Uma Kymal, CHENNAI V. ITO, CHENNAI

ITA 1906/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7875 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 15-12-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 23-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MURALI MOHAN
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 13

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . . . , . . , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./ ITA NO. 1906/MDS/2016 / ASSESSMENT YEAR : 2012 - 13 SMT. UMA KYMAL, NO.5/82, BLUE BEACH ROAD, NEELANGARAI, CHENNAI 600 041. PAN : BWQPK5872D V. INCOME TAX OFFICER, INTERNATIONAL TAXATION 1 (2), CHENNAI 34. ( /APPELLANT) ( !' /RESPONDENT) # /APPELLANT BY : SHRI B. RAMAKRISHNAN, FCA !' # /RESPONDENT BY : SHRI MURALI MOHAN, JCIT # /DATE OF HEARING : 15.12.2016 # /DATE OF PRONOUNCEMENT : 31.01.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-16, CHENNA I DATED 28.03.2016 AND PERTAINS TO THE ASSESSING OFFICER 20 12-13. 2. SHRI B. RAMAKRISHNAN, THE LD. REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ONLY ISSUE ARISES FOR C ONSIDERATION IS 2 I.T.A. NO.1906/MDS/2016 COMPUTATION OF CAPITAL GAIN. ACCORDING TO THE LD. REPRESENTATIVE, ASSESSEES MOTHER SMT. SARASWATHY KYMAL PURCHASED A PROPERTY TO THE EXTENT OF 23.5 CENTS BY MEANS OF A REGISTERED S ALE DEED ON 16.03.2006 FOR A TOTAL CONSIDERATION OF 26,44,800/-. THE ASSESSEES MOTHER SUBSEQUENTLY EXECUTED A WILL ON 1 5.11.2006 BEQUEATHING THE PROPERTY TO THE ASSESSEE. THE ASS ESSEES MOTHER SMT. SARASWATHY KYMAL EXPIRED ON 17.10.2010. THE ASSESSEE SOLD THE SAID PROPERTY ON 23.11.2011. THE ASSESSE E ADOPTED INFLATION INDEX FROM THE DATE OF PURCHASE OF THE PR OPERTY BY HER MOTHER. HOWEVER, THE ASSESSING OFFICER FOUND THAT THE ASSESSEE INHERITED THE PROPERTY ON 17.10.2010 ON THE DEATH O F HER MOTHER. THEREFORE COST OF INFLATION INDEX HAS TO BE COMPUTE D ONLY FROM 17.10.2010. PLACING RELIANCE IN THE ORDER OF THIS TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2011-12 IN ITA NO.2099/MDS/201 SUBMITTED THAT THIS TRIBUNAL BY PLA CING RELIANCE ON THE ORDER OF THE BOMBAY HIGH COURT IN CIT VS. MANJU LA J SHAH, 355 ITR 474, FOUND THAT THE COST OF INFLATION INDEX HAS TO BE APPLIED FROM THE YEAR IN WHICH THE ORIGINAL OWNER ACQUIRED THE P ROPERTY. THEREFORE, ACCORDING TO THE LD. REPRESENTATIVE THE CIT (APPEALS) IS NOT JUSTIFIED IN CONFIRMING THE ORDER OF THE ASSESS ING OFFICER. 3 I.T.A. NO.1906/MDS/2016 3. ON THE CONTRARY, SHRI MURALI MOHAN, THE LD. DEPA RTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE INHERITE D THE PROPERTY ONLY ON THE DEATH OF THE ASSESSEES MOTHER ON 17.10 .2010. THEREFORE, THE COST OF INFLATION INDEX HAS TO BE AD OPTED FROM THE FINANCIAL YEAR 2010-11. THE LD. D.R. FURTHER SUBM ITTED THAT THE REVENUE HAS ALREADY FILED SPECIAL LEAVE PETITION BE FORE THE HONBLE SUPREME COURT AGAINST THE ORDER OF BOMBAY HIGH COUR T SUPRA. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS N OT IN DISPUTE THAT THE ASSESSEE INHERITED THE PROPERTY FROM HER MOTHER . IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEES MOTHER EXECUTED A WI LL ON 15.11.2006. THEREFORE, AS FOUND BY THE BOMBAY HIGH COURT IN CIT VS. MANJULA J SHAH SUPRA, THE COST INFLATION INDEX HAS TO BE ADOPTED IN THE YEAR IN WHICH THE MOTHER ACQUIRED THE PROPER TY. MERELY, BECAUSE A SPECIAL LEAVE PETITION IS PENDING BEFORE THE APEX COURT AGAINST THE JUDGMENT OF THE BOMBAY HIGH COURT, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT IT CANNOT BE A REASON T O TAKE A DIFFERENT VIEW. MOREOVER, CO-ORDINATE BENCH OF THIS TRIBUNA L IN THE ASSESSEES CASE FOR THE ASSESSMENT YEAR 2011-12 FOU ND THAT THE 4 I.T.A. NO.1906/MDS/2016 COST INFLATION INDEX HAS TO BE ADOPTED FROM THE YEA R IN WHICH THE ORIGINAL OWNER ACQUIRED THE PROPERTY. 5. IN VIEW OF THE ABOVE, WE ARE UNABLE TO UPHOLD TH E ORDER OF THE LOWER AUTHORITIES. ACCORDINGLY, THE SAME IS SE T ASIDE. THE ASSESSING OFFICER IS DIRECTED TO ADOPT THE COST INF LATION INDEX FROM THE YEAR IN WHICH HER MOTHER ACQUIRED THE PROPERTY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED ON 31 ST JANUARY, 2017 AT CHENNAI. SD/- SD/- ( . . ) ( . . . ) (D.S. SUNDER SINGH) (N.R.S. GANESAN) / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, /DATED, THE 31 ST JANUARY, 2017. JR. # ! $ % $ /COPY TO: 1. /APPELLANT 2. !' /RESPONDENT 3. &' ( )/CIT(A)-16, CHENNAI 4. &' /CIT 5. ! $ /DR 6. () /GF.