PRAMILA GAJANAN BHOIR, THANE V. ITO WD 3(2), KALYAN

ITA 4245/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5425 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 18-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Assessee Lawyers: M N NANDGAONKAR
• Keywords: Capital asset; Gift; Cost of acquisition; Fair market value
• Section: 143(3)

Judgement Text

SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , . . BEFORE SRI MAHAVIR SINGH, JM AND SRI NK PRADHAN, AM AAYAKR APILA SAM . / ITA NO. 4241/MUM/2018 ( INAQA - ARNA BAYA - / ASSESSMENT YEAR 2005 - 06 ) DRAUPADIBAI GAJANAN BHOIR NEAR CHATTRI BUNGLOW, KALYAN (W), 421301 VS. THE INCOME TAX OFFICER, WARD 3(2), KALYAN ( APILAAQAI - / APPELLANT) .. ( P`%YAQAAI - / RESPONDENT) . / P AN NO. ANKPB 8964 F AAYAKR APILA SAM . / ITA NO. 4242/MUM/2018 ( INAQA - ARNA BAYA - / ASSESSMENT YEAR 2005 - 06 ) PRADEEP GAJANAN BHOIR NEAR CHATTRI BUNGLOW, KALYAN (W), 421301 VS. THE INCOME TAX OFFICER WARD (3) - 2, KALYAN ( APILAAQAI - / APPELLANT) .. ( P`%YAQAAI - / RESPONDENT) . / PAN NO. ANKPB 8963 C AAYAKR APILA SAM . / ITA NO. 4243/MUM/2018 ( INAQA - ARNA BAYA - / ASSESSMENT YEAR 2005 - 06 ) PRAKASH GAJANAN BHOIR NEAR CHATTRI BUNGLOW, KALYAN (W), 421301 VS. THE INCOME TAX OFFICER WARD (3) - 2, KALYAN ( APILAAQAI - / APPELLAN T) .. ( P`%YAQAAI - / RESPONDENT) . / PAN NO. ANK PB 8963 C 2 ITA S NO. 42 41 - 4245 /MUM/201 8 AAYAKR APILA SAM . / ITA NO. 4244/MUM/2018 ( INAQA - ARNA BAYA - / ASSESSMENT YEAR 2005 - 06 ) PRATIBHA GAJANAN BHOIR NEAR CHATTRI BUNGLOW, KALYAN (W), 421301 VS. THE INCOME TAX OFFICER WARD (3) - 2, KALYAN ( APILAAQAI - / APPELLANT) .. ( P`%YAQAAI - / RESPONDENT) . / PAN NO. ANKPB 8870 E AAYAKR APILA SAM . / ITA NO. 4245/MUM/2018 ( INAQA - ARNA BAYA - / ASSESSMENT YEAR 2005 - 06 ) PRAMILA GAJANAN BHOIR NEAR CHATTRI BUNGLOW, KALYAN (W), 421301 V S. THE INCOME TAX OFFICER, WARD 3(2), KALYAN ( APILAAQAI - / APPELLANT) .. ( P`%YAQAAI - / RESPONDENT) . / PAN NO. ANKPB 8877 D / APPELLANT BY : SHRI M.N. NANDGAONKAR, AR / RESPONDENT BY : SHRI CHAITANYA ANJARIA, DR / DATE OF HEARING: 1 5 - 05 - 2019 / DATE OF PRONOUNCEMENT : 2 1 - 05 - 2019 AADOSA / O R D E R , / PER MAHAVIR SINGH, JM : THESE FIVE APPEAL S FILED BY THE FIVE DIFFERENT ASSESSEE ARE ARISING OUT OF THE DIFFERENT ORDER S OF COMMISSIONER OF INCOME TAX (APPEALS) - I , MUMBAI [IN S HORT CIT(A)], IN APPEAL NO. THN/ITQ (HQ) (CIB), PUNE/158 , 160, /07 - 08, DATED 29.01.10 . THE ASSESSMENT S WERE FRAMED BY THE 3 ITA S NO. 42 41 - 4245 /MUM/201 8 INCOME TAX OFFICER , MUMBAI (IN SHORT I TO/ AO) FOR THE A.Y. 2005 - 06 VIDE EVEN DATE 28.12.2007 UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) . 2. THE ONLY COMMON ISSUE IN THESE FIVE APPEALS OF DIFFERENT ASSESSEE S IS AS REGARDS TO THE COMPUTATION OF LONG TERM CAPITAL GAIN I N CASE WHERE THE COST OF ACQUISITION IS NIL. FOR THIS ASSESSEE HAS RAISED THE FOLLOWING FOUR GROUNDS . THE FACTS AND CIRCUMSTANCES OF THE ARE EXACTLY IDENTICAL IN ALL THE FIVE APPEALS. HENCE , WE WILL TAKE UP THE FACTS FROM ITA NO. 4245/MUM/2017 IN THE CASE OF PRAMILA GAJANAN BHOIR AND DECIDE THE ISSUE . THE RELEVANT GROUNDS RAISED READS AS UNDER : - (1) 'ON THE/ACT AND IN THE CIRCUMSTANCES OF THE CASE & IN LAW THE CIT('A) - 3 NASIK HAS ERRED IN NOT HOLDING THAT THE LAND ACQUIRED BY THE ANCESTORS OF THE APPELLA NT UNDER THE BOMBAY PERSONA LOOMS ABOLITION ACT, 1952 WAS ACQUIRED WITHOUT INCURRING ANY COST OF ACQUISITION. (2) 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE & IN LAW THE CIT( A ) - 3 NASIK HAS ERRED IN NOT APPRECIATING THE/ACT CHAT, IN ABSENCE OF COST OF ACQUISITION/OR THE LAND TO THE ANCESTORS OF THE APPELLANT, THE COMPUTATION PROVISIONS OF SECTION 48 OF THE ACT FAIL AND AS SUCH THE CHARGING PROVISIONS 0/ SEASON 45 OF THE ACT BECOME NON APPLICABLE TO THE CASE OF THE APPELLANT. (3) ON THE FACTS AND IN T HE CIRCUMSTANCES OF THE CASE & IN LAW THE LEARNED CJT(A) - 3, NASIK HAS ERRED IN HOLDING THAT THE PROVISIONS OF SECTION 55 OF THE ACT WERE APPLICABLE TO THE CASE OF THE APPELLANT AND AS 4 ITA S NO. 42 41 - 4245 /MUM/201 8 SUCH THE FAIR MARKET VALUE OF THE LAND ON 01.04.1 981 WAS THE COST OF AC QUISITION OF THE LAND ('4) 'ON THE F ACTS AND IN THE CIRCUMSTANCES OF THE CASE & IN LAW THE CIT(A) - 3 NASIK HAS ERRED IN HOLDING THAT THE COST OF ACQUISITION OF THE LAND IN THE HANDS OF THE PREVIOU S OWNER WAS NOT ASCERTAINABLE WHEN THE LAND WAS ACQUIRED BY T HE ANCESTORS OF THE APPELLANT WITHOUT ANY COST OF ACQUISITION AND AS SUCH THE COST OF ACQUISITION TO THE PREVIOUS OWNERS WAS ASCERTAINABLE I.E THE LAND WAS ACQUIRED WITHOUT ANY COST OF ACQUISITION . 3. BRIEFLY STATED FACTS ARE THAT T HE LAND REVENUE RECORDS RE VEALED THAT THE LAND BEARING SURVEY NO 45 / 3 VILLAGE GANDHARE, KALYAN HAD VESTED ON IN THE ANCESTORS OF THE ASSESSEE BY OPERATION OF THE BOMBAY PERSONAL INAMS ABOLITION ACT , 1952 . THE GREAT GRANDFATHER OF THE ASSESSEE AND OTHER CO - OWNERS, LATE SHIVRAM NATHU BHOIR WAS THE INFERIOR LANDHOLDER OF THE SAID LAND AND THE INAM DAR WHO WAS THE SUPERIOR LANDHOL DER. BY OPERATION OF THE SAID ACT AND MORE SPECIFICALLY SEC 5(2)(B) OF THE SAID ACT, THE INFERIOR HOLDER WAS MADE PRIMARILY LIABLE TO THE STATE GOVERNMENT FOR PAYMENT OF LAND REVENUE DUE IN RESPECT OF SUCH LAND HELD BY HIM AND SHALL BE ENTITLED TO ALL RIGHTS AND SHALL BE LIABLE TO ALL OBLIGATIONS IN RESPECT OF SUCH LAND AS AN O CCUPANT UNDER THE CODE OR THE RULES MADE THERE UNDER OR ANY OTHER LAW FOR THE TIME BE ING IN FORCE. THE PHRASE PERSONAL INA M HAS BEEN DEFINED IN SEE 2(1) (C) OF THE SAID ACT WHICH READS AS UNDER PERSONAL LNAM' MEANS I. A GRANT OF VILLAGE, PORTION OF A VILLAGE, (LAND (INCLUDING ANY SHARE IN THE REVENUE OF A VILLAGE OR A PORTION THEREOF OR LAND) OR 'TOTAL OR PARTIAL EXEMPTION 5 ITA S NO. 42 41 - 4245 /MUM/201 8 FROM THE PAYMENT OF LAND REVENUE ENTERED AS PERSONAL INAM IN THE ALIENATION REGISTER KE PT UNDER SECTION 53 OF THE CODE. II. A GRANT OF MONEY OR LAND REVENUE INCLUDING ANYTHING PAYABLE AS CASH ALLOWANCE ON THE PART OF TH E STATE GOVERNMENT IN RESPECT OF ANY RIGHT, PRIVILEGE, REQUISITE OR OFFICE AS CLASS I,II,III , IV OR V IN THE RECORDS KEPT UNDER THE RULES MADE UNDER THE PENSIONS ACT 1871. THE LAND BEARING SUR VEY NO. 453 OF VILLAGE GANDHARE, KALYAN WAS GRANT OF LAND TO THE LNAMDAR AS A INAM LAND AND WAS HOLD AS PERSONAL INAMN AS DEFINED IN SEC 2(1)(C,D & E). T HE ANCESTOR OF THE ASSESSEE ACQUIRED THE MIGHT IN THE SAID LAND ON ACCOUNT OF BEING THE INFERIOR HOLDER OF THE SAID INA M LAND ON 01.08.1955 WHEN THE BOMBAY PERSONAL L NAM S ABOLITION ACT , 1952 WAS IMPLEMENTED . BY OPERATION OF SECTION 5(2)(B) OF THE SAID ACT , THE ANCESTORS BECOME LIABLE FOR PAYMENT OF LAND REVENUE AND BECAME ENTITLED TO ALL RIGHTS AND LIABLE TO ALL OBLIGATIONS IN RESPECT OF SUCH LAND AS AN OCCUPANT. THE L AND BEING HELD AS PERSONAL INAM WAS VESTED IN THE ANCESTORS OF THE ASSESSEE AS A G R ANT FREE OF ANY COST. INAM IS A GRANT OR GIFT FROM RULER OR AUTHORITY OF ANY TERRITORY. IN VIEW OF THE ABOVE FACTS , THE LAND WAS ACQUIRED BY THE ANCESTOR OF THE ASSESSEE AS AN INAM AND BY OPERATION OF LAW WITHOUT ANY COST OF ACQUISITION . THE F ACT THAT THE LAND VESTED IN THE ANCESTORS OF THE ASSESSEE BY OPERATION OF LAW CAME TO THE KNOWLEDGE OF THE ASSESSEE WHEN THE SEARCH OF LAND REVENUE RECORDS WAS OBTAINED IN JUNE 2008 F OR PREPARATION OF THE ASSESSEES SUBMISSION TO BE FILED IN THE APPEAL BEFORE CIT(A). 6 ITA S NO. 42 41 - 4245 /MUM/201 8 4. ACCORDINGLY, THE ASSESSEE WAS HAVING 1/7 TH SHARES IN THE PROPERTY AND THROUGH DEVELOPMENT AGREEMENT DATED 28.12.2004, THE RIGHTS IN THE PROPERTY WAS TRANSFERRED TO THE DE VELOPER. THE ASSESSEE BEFORE CIT(A) AS WELL AS BEFORE TRIBUNAL RAISED THE ISSUE THAT ONCE THERE IS NO COST OF ACQUISITION OR THE COST OF ACQUISITION IS NIL IN TERM OF SECTION 49 READ WITH SECTION 55(2) AND 55(3) OF THE ACT, NO TAX ON CAPITAL GAIN IN CONSEQ UENCE TO TRANSFER OF SUCH ASSET COULD BE CHARGED. THE ASSESSEE BEFORE US AND BEFORE CIT(A) ALSO FILED COPIES OF 7/12 EXTRACT OF THE LAND, WHEREIN THE ASSESSEE IS ONE OF THE CO - OWNER OF 1/7 TH AND FURTHER THE COPY OF RECORD OF RIGHTS IN FORM NO. 16 IS ENCLOS ED AT PAGE 1 AND 2 OF ASSESSEES PAPER BOOK . THE CERTIFIED COPY OF THE TRANSLATION OF ENGLISH FROM MARATHI OF THE VILLAGE RECORD I.E. RECORD OF RIGHTS IS ENCLOSED AT PAGE 3 TO 5, WHEREIN IT IS CLEARLY STATED THAT THIS LAND WAS H E LD BY THE ASSESSEE AS INAMD AR OWNER AS PER SECTION 5(2)(B) OF THE BOMBAY PERSONAL INAMS ABOLITION ACT, 1952 AND THE TYPE OF RIGHT MENTIONED READ AS UNDER : - VILLAGE NO 6 RECORD OF RIGHTS VILLAGE - GANDHARE TALUKA - KALYAN ENTRY NO. TYPE OF RIGHTS SURVEY NO. & HISSA NO. AS PER MUTATION ENTRY SIGN & REMARK OF INSPECTING OFFICER 49 ON 20.08.1957 BELOW MENTION PERSON WAS PAYING LAND REVENUE TO INAMDAR AS SUCH SHARE OF THE LAND SHOWN IN THE NEXT COLUMN IS RECORDED IN HIS NAME AS ACCOUNT HOLDER AS PER SECTION 5(2)(B) OF THE BOMBAY PERSONA L INAMS ABOLITION ACT, 1952. 45/3 CERTIFIED SD/ C.O., KALYAN 12/10/57 5. THIS CERTIFICATE WAS ISSUED BY TALATHI, SAJA KALYAN, TALUKA KALYAN, DIST. THANE ON 20.06.2008 . FURTHER, COPY OF RECORD OF RIGHTS IN FORM NO. 6, IN CONTINUATION, WAS ISSUED ON THE VERY S AME DATE 20.06.2008 BY TALATHI, 7 ITA S NO. 42 41 - 4245 /MUM/201 8 SAJA KALYAN, TALUKA KALYAN, DIST. THANE STATING THAT THE FOLLOWING 7 LEGAL HEIRS OF ORIGINAL HOLDER SHIVRAM NATHU BHOIR WERE THE OWNER AND THE RELEVANT RECORD READ AS UNDER: - VILLAGE NO 6 RECORD OF RIGHTS VILLAGE - GANDHARE T ALUKA - KALYAN ENTRY NO. TYPE OF RIGHTS SURVEY NO. & HISSA NO. AS PER MUTATION ENTRY SIGN & REMARK OF INSPECTING OFFICER 640 AS PER LEGAL HEIR SEARCH DATED 2/10/96 ACCOUNT HOLDER SHIVRAM BHOIR HAS EXPIRED AND HE HAD ONLY ONE SON, MARUTI SHIVRAM BHOIR WHO HA S EXPIRED 19 YEARS AGO, WHO HAD ONLY ONE SON GAJANAN MARUTI BHOIR WHO HAS EXPIRED ON 5/7/96 HIS LEGAL HEIRS ARE AS UNDER: 1. DRAUPADIBAI GAJANAN BHOIR, WIFE 2. PRAKASH GAJANAN BHOIR, SON 3. PRAMOD GAJANAN BHOIR, SON, 4. PRADEEP GAJANAN BHOIR, SON 5. PRASHA NT GAJANAN BHOIR, SON 6. PRAMILA GAJANAN BHOIR, DAUGHTER 7.PRATIBHA GAJANAN BHOIR, DAUGHTER THE DECEASED HAS SEVEN LEGAL HEIRS AS ABOVE AND HAS NO OTHER LEGAL HEIRS, THE NAMES OF THE LEGAL HEIRS ARE RECORDED BY DELETING THE NAME OF THE DECEASED (ENTRY VIL LAGE - CHIKANGHAR, MUTATION ENTRY, 256, 2425 & 3896 VERIFIED AND THIS MUTATION ENTRY RECORDED.) 45/3 VILLAGE CHIKANGHAR MUTATION ENTRY NOS. 256, 2425 &3895 ARE SANCTIONED AND HENCE THIS MUTATION ENTRY IS SANCTIONED SD/ CIRCLE OFFICER C.O., KALYAN 23.10.96 THESE DOCUMENTS WERE NOT DISPUTED BY THE REVENUE AND THESE ARE ADMITTED FACTS. 6. THE CIT(A) HAS DECIDED THIS GROUND AND HELD THAT THE PLEA OF THE ASSESSEE THAT THE PROPERTY IN QUESTION WAS ACQUIRED BY THE GREAT GRANDFATHER FREE OF COST, IS CONTRADICTORY A S THE ASSESSEE HIMSELF HAS 8 ITA S NO. 42 41 - 4245 /MUM/201 8 WORKED OUT THE COST ON THE BASIS OF THE REPORT OF THE VALUATION. THE CIT(A) REJECTED THESE GROUNDS VIDE PARA 6.1 AND 6.2 AS UNDER : - 6.1 THE ADDITION GROUND IS ENTERTAINED AND CONSIDERED. IN THE SUBMISSION IT IS EXPLAINED BY TH E APPELLANT THAT THE LAND IN QUESTION HAD BEEN ACQUIRED BY THE GREAT GRAND FATHER OF THE APPELLANT IN THE YEAR 1955 AS GIFT / INAM ON ACCOUNT OF IMPLEMENTATION OF BOMBAY PERSONAL INAM ABOLITION ACT, 1952 AND HENCE THERE WAS NO COST TO THE APPELLANT. IN RES PECT OF THIS ARGUMENT, THE APPELLANT HAS PLACED RELIANCE ON THE FOLLOWING DECISIONS 1. NIRMALA L MEHTA VS BALASUBRAM ANIAM CIT (2004) 269 ITS 1 (BOM ) 2. AMALGAMATED COALFIELDS LTD VS JANAPADA SABHA AIR 1961 ( SC ) 3. MAYANK PODDAR (HUF) VS WTO (2003) 181 CIR (CAL) 262 (2003) 262 ITR 633 (CAL). 6.2 THE CASES ARE PERUSED AND CONSIDERED. I FIND THAT THE ADDITIONAL GROUND IS IN THE NATURE OF ALTERNATE PLEA. THE CASE REPORTED IN 128 HR 294 (SC) ARE NOT RELEVANT TO THE CASE OF THE APPELLANT. I HAVE ALREADY HELD THA T BY HANDING OVER THE PROPERTY IN QUESTION FOR DEVELOPMENT WITH DEVELOPMENT RIGHTS THROUGH A WRITTEN ARGUMENT AND HAVING AGREED TO RECEIVED 7200 SQ . FT . OF CONSTRUCTED AREA AS CONSIDERATION IN LIEU OF THE TRANSFER OF THE RIGHTS, TRANSFER WITHIN THE MEANING OF SECTION 2(47) RWS 53A HAS TAKEN PLACE GIVING RISE TO LONG TERM CAPITAL GAIN. 9 ITA S NO. 42 41 - 4245 /MUM/201 8 THE PLEA THAT THE PROPERTY IN QUESTION WAS ACQUIRED BY THE GREAT GRAND FATHER FREE OF COST AND, THEREFORE, THE PROPERTY IS NOT LIABLE FOR CAPITAL GAINS AT ALL IS IRRELEVANT AN D UNACCEPTABLE. THE FACTS IN THIS CASE ARE DISTINGUISHABLE FROM THE CASES THAT ARE RELIED UPON BY THE APPELLANT. HOWEVER, THE ASSESSEE HIMSELF HAS WORKED OUT THE COST ON THE BASIS OF A REPORT FROM A VALUER. ACCORDINGLY, I HOLD THAT THE ACTION OF THE AO DOE S NOT SUFFER FROM ANY INFIRMITY AND HENCE I UPHOLD THE ACTION OF THE AO. THE GROUND IS, THEREFORE, DISMISSED. AGGRIEVED, ASSESSEE CAME IN APPEAL BEFORE TRIBUNAL. 7. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. THE ABOVE FACTS ARE UN DISPUTE D THAT THIS PROPERTY WAS ORIGINALLY CAME TO ASSESSEES GREAT GRANDFATHER IN THE NAME OF SHIVRAM NATHU BHOIR, WHO WAS THE HOLDER OF THE LAND BEARING SURVEY NO. 45/3 VILALGE - GANDHARE , TALUKA - KALYAN WHICH HAS BEEN VESTED IN THE NAME OF SHIVRAM NATHU BHOIR ON INTRODUCTION OF BOMBAY PERSONAL INAMS ABOLITION ACT, 1952 . IT IS ALSO ADMITTED FACT THAT BY WAY OF OPERATION OF THE SAID ACT AND PARTICULARLY, THE PROVISIONS OF SECTION 5(2)(B) OF THE BOMBAY PERSONAL INAMS ABOLITION ACT, 1952 , INF ERIOR HOLDER MADE PRIMARILY LIABLE TO THE SAID GOVERNMENT FOR PAYMENT OF LAND REVENUE DEEMED IN RESPECT OF SUCH LAND H E LD BY HIM AND SHALL BE ENTITLED TO RIGHTS AND SHALL BE LIABLE TO ALL RIGHTS IN RESPECT OF SUCH LAND AS AN OCCUPANT UNDER THE CORE OF THE RULES MADE THEREUNDER OR ANOTHER LAW FOR THE TIME BEING INFORCE. HENCE, THIS PROPERTY HAS DEVOLVED IN THIS WAY AND NOW OWNER OF THE PROPERTY BY VIRTUE OF THE PROVISIONS OF SECTION 5(2)(B) OF THE BOMBAY PERSONAL INAMS 10 ITA S NO. 42 41 - 4245 /MUM/201 8 ABOLITION ACT, 1952 . NOW, THE QUESTION ARISES WHEN THERE IS NIL COST , THE PROVISIONS OF SECTION 55(2)(B) OR SECTION 55(3) OF THE ACT WILL APPLY OR NOT. WE ARE OF THE VIEW THAT BY VIRTUE OF THE PROVISIONS OF INCOME TAX ACT CAPITAL GAIN ARISING ON TRANSFER OF CAPITAL ASSET IS SUBJECT TO CAPITAL G AIN TAX AND THE METHOD IS PRESCRIBED IN SECTION 48 OF THE ACT FOR THE COMPUTATION OF CAPITAL GAINS. THE COST OF ACQUISITION AND EXPENDITURE RELATING TO THE TRANSFER ARE DEDUCTED FROM THE FULL VALUE OF CONSIDERATION TO ARRIVE AT THE CAPITAL GAINS. HONBLE S UPREME COURT IN THE CASE OF CIT VS. B.C. SRINIVASA SETTY [1981] 128 ITR 294 (SC) HAS HELD THAT NONE OF THE PROVISIONS PERTAINING TO THE HEAD CAPITAL GAINS SUGGEST THAT THE CAPITAL ASSETS INCLUDE AN ASSET IN THE ACQUISITION OF WHICH NO COST AT ALL CAN BE CO NCEIVED. THE COURTS HAVE DECIDED THAT WHERE THE COST OF ASSETS TO ASSESSEE IS NIL, NO TAX ON CAPITAL GAINS CONSEQUENT TO TRANSFER OF SUCH ASSET COULD BE CHARGED. THEY HAVE RULED THAT ONLY IF AN ASSET DID SOME COST S TO THE ASSESSEE IN TERM OF THE MONEY ONLY THEN, THE PROVISIONS RELATING TO THE LEVY OF TAX OF CAPITAL GAINS UNDER SECTION 45(1) OF THE ACT READ WITH SECTION 48(2) OF THE ACT WOULD APPLY. A TRANSACTION TO WHICH PROVISIONS CANNOT BE APPLIED HAS HELD TO BE ONE NEVER INTENDED BY SECTION 45(1) TO BE S UBJECT OF THE CHARGE. THE COURTS HAVE FURTHER INTERPRETED THAT THE INTENT OF LEVYING CAPITAL GAIN TAX GOES TO THE NATURE AND CHARACTER OF THE ASSET , THAT IT IS AN ASSET WHICH POSSESSES THE INHERENT QUALITY OF BEING AVAILABLE ON EXPENDITURE OF MONEY TO A PE RSON SEEKING TO ACQUIRE IT . AS REGARDS TO THE APPLICATION OF THE PROVISIONS OF SECTION 55(3) OF THE ACT, THIS ISSUE IS DEBATABLE AND CONTROVERSIAL BECAUSE THE HONBLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT VS. RAJA MALWINDER SINGH [2011] 334 ITR 48 (PUNJAB & HARYANA) (FB) HAS CONSIDERED AND HELD THAT EVEN IN THE CASE WHERE COST OF ACQUISITION CANNOT BE ASCERTAINED, THE PROVISIONS OF SECTION 55(3) OF THE ACT 11 ITA S NO. 42 41 - 4245 /MUM/201 8 STATUTORILY PRESCRIBED THE COST TO BE EQUAL TO THE MARKET VALUE ON THE DATE OF ACQUISITION. HONBLE HIGH COURT HAS CONSIDERED THIS ISSUE IN PARA 5 AND 6 AS UNDER: - 5. IT IS POINTED OUT THAT THE JUDGMENT IN B.C. SRINIVASA SETTY'S CASE (SUPRA) IS DISTINGUISHABLE. IT WAS OBSERVED THEREIN THAT IN A NEWLY STARTED BUSINESS THE VALUE OF GOODWILL WAS NOT ASCERTAINABLE, AND ON SALE OF GOODWILL, CAPITAL GAIN WAS NOT ATTRACTED. IT IS SUBMITTED THAT IN THE CASE OF ACQUISITION OF LAND, THE SAME IS EITHER ACQUIRED AT SOME COST OR WITHOUT COST AND UNDER THE SCHEME OF THE ACT, THERE CAN BE NO SITUATION WHEN T HE COST IS INCAPABLE OF ASCERTAINMENT. SECTION 55(2) PROVIDES FOR TAKING THE COST EITHER EQUAL TO THE MARKET VALUE AS ON JANUARY 1, 1954, OR AT THE OPTION OF THE ASSESSEE EQUAL TO THE COST OF ACQUISITION OF THE PREVIOUS OWNER. SECTION 55(3) PROVIDES THAT W HERE THE COST OF ACQUISITION OF THE PREVIOUS OWNER CANNOT BE ASCERTAINED, IT HAS TO BE TAKEN TO BE EQUAL TO THE MARKET VALUE ON THE DATE THE ASSET WAS ACQUIRED BY THE PREVIOUS OWNER. THE EXPLANATION TO SECTION 49 PROVIDES THAT PREVIOUS OWNER IS THE PERSON NOT COVERED BY THE CLAUSES MENTIONED IN SECTION 49(2), I.E., WHO ACQUIRES PROPERTY OTHERWISE THAN BY WAY OF GIFT, WILL OR BY SUCCESSION. 6. IN THE PRESENT CASE, THE ASSESSEE ACQUIRED THE PROPERTY BY SUCCESSION FROM THE PREVIOUS OWNER. ACCORDING TO THE STAN D OF THE ASSESSEE, THE COST OF ACQUISITION BY THE PREVIOUS OWNER COULD NOT BE 12 ITA S NO. 42 41 - 4245 /MUM/201 8 ASCERTAINED. HOWEVER, HE FAILED TO EXERCISE THE OPTION OF GOING EITHER BY THE DATE OF MARKET VALUE ON THE DATE OF ACQUISITION OR BY THE COST OF THE PREVIOUS OWNER IN WHICH CASE T HE ONLY OPTION AVAILABLE TO THE ASSESSING OFFICER WAS TO PROCEED TO COMPUTE CAPITAL GAIN BY TAKING THE COST OF THE ASSET TO BE THE FAIR MARKET VALUE ON THE SPECIFIED DATE, I.E., JANUARY 1, 1954 AS PER APPLICABLE PROVISION FOR ASSESSMENT YEAR 1977 - 78 AND AS ON JANUARY 1, 1964 FOR THE ASSESSMENT YEAR 1978 - 79. EVEN IN A CASE WHERE THE COST OF ACQUISITION CANNOT BE ASCERTAINED, SECTION 55(3) STATUTORILY PRESCRIBES THE COST TO BE EQUAL TO THE MARKET VALUE ON THE DATE OF ACQUISITION. THIS BEING THE POSITION, CAPI TAL GAIN IS NOT EXCLUDED EVEN ON THE PLEA THAT VALUE OF THE ASSET IN RESPECT OF WHICH CAPITAL GAIN IS TO BE CHARGED WAS INCAPABLE OF BEING ASCERTAINED. THE VIEW TAKEN IN AMRIK SINGH'S CASE (SUPRA) BASED ON THE ASSUMPTION THAT WHERE MARKET VALUE CANNOT BE A SCERTAINED, CAPITAL GAIN CANNOT BE APPLIED, IS NOT CORRECT BEING AGAINST THE STATUTORY SCHEME. SIMILARLY, THE VIEW TAKEN BY THE MADHYA PRADESH HIGH COURT IN CIT V. H.H MAHARAJA SAHIB SHRI LOKENDRA SINGHJI [1986] 162 ITR93/25 TAXMAN 66 CANNOT BE ACCEPTED. THE SAID JUDGMENT ALSO DOES NOT GIVE EFFECT TO THE MANDATE OF SECTION 55(3) WHICH PROVIDES FOR A SITUATION WHERE THE VALUE OF THE ASSET ACQUIRED COULD NOT BE ASCERTAINED . IF THE MARKET VALUE CAN BE ASCERTAINED, IT HAS TO BE TAKEN TO BE EQUAL THERETO AND IF THE VALUE CANNOT BE ASCERTAINED, IT HAS TO BE EQUAL TO THE MARKET VALUE ON A SPECIFIED DATE AT THE 13 ITA S NO. 42 41 - 4245 /MUM/201 8 OPTION OF THE ASSESSEE. IT IS NOT THE CASE OF THE ASSESSEE THAT LAND HAD NO MARKET VALUE AT ALL ON THE DATE OF ITS ACQUISITION. THE CONTENTION THAT THE VALUE WAS INCAPABLE OF BEING ASCERTAINED, AS ALREADY OBSERVED, THE VALUE IN SUCH CASE HAS TO BE TAKEN AS BEING EQUAL TO M ARKET VALUE ON A SPECIFIED DATE . 8. ON CONTRARY, THE H ONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. KANUBHAI R. SHAH (HUF) [1993] 201 ITR 1050 (BOMBAY) H AS HELD THAT AS THE PROVISIONS OF SECTION 55(3) OF THE ACT ARE ATTRACTED ONLY IN THE CASE, WHERE THE COST FOR WHICH THE PREVIOUS OWNER ACQUITTED THE PROPER TY CANNOT BE ASCERTAINED BUT THESE PROVISIONS ARE NOT ATTRACTED TO A CASE WHERE THE PROPERTY HAS BEEN RECEIVED BY THE ASSESSEE ON A PARTIALLY PARTITION OF THE HUF. HONBLE BOMBAY HIGH COURT HAS REASONED IN THIS CASE, THAT WHERE THE COST OF ACQUISITION IN T HE HANDS OF THE ASSESSEE IS NIL , NO CAPITAL GAIN TAX CAN BE LIEVED . EVEN TAKING SUCH CASE AS FALLING UNDER SECTION 49(1)(I) OF THE ACT, THE COST OF ACQUISITION WOULD BE NIL BECAUSE EVEN IN THE HANDS OF THE PREVIOUS OWNER IT WAS NIL AS THE PREVIOUS OWNER HU F OBTAINED THE PROPERTY AS A RESULT OF BLENDING. HONBLE BOMBAY HIGH COURT CONSIDERING THE PROVISIONS OF SECTION 55(3) OF THE ACT HELD AS UNDER: - 6. A QUESTION AROSE ABOUT THE COMPUTATION OF CAPITAL GAIN ON TRANSFER OF THE SHARE OF LAND FALLING TO THE S HARE OF THE ASSESSEE - HINDU UNDIVIDED FAMILY FOR WHICH IT HAD RECEIVED THE COMPENSATION OF RS. 62,535. THE ASSESSEE COMPUTED THE CAPITAL GAIN BY TAKING THE COST OF ACQUISITION OF THE LAND AS THE FAIR MARKET VALUE AS ON MARCH 25, 1970, THAT IS THE DATE OF AC QUISITION OF THE SAME BY THE PREVIOUS OWNER, 14 ITA S NO. 42 41 - 4245 /MUM/201 8 THAT IS, THE BIGGER HINDU UNDIVIDED FAMILY WHICH, ACCORDING TO THE ASSESSEE, WAS RS. 67,728. THIS WAS DONE BY TAKING RESORT TO SECTION 55(3) OF THE ACT. THUS, TAKING THE COST OF ACQUISITION AT RS. 67,728 AND THE CONSIDERATION RECEIVED ON TRANSFER RS. 62,535, A CAPITAL LOSS OF RS. 5,192 WAS COMPUTED AND THE SAME WAS CLAIMED BY THE ASSESSEE IN ITS RETURN OF INCOME UNDER THE ACT FOR THE YEAR UNDER CONSIDERATION. 7. THE INCOME - TAX OFFICER DID NOT ACCEPT THE COMPUTATI ON OF CAPITAL GAIN AS MADE BY THE ASSESSEE AS, ACCORDING TO HIM, SECTION 55(3) OF THE ACT HAD NO APPLICATION TO THE FACTS OF THE ASSESSEE'S CASE. ACCORDING TO HIM, THE COST OF THE LAND TO THE ASSESSEE - HINDU UNDIVIDED FAMILY WAS NIL BECAUSE OF THE FACT THAT THE COST OF THE SAID LAND TO THE PREVIOUS OWNER, I.E., THE BIGGER HINDU UNDIVIDED FAMILY FROM WHICH THE ASSESSEE HAD RECEIVED THE SAME ON PARTITION WAS ALSO NIL IN VIEW OF THE ABOVE FINDING, THE INCOME - TAX OFFICER TREATED THE TOTAL AMOUNT OF RS. 62,535 RE CEIVED BY THE ASSESSEE FROM THE LAND ACQUISITION OFFICER AS A SHORT - TERM CAPITAL GAIN AND ASSESSED THE SAME IN THE HANDS OF THE ASSESSEE AS SUCH. 8. THE ASSESSEE WENT IN APPEAL TO THE APPELLATE ASSISTANT COMMISSIONER. THE APPELLATE ASSISTANT COMMISSIONER A CCEPTED THE CONTENTION OF THE ASSESSEE THAT THE COST OF THE LAND HAD TO BE TAKEN TO BE THE MARKET VALUE ON THE DATE OF ACQUISITION BY THE BIGGER HINDU UNDIVIDED FAMILY. ACCORDING TO THE 15 ITA S NO. 42 41 - 4245 /MUM/201 8 APPELLATE ASSISTANT COMMISSIONER, THE INSERTION OF CLAUSE (IV) OF SUB - SECTION (1) OF SECTION 49 OF THE ACT BY THE TAXATION LAWS (AMENDMENT) ACT, 1975, WITH EFFECT FROM APRIL 1, 1976, HAD NO APPLICATION TO THE CASE OF THE ASSESSEE WHICH PERTAINS TO THE ASSESSMENT YEAR 1972 - 73. THE APPEAL OF THE REVENUE TO THE TRIBUNAL WAS REJ ECTED. THE TRIBUNAL AFFIRMED THE FINDING OF THE APPELLATE ASSISTANT COMMISSIONER. IT HELD THAT CLAUSE (IV) OF SUB - SECTION (1) OF SECTION 49 HAVING COME INTO FORCE FROM APRIL 1, 1976, HAD NO APPLICATION TO THE CASE OF THE ASSESSEE. HENCE THIS REFERENCE AT T HE INSTANCE OF THE REVENUE. 9. WE MAY NOW BRIEFLY REFER TO THE RELEVANT PROVISIONS OF THE ACT WHICH DEAL WITH CAPITAL GAINS. SECTION 45 OF THE ACT PROVIDES THAT ANY PROFITS OR GAINS ARISING FROM THE TRANSFER OF A CAPITAL ASSET EFFECTED IN THE PREVIOUS YEAR SHALL BE CHARGEABLE TO INCOME - TAX UNDER THE HEAD 'CAPITAL GAINS' AND SHALL BE DEEMED TO BE THE INCOME OF THE PREVIOUS YEAR IN WHICH THE TRANSFER TOOK PLACE. 'TRANSFER' HAS BEEN DEFINED IN SECTION 2(47)OF THE ACT. TRANSACTIONS WHICH ARE NOT TO BE REGARDED AS 'TRANSFER' FOR THE PURPOSE OF CHARGING CAPITAL GAINS UNDER SECTION 45 HAVE BEEN SET OUT IN SECTION 47 OF THE ACT WITH WHICH WE ARE NOT CONCERNED IN THE PRESENT CASE. SECTION 48 OF THE ACT LAYS DOWN THE MODE OF COMPUTATION OF CAPITAL GAINS. IT PROVIDES T HAT THE INCOME CHARGEABLE UNDER THE HEAD 'CAPITAL GAINS' SHALL BE COMPUTED BY DEDUCTING FROM THE FULL VALUE OF THE CONSIDERATION FOR 16 ITA S NO. 42 41 - 4245 /MUM/201 8 THE TRANSFER, THE COST OF ACQUISITION OF THE CAPITAL ASSET AND THE COST OF IMPROVEMENT AND ALSO EXPENDITURE INCURRED WHOLLY AND EXCLUSIVELY IN CONNECTION WITH SUCH TRANSFER. THEN COMES SECTION 49 WHICH LAYS DOWN CERTAIN RULES FOR COMPUTING THE COST OF ACQUISITION OF ASSETS WHICH BECAME THE PROPERTY OF THE ASSESSEE BY ANY OF THE MODES MENTIONED THEREIN. THIS SECTION HAS A MATER IAL BEARING ON THE DETERMINATION OF THE CONTROVERSY IN THE PRESENT CASE AND, THEREFORE, IT HAS BEEN SET OUT BELOW: '49. (1) WHERE THE CAPITAL ASSET BECAME THE PROPERTY OF THE ASSESSEE (I) ON ANY DISTRIBUTION OF ASSETS ON THE TOTAL OR PARTIAL PARTITION O F A HINDU UNDIVIDED FAMILY; (II) UNDER A GIFT OR WILL; (III) (A) BY SUCCESSION, INHERITANCE OR DEVOLUTION, OR (B) ON ANY DISTRIBUTION OF ASSETS ON THE DISSOLUTION OF A FIRM, BODY OF INDIVIDUALS OR OTHER ASSOCIATION OF PERSONS, OR (C) ON ANY D ISTRIBUTION OF ASSETS ON THE LIQUIDATION OF A COMPANY, OR (D) UNDER A TRANSFER TO A REVOCABLE OR AN IRREVOCABLE TRUST, OR (E) UNDER ANY SUCH TRANSFER AS IS REFERRED TO IN CLAUSE (IV) OR CLAUSE (V) OR CLAUSE (VI) OF SECTION 47; (IV) SUCH ASSESSEE BEING A HINDU UNDIVIDED FAMILY, BY THE MODE REFERRED TO IN SUB - SECTION (2) OF SECTION 64 AT ANY TIME AFTER THE 31ST DAY OF DECEMBER, 1969, THE COST OF ACQUISITION OF THE ASSET SHALL BE DEEMED TO BE THE COST FOR WHICH THE PREVIOUS OWNER OF THE PROPERTY AC QUIRED IT, AS INCREASED BY THE COST OF ANY IMPROVEMENT OF THE ASSETS INCURRED OR BORNE BY THE 17 ITA S NO. 42 41 - 4245 /MUM/201 8 PREVIOUS OWNER OF THE ASSESSEE, AS THE CASE MAY BE. EXPLANATION : IN THIS SUB - SECTION, THE EXPRESSION 'PREVIOUS OWNER OF THE PROPERTY' IN RELATION TO ANY CAPITAL ASSET OWNED BY AN ASSESSEE MEANS THE LAST PREVIOUS OWNER OF THE CAPITAL ASSET WHO ACQUIRED IT BY A MODE OF ACQUISITION OTHER THAN THAT REFERRED TO IN CLAUSE (I) OR CLAUSE (II) OR CLAUSE (III)OR CLAUSE (IV) OF THIS SUB - SECTION. (2) WHERE THE CAPITAL ASSET B EING A SHARE OR SHARES IN AN AMALGAMATED COMPANY WHICH IS AN INDIAN COMPANY BECAME THE PROPERTY OF THE ASSESSEE IN CONSIDERATION OF A TRANSFER REFERRED TO IN CLAUSE (VII) OF SECTION 47, THE COST OF ACQUISITION OF THE ASSET SHALL BE DEEMED TO BE THE COST OF ACQUISITION TO HIM OF THE SHARE OR SHAR ES IN THE AMALGAMATING COMPANY. IT MAY BE MENTIONED THAT CLAUSE (IV) TO SUB - SECTION (1) OF SECTION 49 WAS INSERTED BY THE TAXATION LAWS (AMENDMENT) ACT, 1975, WITH EFFECT FROM APRIL 1, 1976.THE WORDS 'OR CLAUSE (IV)' IN THE EXPLANATION WERE ALSO INSERTED BY THE SAME AMENDMENT ACT WITH EFFECT FROM APRIL 1, ] 976. A PLAIN READING OF THIS SECTION CLEARLY GOES TO SHOW THAT IT CONTAINS CERTAIN EXCEPTIONS TO THE GENERAL RULE THAT THE COST OF ACQUISITION WOULD MEAN THE COST OF ACQUISITION TO THE ASSESSEE. UNDER THIS SECTION, IN CASES FALLING UNDER IT, THE COST TO THE PREVIOUS OWNER 18 ITA S NO. 42 41 - 4245 /MUM/201 8 IS DEEMED TO BE THE COST OF ACQUISITION TO THE ASSESSEE. THERE ARE A NUMBER OF OTHER PROVISIONS DEALING WITH VARIOUS ASPECTS RELEVANT FOR COMPUTAT ION OF CAPITAL GAINS BUT WE NEED NOT REFER TO THE SAME AS THEY HAVE NO RELEVANCE TO THE CONTROVERSY BEFORE US. THE ONLY OTHER SECTION WHICH IS IMPORTANT FOR OUR PURPOSE IS SECTION 55 OF THE ACT WHICH LAYS DOWN THE MEANING OF COST OF ACQUISITION, ETC., FOR THE PURPOSES OF SECTIONS 48,49 AND 50 IN CASES FALLING THEREUNDER. THE ASSESSEE IN THE PRESENT CASE RELIES ON SUB - SECTION (3) THEREOF WHICH IS SET OUT BELOW: '55. (3) WHERE THE COST FOR WHICH THE PREVIOUS OWNER ACQUIRED THE PROPERTY CANNOT BE ASCERTAINED, THE COST OF ACQUISITION TO THE PREVIOUS OWNER MEANS THE FAIR MARKET VALUE ON THE DATE ON WHICH THE CAPITAL ASSET BECAME THE PROPERTY OF THE PREVIOUS OWNER . 10. LEARNED COUNSEL FOR THE REVENUE SUBMITS THAT A PLAIN READING OF SECTION 49 MAKES IT CLEAR THAT T HIS SECTION APPLIES, INTER ALIA, TO CAPITAL ASSETS WHICH HAD BECOME THE PROPERTY OF THE ASSESSEE ON ANY DISTRIBUTION OF ASSETS ON THE TOTAL OR PARTIAL PARTITION OF A HINDU UNDIVIDED FAMILY. THIS IS BY VIRTUE OF CLAUSE (I) OF SUB - SECTION (1) THEREOF. IN SUC H CASES, THE COST OF ACQUISITION OF THE ASSET IS DEEMED TO BE THE COST FOR WHICH THE PREVIOUS OWNER OF THE PROPERTY ACQUIRED IT. ACCORDING TO COUNSEL, IN THE INSTANT CASE, THERE IS NO DISPUTE THAT THE LAND IN QUESTION WAS RECEIVED BY THE ASSESSEE ON THE PA RTIAL PARTITION OF THE BIGGER HINDU UNDIVIDED FAMILY. THAT BEING SO, 19 ITA S NO. 42 41 - 4245 /MUM/201 8 CLAUSE (I) IS ATTRACTED AND THE COST IN THE HANDS OF THE BIGGER HINDU UNDIVIDED FAMILY, WHICH WAS THE PREVIOUS OWNER THEREOF, WOULD BE THE COST OF ACQUISITION BY VIRTUE OF THE DEEMING CLA USE CONTAINED IN SUBSECTION (1) OF SECTION 49. THE COST IN THE HANDS OF THE BIGGER HINDU UNDIVIDED FAMILY ADMITTEDLY WAS NIL, THE SAME HAVING BEEN RECEIVED BY IT NOT BY PURCHASE BUT BY THROWING OF THE SAME BY THE COPARCENERS INTO THE COMMON FAMILY HOTCHPOT CH. IN THIS CONNECTION, COUNSEL REFERRED TO THE DECISION OF THIS COURT IN CIT V. TRIKAMLAL MANEKLAL (HUF) [1987] 168 ITR 733 AND SUBMITTED THAT THE SAID JUDGMENT SQUARE LY APPLIES TO THE PRESENT CASE .' 9. AS THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT APPLIES TO US BEING OUR JURISDICTIONAL HIGH COURT, WE ARE BOUND TO FOLLOW THE SAME A S A BINDING PRECEDENT. ADMITTEDLY, THE LAND REVENUE RECORDS REVEAL THAT (THE ABOVE LAND UNDER CONSIDERATION FOR COMPUTATION OF LONG TERM CAPITAL GAIN), THE LAND BEARING SURVEY NO 45/3 VILALGE - GANDHARE, TALUKA KALYAN VESTED IN THE ANCESTORS OF THE ASSESSEE BY OPERATION OF SECTION 5(2)(B) OF BOMBAY PERSONAL INAMS ABOLITION ACT , 1952 AND T HIS IS REVEALED BY MUTATION ENTRY DATED 20.08.1957, WHICH WAS PASSED IN THE LAND RECORDS IN THE NAME OF SHIVRAM NATHU BHOIR , THE GREAT GRANDFATHER OF THE ASSESSEE. FROM THE PROVISIONS OF SECTION 5(2)(B) OF THE BOMBAY PERSONAL INAMS ABOLITION ACT , 1952 , THE INFERIOR HOLDER I.E. THE ASSESSEES GREAT GRANDFATHER NAMELY SHIVRAM NATHU BHOIR, WAS MADE PRIMARILY LIABLE TO THE STATE GOVERNMENT FOR PAYMENT OF LAND REVENUES DUE IN RESPECT OF SUCH LAND HELD BY HIM AND SHALL BE ENTITLED OF ALL THE RIGHTS AND LIABILITI ES IN RESPECT OF SUCH LAND AS AN OCCUPANT UNDER THE CODE OF THE RULES MADE 20 ITA S NO. 42 41 - 4245 /MUM/201 8 THEREIN OR ANOTHER LAW FOR THE TIME BEING INFORCE. THE ABOVE EXTRACT 7/12 OF THE LAND REVENUE CLEARLY REVEALS THAT THIS PROPERTY WAS DEVOLVED ON THE ASSESSEE THROUGH THEIR ANCESTORS , WHICH HAS NIL COST. ACCORDINGLY, IN THE GIVEN FACTS AND CIRCUMSTANCES AND RESPECTFULLY FOLLOWING THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF KANUBHAI R. SHAH (HUF) (SUPRA), WE DIRECT THE AO, NOT TO CHARGE ANY CAPITAL GAIN TAX ON THE ABOVE TR ANSACTION. 10. SIMILAR ARE THE FACTS IN OTHER CASES I.E. IN ITA NO. 4241 TO 4244 /MUM/2018 IN THE NAME OF DRAUPADIBAI GAJANAN BHOIR , PRADEEP GAJANAN BHOIR , PRAKASH GAJANAN BHOIR , PRATIBHA GAJANAN BHOIR , RESPECTIVELY. HENCE, IN ALL THE CASES ALSO THE APPEALS OF ASSESSEE ARE ALLOWED. 11. IN THE RESULT, ALL THE APPEAL S OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21 . 05 .2019. SD/ - SD/ - ( . . / NK PRADHAN ) ( /MAHAVIR SINGH) ( / ACCOUNTANT MEMBER) ( / JUDICIAL MEMBER) , / MUMBAI, DATED: 21 . 05 .2019 . , . / SUDIP SARKAR , SR.PS 21 ITA S NO. 42 41 - 4245 /MUM/201 8 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RES PONDENT. 3. ( ) / THE CIT(A) 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI