BEVERLY LINN ENGINEER, MUMBAI V. ITO (IT)-3(1), MUMBAI

ITA 2400/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7274 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-03-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 15-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PARAS S SAVLA SSHRI S S RANA; VIR
• Keywords: Cost of acquisition; Set aside
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI R.K.GUPTA, JM AND SHRI R.S.SYAL, AM ITA NO.2400/MUM/2009 : ASST.YEAR 2006-2007 MRS.BEVERLY LINN ENGINEER C/O.T.M.ENGINEER, 12/6 RUSTOM BAUG SANT SAVLA MARG, BYCULLA MUMBAI 400 027. PA NO.AAIPE2291H. VS. THE INCOME TAX OFFICER (INTERNATIONAL TAXATION) WARD 3(1), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PARAS S.SAVLA RESPONDENT BY : S/SHRI S.S.RANA & VIRENDRA OJHA O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER P ASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 20.2.2009 IN RELATION TO THE ASSESSMENT YEAR 2006- 2007. 2. THE ONLY EFFECTIVE ISSUE RAISED IN THIS APPEAL I S AGAINST THE COMPUTATION OF LONG TERM CAPITAL GAIN. SHORN OF UNNECESSARY DETAI LS IT IS SEEN THAT THE ASSESSEE SOLD SOME PROPERTY WHICH WAS INHERITED FROM HER HUSBAND. THE COST OF ACQUISITION OF SUCH PROPERTY WAS TAKEN AS THE MARKET VALUE AS ON 1 .4.1981. THE ASSESSING OFFICER OBSERVED THAT THE SECOND PROVISO TO SECTION 48 DEAL ING WITH INDEXED COST OF ACQUISITION PROVIDES THAT INDEXATION SHOULD BE DONE FROM THE FIRST YEAR IN WHICH THE ASSET WAS HELD BY THE ASSESSEE. SINCE THE ASSESSEE BECAME LEGAL HEIR ON 18.12.2000 I.E. ON THE DATE OF HER HUSBANDS DEATH, THE INDEXE D COST OF ACQUISITION WAS COMPUTED BY TAKING THE BASE YEAR AS THE FINANCIAL YEAR 2000-2001. NO RELIEF WAS ALLOWED IN THE FIRST APPEAL. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD WE FIND THAT THE ISSUE RAISED IN THIS APPEAL HAS BEEN SETTLED BY THE SPECIAL BENCH OF THE TRIBUNAL IN DCIT VS. MANJULA J.SHAH [(2009) 318 ITR 417 (AT) ITA NO.2400/MUM/2009 MRS.BEVERLY LINN ENGINEER. 2 (MUM.) (SB)] IN ASSESSEES FAVOUR BY HOLDING THAT THE INDEXATI ON OF COST OF ACQUISITION HAS TO BE DONE WITH REFERENCE TO THE Y EAR IN WHICH THE PREVIOUS OWNER FIRST HELD THE ASSET. THERE IS NO DISPUTE ON THE FA CT THAT THE INSTANT PROPERTY WAS ACQUIRED BY THE PREVIOUS OWNER PRIOR TO 1.4.1981. I N OUR CONSIDERED OPINION, THE RATIO DECIDENDI OF THE SPECIAL BENCH ORDER IS SQUARELY APPLICABLE AND THE ASSESSEE DESERVES TO SUCCEED. THE LEARNED DEPARTMENTAL REPR ESENTATIVE FAIRLY CONCEDED THAT THE FACTS OF THE INSTANT CASE WERE COVERED BY THE S PECIAL BENCH ORDER. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER AND APPROVE THE COMPUTATION OF LONG TERM CAPITAL GAIN MADE BY THE ASSESSEE. EX CONSEQUENTI THE GROUND ABOUT THE CHARGING OF INTEREST U/S 234B AND 234C IS ALSO ALLOWED PRO TANTO. 4. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED ON THIS 24 TH DAY OF MARCH 2010. SD/- SD/- ( R.K.GUPTA ) ( R.S.SYAL ) JUDICIAL MEMBER ACCOUNTANT M EMBER MUMBAI : 24 TH MARCH, 2010. DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENTS. 3. THE CIT CONCERNED 4. THE CIT(A) - XXXIII, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.