ITO, CHENNAI V. Shri Habibullah Inayathullah, CHENNAI

ITA 2611/CHNY/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6079 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 20-07-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 08-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K RAVI
• Assessee Lawyers: K RAVI
• Keywords: Capital asset; Gift; Cost of acquisition
• Section: 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI , ! ' . #$ % &' BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ./ I.T.A.NO.2611/MDS./2016 / ASSESSMENT YEAR :2012-13 THE INCOME TAX OFFICER, NON-CORPORATE WARE -1(2), CHENNAI. VS. SHRI HABIBULLAH INAYATHULLAH , 1-B,IIFLOOR,JUBILEE VILLA FLATS, NO.6,LALITHA NAGAR, 1 ST STREET, PAPANASAM SIVAN SALAI, MYLAPORE, CHENNAI -4. [PAN AAAPI 6841 H ] ( () / APPELLANT) ( *+() /RESPONDENT) / APPELLANT BY : MR.K.RAVI, JCIT, DR /RESPONDENT BY : MR.K.RAVI, ADVOCATE / DATE OF HEARING : 27 - 09 - 2017 / DATE OF PRONOUNCEMENT : 27 - 09 - 2017 , / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-2,CHENNAI DATED 29.06.2016 PERTAINING TO ASSESSMENT YEAR 2012-13 . ITA NO.2611/MDS./2016 :- 2 -: 2. THE REVENUE HAS RAISED THE ISSUE RELATING TO GR OUND NOS.2 & 3 WITH REGARD TO FINDINGS OF LD.CIT(A) THAT DATE OF INDEXATION IS FROM THE DATE ON WHICH THE PROPERTY DEVOLVED ON THE ASSE SSEE AND NOT THE DATE ON WHICH IMMEDIATE PREVIOUS OWNER FIRST HELD T HE ASSET. 3. THE FACTS RELATING TO THIS ISSUE ARE THAT THE A O ADOPTED THE INDEXATION COST OF ACQUISITION OF CAPITAL ASSET AS THE YEAR 1999, THE YEAR IN WHICH THE PROPERTY WAS DEVOLVED ON THE ASSE SSEE AFTER THE DEATH OF HIS FATHER. THE ASSESSEE CONTENDED BEFORE THE LOWER AUTHORITIES THAT IT SHOULD BE THE YEAR IN WHICH THE ASSET WAS FIRST HELD BY ASSESSEES FATHER, WHICH IS EARLIER TO YEAR 1991 , SO THE YEAR TAKEN AS INDEXATION COST OF ACQUISITION IS TO BE CONSIDER ED AS 1981-82. AGGRIEVED BY THE ORDER OF LD. ASSESSING OFFICER, TH E ASSESSEE CARRIED THE APPEAL BEFORE THE LD.CIT(A). ON APPEAL, LD.CIT (A) AGREED WITH THE CONTENTION OF LD.A.R BY PLACING RELIANCE ON THE JUDGEMENT OF BOMBAY HIGH COURT IN THE CASE OF CIT VS. MANJULA J. SHAH IN [2013] 355 ITR 474 (BOM). AGAINST THE ORDER OF LD.CIT(A), NOW THE REVENUE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. ACCORDING TO LD.A.R, HOLDING PERIOD OF THE ASSESSEE SHALL BE CONSIDERED FROM THE YEAR ASSESSEES FATHER ACQUIRED THE PROPERTY. ACCORDING TO THE AO, THE FINANCIAL YEAR 1999-2000 W AS THE FIRST YEAR IN ITA NO.2611/MDS./2016 :- 3 -: WHICH THE ASSESSEE BECAME THE OWNER. ACCORDING TO HIM, PROVISIONS OF THE SECTION 48(III) IS APPLICABLE. IN OUR OPINIO N, SIMILAR ISSUE WAS CONSIDERED BY THE BOMBAY HIGH COURT IN THE CASE OF CIT VS. MANJULA J. SHAH CITED SUPRA WHEREIN HELD THAT WHEN THE ASSESSEE SALES HIS OR HER IMMOVABLE PROPERTY, WHICH IS ACQUI RED UNDER THE GIFT OR WILL, WHILE COMPUTING THE CAPITAL GAINS THE INDE XATION COST OF ACQUISITION HAS TO BE COMPUTED WITH REFERENCE TO TH E YEAR IN WHICH THE PREVIOUS OWNER FIRST HELD THE ASSET AND NOT THE YEA R IN WHICH THE ASSESSEE BECOME THE OWNER OF THE ASSET. THEREFORE , RATIO OF THE ABOVE DECISION IS SQUARELY APPLICABLE TO THE FACTS OF THE CASE. HENCE, FOR THE PURPOSE OF INDEXATION COST OF ACQUISITION, THE DATE ON WHICH, THE ASSESSEES FATHER BECAME THE OWNER OF IMPUGNED PROPERTY TO BE CONSIDERED AND NOT THE DATE ON WHICH THE PRESENT AS SESSEES BECAME THE OWNER OF ASSET. ACCORDINGLY, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD.CIT(A) AS THE LD.CIT(A) IS JUSTIFIED IN FOLLOWING THE JUDGMENT OF CIT VS. MANJULA J. SHAH CITED SUPRA AN D THE SAME IS CONFIRMED. HENCE, THIS GROUND RAISED BY THE REVENUE IN ITS APPEAL STANDS DISMISSED. 5. THE REVENUE HAS RAISED THE ISSUE RELATING TO GR OUND NOS.4 TO 6 WITH REGARD TO GRANTING OF DEDUCTION U/S.54 OF THE ACT WITH REFERENCE TO THE INVESTMENT IN CAPITAL GAINS ACCOUNT SCHEME, WHICH WAS NOT ITA NO.2611/MDS./2016 :- 4 -: MADE WITHIN THE DUE DATE OF FILING OF RETURN OF INC OME U/S.139(1) OF THE ACT, BUT WITHIN THE DUE DATE FOR FILING THE RET URN U/S.139(4) OF THE ACT. 5.1 THE FACTS OF THE ISSUE ARE THAT THE AO FOUND THAT NEITHER THE RETURN OF INCOME FILED WITHIN THE DUE DATE NOR THE INVESTMENT IN CAPITAL GAINS ACCOUNT SCHEME WAS MADE WITHIN THE DUE DATE O F FILING OF RETURN OF INCOME, SO THE DEDUCTION CLAIMED BY THE ASSESSEE U/S.54 OF THE ACT IS DENIED BY THE LD. ASSESSING OFFICER. AGGRIEVED B Y THE ORDER OF LD. ASSESSING OFFICER, THE ASSESSEE CARRIED THE APPEAL BEFORE THE LD.CIT(A). ON APPEAL, LD.CIT(A) OBSERVED THAT SINC E THE ASSESSEE HAD FILED THE RETURN FOR ASSESSMENT YEAR 2012-13, FOR T HE VERY FIRST TIME ON 27.03.2014, THE AO OUGHT TO HAVE GIVEN CREDIT FOR T HE INVESTMENT IN THE NEW PROPERTY MADE BY THE ASSESSEE ON 19.06.2013 , WHICH FALLS WELL WITHIN THE DUE DATE FOR FILING RETURN U/S.139( 4), WHICH IS 31.03.2014. ACCORDINGLY, LD.CIT(A) GRANTED THE BENE FIT CLAIMED BY THE ASSESSEE U/S.54 OF THE ACT. AGAINST THE ORDER OF L D.CIT(A), NOW THE REVENUE IS IN APPEAL BEFORE US. 6. AFTER HEARING BOTH THE SIDES, WE ARE OF THE OPI NION THAT SIMILAR ISSUE WAS CONSIDERED BY THIS TRIBUNAL IN THE CASE O F MALARVIZHA VS. INCOME TAX OFFICER IN 41 CCH 351 WHEREIN HELD THAT DUE DATE FOR ASSESSEE TO INVEST OF CAPITAL GAINS IN PURCHASE FOR CONSTRUCTION OF NEW RESIDENTIAL HOUSE OR INVESTMENTS IN CAPITAL GAINS A CCOUNT SCHEME ITA NO.2611/MDS./2016 :- 5 -: U/S.54F(4) REFERS TO EXTENDED DUE DATE UNDER SUB- SECTION (4) OF SECTION 139 OF THE ACT. SIMILAR VIEW WAS TAKEN BY KARNATAKA HIGH COURT IN THE CASE OF FATHIMA BAI VS. ITO IN (2009) 32 DTR 423(KAR.), ALSO CIT VS. RAJESH KUMAR JALAN IN (2006) 286 ITR 0274 (GAU. HC). BEING SO, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD.CIT(A) AND THE SAME IS CONFIRMED. HENCE, THIS GROUND RAISED BY THE REVENUE IN ITS APPEAL STANDS DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED. ORDER PRONOUNCED ON 27 TH SEPTEMBER, 2017, AT CHENNAI. SD/ - SD/ - ! ' # . $ %& ' ( DUVVURU RL REDDY ) ) % / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER () / CHENNAI *+ / DATED: 27 TH SEPTEMBER, 2017. K S SUNDARAM +,-- ./-0/ / COPY TO: - 1 . / APPELLANT 3. - 1-!' / CIT(A) 5. /23- 4 / DR 2. / RESPONDENT 4. - 1 / CIT 6. 3&-5 / GF