Appeal details
Counselvise Citation
[2010] 135 COUNSELVISE.COM (IT) 4381 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 6 month(s) 22 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
08-10-2010
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
L1
Next Hearing Date
23-06-2010
Assessment Year
2004-2005
Appeal Filed On
17-03-2008
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, L, MUMBAI BEFORE SHRI R V EASWAR, PRESIDENT AND SHRI J SUDHAKAR REDDY, ACCOUNTANT MEMBER I T A NO: 1926/MUM/2008 (ASSESSMENT YEAR: 2004-05) BLACKSTONE ASIA ADVISORS LLC A/C APPELLANT THE ASIA TIGERS FUND INC. (FORMERLY KNOWN AS ADVANTAGE ADVISERS INC. A/C THE ASIA TIGERS FUND INC.) (PAN: AADCA0535G) VS ASSISTANT DIRECTOR OF INCOME TAX RESPONDENT (INTERNATIONAL TAXATION) 2(2), MUMBAI APPELLANT BY: SHRI SANJIV SHAH RESPONDENT BY: SHRI NARENDER SINGH O R D E R R V EASWAR, PRESIDENT: THIS IS AN APPEAL BY THE ASSESSEE RELATING TO THE ASSESSMENT YEAR 2004-05 AND THE FOLLOWING GROUNDS HAVE BEEN TA KEN: - 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN NOT GRANTING THE BENEFIT OF INDEXED COST OF ACQUISITION AS PROVIDED UNDER SECOND PROVISO TO SECTION 48 OF THE ACT WHILE COMPUTING LONG TERM CAPITAL GAINS/LOSS IN RESPECT OF SHARES SOLD DURING THE YEAR. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN LAW AND ON FACTS IN NOT GRANTING INTEREST UNDER SECTION 244A OF THE ACT TILL THE DATE OF RECEIPT OF REFUND ORDER. 3. AT THE TIME OF THE HEARING, IT WAS SUBMITTED ON BEHALF OF THE ASSESSEE THAT THE FIRST GROUND IS COVERED AGAINST T HE ASSESSEE BY THE ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CAS E FOR THE ITA NO: 1926/MUM/2008 2 ASSESSMENT YEAR 1998-99, IN ITA NO: 5163/MUM/2004, DATED 21 ST JULY 2009. IN THIS ORDER, A COPY OF WHICH HAS BEEN FILED BEFORE US, THE TRIBUNAL HAS AGREED WITH THE REASONING CONTAINE D IN THE DECISION OF THE AUTHORITY FOR ADVANCE RULINGS IN TH E CASE OF UNIVERSITIES SUPERANNUATION SCHEME LTD. AS TRUSTEES OF UNIVERSITIES SUPERANNUATION SCHEME, IN RE (2005) 27 5 ITR 434 (AAR). IT WAS HELD THAT A FOREIGN INSTITUTIONAL IN VESTOR HAS TO BE ASSESSED TO CAPITAL GAINS / LOSS UNDER SECTION 115A D OF THE INCOME TAX ACT AND IS NOT ENTITLED TO OPT OUT AND CLAIM TO BE ASSESSED UNDER SECTION 48 READ WITH SECTION 112 WITH INDEXAT ION PROVISIONS. IN SHORT, THE BENEFIT OF INDEXED COST OF ACQUISITIO N PROVIDED UNDER THE SECOND PROVISO TO SECTION 48 OF THE ACT WHILE C OMPUTING THE LONG TERM CAPITAL GAINS OR LOSS IN RESPECT OF THE S HARES SOLD DURING THE YEAR IS NOT AVAILABLE TO THE ASSESSEE WHICH IS A FOREIGN INSTITUTIONAL INVESTOR. RESPECTFULLY FOLLOWING THE AFORESAID ORDER OF THE TRIBUNAL PASSED IN THE ASSESSEES OWN CASE, WE UPHOLD THE DECISION OF THE CIT(A) IN RESPECT OF GROUND NO.1 AN D DISMISS THE GROUND. 4. SO FAR AS THE SECOND GROUND IS CONCERNED, THE SA ME IS ALSO COVERED BY AN EARLIER ORDER OF THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2002-03, IN ITA NO: 17 84/MUM/2006, DATED 22 ND FEBRUARY 2010. A COPY OF THE ORDER HAS BEEN FILED BEFORE US, FROM WHICH WE FIND THAT THE IDENTICAL GR OUND HAS BEEN DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE F OLLOWING THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF CIT VS. PFIZER LTD. (1991) 191 ITR 626 (BOM), BY HOLDING TH AT THE INTEREST ITA NO: 1926/MUM/2008 3 UNDER SECTION 244A HAS TO BE PAID UP TO THE DATE OF THE RECEIPT OF THE REFUND ORDER. RESPECTFULLY FOLLOWING THE AFORE SAID ORDER OF THE TRIBUNAL, SINCE THE ISSUE IS THE SAME IN THE APPEAL BEFORE US, WE DIRECT THE ASSESSING OFFICER TO GRANT INTEREST UNDE R SECTION 244A UP TO THE DATE OF THE RECEIPT OF THE REFUND ORDER. TH US GROUND NO.2 IS DECIDED IN FAVOUR OF THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH OCTOBER 2010. SD/- SD/- (J SUDHAKAR REDDY) (R V EASWAR) ACCOUNTANT MEMBER PRESIDENT MUMBAI, DATED 8 TH OCTOBER 2010 SALDANHA COPY TO: 1. BLACKSTONE ASIA ADVISORS LLC A/C THE ASIA TIGERS FUND INC. C/O DEUTSCHE BANK, 222 KODAK HOUSE D N ROAD, MUMBAI 400 001 2. ADIT (INTERNATIONAL TAXATION) 2(2) 3. DIT-(IT) 4. CIT(A)-XXXIII 5. DR L BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI
