SHEELA BHAGWANDAS NICHLANI, MUMBAI V. ACIT 12(3), MUMBAI

ITA 1477/MUM/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2550 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2016
• Appeal Filed By: Assessee
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 11-03-2015
• Court: TRIBUNAL
• Department Lawyers: A K KARDA M
• Assessee Lawyers: K R LAKSHMINARAYANA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, JUDICIAL MEMBER I.T.A. NO. 1477/M/2015 (ASSESSMENT YEAR: 2010 - 2011 ) MRS. SHEELA BHAGWANDAS NICHLANI, 1302/1303, DALAMAL TOWER, 211, NARIMAN POINT, MUMBAI 400 021. / VS. ACIT 12(3), MUMBAI. ./ PAN : AAEPN2257Q ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI K.R. LAKSHMINARAYANA / RESPONDENT BY : SHRI A.K. KARDAM, DR / DATE OF HEARING : 27 .10.2016 / DATE OF PRONOUNCEMENT : 27 .10.2016 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 11.3.2005 IS AGAINST THE ORDER OF THE CIT (A) - 28, MUMBAI DATED 28.01.2015 FOR THE ASSESSMENT YEAR 2010 - 2011. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: - 1. THE ORDER PASSED BY THE CIT (A) IS BAD IN LAW. 2. WHEREAS THE CIT (A) HAD READILY ACCEPTED THE FACT THAT THE APPELLANTS RIGHT TO OBTAIN CONVEYANCE IN RESPECT OF A PROPERTY IS A LONG TERM ASSET, CIT (A) ERRED IN DENYING THE BENEFIT OF INDEXATION (WHICH IS AUTOMATICALLY AVAILABLE TO ANY LONG TERM CAPITAL A SSET) ONLY ON THE GROUND THAT THE SAID ASSET IS AN INTANGIBLE ASSET. 3. THE LD CIT (A) IS IN ERROR IN WRONGLY STATING THAT CLAUSE (III) OF EXPLANATION TO SECTION 48 IS APPLICABLE TO A PHYSICAL AND TANGIBLE ASSET WHICH IS PHYSICALLY HELD BY THE ASSESSEE W HEN THE SAID CLAUSE (II) TO EXPLANATION TO SECTION 48 NOWHERE RESTRICT THE APPLICABILITY TO TANGIBLE ASSET ONLY. 2. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE BRIEFLY NARRATED THE FACTS OF THE CASE AND MENTIONED THAT THE ONLY ISSUE INVOLVED IN THIS APPE AL RELATES TO THE DENIAL OF BENEFIT OF INDEXATION ON THE GROUND THAT THE SAID ASSET IS INTANGIBLE ASSET BY WRONGLY INTERPRETING CLAUSE (III) OF EXPLANATION TO SECTION 48 OF THE ACT. IN THIS REGARD, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO THE ORDER OF THE 2 TRIBUNAL, WHEREIN THE ASSESSEE IS THE HUSBAND OF THE PRESENT ASSESSEE, IN ITA NO.1475/M/2015 (AY 2010 - 2011), DATED 16.8.2016 AND MENTIONED THAT AN IDENTICAL ISSUE WAS ADJUDICATED BY THE TRIBUNAL AND THE APPEAL WAS A LLOWED FOR STATISTICAL PURPO SES. IT IS THE PRAYER OF THE LD COUNSEL FOR THE ASSESSEE THAT CONSIDERING THE COMMONALITY OF THE ISSUE INVOLVED, THE PRESENT APPEAL MAY BE DECIDED IN TUNE WITH THE CITED ORDER OF THE TRIBUNAL (SUPRA). 3. ON HEARING BOTH THE PARTIES AND ON PERUSAL OF THE O RDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED DECISION OF THE TRIBUNAL (SUPRA), WE FIND, THE IDENTICAL ISSUE WAS ADJUDICATED BY THE TRIBUNAL (SUPRA) VIDE PARAS 2.1 TO 2.4 OF ITS ORDER DATED 16.8.2016. FOR THE SAKE OF COMPLETENESS OF THIS ORDER, RE LEVANT LINES FROM THE SAID PARA 2.4 ON PAGE 6 OF THE TRIBUNALS ORDER ARE EXTRACTED AS UNDER: - 2.4.......THE ASSETS WHICH ARE REFERRED UNDER THE CAPITAL GAINS INCLUDE NOT ONLY THE PROPERTY WHICH ARE TANGIBLE BUT ALSO INTANGIBLE RIGHTS, WHOSE PHYSICAL POSS ESSION CANNOT BE TAKEN. THE WORD HELD USED IN EXPLANATION (III) TO SECTION 48 DOES NOT MEAN PHYSICAL OWNERSHIP OR PHYSICAL POSSESSION OF THE PROPERTY. THE ASSESSEE WAS HOLDING THE RIGHTS IN THE PROPERTY FROM 27/12/1990, THEREFORE, IT WAS HELD THAT INDEX ATION HAS TO BE ALLOWED FROM THAT DATE. THUS, IN THE LIGHT OF THE FOREGOING DISCUSSION / JUDICIAL PRONOUNCEMENTS, THE LD ASSESSING OFFICER IS DIRECTED ACCORDINGLY AND DECIDE AFRESH IN ACCORDANCE WITH LAW. NEEDLESS TO MENTION HERE THAT THE ASSESSEE BE GIV EN OPPORTUNITY OF BEING HEARD. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. 4. CONSIDERING THE ABOVE AND RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE TRIBUNAL AS WELL AS FOLLOWING THE PRINCIPLES OF CONSISTENCY, WE DIRECT THE AO TO DECIDE THE ISSUE AFRESH IN THE LIGHT OF THE PRECEDENTS ON THE IDENTICAL ISSUE AND IN ACCORDANCE WITH LAW AFTER EXAMINING THE CLAIM OF THE ASSESSEE. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 5. IN TH E RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER P RONOUNCED IN THE OPEN COURT ON 27 TH OCTOBER, 2016. SD / - S D / - ( AMARJIT SINGH ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEM BER MUMBAI ; 2 7 .10.2016 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 3 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI