Sh. Sushil Kumar & others, Bathinda V. The Deputy Commissioner of Income tax, Bathinda

CO 9/ASR/2013

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8810 (ITAT-AMRITSAR)
• Duration Of Justice: 4 month(s) 24 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 19-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 26-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J K GUPTA
• Keywords: Capital asset; Gift; Business income; Depreciation; Cost of acquisition; Fair market value; Valuation report
• Section: 143(3); 142(1); 234B; 32; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P. JAIN, ACCOUNTANT MEMBER I.T.A. NO. 86 (ASR)/2013 ASSESSMENT YEAR: 2009-10 PAN: ABDPD3038M THE DEPUTY COMMISSIONER VS. LATE SH. RAMJI DA SS, OF INCOME TAX, CIRCLE-I, (THROUGH LEGAL HEIRS:- BATHINDA SH. SUSHIL KUMAR, SH. SATIS H KUMAR, SH. SANJIV KUMAR, SONS OF LATE SH. RAMJI DASS; MITUL JINDAL, S/O SURINDER KUMAR PREDECEASED SON SMT. GIAN WATI, WIFE OF LATE SH. RAMJI DASS; AND MS. SHASHI JAIN AND MS. SARITA JAIN, DAUGHTERS OF LATE SH. RAMJI DASS, 4927, POST OFFICE BAZAAR, BATHINDA (APPELLANT) (RESPONDENT) C.O. NO. 09 (ASR)/2013 (IN I.T.A. NO. 86 (ASR)/2013) ASSESSMENT YEAR: 2009-10 PAN: ABDPD3038M THE DEPUTY COMMISSIONER VS. LATE SH. RAMJ I DASS,(THROUGH LR) INCOME TAX, CIRCLE-I, 4927, POST OFFICE BAZAAR , BATHINDA BATHINDA (APPELLANT) (RESPONDENT) 2 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 I.T.A. NO. 87 (ASR)/2013 ASSESSMENT YEAR: 2009-10 PAN: ABQPJ0471M THE DEPUTY COMMISSIONER VS. SH. MITUL JINDAL, OF INCOME TAX, CIRCLE-I, 4927-POST OFFICE BAZ AAR, BATHINDA BATHINDA (APPELLANT) (RESPONDENT) C.O. NO. 10 (ASR)/2013 (IN I.T.A. NO. 87 (ASR)/2013) ASSESSMENT YEAR: 2009-10 PAN: ABQPJ0471M THE DEPUTY COMMISSIONER VS. SH. MITUL JINDAL, OF INCOME TAX, CIRCLE-I, 4927-POST OFFICE BAZ AAR, BATHINDA BATHINDA (APPELLANT) (RESPONDENT) APPELLANT BY: SH. MAHAVIR SINGH, SR. DR RESPONDENT BY: SH. J.K. GUPTA, ADVOCATE DATE OF HEARING: 12.08.2013 DATE OF PRONOUNCEMENT: 19.08.2013 ORDER PER BENCH 1) THE REVENUE HAS FILED THE PRESENT TWO APPE ALS AGAINST A IMPUGNED ORDER DATED 27.11.212 PASSED BY LEARNED CI T(A), BATHINDA, FOR 3 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 THE ASSESSMENT YEAR 2009-10. CROSS OBJECTIONS HAVE ALSO BEEN FILED BY THE ASSESSEES AGAINST THE IMPUGNED ORDERS IN BOTH T HE APPEALS. 2) THE REVENUE HAS TAKEN ALMOST IDENTICAL GROUNDS I N I.T.A. NOS. 86 & 87(ASR)/2013 BUT THE AMOUNTS IN DISPUTE ARE DI FFERENT. THE ISSUES IN DISPUTE ARISE FROM THE IMPUGNED ORDERS ARE IDENTICA L WITH THE APPEALS FILED BY THE REVENUE AS WELL AS THE CROSS OBJECTION S FILED BY THE ASSESSEES, THEREFORE, WE PROCEED TO DECIDE THESE AP PEALS AS WELL CROSS OBJECTIONS BY PASSING A CONSOLIDATED ORDER. THE GRO UNDS OF APPEAL TAKEN BY THE REVENUE IN I.T.A. NO. 86 (ASR)/2013 ARE AS U NDER:- I. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED BOTH IN LAW AND FACTS IN APPRECIATING THE EXP LANATION TO SECTION 48 OF THE INCOME TAX ACT, 1961 IN A MANNER TO INTERPRET THE PHRASE WHOEVER IS LATER TO MEAN WHICHEVER IS EARLIER AND ALSO BY MIS-INTERPRETING THE PHRASE FIRST YEAR IN WHICH THE ASSET WAS HELD, THEREBY ALLOWING THE ASSESSEE TO CALCULA TE THE INDEXED COST OF ACQUISITION BY ADOPTING THE COST INFLATION INDEX(CII) AT 100 IN PLACE OF 351, THE CIT FOR 1998, THE YEAR WHE N THE PROPERTY WAS FIRST HELD BY THE ASSESSEE, AND THEREBY ALLOWIN G A RELIEF OF RS. 75,95,431/-. II. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED BOTH IN LAW AND FACTS IN RELYING ON EXPLA NATION 1(I)(B) TO SECTION 2(24A), WHICH RELATES ONLY TO SHORT TERM CA PITAL ASSETS, AND HAS NO RELEVANCE TO THE DISPUTE IN THE INSTANT CASE . III. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A), HAS ERRED BOTH IN LAW AND FACT IN RELYING UPON THE JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT OF P&H IN THE CAS E OF JASWANT RAI VS. CWT [107 ITR 477] AS IN THE INSTANT CASE, T HE A.O. HAS NOT DONE ANY SUCH THING AS APPLYING DIFFERENT COST INFL ATION INDICES FOR DIFFERENT CO-OWNERS. 4 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 IV. THAT APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, D ELETE, FOREGO OR MODIFY ANY OF THE GROUNDS OF APPEAL BEFORE OR AT TH E TIME OF HEARING. 3) THE GROUNDS RAISED BY THE ASSESSEE IN C.O. NO. 09(ASR)/2013 ARE AS UNDER:- I. THAT THE DEPARTMENT APPEAL IS AGAINST A DEAD PERSON (RAMJI DASS) IS NULLITY. SO, LIABLE TO BE DISMISSED AS SH. RAMJI DASS DIED ON 14.11.2012. II. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE LEARNED CIT(A) ERRED IN NOT GIVING DEDUCTION U/S 57 OUT OF THE VARIOUS EXPENSES. 4) AS PER THE APPLICATION DATED 28.05.2013 UNDER RU LE 26 OF THE I.T.A.T. RULES, 1963, FILED BY SH. ALOK NATH, DEPU TY COMMISSIONER OF INCOME TAX, CIRCLE-I, BATHINDA, ASSESSEE SH. RAMJI DASS EXPIRED ON 13.11.2012 AND THE SAME FACT WAS KNOWN TO THE DEPAR TMENT ON 19.02.2013. HE REQUESTED THAT THE SEVEN LEGAL HEIR S OF THE DECEASED- ASSESSEE SH. RAMJI DASS MAY BE PLACED ON RECORD IN THE DEPARTMENTAL APPEAL. A SIMILAR APPLICATION DATED 7 TH MAY, 2013 HAS ALSO BEEN FILED BY SH. SUSHIL KUMAR JINDAL SON OF LATE SH. RAMJI DASS INFORMING THAT LATE SH. RAMJI DASS, DECEASED, HAS LEFT THE FOLLOWING LE GAL REPRESENTATIVES: I. SH. SUSHIL KUMAR, S/O LATE SH. RAMJI DASS R/O H. NO . 96, VEER COLONY, BATHINDA. II. SH. SATISH KUMAR, S/O- LATE SH. RAMJI DASS, R/O- H. NO. 4928, POST OFFICE BAZAR, BATHINDA. 5 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 III. SH. SANJIV KUMAR, S/O- LATE SH. RAMJI DASS, R/O- C 108, JAIL ROAD, BATHINDA. IV. SH. MITUL JINDAL, S/O- SURINDER KUMAR PREDECEASED S ON, R/O H. NO. 4928, POST OFFICE BAZAR, BATHINDA. V. SMT. GIAN WATI, WIFE OF LATE SH. RAMJI DASS, R/O H. NO. 4927, POST OFFICE BAZAR, BATHINDA. VI. MS. SHASHI JAIN, D/O LATE SH. RAMJI DASS , R/O H. N O. 225, JAGRITI ENCLAVE, DELHI. VII. MS. SARITA JAIN, D/O LATE SH. RAMJI DASS, NOW W/O S H. SATISH JAIN, CHIEF ENGINEER, THERMAL COLONY, YAMUNA NAGAR. HE REQUESTED THAT THE NAMES OF AFORESAID 7 LEGAL HEIRS OF THE DECEASED-ASSESSEE SH. RAMJI DAS MAY BE BROUGHT ON R ECORD FOR THE APPEALS/CROSS OBJECTIONS. THE REVENUE HAS ALSO FILE D AMENDED FORM NO. 36 INDICATING THE LEGAL HEIRS OF THE ASSESSEE WHICH ARE PLACED ON RECORD BY THE OFFICE. 5) AS MENTIONED ABOVE, THE ISSUES IN DISPUTE INVOLV ED IN THE APPEALS AND CROSS OBJECTIONS ARE IDENTICAL, THEREFO RE, FOR THE SAKE OF CONVENIENCE, WE ARE NARRATING THE FACTS AS NARRATED BY THE REVENUE IN I.T.A. NO. 86(ASR)/2013 AS UNDER:- I. THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE ASS ESSMENT YEAR 2009-10 ON 30.09.2009, DISCLOSING TOTAL INCOME OF R S. 46,11,493/- WHICH INCLUDED LONG TERM CAPITAL GAIN OF RS. 35,53, 500/-. THE RETURN WAS PROCESSED BY THE ASSESSING OFFICER ON 18 .08.2010 AND THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY. A NOTICE UNDER 6 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 SECTION 143(2) OF THE INCOME-TAX ACT, 1961 (HEREINA FTER REFERRED TO AS THE ACT) WAS ISSUED ON 30.09.2010 WHICH WAS DU LY SERVED UPON THE ASSESSEE ON THE SAME DAY. SUBSEQUENTLY, NO TICE UNDER SECTION 142(1) OF THE ACT WAS ISSUED TO THE ASSESSE E ON 18.10.2010 WHICH WAS SERVED UPON HIM ON 21.10.2010, CALLING FO R BOOKS OF ACCOUNT, BILL, VOUCHERS AND FINAL FINANCIAL STATEME NTS. IN RESPONSE TO THE SAME, AUTHORIZED REPRESENTATIVE OF THE ASSES SEE APPEARED FROM TIME TO TIME AND PRODUCED THE BOOKS OF ACCOUNT , WRITTEN SUBMISSIONS AND DOCUMENTARY EVIDENCE IN SUPPORT OF THE CONTENTIONS AND CLAIMS OF THE ASSESSEE. II. AS PER THE ASSESSMENT ORDER, THE ASSESSEE WAS THE O WNER OF COMMERCIAL PROPERTY IN BATHINDA AND HAS INTEREST IN COME OUT OF BANK DEPOSITS. BUT ACCORDING TO THE ASSESSEE, HE IS NOT DOING ANY BUSINESS. THE ASSESSEE HAS FILED A SORT OF PROFIT A ND LOSS ACCOUNT WHEREIN HE HAS CREDITED RS. 3,28,656/- AS PROFIT FR OM RENT, AND RS. 9,17,798.99 AS INTEREST INCOME. AGAINST THESE INCOM ES, HE HAS DEBITED RS. 2,23,196/- ON ACCOUNT OF SOME EXPENSES AND LOSS FROM CECIL HOTEL WHICH ARRIVE AT NET PROFIT OF RS. 10,2 3,258/-. III. IN THE COMPUTATION OF INCOME STATEMENT, THE ASSESSE E HAS DISCLOSED BUSINESS INCOME OF RS. 8,36,808/- AND HOUSE PROPERT Y INCOME OF 7 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 RS. 2,21,185/- BY MAKING THE ADJUSTMENTS ON NET PRO FIT OF RS. 10,23,258/-, AS COMPUTED IN THE PROFIT AND LOSS AC COUNT. THE ASSESSEE HAS HIMSELF DISALLOWED SOME EXPENSES IN TH E PROFIT AND LOSS ACCOUNT AS WELL AS UNDER THE HEAD HOUSING PRO PERTY. BY SUCH SELF ADJUSTMENTS, THE ASSESSEE HAS TRIED TO EK E-OUT HIS BUSINESS INCOME SEPARATE FROM HIS RENTAL INCOME AT RS. 8,36, 808/- AND RENTAL INCOME OF RS. 2,21,185/- AFTER CLAIMING DEDUCTION F OR HOUSE TAX AT RS. 12,678/- AND DEDUCTIONS UNDER SECTION 24(1) AT RS. 94,793/-. IV. THE ASSESSING OFFICER IS OF THE VIEW THAT THE ASSES SEE HAS NO BUSINESS INCOME/PROFESSIONS INCOME IN TERMS OF SECT ION 28 OF THE ACT SO AS TO BE ENTITLED TO COMPUTATIONS IN ACCORDA NCE WITH SECTION 30 TO SECTION 43D OF THE ACT AND HE DISALLOWED THE DEDUCTION TO THE ASSESSEE UNDER SECTION 57 OF THE ACT. AFTER CON FRONTING WITH THE ITEMS OF EXPENDITURE CLAIMED BY ASSESSEE, HE AD DED RS. 80,971/- TO THE RETURNED INCOME OF THE ASSESSEE AND TREATED THE SAME IN THE NATURE OF INCOME FROM OTHER SOURCES. V. THE SECOND ISSUE IN DISPUTE DISCUSSED BY THE ASSESS ING OFFICER IN HIS ORDER AT PARA NOS. 5 TO 5.23 AS WELL AS IN PARA S NOS. 6 AND 7 (PAGES 4 TO 11) ARE REPRODUCED AS UNDER: 8 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 5. IT IS SEEN THAT THE ASSESSEE HAS DISCLOSED LON G TERM CAPITAL GAINS AS FOLLOWS: SALE OF HOTEL ON 30/04/2008- RS. 1800000 COST AS ON 01/04/1981 260000 INDEXED COST 260000*582/100 RS. 1513200 CAPITAL GAINS RS. 286800 SALE OF PLOT OF LAND ON 24/12/2008 RS. 12 375000 COST AS ON 01.04.1981 1565000 INDEX COST 1565000*582/100 RS. 9108300 CAPITAL GAINS RS. 3266700 5.2 THE ASSESSEE HAS FILED THE COPIES OF SALE DEEDS IN RESPECT OF BOTH THE HOTEL SOLD ON 30/04/2008 AND THE PIECE OF LAND SOLD ON 24/12/2008. 5.3 HOTEL SOLD ON 2008: AS APPARENT FROM SALE DEED THIS WAS A TWO STORIED PROPERTY OF THE ASSESSEE OVER 56.38 YARDS A REA [1/4 TH OF THE TOTAL AREA OF 225.55 SQ. YARDS], THE FIRST FLOOR OF WHICH WAS LET OUT TO THE HOTEL CECIL WHILE THE GROUND FLOOR WAS LET OUT TO ONE SH. BIRBAL DASS, SON OF SH. DUNI DASS. THE ENTIRE PROPE RTY WAS SOLD OFF TO ONE SH. HARVINDER SINGH, SON OF SH. KISHORI LAL BATHINDA[FULL ADDRESS NOT GIVEN]. THE SALE CONSIDER ATION HAS BEEN REGISTERED AT RS. 18,00,000/- WITH STAMP PAPER EXPE NSES OF RS. 1.44 LAKHS. IT IS MENTIONED IN THE DEED THAT THIS ASSET BECAME THE PROPERTY OF SH. RAMJI DASS , SON OF SH. KISHORI LAL, ON DISTRIBUTION OF ASSETS ON PARTITION OF A HUF, WHICH MODE OF ACQU ISITION FALLS SQUARELY IN TERMS OF SECTION 49(1)(I) OF THE ACT. T HE ASSESSEE RECEIVED TWO CHEQUES OF RS. 9 LAKHS EACH [CH. NO. 0 33302, AND 033303 DATED 24/04/2008 OF UTI BANK, BATHINDA] IN R ESPECT OF THE SALE. THE PROPERTY DEVELOPED TO THE ASSESSEE ACTUAL LY AND FINALLY ONLY ON 19.05.1998 IN PURSUANCE OF THE HUF PARTITIO N ORDER/JUDGMENT OF SH. BHUPINDER SINGH SIDHU, ADDL. JUDGE, BATHINDA IN CASE NO. 143 [VASIKA NO. 4194 DATED 14. 09.1998 ENTERED INTO THE REGISTER OF THE SUB-REGISTRAR, BAT HINDA] OF 04.12.1996 DECIDED ON 19.05.1998. 9 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 5.4 LAND SOLD ON 24/12/2008: THIS PIECE OF ANCEST RAL LAND IS SEEN TO HAVE BEEN SOLD BY THE ASSESSEE TO ONE BHAVI SHYA NIRMAAN CONSTRUCTIONS (PVT.) LTD, REPRESENTED BY SH. SUNIL KUMAR, SON OF SH. GIRDHARI LAL, HOUSE NO. 16206, GALI NO. 10/15, GURU GOVIND SINGH NAGAR, BATHINDA ON 24.12.2008. THE SALE CONSI DERATION HAS BEEN REGISTERED AT RS. 1,23,75,000/- WITH STAMP PAP ER EXPENSES OF RS. 9.90 LAKHS [@ 45,000/- PER GAJ]. IT IS MENTIONE D IN THE DEED THAT THIS ASSET BECAME THE PROPERTY OF SH. RAMJI DASS, S/O- SH. KISHORI LAL, ON DISTRIBUTION OF ASSETS ON PARTITION OF HUF , WHICH MODE OF ACQUISITION FALLS SQUARELY IN TERMS OF SECTION 49(1 )(I) OF THE ACT. THE ASSESSEE RECEIVED PAY ORDERS OF RS. 6000000 [PO NO. 724232 DATED 23.12.2008, PNB, KIKERBAZAR, BATHINDA] AND OF RS. 6375000 [PO NO. 016953 DATED 24.12.2008, HDFC, BATHINDA] IN RESPECT OF THE SALE. THE PROPERTY DEVOLVED TO THE ASSESSEE ACTUALLY AND FINALLY ONLY ON 19.05.1998 IN PURSUANCE OF THE HUF PARTITION ORDER/JUDGMENT OF SH. BHUPINDER SINGH SIDHU, ADDL. JUDGE, BATHINDA IN CASE NO. 143 [VASIKA NO. 4144, DATED 14 /09/1998 ENTERED INTO THE REGISTER OF THE SUB-REGISTRAR, BAT HINDA], OF 04.12.1996 DECIDED ON 19.05.1998. 5.5 THE ASSESSEE HAS FILED A VALUATION REPORT IN RESPECT OF THE VACANT PLOT AT M.C. NO. 4932, 4932A AND 4934, P OST OFFICE BAZAR, BATHINDA WHERE THE FAIR MARKET VALUE FOR TAX PURPOSE HAS BEEN CALCULATED AT RS. 15,65,000/- AS ON 01.04.1981 . THE VALUATION REPORT IS FROM ONE GARG AND ASSOCIATES HOSPITAL R OAD, BATHINDA, WHO ARE GOVERNMENT APPROVED VALUERS FOR INCOME-TAX, CANARA BANK, IOL, BOP, SBOP, SBI, PNB AND UNION BANK. THE SAME REPORT IS FOUND TO BE VERY METICULOUS AND SCIENTIFI C, AND IS THEREFORE ACCEPTED. 5.6 SIMILARLY, THE ASSESSEE HAS FILED A VALUATIO N REPORT FROM THE SAME VALUER IN RESPECT OF THE DOUBLE STOREY OLD COMMERCIAL CUM HOTEL BUILDING AT M.C. NO. 4862/2A, RAILWAY ROA D, BATHINDA WHERE THE FAIR MARKET VALUE FOR TAX PURPOSE HAS BEE N CALCULATED AT RS. 2,60,000/- AS ON 01.04.1981. THE SAME REPORT IS ALSO FOUND TO BE VERY METICULOUS AND SCIENTIFIC, AND IS THEREFORE ACCEPTED. 10 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 5.7 THOUGH THE VALUATION REPORT AS SUBMITTED BY THE ASSESSEE IS ACCEPTED, THE WORKING OF LONG TERM CAPI TAL GAINS AS DONE BY THE ASSESSEE IS FOUND TO BE COMPLETELY ERRO NEOUS AND MISLEADING. 5.8 IN SECTION 49(1) OF THE ACT, IT IS PROVIDE THA T WHERE THE CAPITAL ASSET BECAME THE PROPERTY OF THE ASSESSEE (I) ON ANY DISTRIBUTION OF ASSETS ON THE TOTAL OF PARTI AL PARTITION OF A HINDU UNDIVIDED FAMILY; (II) UNDER A GIFT OR WILL; (III) (A) BY SUCCESSION, INHERITANCE OR DEVOLUTIO N.. .THE COST OF ACQUISITION OF THE ASSET SHALL BE DEE MED TO BE THE COST FOR WHICH THE PREVIOUS OWNER OF THE PROPERTY A CQUIRED IT, AS INCREASED BY THE COST OF ANY IMPROVEMENT OF THE ASSETS INCURRED OR BORNE BY THE PREVIOUS OWNER OR THE ASSE SSEE, AS THE CASE MAY BE. 5.9 AS EXPLAINED IN THE ACT ITSELF, IN EXPLANATI ON TO SECTION 48 [MODE OF COMPUTATION] IN THE FOLLOWING WORDS: 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 TRANSFERRE D 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 1 ST DAY OF APRIL, 1981, WHICHEVER IS LATER [EMPHASIS SUPPLIED] THE BASIC IDEA IS THAT THE COST TO THE ASSESSEE WOU LD BE THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE WHEN TH E PROPERTY WAS FIRST HELD BY THE ASSESSEE. 5.10 THIS SITUATION COVERS THE CASE WHERE CAPITAL A SSET IS ACQUIRED BY THE ASSESSEE ON OR AFTER APRIL 1, 1981, IN ONE OF THE MODES REFERRED TO IN SECTION 49(1) BUT IT WAS ORIGI NALLY ACQUIRED BY THE PREVIOUS OWNER BEFORE APRIL 1, 1981. 11 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 5.11 ACCORDINGLY, THE INDEXED COST OF ACQUISITION HAS TO BE DETERMINED AS UNDER: FAIR MARKET VALUE OF THE ASSET ON APRIL 1, 1981 OR COST OF ACQUISITION TO THE PREVIOUS OWNER, WHOEVER IS MORE COST INFLATION INDEX FOR THE _______________________________X YEAR IN W HICH ASSET IS TRANSFERRED COST INFLATION INDEX FOR THE YEAR IN WHICH ASSET WAS FIRST HELD BY THE ASSESSEE. 5.12 IN THE INSTANT CASE, AS THE COST TO THE PREVIO US OWNER(S) IS NOT DETERMINABLE, AND AS THE ASSESSEE HAS HIMSELF O PTED FOR THE FAIR MARKET VALUE OF THE ASSETS AS ON 01.04.1981, THE CO ST OF ACQUISITION AS SHOWN BY THE ASSESSEE IN THE VALUATI ON REPORTS REFERRED TO IN PARA- 5.5 AND 5.6 ABOVE, ARE ACCEPTE D. 5.13 THE COST INFLATION INDEX FOR THE YEAR IN WHIC H THE ASSET IS TRANSFERRED, 2008-09, TOO HAS BEEN CORRECTLY ADOPTE D BY THE ASSESSEE AT 582. 5.14 HOWEVER, THE ASSESSEE HAS COMPUTED THE INDEXED COST OF ACQUISITION IN A VERY ERRONEOUS MANNER BY TAKING TH E COST INFLATION INDEX FOR THE YEAR IN WHICH THE ASSET WAS FIRST ACQUIRED BY THE ASSESSEE AT 100, IN PLACE OF 351, WHICH IS THE COST INFLATION INDEX FOR THE YEAR 1998-99, THE YEAR WHEN THE PROPE RTY WAS FIRST HELD BY THE ASSESSEE. JUST BECAUSE THE FAIR MARKET VALUE OF THE ASSET IS TAKEN AS THE COST OF ACQUISITION, IT IS NOT THAT THE SAME IS THE COST OF ACQUISITION TO THE ASSESSEE AS IT IS IN EFFECT THE DEEMED COAST OF ACQUISITION TO THE PREVIOUS OWNER. THE ASSET CAME TO THE POSSESSION OF THE ASSESSEE ONLY ON THE DATE IT LEGA LLY DEVOLVED TO HIM. THOUGH THERE IS NO DEFINITION OF PROPERTY IN I NCOME TAX, 1961, IT HAS BEEN JUDICIALLY HELD THAT A PROPERTY I S A BUNDLE OF RIGHTS WHICH THE OWNER CAN LAWFULLY EXERCISE TO THE EXCLUSION OF ALL OTHERS AND IS ENTITLED TO USE AND ENJOY AS HE P LEASES, PROVIDE HE DOES NOT INFRINGE ANY LAW OF THE STATE. IT CAN BE C ORPOREAL OR IN- CORPOREAL. IN THE INSTANT CASE THE ASSESSEE BECAME THE OWNER OF 12 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 BOTH THE PROPERTY/ASSETS IN QUESTION ONLY ON 19.05. 1998 IN PURSUANCE OF THE HUF PARTITION ORDER/JUDGMENT OF SH . BHUPINDER SINGH SIDHU, ADDL. JUDGE, BATHINDA AS DETAILED IN P ARAS- 5.3 AND 5.4 ABOVE. ACCORDINGLY, THE INDEXED COST OF ACQUISI TION HAS TO BE TAKEN BY TAKING THE COST INFLATION INDEX FOR THE YE AR IN WHICH THE ASSET WAS FIRST ACQUIRED/HELD BY THE ASSESSEE, WHIC H IS 1998-99, WHICH AGAIN IS 351. 5.15 ON THIS ADOPTING THE CORRECT COST INFLATION IN DEX FOR THE YEAR IN WHICH THE ASSET WAS FIRST ACQUIRED/HELD BY THE ASSESSEE, WHICH IS 351, THE LONG TERM CAPITAL GAINS ON SALE O F BOTH THE PROPERTIES IS COMPUTED AS FOLLOWS: SALE OF HOTEL ON 30/04/2008- RS. 1800000 COST AS ON 01/04/1981 260000 INDEXED COST 260000*582/100 RS. 431111 CAPITAL GAINS RS. 1368889 SALE OF PLOT OF LAND ON 24/12/2008 RS. 123 75000 COST AS ON 01.04.1981 1565000 INDEX COST 1565000*582/100 RS. 2594958 CAPITAL GAINS RS. 9780042 5.16 THE ASSESSEE WAS CONFRONTED WITH THE FACTS AS STATED ABOVE, AND IN REPLY THE ASSESSEE VIDE HIS WRITTEN S UBMISSION DATED 02.08.2001 COUNTERED AS FOLLOWS. 1. THAT A HUF IS THE NORMAL CONDITION OF THE HIND U SOCIETY AND CONSISTS OF ALL MALES DIRECTLY DESCENDED FROM A COMMON ANCESTOR, THEIR WIVES AND UNMARRIED DAUGHTERS. HUF IS JOINT IN FOOD IN WORSHIP AND IN OWNERSHIP OF PROPERTY. THIS IS THE NORMAL STATE OF AFFAIRS IN HINDU SOCIETY. A HUF IS NEITHER A CREATION OF LAW NOR OF CONTRACT AND ITS MEMBERSHIP ARISES FROM BIRTH. 13 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 IN MITAKSHARA SCHOLL OF HINDU LAW, WHICH IS APPLICA BLE TO THE ASSESSEE, EVERY MALE MEMBER BORN INTO THE FA MILY ACQUIRES AN INTEREST IN THE FAMILY BY BIRTH. A MALE , WHO IS ALMOST ALWAYS A COPARCENER, IS ENTITLED TO HAVE A S HARE IN PROPERTY ON PARTITION WHILE OTHER MEMBERS, USUALLY FEMALES, HAVE A RIGHT MAINTENANCE FROM THE FAMILY. THE INTER EST OF EACH COPARCENER FLUCTUATES BY BIRTH AND DEATH IN THE FAM ILY. FROM THE ABOVE LEGAL POSITION, IT IS CLEAR THAT EAC H COPARCENER WAS HAVING INTEREST IN THE JOINT FAMILY PROPERTY BEFORE 01.04.1981 AS EACH WAS BORN BEFORE 01.04.198 1, SO THE DENOMINATOR IS CORRECTLY APPLIED AT 100. 2. THAT THE FIRST PARTIAL PARTITION WAS AFFECTED O N 30.01.1964 IN THE BIGGER HUF AND ITS ORDER U/S 171 (3) WAS PASSED BY ITO ON 14.01.1966 (COPY ENCLOSED FOR READ Y REFERENCE). SECOND PARTITION WAS EFFECTED ON 05.02. 1964 ONLY OF CAPITAL OF THE HUF. THAT AGAIN PARTIAL PARTITION WA S EFFECTED ON 12.04.1971 IN THE BIGGER HUF AND WAS ACCEPTED BY TH E ASSESSING OFFICER ON 12.12.1974 VIDE HIS ORDERS PAS SED U/S 1714(3) ON 21.12.1974. ALL THIS SHOWS THAT THE PROPERTY IN QUESTION BECAME THE PROPERTY OF THE COPARCENERS BEFORE 01.04.1981. IN THE ALTERNATIVE, IT IS POINTED OUT THAT THE PART ITION OF JOINT FAMILY PROPERTY WAS MADE ON 02.02.1995 ORALLY AND ITS MEMORANDUM OF PARTITION WAS EXECUTED ON 20.02.1995( COPY ENCLOSED FOR READY REFERENCE), TO ADJUST THE RIGHTS OF THE COPARCENERS ON 02.02.1995 WHICH THEY HAVE GOT EARLI ER ON 30.01.1964 AND ON 12.04.1971. IT IS FURTHER POINTED OUT THAT THE CONCERNED ASSESS ING OFFICER HAS PASSED THE ORDER U/S 171(3) OF THE INCO ME TAX ACT, 1961 ON 19.02.1998 WHICH ALSO PROVES THE ABOVE LEGA L POSITION (COPY ALREADY FILED). 3. IN THE ALTERNATIVE, AT THE MOST THE DATE OF OWNE RSHIP OF EACH COPARCENER CAN BE TAKEN AS 02.02.1995. SO, THE 14 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 DENOMINATOR WOULD BE 259 NOT 351 AS CONTENDED BY YO UR GOODSELF. THE COURT DECREE WAS PASSED TO MAKE THE P ARTITION DATED 02.02.1995 OF THE HUF, A RULE OF COURT OF LAW TO AVOID COMPLICATION IN FUTURE. SO, THE DATE OF JUDGMENT OF THE ADDL. D&J, BATHINDA CANNOT BE INTO TAKEN AS CONSIDERATION FOR APPLYING THE DENOMINATOR IN VIEW OF THE ORDER OF TH E A.O. PASSED U/S 171(3) ON 19.02.1998 AND PRIOR TO THAT O N 21.12.1974 AND 14.01.1966. 5.17 HERE, THE MOOT QUESTION IS THE CAPITAL GAINS O N TRANSFER OF CAPITAL ASSET, FOR WHICH THE DATES OF ACTUAL AND LE GAL ACQUISITION AND DATE OF ACTUAL AND LEGAL RELINQUISHMENT OF RIGHT OV ER A PIECE OF PROPERTY HAVE TO BE ESTABLISHED [ACTUALLY OR DEEMED ]. 5.18 THE IDEA OF THE ASSESSEE THAT AS SOON AS HE W AS BORN, THE RIGHT OVER THE PROPERTY IN QUESTION DEVOLVED UNTO H IM IS HARDLY IN CONSONANCE WITH THE CONCEPT OF ACQUISITION OF RIGHT OVER A PROPERTY FOR BRINGING OUT THE COST OF ACQUISITION AS ENVISAG ED IN SECTION 49(1) OF THE INCOME-TAX ACT, 1961. HAD IT BEEN SO, IT WOULD HAVE BEEN SO EXPRESSLY PROVIDED IN THE INCOME-TAX ACT IT SELF IN SO MANY WORDS. 5.19 SECONDLY, THE ASSESSEE HAS REFERRED TO REPEATE D PARTITIONS OF THE HUF IN 1964 AND 1974, AS WELL AS IN 1995 TO ADJUST THE PARTITION RIGHTS AGAIN AND AGAIN. HE HAS ALSO RELIE D ON THE ORDERS PASSED IN THE CASE OF VARIOUS HUFS [BIGGER HUF- T HAT CALLED BEHARI LAL KISHORI LAL] U/S 171(3) OF THE INCOME-TA X ACT, 1961. WHAT THE ASSESSEE TRIED TO BRING OUT IN THE COURSE OF THE HEARINGS WAS THAT PARTIAL PARTITIONS OF THE HUF WAS EFFECTED ON 30.01.1964 AND AGAIN ANOTHER MEMORANDUM OF FAMILY SETTLEMENT WAS ENTERED INTO ON 17.05.1971, SO THAT THE PROPERTY IN QUESTION HAD FAIRLY DEVOLVED TO THE ASSESSEE. HOWEVER, FROM THE SECOND MEMORANDUM OF FAMILY SETTLEMENT DATED 20.02.1995, IT CLEARLY TRANSPIRES AND IS EVIDENT THAT ALL PREVIOUS EFFORTS PROVED FUTILE AND UNWORKABLE, SO THAT ANOTHER SETTLEMENT WAS ENTERED INTO SUPERSEDING ALL PREVIOUS SETTLEMENT AND WRITINGS. ALL MOVEABLE AND IMMOVABLE PROPERTIES OF THE ERSTWHILE OWNERS AN D EVEN PROPERTIES WHICH STOOD IN THE PERSONAL NAMES OF SOM E OF THE CO- OWNERS WERE ALSO VOLUNTARILY THROWN IN THE COMMON H OTCH 15 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 POTCH AND ACCORDING, PARTIES WERE ALLOTTED DIFFERENT SHARES SO SPECIFIED AND SHADED IN DIFFERENT COLOURS AND DIFFE RENT BLOCKS, POSSESSION OF VARIOUS SHARES WERE ALSO DELIVERED TO RESPECTIVE ALLOTTEES. MAPS WERE ANNEXED TO THIS MEMORANDUM. HOWEVER, THE MEMORANDUM TOO DID NOT WORK, AND FINALLY, THE RESPE CTIVE SHARES IN THE PROPERTY OF THE MAIN HUF HAD TO BE GOT DECRE ED IN THE COURT OF THE ADDL. JUDGE, BATHINDA, WHO ALSO HAVING ADJUD ICATED THE RIGHTS OF EACH OF THE DISPUTING COPARCENERS, ORDERE D THAT THE DEVOLUTION OF RIGHTS WOULD BE SUBJECT TO THE REGIST RATION OF THE RESPECTIVE SHARES. SUCH REGISTRATION WAS FINALLY DO NE IN 1998 ONLY. UNTIL SUCH REGISTRATION, THE PROPERTY WAS ALWAYS IN DISPUTE, DESPITE SOME IN THE FAMILY AGREEMENTS, FOR BEING CHALLENGED AT ANY TIME BY ANY OF THE COPARCENERS. THE MENTION OF THE WORD EX ISTING IN THE MAPS ATTACHED WITH THE MEMORANDUM DATED 20.02.1995 CAN AT BEST SUGGEST KABJA OR PERMISSIVE OCCUPATION, AND CANNO T MEAN TO HAVE SUFFICIENT RIGHT TO DEAL LEGALLY WITH THE PROP ERTY IN ANY MANNER WHATSOEVER, FAR LESS THE LEGAL RIGHT TO TRAN SFER THE PROPERTY TO ANYBODY ELSE. THE PROPERTY IS HELD BY THE ASSE SSEE IN TERMS OF THE CONCERNED PROVISIONS OF THE INCOME-TAX ACT ONLY AND ONLY WHEN HE BECOMES THE LEGAL OWNER OF THE PROPERTY WHI CH HE CAN SELL OFF, SO THAT THE QUESTION OF CAPITAL GAINS WOULD AR ISE. BY HELD, FOR THE PURPOSE OF CAPITAL GAINS, ONE HAS TO TAKE INTO ACCOUNT THE CAPACITY TO TRANSFER AS WELL, FOR EVEN IF ONE CAN H OLD A PROPERTY ONE CANNOT HAVE CAPITAL GAINS UNTIL HE OR SHE CAN TRANS FER THE CAPITAL ASSET. THE HOLDING HAS TO BE SUCH AS TO BE LEGALLY ENFORCEABLE, ABSOLUTE AND UNFETTERED, IRREVOCABLE, SETTLED AND N OT CHANGEABLE FROM YEAR TO YEAR. IN SHORT, THE RIGHT OVER THE PRO PERTY HAS TO COME BY WAY OF A LEGAL TRANSFER AND NOT FROM SOME QUAS I-LEGAL ARRANGEMENT . THIS RIGHT DEVOLVED UNTO THE ASSESSEE ONLY IN 1998. AN ORDER PASSED BY AN ITO U/S 171(3) DOES NOT VEST A PERSON WITH ANY KIND OF RIGHT OVER AN IMMOVABLE PROPERTY O R ATTEST ANY TRANSFER OF RIGHTS OVER A PROPERTY, SUFFICIENTLY EN OUGH TO BE A GROUND OF A PIECE OF EVIDENCE IN TERMS OF SECTIONS 48 AND 49(1) OF THE INCOME-TAX ACT. 5.20 THIRDLY, THE OFFER OF THE ASSESSEE, THAT ALTER NATIVELY, THE DATE OF OWNERSHIP OF EACH COPARCENER MAY BE TAKEN A T 02.02.1995, IS ALSO DEVOID OF ANY MERIT. THE DATE WHEN THE ASSE SSEE BECAME THE LEGAL OWNER OF THE PROPERTY IS TO BE ASCERTAINED FR OM NONE OTHER 16 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 THAN THE DOCUMENTS OF REGISTRATION OF THE PROPERTY IN HIS NAME AND NONE OTHER, FOR INCOME-TAX PROVISION ARE HARDLY THE RE FOR ASSIGNING ANY RIGHT OVER ANY PROPERTY ON ANY ONE. FOR, ONLY O N THE DEVOLUTION OR RIGHTS IN HIS NAME CAN AN ASSESSEE BE IN A POSIT ION TO DEAL WITH THE PROPERTY IN ANY LEGAL MANNER WHATSOEVER, IN GEN ERAL, AND CAN HE SELL THE PROPERTY OR TRANSFER HIS RIGHTS OVER TH E PROPERTY, IN PARTICULAR, WHEREFORE THE QUESTION OF CAPITAL GAINS WOULD ARISE. 5.21 WHILE DISCUSSING OWNERSHIP IT IS QUITE SETTL ED NOW THAT REGISTRATION IS A NECESSARY CONDITION PRECEDENT FOR LEGAL OWNERSHIP OF IMMOVABLE PROPERTY. THOUGH THIS NECESSARY CONDIT ION HAS NOT BEEN FOUND STRICTLY TO BE ADHERED WHERE THE QUESTIO N OF WHETHER OR NOT DEPRECIATION U/S 32 OF THE INCOME-TAX ACT WAS T HE MOOT POINT, BY VARIOUS COURTS [E.G. 201 ITR 995, MUMBAI, 82 ITR 570, SC, 139 ITR 1055, MUMBAI, 127 ITR 97, ALLAHABAD, 142 ITR 45 , KOLKATA ETC.], NO SUCH RELAXATION HAS BEEN ALLOWED BY ANY COURT ON THE ISSUE OF DETERMINATION OF DATE OF ACQUISITION OF AN ASSET FOR THE PURPOSE OF CAPITAL GAINS ASSESSMENT UNDER THE ACT. IN OTHER WORDS, THE NATURE OF TRANSFER AND CONCOMITANT OWNER SHIP ENVISAGED IN ARRIVING AT THE COST OF ACQUISITION FOR THE PURP OSE OF CAPITAL GAINS IS MORE AKIN TO THE DEFINITION OF TRANSFER AS AVAIL ABLE IN THE TRANSFER OF PROPERTY ACT, 1882, THAN TO THE NATURE OF OWNERSHIP AND TRANSFER AS PER SECTION 2(47) OF SECTION 32 OF THE INCOME-TAX ACT. 5.22 HAVING THUS CONSIDERED THE COUNTERS OF THE ASS ESSEE, IT IS REITERATED THAT THOUGH THERE IS NO DEFINITION OF PR OPERTY IN INCOME TAX ACT, 1961, IT HAS BEEN JUDICIALLY HELD THAT A P ROPERTY IS ONLY A BUNDLE OF RIGHTS WHICH THE OWNER CAN LAWFULLY EXERC ISE TO THE EXCLUSION OF ALL OTHERS AND IS ENTITLED TO USE AND ENJOY AS HE PLEASES PROVIDED HE DOES NOT INFRINGE ANY LAW OF THE STATE. IN THE INSTANT CASE THE ASSESSEE BECAME THE OWNER OF BOTH THE PROP ERTY/ASSETS IN QUESTION ONLY ON 19.05.1998 IN PURSUANCE OF THE HUF PARTITION ORDER/JUDGMENT OF SH. BHUPINDER SINGH SIDHU, ADDL. JUDGE, BATHINDA AS DETAILED IN PARAS- 5.3 AND 5.4. ACCORDI NGLY, THE INDEXED COST OF ACQUISITION HAS TO BE TAKEN BY TAKI NG THE COST INFLATION INDEX FOR THE YEAR IN WHICH THE ASSET WAS FIRST ACQUIRED BY THE ASSESSEE, THAT IS 1998-99, WHICH IS 351. 17 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 5.23 TOTAL LONG TERM CAPITAL GAINS IN HIS HANDS TH US COMES TO RS. 1368889+9780042= 11148931 IN PLACE OF RS. 35 53500/- RETURNED. THEREFORE, THE DIFFERENCE AMOUNT OF RS. 7 5,95,431/- IS HEREBY BROUGHT TO TAX AT SPECIAL RATES AS APPLICABL E TO LONG TERM CAPITAL GAINS. [ADD RS. 75,95,431/-S.R.] MOREOVER, I AM SATISFIED THAT THE ASSESSEE HAS BOTH CONCEALED HIS INCOME AND FURNISHED INACCURATE PARTICULARS OF HIS INCOME, THROUGH USE OF APPARENTLY COLORABLE DEVISE, DUBIOUS METHODS AND SUBTERFUGE, TO EVADE TAX. THEREFORE, PE NALTY PROCEEDINGS U/S 271(1)(C) OF I.T. ACT ARE BEING INI TIATED SEPARATELY. 6. IN ACCORDANCE WITH THE OBSERVATIONS IN THE FORE GOING PARAGRAPHS, THE TOTAL INCOME OF THE ASSESSEE IS COM PUTED AS FOLLOWS: INCOME FROM OTHER SOURCES AS RETURNED RS. 36,808/- ADD: AS DISCUSSED IN PARA-4 TO 4.6 RS. 80,971/- INCOME FROM HOUSE PROPERTY AS RETURNED RS . 2,21,185/- TOTAL INCOME THUS DETERMINED RS. 11,38,964/- OR SAY, RS.11,38,960/- LONG TERM RETURNED RS. 35,53,500/- [ADD] AS DISCUSSED IN PARA 5 TO 5.23 RS. 75, 95,431/- TOTAL LONG TERM CAPITAL GAINS THUS RS.1,11,48,931/- 7. ASSESSED U/S 143 OF THE ACT ON A TOTAL INCOME OF RS. 11,38,960/- AND LONG TERM CAPITAL GAINS OF RS. 1,11 ,48,931/-. CHARGE INTEREST U/S 234B ETC. OF THE ACT, AS APPLIC ABLE. ISSUE A DEMAND NOTICE AND A COPY OF THE ORDER TO THE ASSESS EE, FORTHWITH. CALCULATION OF THE TAX AND OTHER LIABILITIES CONSEQ UENT UPON THIS ORDER OF ASSESSMENT IS ISSUED ALONG WITH THE DN. ISSUE NOTICE U/S 274 FOR PENALTY PROCEEDINGS U/S 271(1)(C). 18 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 6) THE ASSESSING OFFICER COMPLETED THE ASSESSMENT UNDE R SECTION 143(3) OF THE ACT ON 16.09.2011. AGGRIEVED BY THE S AME, THE ASSESSEES FILED THE APPEALS BEFORE THE LEARNED FIRST APPELLATE AUTH ORITY WHO VIDE IMPUGNED ORDER DATED 27.11.2012, PARTLY ALLOWED THE APPEALS OF THE ASSESSEES BY GIVING PARTLY RELIEF. NOW, THE REVENUE AS WELL AS THE ASSE SSEES FEELING DISSATISFIED WITH THE IMPUGNED ORDER, FILED THE PRESENT APPEALS AND CROSS OBJECTIONS RESPECTIVELY. 7) LEARNED DR STATED THAT THE LEARNED FIRST APPELL ATE AUTHORITY HAS WRONGLY ALLOWED RELIEF TO THE ASSESSEES BY MISI NTERPRETING THE PROVISION OF LAW AND ADOPTING THE COST INFLATION INDEX(CII) A T 100 IN PLACE OF 351, THE CII FOR 1998, THE YEAR WHEN THE PROPERTY WAS FIRST HELD BY THE ASSESSEE, AND THEREBY ALLOWING A RELIEF OF RS. 75,95,431/-. HE FU RTHER STATED THAT THE LEARNED FIRST APPELLATE AUTHORITY HAS WRONGLY RELIE D UPON THE EXPLANATION 1(I)(B) TO SECTION 2(24A), WHICH RELATES ONLY TO SH ORT TERM CAPITAL ASSETS AND HAS NO RELEVANCE TO THE DISPUTE IN THE INSTANT CASES AND HAS ALSO WRONGLY RELIED UPON THE JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT OF PUNJAB & HARYANA IN THE CASE OF JASWANT RAI V. CWT [107 ITR 477] WHICH IS NOT APPLICABLE IN THE CASES OF ASSESSEES. HE HAS ALSO D REW OUR ATTENTION TOWARDS THE RELEVANT PROVISIONS OF LAW MENTIONED BY THE ASS ESSING OFFICER AS WELL AS 19 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 LEARNED FIRST APPELLATE AUTHORITY AND REQUESTED THA T THE IMPUGNED ORDER PASSED BY LEARNED CIT(A), BATHINDA, MAY BE CANCELLE D AND THE ASSESSMENT ORDER MAY BE UPHELD. 12) ON THE CONTRARY, LEARNED COUNSEL FOR THE ASSES SEES STATED THAT THE ISSUE IN DISPUTE IS SQUARELY COVERED BY THE VARIOUS JUDGMENTS/DECISIONS RENDERED BY THE HON'BLE HIGH COURTS AND THE BENCHES OF I.T.A.T. WHEREIN THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSE E. HE HAS ALSO FILED A COPY OF SOME DECISIONS WHICH INCLUDES THE JUDGMENT OF HO N'BLE HIGH COURT OF BOMBAY IN THE CASE OF COMMISSIONER OF INCOME TAX VS . MANJULA J. SHAH REPORTED IN (2012) 249 CTR (BOM) 270: 355 ITR 474; THE JUDGMENT OF HON'BLE HIGH COURT OF DELHI IN THE CASE OF ARUN SHU NGLOO TRUST VS. COMMISSIONER OF INCOME TAX, REPORTED IN (2012) 249 CTR (DEL) 294; THE DECISION OF I.T.A.T. CHANDIGARH BENCH A IN THE CA SE OF VISHWANATH SHARMA V. ASSISTANT COMMISSIONER OF INCOME-TAX PASS ED IN IT APPEAL NO. 956(CHD.) OF 2012 FOR A.Y. 2006-07, DATED 12 TH DECEMBER, 2012 AND REPORTED IN [2013] 32 TAXMAN.COM 211 (CHANDIGARH-TR IB.); THE DECISION OF I.T.A.T. DELHI BENCH G IN THE CASE OF ASSISTANT C OMMISSIONER OF INCOME TAX, CIRCLE 33(1), NEW DELHI VS. SURESH VERMA, PASS ED IN IT APPEAL NO. 3732(DELHI) OF 2010 FOR A.Y. 2007-08, DATED 27 TH JANUARY, 2012 AND REPORTED IN [2012] 135 ITD 102 (DELHI); AND THE DEC ISION OF I.T.A.T. INDORE 20 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 BENCH IN THE CASE OF SMT. SHAKUNTALA SOMANI VS. INC OME-TAX OFFICER, WARD 4(1), INDORE, PASSED IN IT APPEAL NOS. 289 & 302 (I ND) OF 2011 FOR A.Y. 2008-09, DATED 21 ST FEBRUARY, 2012, REPORTED IN [2012] 20 TAXMANN.COM 78(INDORE). HE STATED THAT THE ORDER PASSED BY THE LEARNED FIRST APPELLATE AUTHORITY MAY BE UPHELD AND THE CROSS OBJECTIONS FI LED IN WHICH LEARNED CIT(A) HAS NOT GIVEN ANY DEDUCTION CLAIMED BY THE A SSESSEES UNDER SECTION 57 OF THE ACT MAY BE ALLOWED. HE FURTHER STATED THA T THE PRESENT APPEAL I.E. I.T.A. NO. 86(ASR)/2013 FILED BY THE REVENUE IS AGA INST A DEAD PERSON (RAMJI DASS) WHICH IS NOT MAINTAINABLE; AS SUCH THE SAME MAY BE DISMISSED. 8) WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE IMPUGNED ORDER PA SSED THE LEARNED FIRST APPELLANT AUTHORITY ALONG WITH THE JUDGMENTS OF HON 'BLE HIGH COURTS AND THE DECISIONS OF I.T.A.T. BENCHES (SUPRA). FOR THE SAKE OF CONVENIENCE, THE RELEVANT PORTION OF THE FINDINGS GIVEN BY THE LEARN ED FIRST APPELLATE AUTHORITY IN THE IMPUGNED ORDER AT PARA 6 (PAGES 5 TO 8) ARE REPRODUCED AS UNDER: 6. ANY OTHER RELIEF TO WHICH THE ASSESSEE IS FOUND ENTITLED AT THE TIME OF HEARING OF THE APPEAL. IT IS, THEREFORE, REQUESTED THAT THE APPEAL OF THE ASSESSEE MAY KINDLY BE ACCEPTED. 21 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 I HAVE GONE THROUGH THE ASSESSMENT ORDER, GROUNDS O F APPEAL, WRITTEN ARGUMENTS AND REMAND REPORT OF THE A.O. AS WELL AS THE COMMENTS ON THE REMAND REPORT BY THE AS SESSEE. IT IS A FACT THAT THE ASSESSEE HAS FILED THE RETURN OF IN COME ON 30.09.2009 AT RS. 46,11,492/- WHICH WAS ASSESSED AT RS. 1,22,87,891/- MAKING AN ADDITION OF RS. 80,971/- OU T OF EXPENSES AND 75,95,431/- ON ACCOUNT OF LONG TERM CA PITAL GAINS. THE ASSESSEE HAS CLAIMED VARIOUS EXPENSES OF RS. 80 ,971/- BY DEBITING TO THE PROFIT AND LOSS ACCOUNT MAINLY OF R S. 56,081/- ON ACCOUNT OF MEDICAL TREATMENT U/S 80DDB. THE DETA IL OF EXPENSES IS MENTIONED IN PARA 4.4 AT PAGE 3 OF THE ASSESSMENT ORDER. ACCORDINGLY, THIS GROUND OF APPEAL IS REJECT ED. THE ASSESSEE HAS NOT BROUGHT ON THE RECORD THE EXPENSES MADE ON THE TREATMENT OF THE DISEASES MENTIONED IN RULE 11D D OF THE INCOME TAX RULES, 1962. SO, THE EXPENSES CLAIMED AT RS. 56,081/- ARE NOT ALLOWABLE AS DEDUCTION. EVEN NOTHI NG WAS FILED AT THE APPELLATE STAGE TO SUPPORT HIS CLAIM FOR DIS EASES MENTIONED IN RULE 11DD. THE REST OF THE EXPENSES AR E NOT ALLOWABLE AGAINST RENTAL AND INTEREST INCOME. THE SECOND ISSUE RELATES TO THE ADDITION OF RS. 75, 95,431/- ON ACCOUNT OF LONG TERM CAPITAL GAINS ON THE SALE OF H OTEL AND PLOT OF LAND FOR RS. 1,41,75,000/- DURING THE PREVI OUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2009-10. IT IS A FA CT THAT THE BIGGER HUF OF THE ASSESSEE OWNS THE PROPERTY BEFORE 01.04.1981 WHICH IS CLEAR FROM THE VARIOUS PARTIAL PARTITIONS MADE BY THE BIGGER HUF ON 30.01.1964, 05.02.1964 AN D 12.04.1971 WHICH WERE DULY ACCEPTED BY THE DEPARTME NT U/S 171(3) ON 14.01.1966, 12.04.1971 AND 21.12.1974 RES PECTIVELY. THE FULL PARTITION WAS MADE ON 20.02.1995 WHICH WAS ACCEPTED BY THE A.O. ON 19.02.1988. HOWEVER, THE ASSESSEE AL SO GOT IT MADE A RULE OF COURT OF LAW FROM ADDITIONAL DISTRIC T JUDGE ON 19.05.1998. THE A.O. HAS HIMSELF ACCEPTED THE CLAIM OF THE ASSESSEE U/S 49(1)(I) OF THE ACT TAKING THE COST OF THE PREVIOUS OWNER AS ON 01.04.1981. HOWEVER, THE A.O. HAS APPLI ED THE COST OF INFLATION INDEX FOR THE YEAR 1998-99 INSTEA D OF 1981-82. THE ASSESSEE HAS POINTED OUT THAT THIS VERY A.O. HA S ACCEPTED 22 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 THE COST OF INFLATION INDEX OF 1981-82 INSTEAD OF 1 998-99 IN THE CASE OF OTHER CO-OWNERS WHO HAVE SOLD THE PROPERTY DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2009- 10. THE A.O. COULD NOT GIVE A SATISFACTORY REPLY IN HIS REM AND REPORT DATED 29.10.2012 FILED DURING THE COURSE OF APPELLA TE PROCEEDINGS. THERE SHOULD BE CONSISTENCY IN THE APP LICATION OF LAW WHILE DEALING WITH THE VARIOUS ASSESSEES PLACED SIMILARLY. THE ASSESSEE HEAVILY RELIED ON THE JUDGMENT OF HON' BLE JURISDICTIONAL HIGH COURT REPORTED AT JASWANT RAI V S. CWT (107 ITR 477) IN WHICH IT WAS HELD IF A VALUATION I S SUBJECT TO LOW RATE OF TAXATION IN ONE CO-OWNER THEN IT WOULD LOOK HIGHLY IMPROPER TO BURDEN A SIMILARLY SITUATED CO-SHARER W ITH A HIGHER RATE OF TAX. IF SUCH AN ACTION ON THE PART OF THE A .O. IS SANCTIONED IT WOULD CLEARLY MILITATE AGAINST THE PR INCIPLE OF EQUALITIES OF LAW ENRICHED IN ARTICLE 14 OF THE CON STITUTION OF INDIA. THIS JUDGMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT IS CLEARLY APPLICABLE TO THE FACTS OF THE CASE AND THE LEARNED A.O. ERRED IN MAKING DISCRIMINATION IN APPLYING THE COST OF INFLATION INDEX OF 1998-99 IN THE CASE OF ASSESSEE WHEREAS HE APPLIED THE COST OF INFLATION INDEX OF 1981-82 IN THE CASE OF O THER CO- OWNERS. EVEN ON MERITS, THE CASE OF THE ASSESSEE IS LIABLE TO BE ACCEPTED WHICH IS BASED ON THE INTERPRETATION OF SE CTION 49(1)(I) AND ITS EXPLANATION AND DEFINITION OF SHORT TERM CA PITAL ASSET IN SECTION 2(42A) AND ITS EXPLANATION 1(I)(B) READ WITH SECTION 48 WITH EXPLANATION (III) WHICH ARE REPRODUCED BELO W:- SECTION 49(1)(I):- WHERE THE CAPITAL ASSET BECAME THE PROPERTY OF THE ASSESSEE:- (I) ON ANY DISTRIBUTION OF ASSETS ON THE TOTAL OR PARTIAL PARTITION OF A HUF, THE COST OF ACQUISITION OF THE ASSET SHALL BE DEEMED TO BE THE COST FOR WHICH THE PREVIOUS OWNER OF THE PROPERTY ACQUIRED IT, AS INCREASED BY THE COST OF A NY IMPROVEMENT OF THE ASSETS INCURRED OR BORNE BY THE PREVIOUS OWNER OR THE ASSESSEE, AS THE CASE MAY BE. EXPLANATION: 23 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 IN THIS SUB-SECTION THE EXPRESSION PREVIOUS OWNER OF THE PROPERTY IN RELATION TO ANY CAPITAL ASSET OWNED BY THE ASSESSEE MEANS THE LAST PREVIOUS OWNER OF THE CAPITAL ASSET WHO ACQUIRED IT BY A MODE OF ACQUISITION OTHER THAN THAT REFERRE D TO IN CLAUSE (I) OR CLAUSE (II) OR CLAUSE (III) OR CLAUSE (IV) O F THIS SUB-SECTION. EXPLANATION I(I)(B) TO SECTION 2(42A) DEFINING SHO RT TERM CAPITAL ASSET:- SHORT TERM CAPITAL ASSET MEANS A CAPITAL ASSET HE LD BY AN ASSESSEE FOR NOT MORE THAN 36 MONTHS IMMEDIATELY PR ECEDING THE DATE OF TRANSFER. EXPLANATION I(I)(B):- IN THE CASE OF A CAPITAL ASSET WHICH BECOMES THE PROPERTY OF THE ASSESSEE IN THE CIRCUMS TANCES MENTIONED IN SUB-SECTION (1) OF SECTION 49, THEN SH ALL BE INCLUDED THE PERIOD FOR WHICH THE ASSET WAS HELD BY THE PREVIOUS OWNER REFERRED TO IN THE SAID SECTION. EXPLANATION (III) TO SECTION 48:- INDEXED COST OF ACQUISITION MEANS AN AMOUNT WHICH B EANS TO THE COST OF ACQUISITION THE SAME PROPORTION AS THE COST INFLATION INDEX FOR THE YEAR IN WHICH THE ASSET IS TRANSFERRE D BEARS TO THE COST INFLATION INDEX FOR THE FIRST YEAR IN WHICH TH E ASSET WAS HELD BY THE ASSESSEE OR FOR THE YEAR BEGINNING ON T HE 1 ST DAY OF APRIL, 1981, WHICHEVER IS LATER; THE ISSUE IS DIRECTLY COVERED BY THE LATEST SPECIAL BENCH DECISION OF MUMBAI BENCH IN THE CASE OF DCIT VS MAN JULA J SHAH 318 ITR (AT) 417 WHERE IN IT WAS HELD AS UNDER :- WE ARE OF THE VIEW THAT FOR THE PURPOSE OF COMPUTI NG LONG TERM CAPITAL GAINS ARISING FROM THE TRANSFER O F A CAPITAL ASSET WHICH HAD BECOME THE PROPERTY OF THE ASSESSEE UNDER GIFT, THE FIRST YEAR IN WHICH THE CA PITAL ASSET WAS HELD BY THE ASSESSEE HAS TO BE DETERMINED TO WORK OUT THE INDEXED COST OF ACQUISITION ENVISAGED IN EXPLANATION (III) TO SECTION 48 AFTER TAKING INTO A CCOUNT 24 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 THE PERIOD FOR WHICH THE SAID CAPITAL ASSET WAS HEL D BY THE PREVIOUS OWNER. IN THAT VIEW OF THE MATTER, WE HOLD THAT THE INDEXED COST OF ACQUISITION OF SUCH CAPITAL ASS ET HAS TO BE COMPUTED WITH REFERENCE, TO THE YEAR IN WHICH TH E PREVIOUS OWNER FIRST HELD THE ASSET. IT IS FURTHER MENTIONED THAT THIS JUDGMENT OF SPECI AL BENCH OF I.T.A.T., MUMBAI BENCH HAS SINCE BEEN APPROVED BY T HE HON'BLE BOMBAY HIGH COURT ON 11.10.2011 AND THE SAM E HAS SINCE BEEN REPORTED AT CIT VS MANJULA J SHAH 249 CT R 270. THIS VIEW OF THE BOMBAY HIGH COURT HAS BEEN FOLLOWE D BY THE HON'BLE DELHI HIGH COURT IN THE CASE OF ARUN SHUNGL OO TRUST VS CIT REPORTED AT 249 CTR 294 WHILE INTERPRETING T HE SECTION 49(1)(II) READ WITH SECTION 2(42A) AND EXPLANATION (III) TO SECTION 48 OF THE ACT. THE A.O. HAS NOT POINTED OUT ANY JUDGMENT EITHER OF I.T.A.T. OR HIGH COURT OR SUPREM E COURT IN HIS FAVOUR ON THE ISSUE DURING THE COURSE OF APPELL ATE PROCEEDINGS. AS THE PREVIOUS OWNER I.E. BIGGER HUF OWNED THE PRO PERTY BEFORE 01.04.1981, ACCORDINGLY, IT IS HELD THAT THE A.O. SHOULD HAVE APPLIED THE COST OF INFLATION INDEX OF 1981-82 AT 100 AS THE FACTS OF THE ABOVE THREE CASES ARE ALMOST SIMIL AR WITH THE CASE OF THE ASSESSEE AND THE LONG TERM CAPITAL GAIN S IS RECOMPUTED BY TAKING THE COST OF INFLATION INDEX OF 1981-82 AT 100. SALE OF HOTEL ON 30.04.2008 18,00,000 COST AS ON 01.04.1981 2,60,000 INDEXED COST 260000X582/100 15,13,200 CAPITAL GAINS 2,86,800 SALE OF PLOT OF LAND ON 24.12.2008 1,23,75,000 COST AS ON 01.04.1981 15,65,000 INDEXED COST 1565000X582/100 91,08,300 CAPITAL GAINS 32,66,700 TOTAL CAPITAL GAINS (LONG TERM) 35,53,500 25 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 ACCORDINGLY, THE ADDITION OF RS. 75,95,431/- MADE O N ACCOUNT OF LONG TERM CAPITAL GAIN IS HEREBY DELETED. OTHER GROUNDS OF APPEAL ARE REJECTED AS THE SAME IS CHALLENGED TO CHARGING OF INTEREST U/S 234B/C WHICH IS CONSEQU ENTIAL IN NATURE. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. 9) KEEPING IN VIEW THE AFORESAID FINDINGS GIVEN BY THE LEARNED FIRST APPELLATE AUTHORITY ON THE ISSUES IN DISPUTE, WE ARE OF THE VIEW THAT THE ASSESSEES HAVE NOT FILED ANY EVIDENCE SUPPORTING TH E EXPENSES CLAIMED BY THEM BEFORE THE ASSESSING OFFICER AS WELL AS LEARNE D FIRST APPELLATE AUTHORITY AND EVEN BEFORE US. THEREFORE, WE ARE OF THE VIEW THAT LEARNED FIRST APPELLATE AUTHORITY HAS RIGHTLY REJECTED THE ASSESSEESS CLAIM OF EXPENSES IN DISPUTE EVEN OTHERWISE THESE EXPENSES A RE NOT ALLOWABLE UNDER THE RULES AS MENTIONED BY THE CIT(A) IN THE IMPUGNE D ORDER. 1S5) WITH REGARD TO THE SECOND ISSUE RELATING TO T HE ADDITION ON ACCOUNT OF LONG TERM CAPITAL GAIN ON THE SALE OF PR OPERTY IN DISPUTE, IT IS A MATTER OF RECORD THAT THE BIGGER HUF OF THE ASSESSE E OWNS THE PROPERTY BEFORE 01.04.1981 WHICH IS CLEAR FROM THE VARIOUS D OCUMENTARY EVIDENCES FILED BY THE ASSESSEE BEFORE THE AUTHORITY BELOW AN D THE SAME HAS BEEN ACCEPTED BY THE DEPARTMENT ON VARIOUS OCCASIONS. TH E ASSESSEE ALSO GOT IT MADE A RULE OF COURT OF LAW FROM ADDITIONAL DISTRIC T JUDGE ON 19.05.1998. 26 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 THE ASSESSING OFFICER HAS HIMSELF ACCEPTED THE CLAI MS OF THE ASSESSEE UNDER SECTION 49(1)(I) OF THE ACT TAKING THE COST OF THE PREVIOUS OWNER AS ON 01.04.1981. THE ISSUE IN DISPUTE HAS ALREADY BEEN A DJUDICATED AND DECIDED BY THE HON'BLE JURISDICTIONAL PUNJAB & HARYANA HIGH COURT IN THE CASE OF JASWANT RAI VS. CWT (107 ITR 477) IN FAVOUR OF THE ASSESSEE. LEARNED FIRST APPELLATE AUTHORITY HAS DECIDED THE ISSUE IN DISPUT E IN FAVOUR OF THE ASSESSEE BY RESPECTFULLY FOLLOWING THE ORDER OF THE HON'BLE JURISDICTIONAL HIGH COURT. THEREFORE, IN OUR VIEW NO INTERFERENCE IS CALLED FOR IN THE WELL REASONED ORDER PASSED BY LEARNED FIRST APPELLATE AU THORITY AND WE UPHOLD THE SAME BY DISMISSING THE APPEALS FILED BY THE REV ENUE. 10) AS REGARDS TO THE CROSS OBJECTIONS FILED BY TH E ASSESSEES, WE HAVE POINTED OUT AT THE TIME OF HEARING TO THE LEAR NED COUNSEL FOR THE ASSESSEES THAT THE DEPARTMENT HAS FILED THE PRESENT APPEAL I.E. I.T.A. NO. 86(ASR)/2013 AGAINST SH. RAMJI DAS, DECEASED-ASESSE E, AND HAS ALSO BROUGHT ON RECORD HIS LEGAL HEIRS. THE ASSESSEES COUNSEL H AS ALSO BROUGHT ON RECORD THE LEGAL HEIRS OF THE DECEASED-ASSESSEE SH. RAMJI DAS BY FILING AN APPLICATION BEFORE THE REVENUE. THE REVENUE HAS ALS O FILED AN AMENDED FORM NO. 36 IN WHICH REVENUE IMPLEADED THE LEGAL HE IRS OF THE DECEASED- ASSESSEE. THEREFORE, THE OBJECTION RAISED BY THE AS SESSEE IN THE CROSS OBJECTION REGARDING NON-MAINTAINABILITY OF APPEAL A GAINST A DEAD PERSON, IS 27 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 NOT MAINTAINABLE AND LEARNED COUNSEL FOR THE ASSESS EE ALSO AGREED WITH THE SAME. AT THE TIME OF HEARING, AS REGARD TO THE DISA LLOWANCE OF VARIOUS EXPENSES CLAIMED BY THE ASSESSEE UNDER SECTION 57 O F THE ACT, WE HAVE ALREADY HELD THAT THE ASSESSEE CLAIMED VARIOUS EXPE NSES BY DEBITING TO THE PROFIT AND LOSS ACCOUNT BUT THE ASSESSEE HAS NOT BR OUGHT ON RECORD THE EXPENSES INCURRED ON THE TREATMENT OF THE DECEASED- ASSESSEE MENTIONED IN RULE 11DD OF THE INCOME TAX RULES, 1962. SO, THE EX PENSES CLAIMED ARE NOT ALLOWABLE AS DEDUCTION. EVEN OTHERWISE THE ASSESSEE HAS NOT FILED ANY DOCUMENTARY EVIDENCE BEFORE THE AUTHORITY BELOW OR BEFORE US SUPPORTING THESE EXPENSES; THEREFORE, THEY ARE NOT ALLOWABLE E XPENSES AGAINST RENTAL AND INTEREST INCOME. THEREFORE, KEEPING IN VIEW THE AFO RESAID DISCUSSION, THE CROSS OBJECTIONS FILED BY THE ASSESSEES ARE DISMISS ED. 11) IN THE RESULT, THE APPEALS I.E. I.T.A. NOS. 86 & 87(ASR)/2013 AND C.O. NOS. 09 & 10(ASR)/2013 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH AUGUST, 2013 SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 19 TH AUGUST, 2013 /RK/ COPY OF THE ORDER FORWARDED TO: 28 I.T.A. NOS. 86 & 87(ASR)/2013 C.O. NOS. 09 & 10 (ASR)/2013 1. THE ASSESSEE: LATE SH. RAMJI DASS, (THROUGH LEGAL H EIRS:- SH. SUSHIL KUMAR, SH. SATISH KUMAR, SH. SANJIV KUMAR, SONS O F LATE SH. RAMJI DASS; MITUL JINDAL, S/O SURINDER KUMAR PREDECEASED SON; SMT. GIAN WATI, WIFE OF LATE SH. RAMJI DASS; AND MS. SHASHI J AIN AND MS. SARITA JAIN, DAUGHTERS OF LATE SH. RAMJI DASS, R/O- 4927, POST OFFICE BAZAAR, BATHINDA 2. THE ASSESSEE: SH. MITUL JINDAL, 4927-POST OFFICE BA ZAAR, BATHINDA 3. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-I, B ATHINDA 4. THE CIT(A), BATHINDA 5. THE CIT, BATHIDA 6. THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.