ACIT 19(3), MUMBAI V. DHUN J OONWALLA, MUMBAI

ITA 3433/MUM/2012

• Counselvise Citation: 343319914 RSA 2012
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 18-09-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 15-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SALMAN KHAN
• Keywords: Capital asset; Gift; Cost of acquisition

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER . / ITA NO.3433/MUM/2012 ' ' ' ' # # # # / ASSESSMENT YEAR 2008-09 THE ACIT 19(3), ROOM NO.305, 3 RD FLOOR, PIRAMAL CHAMBERS, PAREL, MUMBAI - 400 012 ' ' ' ' / VS. MS. DHUN J OONWALLA, GOLD MIST, 5 TH FLOOR, CARTER ROAD, BANDRA (WEST) MUMBAI 400050 $ ./ % ./ PAN/GIR NO. : AAAPO 0263F ( $& / APPELLANT ) .. ( '($& / RESPONDENT ) $& ) / APPELLANT BY: SHRI SALMAN KHAN '($& * ) / RESPONDENT BY : NONE ' * + / DATE OF HEARING : 18/09/2013 ,-# * + / DATE OF PRONOUNCEMENT : 18/09/2013 . / O R D E R PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIR ECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-30,MUMBAI DATED 29/02/2012 FO R ASSESSMENT YEAR 2008-09. (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING TO APPLY THE COST OF INFLA TION INDEX FROM 01/04/1981 I.E. FINANCIAL YEAR 1981-82 IN WHICH THE PREVIOUS OWNER FIRST HELD THE PROPERTY WITHOUT APPRECIATING THE FACT THA T THE ASSESSEE BECAME . / ITA NO.3433/MUM/2012 ' ' ' ' # # # # / ASSESSMENT YEAR 2008-09 2 THE OWNER OF PROPERTY IN THE F.Y 2007-08 I.E. BY WA Y OF WILL FROM HER UNCLE SHRI FARDOON J OONWALLA 14.08.2007. (2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT THE E XPLANATION (III) TO SECTION 48 CLEARLY STATES THAT THE COST INFLATION INDEX SHA LL BE ADOPTED FROM THE FIRST YEAR IN WHICH THE ASSET WAS HELD BY THE ASSES SEE. (3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT THE D ECISION OF SPECIAL BENCH OF THE ITAT IN THE CASE OF MANJULA J SHAH [35 SOT 105 (MUM)SB] HAS NOT BEEN ACCEPTED BY THE DEPARTMENT. (4) THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A ) ON THE ABOVE GROUND BE SET SIDE AND THAT OF THE AO BE RESTORED. 2. THE ASSESSEE IS AN INDIVIDUAL. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS DECLARED INCOME FROM LONG TERM CAPITA L GAIN AT RS.24,35,980/- ON ACCOUNT OF SALE OF PROPERTY BEING 6 TH FLOOR IN THE BUILDING KNOWN AS GOLD MIST, 133, CARTER ROAD, BANDRA (WEST), MUMBAI. TH E ASSESSEE ALONG WITH HER RELATIVES HAVE RECEIVED THIS PROPERTY BY WAY OF A W ILL MADE BY HER UNCLE SHRI FARDOON J OONWALLA ON 14/8/2007. THIS PROPERTY WAS SOLD ON 16/1/2008. FOR COMPUTING THE CAPITAL GAIN INDEXATION BENEFIT W AS APPLIED FROM 1/4/1981 ON THE GROUND THAT THE SAID FLAT WAS ACQUIRED BY SH RI FARDOON J. OONWALLA PRIOR TO 1/4/1981. HOWEVER, THE AO DID NOT ACCEPT SUCH SUBMISSION OF THE ASSESSEE. ACCORDING TO AO THE PROPERTY WAS INHERIT ED BY THE ASSESSEE ON 14/8/2007 AND IT WAS SOLD ON 16/1/2008, THEREFORE, INDEXATION BENEFIT WAS NOT AVAILABLE TO THE ASSESSEE FROM 1/4/1981. LD. C IT(A) BY FOLLOWING THE SPECIAL BENCH DECISION IN THE CASE OF DCIT VS. MAN JULA J. SHAH, 35 SOT 105 (MUM)(SB) HAS HELD THE ISSUE IN FAVOUR OF THE ASSE SSEE. IT IS ALSO MENTIONED BY LD. CIT(A) THAT THE SAID DECISION OF SPECIAL BEN CH HAS BEEN CONFIRMED BY HONBLE BOMBAY HIGH COURT AND IN THIS MANNER LD. C IT(A) HAS HELD THAT AO SHOULD CONSIDER THE INDEXATION BENEFIT TO THE ASSE SSEE FROM 1/4/1981. THE DEPARTMENT IS AGGRIEVED WITH THE AFOREMENTIONED FIN DINGS OF LD. CIT(A) AND HAS FILED AFOREMENTIONED GROUNDS. . / ITA NO.3433/MUM/2012 ' ' ' ' # # # # / ASSESSMENT YEAR 2008-09 3 3. NOTICE OF HEARING WAS SENT TO THE ASSESSEE THROU GH RPAD. HOWEVER, NONE WAS PRESENT ON BEHALF OF THE ASSESSEE ON THE FIXED DATE OF HEARING. AS THE MATTER IS COVERED, WE PROCEED TO DECIDE THE PRE SENT APPEAL EX-PARTE QUA THE ASSESSEE. 4. LD. DR RELIED UPON THE ORDER PASSED BY THE A.O . 5. WE HAVE HEARD LD. DR AND CAREFULLY GONE THROUGH THE ASSESSMENT ORDER AND ORDER PASSED BY LD. CIT(A). THIS ISSUE IS NOW COVERED BY THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. MA NJULA J. SHAH, 249 CTR 270, WHEREIN IT HAS BEEN HELD THAT WHILE COMPUTING CAPITAL GAIN ARISING ON TRANSFER OF CAPITAL ASSET ACQUIRED BY THE ASSESSEE UNDER A GIFT, THE INDEXED COST OF ACQUISITION HAS TO BE COMPUTED WITH REFERENCE TO THE YEAR IN WHICH PREVIOUS OWNER HAS HELD THE ASSET AND NOT THE YEAR IN WHICH THE ASSESSEE BECAME OWNER OF THE ASSET. ACCORDINGLY, THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY AFOREMENTIONED DECISION OF HONBLE BOMBAY HIGH CO URT. THEREFORE, WE FIND NO INFIRMITY IN THE RELIEF GRANTED BY LD. CIT(A). WE DECLINE TO INTERFERE AND THE APPEAL FILED BY THE REVENUE IS DISMISSED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. / +0 * 1 / * + 23 4 ORDER PRONOUNCED IN THE OPEN COURT ON 18/09/2013 . * ,-# 1 5'0 18/09/2013 - * 6 4 SD/- S D/- ( / RAJENDRA ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 5' DATED 18/09/2013 . / ITA NO.3433/MUM/2012 ' ' ' ' # # # # / ASSESSMENT YEAR 2008-09 4 . . . . * ** * '+78 '+78 '+78 '+78 98#+ 98#+ 98#+ 98#+ / COPY OF THE ORDER FORWARDED TO : 1. $& / THE APPELLANT 2. '($& / THE RESPONDENT. 3. : ( ) / THE CIT(A)- 4. : / CIT 5. 8;6 '+' , , / DR, ITAT, MUMBAI 6. 6< = / GUARD FILE. .' .' .' .' / BY ORDER, (8+ '+ //TRUE COPY// > >> > / 2 2 2 2 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . ' . ./ VM , SR. PS