POOJA EXPORTS, MUMBAI V. ADDL CIT CIR 16(3), MUMBAI

ITA 2222/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49462 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 04-05-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 19-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Assessee Lawyers: HARI S RAHEJA
• Keywords: Capital asset; Cost of acquisition; Set aside; Capital Gains
• Section: 201; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C MUMBAI BEFORE SHRI J. SUDHAKAR REDDY (AM) AND SMT. ASHA VIJAYARAGHAVAN (JM) ITA NO. 2222/MUM/2010 ASSESSMENT YEAR- 2006-07 POOJA EXPORTS, 310, PRASAD CHAMBERS, OPERA HOUSE, MUMBAI-400 004 PAN-AAAFP 1047L VS. THE ACIT, CIR 16(3), MATRU MANDIR, TARDEO, MUMBAI-400 007 (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI HARI S. RAHEJA RESPONDENT BY: SHRI S.S. RANA O R D E R PER ASHA VIJAYARAGHAVAN (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER DATED 14.1.2010 PASSED BY THE LD. CIT(A)-27 FOR THE ASSESSMENT YEAR 2006-07. 2. THE ASSESSEE IS ON APPEAL AGAINST THE DECISION O F THE AO AND THE LD. CIT(A), REJECTING THE ASSESSEES CLAIM FOR INDE XATION FROM THE BASE YEAR VIZ., 1992-93. 3. THE AO HAD STATED THAT THE ASSESSEE HAD SHOWN LONG TERM CAPITAL GAIN ON THE SALE OF PROPERTY NAMED AS LALLANS BUNG ALOW SITUATED AT JUHU TARA ROAD, MUMBAI. THE TOTAL SALE CONSIDERATIO N WAS RS. 12.5 CRORES. THE ASSESSEE HAD CLAIMED INDEXED COST OF ACQUISITION OF RS 2.44 CRORES AS ON 1992-93. HOWEVER, THE AO NOTICED THA T THE APPELLANTS INVESTMENTS IN THE PROPERTY WAS SPREAD OVER FROM 19 92-93 WHEN ITA NO. 2222/M/2010 2 INVESTMENT OF RS 60.60 LAKHS WAS MADE, FOR E.G. IN 1993-94 RS 18.82 LAKHS AND 1994-95 RS 18.84 LAKHS. RS. 37.20 LAKHS I N 1997-98. RS 19.27 LAKHS IN 1998-99, RS. 11.52 IN 1999-2000 RS 40.98 LAKHS IN 2000-01, RS. 11.04 LAKHS IN 2001-02 AND RS. 11.37 L AKHS IN 2004-05. THE AO HAS GRANTED INDEXATION FOR THE AMOUNT OF INV ESTMENT MADE IN EACH YEAR AND HAS WORKED OF THE CAPITAL GAINS AT RS 8.36 CRORES AGAINST RS 6.92 CRORES SHOWN BY THE ASSESSEE. AGAINST THIS , THE ASSESSEE HAS FILED HIS APPEAL. 4. IN APPEAL IT WAS ARGUED BY THE LEARNED COUNSEL O F THE APPELLANT THAT THE ACTION OF THE AO WAS NOT CORRECT AND ONCE A PROPERTY WAS PURCHASED AND PAID ON INSTALMENTS., THEN, THE YEAR OF INDEXATION WAS TO BE TAKEN IN WHICH THE PROPERTY WAS BOOKED. THEY HAV E CITED EXAMPLES OF PERSONS PURCHASING A FLAT FROM A BUILDER WHEN A PRO JECT IS ANNOUNCED AND MAKING THE INITIAL PAYMENTS AT THAT TIME AND SU BSEQUENTLY AS THE BUILDER CONTINUES TO BUILD, MAKING THE PAYMENTS AND MAKING THE PAYMENT OF THE FINAL INSTALLMENT, WHEN THE FLAT IS HANDED OVER. IN THIS CONNECTION THEY HAVE RELIED UPON THE HONBLE MUMBAI ITATS DECISION IN THE CASE OF MRS. LATA G. ROHRA VS DCIT CENTRAL CIR. 39, MUMBAI WHEREIN THE HONBLE TRIBUNAL HAD HELD THAT THE ASSESSEE WHO HAD PURCHASED VIDE AN UNREGISTERED AGREEMENT A FLAT FROM A DEVELOPER W HICH WAS PURCHASED IN 1993 AND CONSTRUCTED UP TO 1997 AND REGISTERED IN 1998, FOR CALCULATION OF CAPITAL GAINS WHEN THE ASSESSEE SOLD IT, THE INDEXED COST OF ACQUISITION WAS TO BE TAKEN FROM 1993 ON THE BASIS THAT THE APPELLANT HAD ACQUIRED THE RIGHTS IN THE FLAT ON THE EXECUTIO N OF THE AGREEMENT TO SALE WITH THE BUILDER IN 1993. IN APPEAL IT HAS BE EN ARGUED BY THE LEARNED COUNSEL OF THE APPELLANT THAT ON SIMILAR FA CTS OF THEIR CASE THE DATE OF INDEXATION SHOULD BE TAKEN AT 1992-93. 5. THE CIT(A) DISMISSED THE APPEAL HOLDING AS UNDER : ITA NO. 2222/M/2010 3 HOWEVER, THIS EXPLANATION OF THE APPELLANT IS NOT ACCEPTABLE IN THIS CASE AS IT IS SEEN IN THE APPELLANTS CASE THAT TH EY HAD PURCHASED AN OLD BUILDING ALONG WITH A PLOT OF LAND AT JUHU T ARA ROAD KNOWN AS LALLANS BUNGALOW IN A.Y 1992-93 FOR WHICH THERE WAS A REGISTERED AGREEMENT. SINCE THIS PROPERTY WAS PURC HASED BY A GROUP OF PEOPLE IN WHICH THE APPELLANT HAD 20% SHA RE, THEY SUBSEQUENTLY AGREED TO REDEVELOP THIS PROPERTY AFTE R DEMOLISHING THE OLD BUNGALOW AND FOR THE SUBSEQUENT YEARS THEY HAD BUILT MULTI STOREYED FLATS ON THIS PLOT WHICH THEY HAD DIVIDED AMONGST THEMSELVES AS PER THEIR SHARE RATIO FOR WHICH PURPO SE THEY HAD ALSO TAKEN LOANS FROM THE BANKS. THIS PROCESS OF REDEVE LOPMENT OF THE PROPERTY HAS TAKEN 10 TO 12 YEARS AS THE FINAL AMOU NT OF MONEY HAD BEEN INVESTED IN THE A.Y 2004-05. SO THIS WAS NOT A CASE OF A PERSON WHO HAD BOOKED THE FLAT AND WAS SUBSEQUENTLY PAYING THE INSTALLMENTS AND CLAIMING INDEXATION ON CAPITAL GAI NS FROM THE DATE WHEN THE FLAT WAS BOOKED. THIS WAS A CASE OF A GRO UP OF BUILDERS AND INVESTORS WHO HAD GOT TOGETHER AND PURCHASED A PLOT OF LAND IN 1992-93 AND SUBSEQUENTLY REDEVELOPED THE PROPERTY A ND BUILT MULTI STOREYED FLATS ON THIS PLOT. HENCE TO BUILD ON HIS PROPERTY THEY HAD TAKEN SO MANY YEARS AND MADE INVESTMENTS IN DIFFER ENT YEARS. SO IT COULD NOT BE SAID THAT THE APPELLANT HAD ACQUIRED T HE FLAT AND THE DATE OF INDEXATION HAS TO BE TAKEN FROM THE DATE FR OM WHICH THE FLAT WAS BOOKED. THIS WAS A CASE OF ACQUISITION OF LAND AND REDEVELOPMENT OF PROPERTY BY THE BUILDERS IN WHICH INVESTMENTS HAVE BEEN MADE IN DIFFERENT YEARS. HENCE THE BENEF IT OF INDEXATION CANNOT BE GIVEN FROM THE YEAR IN WHICH THE PLOT WAS BOUGHT. INDEXATION WOULD BE GIVEN FOR INVESTMENTS MADE IN B UILDING IN THE DIFFERENT YEARS. THE RATIO OF THE DECISION OF THE HONBLE ITAT DOES NOT APPLY IN THIS CASE AS THE FACTS ARE ABSOLUTELY DIFFERENT. THE ACTION OF THE AO IN NOT ALLOWING INDEXATION IN THE YEAR IN WHICH THE PLOT WAS PURCHASED FOR THE TOTAL INVESTMENT MADE IN THE SUBSEQUENT 10 TO 12 YEARS WAS CORRECT AND THE GROUNDS OF APPEA L RAISED BY THE APPELLANT STAND DISMISSED AND THE ACTION OF THE AO IS CONFIRMED. IN THE RESULT THE APPEAL IS DISMISSED. 6. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE U S. THE ASSESSEE HAD SOLD FLAT AND UNDIVIDED INTEREST IN THE LAND FO R A TOTAL CONSIDERATION OF RS.12.5 CRORES. THE ASSESSEE CLAIMED INDEXED CO ST OF ACQUISITION AS RS.5.4 CRORES, WHEREAS THE ASSESSING OFFICER HAD AD OPTED INDEXED COST OF ACQUISITION OF RS.4 CRORES. ITA NO. 2222/M/2010 4 7. THE CONTENTION OF THE ASSESSEE IS THAT THEY HAVE PURCHASED LAND DURING THE ASSESSMENT YEAR 1992-93 AND THEREAFTER C ONSTRUCTED BUILDING THEREON. IT IS THE CONTENTION OF THE ASSESSEE THAT THE ENTIRE COST OF LAND AND COST OF CONSTRUCTION OF FLAT SHOULD BE CONSIDER ED AS HAVING BEEN INCURRED IN THE YEAR 1992-93 ITSELF AND HENCE THE I NDEXATION SHOULD BE GIVEN FOR THE WHOLE COST FROM THAT YEAR. THE AR STR ENUOUSLY ARGUED THAT THEIR CASE IS COVERED BY THE FOLLOWING DECISIONS: 8. THE MUMBAI ITAT IN THE CASE OF SMT. LATA G. ROHR A VS DCIT (2008) 21 SOT 541 HAS HELD AS UNDER: THE ASSESSEE VIDE UNREGISTERED AGREEMENT WITH A DE VELOPER PURCHASED A FLAT IN 1993 WHICH WAS CONSTRUCTED IN T HE YEAR 1997 AD REGISTERED IN THE YEAR 1998. DURING THE RELEVANT YE AR, THE ASSESSEE SOLD SAID FLAT AND AFTER CLAIMING THE INDEXED COST AT RS 18.74 LAKHS SHOWED LONG TERM CAPITAL GAIN AT RS 39.42 LAKHS. T HE ASSESSING OFFICER WORKED OUT INDEXED COST OF ACQUISITION ON T HE BASIS OF PURCHASE PRICE FROM 1993 AND COMPLETED THE ASSESSME NT. HOWEVER, THE COMMISSIONER WAS OF THE VIEW THAT THE ASSESSEE HAD NOT FILED ANY EVIDENCE WITH RESPECT TO VARIOUS PAYMENT MADE TOWAR DS THE PURCHASE PRICE AND THE INDEXED COST OF ACQUISITION WORKED OU T ON THE BASIS OF FINANCIAL YEAR 1993 WAS INCORRECT AND, HENCE, THE A SSESSMENT ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF RE VENUE. ACCORDINGLY, HE INITIATED REVISION PROCEEDINGS UNDER SECTION 263 . THE COMMISSIONER, HOWEVER SET ASIDE THE ORDER OF ASSESS ING OFFICER AND DIRECTED THE ASSESSING OFFICER TO COMPUTE THE CORRE CT LONG TERM CAPITAL GAIN BY ADOPTING THE INDEXED COST OF ACQUISITION ON THE BASIS OF THE DATE ON WHICH THE PROPERTY WAS HELD AFTER REGISTRAT ION OF THE CONVEYANCE DEED. IN INSTANT APPEAL, THE ASSESSEE CO NTENDED THAT SHE WAS DEEMED TO BE OWNER FOR PROPERTY FROM 7.8.1993 A ND ACCORDINGLY THE CAPITAL GAIN WAS TO BE WORKED OUT FROM THAT DAT E AS PER EXPLANATION (III) TO SECTION 48, AND SINCE THE ASSE T HAD BEEN HELD FOR THE FIRST TIME IN 1993, COST INFLATION INDEX OF THA T YEAR WAS TO BE APPLIED ON THE TOTAL PURCHASE CONSIDERATION PAYABLE BY THE ASSESSEE AS PER AGREEMENT REGARDLESS OF THE DATES OF THE ACT UAL AMOUNT PAID BY HER. AS PER SECTION 2(14), READ WITH SECTION 2914)( VI) THE RIGHTS IN FLAT, ACQUIRED BY THE ASSESSEE ON EXECUTION OF PURCHASE A GREEMENT ON 7.8.1993, CAME WITHIN THE PURVIEW OF THE TERM CAPI TAL ASSET. FROM THE PERUSAL OF LANGUAGE USED IN EXPLANATION (III) T O SECTION 48, WHICH PROVIDES FOR MANNER OF COMPUTATION OF INDEXED COST OF ACQUISITION, IT ITA NO. 2222/M/2010 5 IS APPARENTLY CLEAR THAT IT REFERS ONLY TO DATE OF COST OF ACQUISITION OF THE ASSET AND NOT ACTUAL PAYMENTS MADE BY THE ASSES SEE. HENCE THERE WAS NO MERIT IN THE CONTENTION OF THE REVENUE THAT THE BENEFIT OF INDEXATION SHOULD BE GIVEN ON THE BASIS OF DATES OF ACTUAL PAYMENTS MADE BY THE ASSESSEE. THUS, ON MERITS, THE ISSUE WA S COVERED IN FAVOUR OF ASSESSEE. HOWEVER, REGARDING JURISDICTION FOR INVOKING THE PROVISIONS OF SECTION 263, IT WAS FOUND THAT THE AS SESSEE FILED NECESSARY DETAILS BEFORE THE ASSESSING OFFICER AND THE ASSESSING OFFICER HAD PASSED ASSESSMENT ORDER AFTER TAKING IN TO CONSIDERATION THE SAME. HENCE, MERELY FOR THE REASON THAT NO SPE CIFIC FINDINGS HAD BEEN GIVEN IN THE ASSESSMENT ORDER, THE SAME COULD NOT BE SAID HAVE BEEN PASSED WITHOUT APPLICATION OF MIND. IN THIS VI EW OF THE MATTER, THE ORDER UNDER SECTION 263 PASSED BY THE COMMISSIO NER WAS TO BE SET ASIDE. 9. THE ITAT MUMBAI BENCH IN THE CASE OF CHARANBIR S INGH JOLLY VS ITO (2006) 5 SOT 89 HAS HELD AS UNDER: THE ASSESSEE HAD SOLD A HOUSE FOR CERTAIN CONSIDE RATION. HE HAD ACQUIRED THE SAID HOUSE THROUGH AN AGREEMENT AND MA DE THE PAYMENTS TOWARDS ACQUISITION OF THE HOUSE PROPERTY IN INSTALMENTS. WHILE COMPUTING THE CAPITAL GAINS EXI GIBLE ON THE SALE OF THE HOUSE PROPERTY, THE ASSESSEE HAD COMPUT ED THE INDEXED COST OF THE HOUSE ON THE RATE OF INDEXATION PERTAIN ING TO THE PREVIOUS YEAR 1992-93, IN WHICH THE FIRST INSTALMEN T OF PAYMENT WAS PAID BY THE ASSESSEE. THE ASSESSING OFFICER RE JECTED THE CLAIM OF THE ASSESSEE AND TREATED THE FIRST INSTALMENT P AID BY THE ASSESSEE AS THE COST OF ACQUISITION OF THE HOUSE PR OPERTY AND TREATED THE SUBSEQUENT INSTALMENTS PAID BY THE ASSE SSEE AS COST OF IMPROVEMENTS MADE FROM TIME TO TIME. THE RESULT WA S THAT THE TOTAL COST INCURRED BY THE ASSESSEE FOR ACQUIRING T HE HOUSE WAS NOT TAKEN AS THE COST OF ACQUISITION FOR THE PURPOSE OF INDEXATION, BUT, ON THE OTHER HAND, COST WAS TAKEN AT STATIC POINTS CORRESPONDING TO THE INSTALMENT PAID BY THE ASSESSMENT. ON APPEAL THE COMMISSIONER (APPEALS) UPHELD THE IMP UGNED ORDER. ON SECOND APPEAL: HELD: THE ASSESSING OFFICER HAD ADOPTED THE ORIGINAL COST OF ACQUISITION AT THE FIRST INSTALMENT VALUE, WHEREAS THE ASSESSEE HAD CLAIMED THE ORIGINAL COST OF ACQUISITION AT THE TOTAL PAYMENTS MADE BY HIM. THEREFORE, THE REAL QUESTION WAS WHAT WAS THE COST OF ACQUISITION ITA NO. 2222/M/2010 6 FOR THE PURPOSE OF SECTION 48, WHETHER THE AMOUNT O F FIRST INSTALMENT PAID BY THE ASSESSEE OR THE TOTAL AMOUNT PAID BY THE ASSESSEE FOR ACQUIRING THE HOUSE. A HOUSE PROPERTY HAS GOT ITS OWN INTRINSIC/MARKET V ALUE. THE COST OR THE VALUE OF THE PROPERTY REMAINS THE SAME SUBJE CT TO MINOR VARIATIONS OF INTEREST OF DISCOUNT FACTOR, IRRESPEC TIVE OF THE MODE OF PAYMENTS. THE COST OR VALUE OF THE PROPERTY DOES N OT GET DILUTED FOR THE REASON THAT THE COST OF ACQUISITION WAS PAI D BY INSTALMENTS. THE BASIC IDEA OF BRINGING THE PRINCIPLE OF INDEXAT ION IS TO GIVE SOME SORT OF PROTECTION TO THE ASSESSEE FROM THE ON SLAUGHT OF INFLATION, THE EFFECT OF INFLATION COULD BE MEASUR ED ONLY WITH REFERENCE TO THE TOTAL COST OF ACQUISITION OF A PRO PERTY. IF THE EFFECT OF INFLATION IS MEASURED WITH THE PAYMENT OF THE FI RST INSTALMENT, THE WHOLE SCHEME BECOMES RIDICULOUS. IT IS TO BE SE EN THAT THE FACTOR OF INFLATION IS NOT WITH REFERENCE TO THE PA YMENTS MADE BY THE ASSESSEE BUT WITH REFERENCE TO THE VALUE OF THE ASSET VIS-A VIS THE COST OF ACQUISITION OF THE SALE CONSIDERATION O F THE PROPERTY. THEREFORE, IN THE INSTANT CASE THE COST OF ACQUI SITION OF THE HOUSE FOR THE PURPOSE OF LONG TERM CAPITAL GAINS COMPUTAT ION WAS THE TOTAL COST INCURRED BY THE ASSESSEE AND NOT THE FIR ST INSTALMENT VALUE AS DETERMINED BY THE LOWER AUTHORITIES. HENC E, THE ASSESSING AUTHORITY WAS DIRECTED TO ADOPT THE COST OF ACQUIS ITION AS AFORESAID AND RECOMPUTE THE LONG TERM CAPITAL GAINS TAXABLE I N THE HANDS IF HE ASSESSEE ACCORDINGLY. 10. THE ITAT DELHI BENCH IN THE CASE OF PRAVEEN GUP TA VS ACIT (2011) 137 TTJ 307 HAS HELD AS UNDER: THE FLAT WAS ALLOTTED TO THE ASSESSEE VIDE ALLOT MENT LETTER DATED 2 ND AUGUST 1995 AND AGREEMENT WAS EXECUTED ON 27 TH SEPTEMBER 1995. THE ASSESSEE STARTED MAKING PAYMENT FROM 2 ND AUGUST, 1995 AND WAS MAKING PAYMENT TILL 28 TH SEPTEMBER 2001. THE AO WAS THEREFORE WRONG IN HOLDING THAT THE BENEFIT OF INDEXATION WILL BE AVAILABLE TO THE ASSESSEE FROM 27 TH DECEMBER 2001, I.E., FROM THE DATE OF EXECUTION OF THE CONVEYANCE DEED AND NO T FROM 27 TH SEPTEMBER 1995. BY ENTERING INTO AN AGREEMENT TO A LLOT A FLAT, THE ASSESSEE HAS IDENTIFIED A PARTICULAR PROPERTY WHICH THE INDENDED TO BUY FROM THE BUILDER AND THE BUILDER IS ALSO BOUND TO PROVIDE THE APPLICANT WITH THAT PROPERTY BY ACCEPTING CERTAIN A DVANCE AMOUNT AND MAKING AGREEMENT FOR BALANCE PAYMENT AS SCHEDUL ED IN THE AGREEMENT. THUS, GOING IN THE PROVISIONS, IT IS NOT NECESSARY THAT TO CONSTITUTE A CAPITAL ASSET THE ASSESSEE MUST BE THE OWNER BY ITA NO. 2222/M/2010 7 WAY OF A CONVEYANCE DEED IN RESPECT OF THAT ASSET F OR THE PURPOSE OF COMPUTING CAPITAL GAIN. THE ASSESSEE HAD ACQUIRED A RIGHT TO GET PARTICULAR FLAT, FROM THE BUILDER AND THAT RIGHT OF THE ASSESSEE ITSELF IS A CAPITAL ASSET. THE WORD HELD USED IN SEC 2(1 4) AS WELL AS EXPLANATION TO SEC 48 CLEAR DEPICTS THAT ASSESSEE MUST HAVE SOME RIGHT IN THE CAPITAL ASSET WHICH IS SUBJECT TO TRAN SFER. BY MAKING THE PAYMENT TO THE BUILDER AND HAVING RECEIVED ALLO TMENT LETTER IN LIEU THEREOF, THE ASSESSEE WILL BE HOLDING CAPITAL ASSET AND, THEREFORE, THE BENEFIT OF INDEXATION HAS TO BE GRAN TED TO THE ASSESSEE ON THE BASIS OF PAYMENT MADE BY HIM FOR AC QUIRING THE SAID ASSET AND THE ASSESSEE HAS RIGHTLY CLAIM THE I NDEXATION BENEFIT FROM THE DATES WHEN HE HAS MADE THE PAYMENTS TO THE BUILDER. THE AO IS DIRECTED TO PROVIDE THE BENEFIT OF INDEXA TION TO THE ASSESSEE THE MANNER IN WHICH THE ASSESSEE HAS CLAIM ED. CONCLUSION: ASSESSEE CAN BE SAID TO HAVE HELD THE FLAT WHEN HE MADE THE PAYMENT TO THE BUILDER AND RECEIVED THE AL LOTMENT LETTER AND, THEREFORE, BENEFIT INDEXATION OF COST OF ACQUI SITION OF THE FLAT HAS TO BE GRANTED TO THE ASSESSEE FROM THE DATE (19 95) WHEN HE STARTED MAKING PAYMENTS TO THE BUILDER AND NOT FROM DATE OF EXECUTION OF CONVEYANCE DEED IN 2001. ON APPEAL, THE CIT(A) HELD THAT THE ASSESSEE AND OT HER CO-OWNER PURCHASED THE LAND WITH AN OLD BUILDING IN 1992-93. THEY HAD SUBSEQUENTLY DEVELOPED THE PROPERTY, DEMOLISHED THE OLD BUILDING AND BUILT MULTISTORIED FLAT. ON THE BASIS OF THEIR SHARES IN THE CO- OWNERSHIP, THE ASSESSEE WAS ALLOTTED TWO FLATS IN M ULTISTORIED BUILDING. THEREFORE, THE CIT(A) HELD THAT IT CANNO T BE SAID THAT THE ENTIRE COST OF ACQUISITION WAS INCURRED IN THE FIRS T YEAR ITSELF. HE CONFIRMED THE ACTION OF THE ASSESSING OFFICER, WHO GRANTED INDEXATION BASED ON THE YEAR OF INVESTMENT AND AMOU NT OF INVESTMENT. 11. THE ABOVE DECISIONS CLEARLY LAY DOWN THAT ONCE IMMOVABLE PROPERTY IS ACQUIRED, THE COST OF ACQUISITION AND THE DATE O F ACQUISITION WILL BE THAT DATE, NOTWITHSTANDING THE FACT THAT THE PRICE OF TH E IMMOVABLE PROPERTY ACQUIRED IS PAID OVER A PERIOD. THE RATIO OF THESE DECISIONS IS TO BE APPLIED IN THE INSTANCE CASE ALSO. BUT WE FIND THAT FROM THE FACTS PLACED BEFORE US, IT IS NOT CLEAR FROM THE ORDERS OF THE L OWER AUTHORITIES AS TO PERIOD OVER WHICH THE COST OF CONSTRUCTION WAS MADE BY THE ASSESSEE AND OTHER CO-OWNERS. THE ASSESSEE HAD FILED A COMPUTATI ON WHEREBY HE ITA NO. 2222/M/2010 8 CONTENDS THAT PART OF PAYMENT OF FLAT HAS BEEN MADE IN 1994 ITSELF. THESE FACTS HAVE NOT BEEN CONSIDERED BY THE LOWER AUTHORI TIES. WE THEREFORE REMIT THE MATTER TO THE FILE OF THE ASSESSING OFFIC ER TO CONSIDER ALL THE FACTS AND DECIDE THE MATTER AFRESH IN ACCORDANCE WI TH LAW, KEEPING IN MIND THE RATIO OF THE DECISIONS CITED BY THE ASSESS EE REFERRED TO ABOVE AND AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSE SSEE TO PRESENT ITS CASE. 12. IN THE RESULT THE ASSESSEES APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 15 TH DAY OF JULY, 2011 SD/- SD/- (SUDHAKAR REDDY) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIA L MEMBER MUMBAI, DATED 15 TH JULY, 2011 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR C BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI ITA NO. 2222/M/2010 9 DATE INITIALS 1 DRAFT DICTATED ON: 29. 0 6 . 201 1 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 30 .0 6 .2011 ______ SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: _________ ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: _________ ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: _________ ______ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK: DATE ON WHICH FILE GOES TO AR _________ ______ 10 . DATE OF DISPATCH OF ORDER: _________ ______