LAXMI S. NAYAMPALLY, MUMBAI V. ACIT 19(1), MUMBAI

CO 171/MUM/2012

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8249 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 15-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 15-01-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 01-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: JAGDISH A NAGWEKAR
• Keywords: Capital asset; Fair market value
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'A' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO. 6844/MUM/2011 (ASSESSMENT YEAR: 2007-08) A C I T - 19(1) MS. LAXMI S. NAYAMPALLY ROOM NO. 322, PIRAMAL CHAMBERS 310, SATGURUKALYAN, 77/481 3RD FLOOR, PAREL VS. 17TH & 18TH ROAD, KHAR (W) MUMBAI 400012 MUMBAI 400052 PAN - AEJPN 4770 P APPELLANT RESPONDENT CO NO. 171/MUM/2012 (ASSESSMENT YEAR: 2007-08) MS. LAXMI S. NAYAMPALLY A C I T - 19(1) 310, SATGURUKALYAN, 77/481 ROOM NO. 322, PIRAMAL CH AMBERS 17TH & 18TH ROAD, KHAR (W) VS. 3RD FLOOR, PAREL MUMBAI 400052 MUMBAI 400012 PAN - AEJPN 4770 P CROSS OBJECTOR APPELLANT IN APPEAL REVENUE BY: SHRI MANOJ KUMAR ASSESSEE BY: SHRI JAGDISH A. NAGWEKAR DATE OF HEARING: 15.01.2013 DATE OF PRONOUNCEMENT: 15.01.2013 O R D E R PER D. MANMOHAN, V.P. THESE CROSS APPEALS ARE DIRECTED AGAINST THE ORDER DATED 30.08.2011 PASSED BY THE CIT(A) 30, MUMBAI AND THEY PERTAIN TO A.Y. 2007-08. 2. THE CASE OF THE REVENUE IS THAT THE CIT(A) ERRED IN DIRECTING TO RECOMPUTE THE LONG TERM CAPITAL GAINS AFTER ADOPTIN G THE COST INFLATION INDEX OF ACQUISITION OF THE CAPITAL ASSET WITH REFERENCE TO THE YEAR IN WHICH THE PREVIOUS OWNERS FIRST HELD THE ASSET I.E. FROM 01.0 4.1981, WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE BECAME THE OWNER OF THE PROPERTY AFTER THE DEMISE OF HER FATHER LATE SUNDERRAO NAYAM PALLY IN THE YEAR 1994. IN THE CROSS OBJECTION THE ASSESSEE STRONGLY SUPPOR TS THE ORDER PASSED BY THE LEARNED CIT(A) BY CONTENDING THAT THE DECISION OF THE LEARNED CIT(A) IS IN ITA NO. 6844 & CO 171/MUM/2011 MS. LAXMI S. NAYAMPALLY 2 CONSONANCE WITH THE VIEW TAKEN BY THE HON'BLE BOMBA Y HIGH COURT IN THE CASE OF MANJULA J. SHAH 16 TAXMAN 42 AND HENCE THE IMPUGNED ORDER SUFFERS FROM NO MISTAKE AND HENCE IT DESERVES TO BE UPHELD. 3. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS CO-OWNE R OF ANCESTRAL PROPERTY KNOWN AS KALYAN. THE ASSESSEE HAS INHERI TED TH SHARE IN THE SAID PROPERTY ON THE DEMISE OF HER FATHER IN THE YE AR 1994. HER FATHER, IN TURN, ORIGINALLY ACQUIRED THE PROPERTY IN THE YEAR 1940. AS PER THE PROVISIONS OF SECTION 49(1) OF THE I.T. ACT THE COST OF ACQUIS ITION, QUA ASSESSEE, SHALL BE DEEMED TO THE COST FOR WHICH THE PREVIOUS OWNER ACQ UIRED IT OR IF THE ACQUISITION IS PRIOR TO 01.04.1981, THE FAIR MARKET VALUE AS ON 01.04.1981 HAS TO BE ADOPTED. ON THE OTHER HAND, THE CASE OF T HE AO IS THAT THE ASSESSEE HAVING INHERITED THE PROPERTY IN 1994 THE VALUE AS ON 1994 HAS TO BE TAKEN INTO CONSIDERATION FOR THE PURPOSE OF APPL YING THE COST INFLATION INDEX METHOD. THE LEARNED CIT(A) FOLLOWED THE DECIS ION OF THE ITAT SPECIAL BENCH IN THE CASE OF DCIT VS. MANJULA J. SHAH TO HO LD THAT FAIR MARKET VALUE AS ON 01.04.1981 HAS TO BE ADOPTED FOR THE PURPOSE OF COMPUTING THE COST, WITH THE SUPPORT OF COST INFLATION INDEX. 4. AGGRIEVED REVENUE IS IN APPEAL. BOTH THE PARTIES SU BMITTED THAT THE ISSUE STANDS SQUARELY COVERED IN FAVOUR OF THE ASSE SSEE AND AGAINST THE REVENUE IN THE LIGHT OF THE DECISION OF THE ITAT SP ECIAL BENCH IN THE CASE OF DCIT VS. MANJULA J. SHAH, WHICH WAS AFFIRMED BY THE HON'BLE BOMBAY HIGH COURT IN ITS ORDER DATED 11 TH OCTOBER, 2011. SINCE THE VIEW TAKEN BY THE LEARNED CIT(A) IS IN CONSONANCE WITH THE VIEW EXPRE SSED BY THE HON'BLE BOMBAY HIGH COURT, WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY THE LEARNED CIT(A). THEREFORE, AS PRONOUNCED IN THE OPE N COURT, THE APPEAL FILED BY THE REVENUE IS DISMISSED AND THE CROSS OBJECTION FILED BY THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JANUARY, 2013. SD/- SD/- (N.K. BILLAIYA) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 15 TH JANUARY, 2013 ITA NO. 6844 & CO 171/MUM/2011 MS. LAXMI S. NAYAMPALLY 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 30, MUMBAI 4. THE CIT 19, MUMBAI CITY 5. THE DR, A BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.