Many of us face the problem of calculation of capital gain on sale of property which was purchased from builder in installments or otherwise and was under construction when the payments were made. This is a contentious issue as the property does not actually come into physical existence unless the possession letter is given to the allotee which signifies the property is complete. A similar case came before the Learned ITAT Delhi Bench in Praveen Gupta vs ACIT. In this case the assessee had bought the flat from DLF in installment basis which was under construction at the time of allotment and payments were made in installment.
The Learned ITAT Delhi Bench in a Landmark judgement has held that the asset or right in asset is created when the builder issued an allotment letter to the assessee specifying the actual unit no of the property and any payments made before allotment is to be provided indexation from the date of allotment and any payment made after is to be provided benefit of indexation from the date the payment is made.
This judgment even though has cleared the air with regard to purchase of under-construction immovable proeprty but still requires a clear mandate in law or further affirmation from high court / supreme court to be treated as law all over India. For your information we are providing below the text of the judgment.
N THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH : F : NEW DELHI
ITA No.2558/Del/201 0
Assessment Year : 2007-08
Praveen Gupta Vs. ACIT
PER I.P. BANSAL, JUDICIAL MEMBER
This is an appeal filed by the assessee. It is directed against the order of the CIT (A) dated 31st March, 2010 for assessment year 2007-08. Grounds of appeal read as under:-
1. That, having regard to the facts and the circumstances of the case and the relevant provisions of the law, the CIT (A)- XIX, New Delhi erred in confirming an addition of Rs.28,59,595/- towards long term capital gain arising on the sale of the residential flat no.F-011, Richmond Park, DLF City Phase IV, Gurgaon.
i) by allowing the cost of acquisition of the said flat amounting to Rs.45,51, 720/- to be indexed from the financial year 2001- 02 in which the conveyance deed thereof was registered, instead of allowing the same from
a) the financial year 1995-96 in which the said flat was allotted by the DLF Universal Ltd. to the appellant vide sale agreement dated 27.09.1995, and
b) the financial years 1995-96, 1996-97, 1997-98, 1999- 2000 & 2001-02 in which the payments of instalments of the cost of the flat along with interest and other payments were made to Builder DLF Universal Ltd. by the appellant and the total payment of the flat was Rs. 55,81,062/-;
ii) by considering only the sum of Rs.45,51, 720/- as cost of acquisition of the said flat and in not considering the following amounts for the purpose:-
a) interest of Rs.8,67,048/- paid to DLF Universal Ltd. by the appellant on loan taken by him for acquiring the said flat, and
b) fire fighting charges (Rs.34,916/-), generator charges (Rs. 46,94 1/-)and processing fee & miscellaneous charges (Rs.80,437/-) paid to DLF Universal Ltd. in connection with acquisition of the said flat.
2. The assessee sold a flat No.F-01 1, Richmond Park, DLF City Phase IV, Gurgaon vide sale deed dated 30th November,2006 for a sum of Rs.90 lac. After claiming brokerage paid thereon of Rs.45,000/-, the sale price arrived at by the assessee was Rs.89,55,000/-. Out of the said sale consideration, the assessee claimed that it had incurred cost of acquisition in various financial years amounting to Rs.55,81 ,062/-. The cost as per indexation was worked out at Rs.84,54,439/-. The details of indexation as described in computation of capital gain by the assessee is as under:-
5. Aggrieved, the assessee filed an appeal before the CIT (A) in which firstly it was submitted that the Assessing Officer has erred in taking the cost from financial year 2001 -02 for the purpose of indexation by ignoring the explanation of the assessee that cost indexation benefit should have been given from financial year 1995-96 in which the assessee had acquired the absolute right not only to possess the said property, but also to dispose it of by entering into the residential apartment buyer’s agreement with the developer in that year. Secondly, the calculation of the Assessing Officer was objected to for the reason that only a sum of Rs.40,45,968/- was considered to be the cost of acquisition of the property and the amount incurred on the stamp duty of Rs.5,05,752/- was not considered as cost which sum was stated in the purchase deed itself. Thirdly, the assessee objected to the index factor applied by the Assessing Officer at 497 which, according to the assessee, should have been 519 being financial year 1996-97 in which the property was sold. Fourthly, the assessee objected to the computation of Assessing Officer for application of Section 50C.
6. Additional grounds were also raised before the CIT (A) in which the assessee claimed that interest paid by the assessee amounting to Rs.8,67,048/- on the purchase price of flat which was paid in instalments over the period of about 5 years should also be considered to be cost. Second additional ground was in respect of claim of other charges as cost being (i) fire fighting charges – Rs.34,916/-, (ii) generator charges Rs.46,941/-; and (iii) processing fee and miscellaneous charges – Rs.80,437/-. The cost was described in the table filed before the CIT (A) which is as under:-
|S.No. Particulars||F.Y. 95-96||F.Y.96-97||F.Y. 97-98||F.Y.99-00||F.Y.01-02||Total|
price as per
|ii) Fire fighting Charges||–||–||–||34,916.00||–||34,916.00|
|iv) ProcessingFee & Other
7. Considering the submissions made by the assessee before the CIT (A), Ld. CIT (A) has framed the following issues:-
(i) Whether sale price of Rs.90,00,000/- realized by the assessee is to be adopted or Rs.1 ,26,43,800/- as adopted by the A.O.
(ii) Whether cost of acquisition is Rs.55,81 ,062/- as claimed by the assesee or Rs.40,45,968/- as adopted by the A.O.
(iii) Whether the year of allotment of flat is to be taken the year in which he asset is said to have been acquired.
(iv) Whether indexation is to be allowed from 1995-96 as adopted by the assessee.
(v) Whether each payment made by the assessee towards cost of acquisition is to be allowed indexation.
“24.2 The capital gain is worked out as under:-
|Sale consideration(as per paras 10 to 12 above)||Rs.90,00,000/-|
|Less Purchase consideration||45,51,720 x 519||
|(as per para 13 above)||
|Less : Investment in Bonds u/s 54EC as allowed||5,50,000/-|
|Taxable Capital Gain||28,59,595/-“|
13.Ld. AR has submitted before us a synopsis on the basis of which he argued the matter.14. The first objection of Ld. AR would be that the CIT (A) has erred in not treating the cost which as per the assessee was Rs.55,81 ,062/-. The CIT (A) only included in the cost a further sum of Rs.5,05,752/- being the amount incurred by the assessee on stamp papers. He submitted that further sum of Rs.10,29,342/- was required to be considered as cost the details of which is as under:-
|Towards fire fighting||34,916|
|Totalling error A.O.||2,016|
15. Ld. AR argued that the payment made towards processing fee, fire fighting and generator to the builder is part of the cost of acquisition and cannot be ignored. Ld. AR further argued that the interest paid of Rs.8,65,032/- to the builder is also part of the cost of acquisition and he placed reliance on the following decisions:-
i) CIT vs. Mithilesh Kumar 92 ITR 9 (Del)
ii) CIT vs. K. Raja Gopala Rao 252 ITR 459 (Mad)
iii) Addl. CIT vs. K.S. Gupta 119 ITR 372 (A)
iv) SAS Hotels United vs. ITO 4 ITD 927 (Mad)
v) CIT vs. Sri Hari Ram Hotels P. Ltd. 34 DTR 162
16. He submitted that reliance by the CIT (A) on the decision in the case of CIT vs. Maithreyi Pai (supra) is wrong as in the said case the assessee had claimed the expenditure against other income and, thus, it was held by the court that no double deduction was permissible and the matte was remanded for verification. He submitted that in the present case no such deduction was claimed and it is also not the case of the revenue that the assessee has claimed double deduction. He referred to the decision of Karnataka High Court in the case of CIT vs. Sri Hari Ram Hotels P. Ltd. (supra) to contend that such interest is an allowable deduction.
19. He further relied upon the decision of Mumbai Tribunal in the case of Lata G Rohra vs. DCIT (2008) 21 SOT 541 in which case the CIT had invoked his powers u/s 263 on the order of Assessing Officer where he allowed indexation benefit from the date of allotment despite the fact that the property came into existence after construction and it was held by the ITAT that the assessee was holding asset from 7th August, 1993 i.e., date of allotment letter and indexation benefit was required to be given from that date. He submitted that the said decision has been applied in another decision by the Tribunal in the case of ACIT vs. Credit Rating Information Services of India Ltd. (ITA No.9396/Mum/2004 , order dated 30th April, 2008). Thus, he submitted that the order of Assessing Officer and CIT (A) on this issue should be reversed and the Assessing Officer may be directed to give the indexation benefit from the date of allotment. Thus, it was submitted by the Ld. AR that the appeal of the assessee should be allowed.
22. In a rejoinder it was submitted by Ld. AR that he is making a statement at the bar that the said interest was not claimed by the assessee under any other Section.
23. We have carefully considered the rival submissions in the light of the material placed before us. Section 48 prescribes the mode of computation of capital gain. The relevant portion whereof read as under:-
“48. The income chargeable under the head “Capital gains” shall be computed, by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset the following amounts, namely :-
(i) expenditure incurred wholly and exclusively in connection with such transfer,
(ii) the cost of acquisition of the asset and the cost of any improvement thereto.”
24. It can be seen from the above provision that the assessee is entitled to deduct the expenditure incurred by it wholly and exclusively in connection with such transfer and also the cost of acquisition of asset and cost of any improvement thereon. Therefore, the Section itself permit the assessee to deduct the cost of acquisition as well as cost of any improvement thereon. The assessee has given full details of payments made by him to the developer and these details are given at pages 15 to 17 of the paper book. The assessee has shown the total cost incurred by him for the relevant property at a sum of Rs.55,81 ,062/- which included the base price of the flat, stamp duty paid for having the conveyance deed in his name, interest paid thereon, fire fighting charges, generator charges and processing fee and other miscellaneous charges. The details are provided at pages 16, according to which the payment made as per conveyance deed is a total sum of Rs.40,45,968/-. The payment made on account of stamp duty is a sum of Rs.5,05,752/-. The payment made in respect of interest is a total sum of Rs.8,65,032/-. The payment made for fire fighting charges is an aggregate sum of Rs.34,960/-. The payment made for generator charges is an aggregate sum of Rs.46,941/- and aggregate sum paid for processing fee and other miscellaneous charges are Rs.80,437/-. The assessee has also enclosed the receipts issued by the builder in respect of each item at pages 18 to 38 of the paper book. Each of the payments made by the assessee is in respect of flat purchased by him and is issued by DLF Universal Ltd. It is not the case of the revenue that the assessee did not make any extra payment apart from what was mentioned in the title deed as sale consideration. It is a known fact that the builder and developer of a property would charge from the assessee various charges which are as per the agreement entered into by the assessee for allotment of a particular property.
“(iii) “indexed cost of acquisition” means an amount which bears to the cost of acquisition the same proportion as Cost Inflation Index for the year in which the asset is transferred bears to the Cost Inflation Index for the first year in which the asset was held by the assessee or for the year beginning on the 1st day of April, 1981, whichever is later;
“2 (14) “capital asset” means property of any kind held by an assessee, whether or not connected with his business or profession, but does not include –
(i) any stock-in-trade, consumable stores or raw materials held for the purposes of his business or profession;
(ii) personal effects, that is to say, movable property (including wearing apparel and furniture) held for personal use by the assessee or any member of his family dependent on him, but excludes –
(b) archaeological collections;
(e) sculptures; or
(f) any work of art.
29. According to the aforementioned definition, capital asset means property of any kind held by an assessee whether or not connected with the business or profession and it excludes certain items which while considering the facts of the present case are not relevant. Therefore, it has to be seen that whether by entering into an agreement vide which the assessee was allotted a particular flat by allotment letter whether the assessee has held any asset or not? By entering into an agreement to allot a flat, the assessee has identified a particular property which he is intended to buy from the builder and the builder is also bound to provide the applicant with that property by accepting certain advance amount and making agreement for balance payment as scheduled in the agreement. Thus, going into the provisions, it is not necessary that to constitute a capital asset the assessee must be the owner by way of a conveyance deed in respect of that asset for the purpose of computing capital gain. 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 capital asset which 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 acquiring the said asset and the assessee has rightly claimed the indexation benefit from the dates when he has made the payments to the builder. Therefore, we see force in the claim of the assessee. The Assessing Officer is directed to provide the benefit of indexation to the assessee in the manner in which the assessee has claimed.
30. In the result, the appeal filed by the assessee is allowed.
The order pronounced in the open court on 13.08.2010.