVIT DATED 24.11.2010 DENIED HAVING ANY BANK ACCOUNT WITH PNB ASAF ALI BRANCH. AS REGARDS THE SO URCE OF CASH DEPOSIT AMOUNTING TO RS.24 48 500/- IN PNB MAIDAN GARHI BRA NCH IT WAS STATED BY THE ASSESSEE THAT THE DEPOSIT REPRESENTED THE INCOM E OF THE PREVIOUS YEARS EARNED BY THE ASSESSEE AND HIS WIFE. IT WAS FURTHE R STATED THAT THE CASH WAS LYING AT HIS HOME AND WAS DEPOSITED IN THE BANK ACC OUNT AS PER ENTRIES APPEARING IN THE BANK ACCOUNT. THE ASSESSING OFFICE R HOWEVER REJECTED THIS ITA NO3297/DEL/11 4 CONTENTION OF THE ASSESSEE AND ADDED THE AMOUNT OF RS.24 48 500/- UNDER SECTION 68 OF THE ACT. 3. FURTHER THE ASSESSING OFFICER FOUND THAT THE ASS ESSEE HAD SOLD FLAT NO.24 SECTOR-6 POCKET-1 DWARKA NEW DELHI FOR RS. 19 50 000/-ON 15.7.2007. THE SAID FLAT WAS PURCHASED ON 9.11.2005 AS PER CONVEYANCE DEED EXECUTED BY THE ASSESSEE WITH DDA. THE ASSESSEE HA D NOT DISCLOSED CAPITAL GAIN EARNED ON THE SALE OF FLAT. THE SAID FLAT WE THEREFORE SET ASIDE THE ORDER OF LD CIT(A) AND RESTORE THE MATTER BACK TO THE FIL E OF THE ASSESSING OFFICER FOR A FRESH DECISION AFTER PROVIDING ADEQUATE OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE. THE FLAT WAS PURCHASED BY THE ASSES SEE FOR RS.14 43 930/-. ASSESSEE ALSO SPENT RS.1 15 540/- TO EXECUTE THE CO NVEYANCE DEED. THUS THE TOTAL COST OF THE FLAT WORKED OUT TO RS.15 549 470/ -. THE ASSESSEE ALSO CLAIMED RENOVATION CHARGES OF RS.60 000/- FOR WHICH NO EVIDENCE WAS FILED BY THE ASSESSEE. THE ASSESSING OFFICER IN VIEW OF T HESE FACTS DETERMINED THE CAPITAL GAIN AT RS.3 19 530/- AND ADDED THE SAME AS SHORT TERM CAPITAL GAIN AS A PERIOD OF HOLDING WAS LESS THAN 36 MONTHS. 4. BEFORE THE LD CIT(A) IT WAS SUBMITTED THAT THE ASSESSEE HAD BEEN WORKING IN DELHI SINCE 1986 AS A SALARIED PERSON AN D HIS WIFE IS WORKING IN IGNOU AND SHE ALSO SUPPORTED HIM FINANCIALLY. THE A SSESSEE SUBMITTED A COPY OF HIS ACCOUNT NO.68906 IN PNB BRANCH FROM 1.4 .2007 TO 31 ST MARCH 2008 IN WHICH HE HAD CLAIMED THAT THERE WERE CASH D EPOSIT OF RS.24 48 500/-. THERE WAS CASH WITHDRAWAL OF RS.7 7 2 000/- ALSO AND CLAIMED SET OFF FOR THE SAME. THE ASSESSEE FURTHER CLAIMED THE SET OFF CASH BALANCE OF M/S ROOP SYSTEM FOR A SUM OF RS.6 85 227 /-. THE LD CIT(A) ITA NO3297/DEL/11 5 CONSIDERED THE ABOVE FACTS. HE OBSERVED THAT THE AS SESSEE HAD DEPOSITED RS.19 85 000/- BETWEEN 2.6.2007 TO 8 TH OCTOBER 2007 BEFORE MAKING ANY WITHDRAWALS. THEREAFTER HE HAD MADE WITHDRAWAL OF RS.1 00 000/- ON 13.11.2007 AND ANOTHER WITHDRAWAL OF RS.1 20 000/- ON 22.12.2007. THEREAFTER HE HAD AGAIN DEPOSITED CASH AMOUNTING T O RS.4 99 500/- BETWEEN 26.12.2007 TO 14.1.2008. THE INTERVENING GAP BETWE EN WITHDRAWAL OF RS.2 20 000/- AND DEPOSIT OF RS.4 99 500/- COULD NO T BE EXPLAINED BY THE ASSESSEE. THE BALANCE AMOUNT OF CASH WITHDRAWAL OF RS.5 50 000/- (RS.7 70 000/- - RS.2 20 000/- ) WAS MADE BY THE AS SESSEE BETWEEN 18.2.2008 TO 14.3.2008. NO DEPOSITS WERE MADE AFTER THESE WITHDRAWALS. IN VIEW OF THE ABOVE FACTS LD CIT(A) CONCLUDED THAT T HE ASSESSEE COULD NOT BE GIVEN ANY BENEFIT OF SET OFF CASH WITHDRAWAL OF RS .7 70 000/-. AS REGARDS OPENING CASH BALANCE AS ON 1.4.2007 OF M/S ROOP SYS TEM THERE WAS NO EVIDENCE TO SUBSTANTIATE HIS CLAIM. THEREFORE LD CIT(A) UPHELD THE ADDITION OF RS.24 48 500/- AS UN-EXPLAINED CASH CRE DIT. 5. BEFORE US LD AR OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE AND HIS WIFE SMT. SAROJ RAWAT HAD SAVINGS FOR THE LAST 17 Y EARS WHICH WAS DEPOSITED IN THE BANK ACCOUNT. THE ASSESSEE HAD OPENING BALAN CE OF M/S ROOP SYSTEM OF RS.6 85 227.22 AS ON 1.4.2006. THEREFORE THE CASH DEPOSITED IN THE BANK ACCOUNT IS OUT OF PAST SAVINGS AND ALSO THE OPENING BALANCE OF M/S ROOP SYSTEM OF WHICH THE ASSESSEE IS PROPRIETOR. THEREF ORE NO ADDITION CAN BE MADE ON ACCOUNT OF CASH DEPOSITED IN THE BANK ACCOU NT. ON THE OTHER HAND LD SR. DR SUBMITTED THAT BOOKS OF M/S ROOP SYSTEM W ERE NEITHER PRODUCED BEFORE THE ASSESSING OFFICER NOR BEFORE THE LD CIT( A). IT WAS ALSO NOT KNOWN AS TO HOW THE CASH WITHDRAWN WAS UTILIZED. TH EREFORE NO CREDIT CAN ITA NO3297/DEL/11 6 BE GIVEN OUT OF THE CASH DEPOSITED FROM THE CASH WI THDRAWN. HE PLACED RELIANCE ON THE FOLLOWING DECISIONS:- 1. ROSHAN DI HATTI V. CIT 107 ITR 932. 2. CIT V.SUMATI DAYAL (SC). 214 ITR 801 3. CIT V. DURGA PD. MORE (SC) 82 ITR 540. 6. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. FROM THE ORDER OF CIT(A) IT IS CLEAR THAT THE ASSESSEE HAS DEPOSITED RS.19 85 000/- BETWEEN 2.6.2007 TO 8. 10.2007 AND NO WITHDRAWALS WERE MADE DURING THIS PERIOD. THEREAFT ER THE ASSESSEE HAS WITHDRAWN RS.2 20 000/- AND DEPOSITED RS.4 99 500/- . THUS THE ASSESSEE HAD MADE DEPOSITS OF RS.19 85 000/- AND ANOTHER NE T DEPOSIT OF RS. 2 79 500/- (4 99 500 2 20 000). THEREFORE THE D EPOSITS OF RS.22 64 500/- (19 85 000 + 2 79 000) IN THE BANK ACCOUNT ARE NOT SUPPORTED BY ANY EVIDENCE. THE ASSESSEE HAD ALSO CLAIMED SET OFF OP ENING CASH BALANCE OF M/S ROOP SYSTEM FOR RS. 6 85 227/-. ACCORDING TO L D CIT(A) NO EVIDENCE HAS BEEN FILED BEFORE THE ASSESSING OFFICER OR BEFO RE HIM IN SUPPORT OF HIS CONTENTION THAT OPENING BALANCE OF RS. 6 85 227/- W AS WITH HIM IN THE BOOKS OF ROOP SYSTEMS. IN THE ABSENCE OF ANY SUCH EVIDEN CE IN OUR CONSIDERED OPINION NO SET OFF CAN BE GIVEN. SIMILARLY IT IS UN-BELIEVABLE THAT WHEN THE ASSESSEE WAS HAVING BANK ACCOUNT HE WAS KEEPING HI S PAST SAVINGS IN CASH IN HOUSE FOR LAST 17 YEARS. IT IS SETTLED LAW THAT THE ONUS WAS ON THE ASSESSEE TO PROVE HIS CONTENTION WITH EVIDENCE. THEREFORE ONLY SET OFF OF RS.2 20 000/- AGAINST THE DEPOSIT OF RS.24 48 500/- CAN BE GIVEN. HENCE WE UPHOLD THE ADDITION OF RS.22 28 500/- AS AGAINST RS .24 48 500/- MADE BY THE AND CONFIRMED BY THE LD CIT(A). ITA NO3297/DEL/11 7 7. THE NEXT ISSUE FOR CONSIDERATION RELATES TO CONF IRMING THE ADDITION OF RS.3 90 530/- MADE BY THE ASSESSING OFFICER ON ACCO UNT OF CAPITAL GAINS ON SALE OF FLAT. THE FACTS RELATING TO THIS GROUND HA VE ALREADY BEEN NARRATED IN PARAGRAPH 3 ABOVE. BEFORE CIT(A) IT WAS CONTENDED T HAT SHORT TERM CAPITAL GAIN HAS BEEN DETERMINED AT RS.3 90 530/- WITHOUT G IVING DEDUCTION ON ACCOUNT OF IMPROVEMENT EXPENSES. THE ASSESSEE ALSO PURCHASED SFS FLAT NO.24 SECTOR-6 POCKET-I DWARKA NEW DELHI VIDE C ONVEYANCE DEED DATED 4.8.2004 AND HAD CARRIED OUT RENOVATION EXPENSES ON THE SAME FOR AN AMOUNT OF RS.60 000/-. HOWEVER ON PERUSAL OF CONVEYANCE DEED WITH THE DDA REVEALED THAT DEED WAS REGISTERED BY THE SUB REGIST RAR DELHI ON 9.11.2005 VIDE REGISTRATION NO. 17765 IN BLOCK-1 VOLUME 1767 ON PAGE 127-128 AND THE POSSESSION WAS HANDED OVER TO THE ASSESSEE AFTE R DUE REGISTRATION ON 14.11.2005. AS PER THE SALE DEED IT COULD BE SEEN THAT SALE DEED WAS EXECUTED ON 20 TH AUGUST 2007 THOUGH THE PAYMENT OF RS. 2 LAKH WAS RECEIVED BY THE ASSESSEE ON 15.7.2007 FROM THE VEND ER. LD CIT(A) HOWEVER NOTED THAT NO BILLS VOUCHERS OR ANY OTHER EVIDENCE WAS SUBMITTED BY THE ASSESSEE FOR INCURRING THE EXPENSES OF RS.60 000/-. THEREFORE THE ASSESSING OFFICER HAS RIGHTLY COMPUTED CAPITAL GAIN OF RS.3 90 530/-. 8. BEFORE US LD AR OF THE ASSESSEE SUBMITTED THAT REGISTRATION FOR FLAT OF SFS FLAT WAS MADE ON 22.1.2004 AND CONVEYANCE DE ED WAS EXECUTED ON 4.8.2004. THEREFORE THE DATE OF PURCHASE SHOULD B E 4.8.2004. THE ASSESSEE EXECUTED SALE DEED ON 20 TH AUGUST 2007. THEREFORE THE SAID FLAT WAS HELD BY THE ASSESSEE FOR A PERIOD OF MORE THAN THREE YEA RS AND THEREFORE IT WAS A CASE OF LONG TERM CAPITAL GAIN. ACCORDINGLY THE AS SESSEE IS ENTITLED TO BENEFIT OF INDEXATION. LD AR OF THE ASSESSEE PLACED RELIAN CE ON THE DECISION OF ITA NO3297/DEL/11 8 HON'BLE DELHI HIGH COURT IN THE CASE OF CIT V. RL S OOD. ACCORDING TO THE HON'BLE DELHI HIGH COURT FOR EXERCISE OF RIGHT IN T HE PROPERTY THERE IS NO NEED FOR REGISTRATION. LD AR OF THE ASSESSEE ALSO R ELIED ON THE DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT V. AM ILABEN UPENDER SHAH REPORTED IN 262 ITR 657 (GUJ.). HE ALSO PLACED REL IANCE ON THE DECISION OF THE ITAT DELHI BENCH F IN THE CASE OF PRAVEEN GUP TA IN I.T.A. NO.2558/DEL/2010 DATED 13.8.2010. ON THE OTHER HAND LD SR. DR SUBMITTED THAT THE PERIOD OF HOLDING IS TO BE TAKEN FROM THE DATE OF REGISTRATION. HE PLACED RELIANCE ON THE DECISION OF HON'BLE DELHI HI GH COURT IN THE CASE OF RAVI KUMAR NARULA V. CIT 249 ITR 480. 9. WE HAVE HEARD THE PARTIES AND GONE THROUGH THE M ATERIAL AVAILABLE ON RECORD. IN THIS CASE THE ASSESSEE WAS ALLOTTED FLA T IN SFS SCHEME ON 22.1.2004 WHEN THE ASSESSEE PAID REGISTRATION AMOUN T OF RUPEE ONE LAKH. THE ASSESSEE MADE PAYMENT OF RS.10 00 000/- ON 30.6 .2004 AND ANOTHER AMOUNT OF RS.13 60 499/- ON 26.06.2004. CONVEYANCE DEED WAS REGISTERED ON 4.8.2004 ON WHICH THE AMOUNT INCURRED WAS OF RS .1 15 540/-. THUS THE FULL AND FINAL PAYMENT TO DDA WAS GIVEN ON 4.8.2004 . THE FLAT WAS ALLOTTED TO ASSESSEE IN SFS SCHEME. THE SALE DEED WAS EXECU TED ON 20 TH AUGUST 2007. THEREFORE THE DATE OF SALE IS TO BE TAKEN A S 20 TH AUGUST 2007. HENCE THE ASSESSEE HELD THE FLAT FOR A PERIOD OF 3 YEARS 16 DAYS WHICH IS MORE THAN THREE YEARS. HON'BLE GUJARAT HIGH COURT IN THE CAS E OF AMILABEN UPENDRA SHAH (SUPRA) HELD THAT WHILE COMPUTING THE CAPITAL GAIN TAX IN THE CASE OF TRANSFER OF SHARE BY A PERSON WHO IS A MEMBER IN A CO-OPERATION HOUSING SOCIETY THE RELEVANT DATE WOULD BE THE DATE ON WHI CH THE MEMBERS ACQUIRES THE SHARES IN THE COOPERATIVE SOCIETY AND THE DATE ON WHICH THE MEMBER HAD ITA NO3297/DEL/11 9 SOLD THE SHARE IN THE SAID COOPERATIVE SOCIETY WILL BE RELEVANT FOR CALCULATING THE PERIOD OF HOLDING. IN THIS CASE THE ASSESSEE A CQUIRED SHARES IN COOPERATIVE SOCIETY AND WAS ALLOTTED ON 15.11.1979. SHE TRANSFERRED THOSE SHARES ON 4.12.1982. THUS THE ASSESSEE HELD THE SH ARE AND ALLOTMENT OF FLAT IN THE SAID COOPERATIVE SOCIETY FOR A PERIOD OF MOR E THAN 36 MONTHS. IT WAS HELD THAT CAPITAL GAIN ARISING FROM SALE OF SAID FL AT WAS LONG TERM CAPITAL GAIN AND THE ASSESSEE WAS THEREFORE ENTITLED TO BENEFIT OF SECTION 80T OF THE ACT. ITAT DELHI BENCH F IN THE CASE OF PRAVEEN GUPTA V . ACIT IN I.T.A. NO. 2558/DEL/2010 FOR ASSESSMENT YEAR 2007-08 IN ORDE R DATED 13 TH AUGUST 2008 HAS HELD THAT BY MAKING PAYMENT TO THE BUILDER AND HAVING RECEIVED ALLOTMENT LETTER IN LIEU THEREOF THE ASSESSEE WILL BE HOLDING CAPITAL ASSET AND THEREFORE THE BENEFIT OF INDEXATION HAS TO BE GRANT ED TO THE ASSESSEE ON THE BASIS OF ACQUIRING THE SAID ASSET. ITAT WHILE HOLD ING SO OBSERVED AS UNDER;- 29. ACCORDING TO THE AFOREMENTIONED DEFINITION CA PITAL ASSET MEANS PROPERTY OF ANY KIND HELD BY AN ASSESSEE WHETHER OR NOT CONNECTED WITH THE BUSINESS OR PROFESSION AND IT EXCLUDES CER TAIN ITEMS WHICH WHILE CONSIDERING THE FACTS OF THE PRESENT CASE ARE NOT RELEVANT. THEREFORE IT HAS TO BE SEEN THAT WHETHER BY ENTERI NG INTO AN AGREEMENT VIDE WHICH THE ASSESSEE WAS ALLOTTED A PA RTICULAR FLAT BY ALLOTMENT LETTER WHETHER THE ASSESSEE HAS HELD ANY ASSET OR NOT? BY ENTERING INTO AN AGREEMENT TO ALLOT A FLAT THE ASS ESSEE HAS IDENTIFIED A PARTICULAR PROPERTY WHICH HE IS INTENDED TO BUY FRO M THE BUILDER AND THE BUILDER IS ALSO BOUND TO PROVIDE THE APPLICANT WITH THAT PROPERTY BY ACCEPTING CERTAIN ADVANCE AMOUNT AND MAKING AGRE EMENT FOR BALANCE PAYMENT AS SCHEDULED IN THE AGREEMENT. THUS GOING INTO THE ITA NO3297/DEL/11 10 PROVISIONS IT IS NOT NECESSARY THAT TO CONSTITUTE A CAPITAL ASSET THE ASSESSEE MUST BE THE OWNER BY WAY OF A CONVEYANCE D EED IN RESPECT OF THAT ASSET FOR THE PURPOSE OF COMPUTING CAPITAL GAI N. THE ASSESSEE HAD ACQUIRED A RIGHT TO GET A PARTICULAR FLAT FROM THE BUILDER AND THAT RIGHT OF THE ASSESSEE ITSELF IS A CAPITAL ASSET. THE WORD HELD USED IN SECTION 2 (14) AS WELL AS EXPLANATION TO SECTION 48 CLEARLY DEPICTS THAT ASSESSEE MUST HAVE SOME RIGHT IN THE CAPITA ASSET W HICH IS SUBJECT TO TRANSFER. BY MAKING THE PAYMENT TO THE BUILDER AND HAVING RECEIVED ALLOTMENT LETTER IN LIEU THEREOF THE ASSESSEE WILL BE HOLDING CAPITAL ASSET AND THEREFORE THE BENEFIT OF INDEXATION HAS TO BE GRANTED TO THE ASSESSEE ON THE BASIS OF PAYMENTS MADE BY HIM FOR A CQUIRING THE SAID ASSET AND THE ASSESSEE HAS RIGHTLY CLAIMED THE INDE XATION BENEFIT FROM THE DATES WHEN HE HAS MADE THE PAYMENTS TO THE BUIL DER. THEREFORE WE SEE FORCE IN THE CLAIM OF THE ASSESSEE. THE ASSE SSING OFFICER IS DIRECTED TO PROVIDE THE BENEFIT OF INDEXATION TO TH E ASSESSEE IN THE MANNER IN WHICH THE ASSESSEE HAS CLAIMED. 10. IN THE CASE OF THE ASSESSEE THE ASSESSEE MADE APPLICATION TO DDA UNDER HIG HOUSING SCHEME 2003 ON 23.1.2004. THE DRAW WAS MADE ON 25.2.2004 AND FLAT NO.24 WAS ALLOTTED TO THE ASSESS EE. THE ASSESSEE PAID REGISTRATION MONEY OF RS.1 LAKH AND THE BALANCE AMO UNT WAS TO BE PAID AT RS. 13 33 930/-. THE ASSESSEE MADE PAYMENT IN INSTA LLMENTS AS PER THE SCHEDULE OF PAYMENT GIVEN IN THE ALLOTMENT LETTER. THEREFORE THE ASSESSEE GOT RIGHT IN THE FLAT AT LEAST ON THE DAY ON WHICH THE DRAW WAS MADE I.E. ON 24.2.2004 WHEN FLAT NO.24 WAS ALLOTTED TO THE ASSES SEE. THEREFORE THE ASSESSEES CASE IS SQUARELY COVERED BY THE DECISION OF HON'BLE GUJARAT HIGH ITA NO3297/DEL/11 11 COURT IN THE CASE OF AMILABEN UPENDRA SHAH (SUPRA) AND THE DECISION IN THE CASE OF PRAVEEN GUPTA (SUPRA). SINCE THE FLAT WAS HELD BY THE ASSESSEE FOR MORE THAN THREE YEARS BENEFIT OF INDEXATION IS TO BE ALLOWED AND THE CAPITAL GAIN ARISING ON SALE OF TRANSFER IS LIABLE TO BE TA XED AS LONG TERM CAPITAL GAINS AND NOT AS SHORT TERM CAPITAL GAINS. 11. IN VIEW OF THE ABOVE THE ASSESSING OFFICER IS DIRECTED TO COMPUTE THE CAPITAL GAINS ARISING ON SALE OF FLAT AS LONG TERM CAPITAL GAIN AFTER ALLOWING THE BENEFIT OF INDEXATION AS PER LAW. AS REGARDS TH E CONTENTION OF THE ASSESSEE THAT AN AMOUNT OF RS.60 000/- WAS INCURRED ON RENOVATION NO EVIDENCE WAS FILED BY THE ASSESSEE FOR INCURRING EX PENDITURE ON REPAIRS. IN THE ABSENCE OF ANY EVIDENCE THE BENEFIT OF REPAIRS CANNOT BE ALLOWED. WE UPHOLD THE ORDER OF CIT(A) ON THIS ISSUE. 12. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. 13. ORDER PRONOUNCED IN THE OPEN COURT ON THE 29 TH DAY OF FEBRUARY 2012. SD/- SD/- (RAJ PAL YADAV) (K.D. RANJAN) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 29 .2.2012. HMS COPY FORWARDED TO:- ITA NO3297/DEL/11 12 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)- NEW DELHI. 5. THE DR ITAT LOKNAYAK BHAWAN KHAN MARKET NEW DEL HI. TRUE COPY. BY ORDER (ITAT NEW DELHI).