ITO 21(3)(1), MUMBAI V. ANSELM JOHN GOMES, MUMBAI

ITA 139/MUM/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5827 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 04-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M L PERUMAL
• Assessee Lawyers: ABHISHEK TILAK
• Keywords: Gift; Cost of acquisition

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 139/MUM/2013 ASSESSMENT YEAR: 2009-10 ITO-21(3)(1) R.NO. 503, C-11, 5 TH FLOOR PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI-400 051 VS. MR. ANSELM JOHN GOMES FLAT NO. 8, ANSELM LODGE AT JUNCTION OF PREMIER ROAD L.B.S. MARG, KURLA (WEST) MUMBAI-400 070 (APPELLANT) (RESPONDENT) PERMANENT ACCOUNT NO. :- AABPG 4041 H ASSESSEE BY : SHRI ABHISHEK TILAK REVENUE BY : SHRI M. L. PERUMAL DATE OF HEARING : 20.03.2014 DATE OF PRONOUNCEMENT : 28.03.2014 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER OF THE LD.CIT(A) -32, MUMBAI DATED 23.10.2012 FOR THE ASSE SSMENT YEAR 2009-10. IN THIS APPEAL, THE REVENUE HAS AGITATED THE DECISION OF TH E LD.CIT(A) IN DIRECTING THE AO TO ALLOW THE INDEXATION FROM THE YEAR 1981-1982, AS CLAIMED BY THE ASSESSEE AGAINST THE ACTION OF AO ALLOWING THE INDEXATION FROM 2007- 08. 2. BRIEFLY STATED, THE ASSESSEE SOLD AN IMMOVABLE P ROPERTY DURING THE YEAR IN WHICH THE PROPERTY WAS INHERITED BY HIM I.E., F.Y. 2007-08 AFTER THE DEATH OF HIS MOTHER ON 25.02.2008. THE SAID PROPERTY WAS ACQUIRE D BY HIS MOTHER IN 1968 I.E. PRIOR TO 1981. ACCORDINGLY, THE ASSESSEE HAD COMPUT ED LONG TERM CAPITAL GAIN BY APPLYING COST INFLATION INDEX FROM 1981-82. ACCORDI NG TO THE ASSESSEE SINCE THE SAID PROPERTY WAS ACQUIRED BY HIS MOTHER PRIOR TO 1981 A ND WAS RECEIVED BY ASSESSEE BY INHERITANCE WHICH IS ONE OF THE MODES AS MENTIONED U/S 49(1), IN VIEW OF THE PROVISIONS OF SECTION 2(42A) R/W PROVISO TO SECTION 48, THE INDEXED COST OF ITA NO. 139/MUM/2013 MR. ANSELM JOHN GOMES ASSESSMENT YEAR: 2009-10 2 ACQUISITION HAD TO BE APPLIED WITH REFERENCE TO THE YEAR IN WHICH THE PREVIOUS OWNER HELD THE SAID PROPERTY. THE AO HOWEVER DID NOT ACCE PT THE CONTENTIONS OF THE ASSESSEE ON GROUND THAT INDEXATION HAD TO BE ALLOWED FROM THE YEAR FROM WHEN ASSET WAS HELD BY ASSESSEE. ON APPEAL, THE LD.CIT(A ) ALLOWED THE CLAIM OF THE ASSESSEE BY RELYING ON THE RATIO LAID DOWN BY THE S PECIAL BENCH OF THE TRIBUNAL IN THE CASE OF MANJULA J. SHAH [126 TTJ 145 (MUM) (SB)] WHICH HAS BEEN CONFIRMED BY THE HONBLE BOMBAY HIGH COURT (355 ITR 474). AGGRIE VED BY THE IMPUGNED DECISION, THE REVENUE IS IN APPEAL BEFORE US. 3. HAVING HEARD BOTH THE SIDES AND PERUSED THE MATE RIAL ON RECORD, IT IS PERTINENT TO MENTION THAT THE FACTS ARE NOT IN DISP UTE THAT THE IMMOVABLE PROPERTY SOLD BY THE ASSESSEE HAS BEEN ACQUIRED BY THE MOTHE R OF THE ASSESSEE IN 1968 AND THE ASSESSEE INHERITED AND SOLD THE SAME IN THE YEA R 2008 AFTER THE DEATH OF HIS MOTHER. CONSIDERING THE SAID FACTS, THE CASE OF THE IS COVERED BY THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF MANJULA J. SHAH (SUPRA) WHICH HAS BEEN CONFIRMED BY THE HONBLE HIGH COURT WHEREIN IT HAS BEEN HELD THAT IN THE CASE OF AN ASSESSEE COVERED UNDER S. 49(1), THE CAPITAL GAINS LIABILITY HAS TO BE COMPUTED BY CONSIDERING THAT THE ASSESSEE HELD THE SAID ASSET F ROM THE DATE IT WAS HELD BY THE PREVIOUS OWNER AND THE SAME ANALOGY HAS ALSO TO BE APPLIED IN DETERMINING THE INDEXED COST OF ACQUISITION. IN VIEW OF THE DECISIO N OF THE BOMBAY HIGH COURT ALSO, IT IS CLEAR THAT FROM THE PURPOSE OF INDEXATION THE RE LEVANT YEAR IS THE DATE IN WHICH THE PREVIOUS OWNER HAS HELD THE ASSET AND NOT THE D ATE ON WHICH THE ASSET HAS DEVOLVED ON HEIR BY WAY OF INHERITANCE OR GIFT. IN VIEW OF THE FACT THAT THE LD.CIT(A) HAS RIGHTLY RELIED ON THE ABOVE SAID RATIO FOR ALLO WING THE INDEXATION FROM THE YEAR 1981-82, WE DO NOT FIND ANY JUSTIFIABLE REASON TO I NTERFERE WITH THE SAID DECISION AND THUS THE SAME IS UPHELD. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 2 8 TH DAY OF MARCH, 2014. SD/- SD/- (P.M. JAGTAP) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 28.03.2014. *SRIVASTAVA ITA NO. 139/MUM/2013 MR. ANSELM JOHN GOMES ASSESSMENT YEAR: 2009-10 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR A BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.