ITO 22(2)(5), MUMBAI V. PONAM KAMAL GABA, MUMBAI

ITA 4554/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2532 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2011-2012
• Appeal Filed On: 05-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K RAVIKIRAN
• Keywords: Capital asset; Gift; Cost of acquisition

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH J, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AN D SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO.4554/M/2015 ASSESSMENT YEAR: 2011-12 ITO 22(2)(5), ROOM NO.320, 3 RD FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI - 400012 VS. SMT. POONAM KAMAL GABA, 502, LILOU VILLE, 141, WEST AVENUE ROAD, SANTACRUZ (W), MUMBAI 400 054 PAN: AACPG3130B (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI S.L. JAIN, A.R. REVENUE BY : SHRI K. RAVI KIRAN, D.R. DATE OF HEARING : 18.07.2016 DATE OF PRONOUNCEMENT : 20.07.2016 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVEN UE AGAINST THE ORDER DATED 13.05.2015 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT Y EAR 2011-12. 2. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF A PPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN GRANTING RELIEF TO THE ASSESSEE IGNORING THE FACT THAT AS PER EXPLANATION (III) TO SECTION 48 OF THE I.T.ACT,1961 INDEXATION IS ALLOWABLE TO THE ASSESSEE FROM THE DA TE ON WHICH THE ASSESSEE BECAME THE OWNER OF THE PROPERTY FOR THE F IRST YEAR IN WHICH THE ASSET WAS HELD BY THE ASSESSEE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED CIT(A) ERRED IN GRANTING RELIEF TO THE ASSE SSEE BASED ON THE JUDGEMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE C ASE OF CIT VS. MANJULA J. SHAH (2012) 249 CTR (BOM) 270 IGNORING T HE FACT THAT THE SAID DECISION HAS NOT BEEN ACCEPTED BY THE REVENUE AND APPEAL HAS BEEN PREFERRED AGAINST THE SAID ORDER BEFORE THE HON'BLE SUPREME C OURT IN CIVIL APPEAL ITA NO.4554/M/2015 SMT. POONAM KAMAL GABA 2 NO.SLP(CIVIL)NO.19924 OF 2012 WHICH IS STILL PENDIN G. 3. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE AO BE RESTORED. 4. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER AN Y GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 3. THE ASSESSEE IN THIS CASE HAD INHERITED SOME PRO PERTY. THE ISSUE BEFORE US IS AS TO WHETHER THE CLAIM OF INDEXATION IS TO B E ALLOWED FROM THE DATE ON WHICH THE PREVIOUS OWNER ACQUIRED THE PROPERTY, FRO M WHOM THE ASSESSEE HAD INHERITED THE PROPERTY IN QUESTION OR FROM THE DATE ON WHICH THE ASSESSEE HIMSELF ACTUALLY ACQUIRED THE PROPERTY. WE FIND TH AT THE LD. CIT(A) HAS ALLOWED THE RELIEF TO THE ASSESSEE ON THE ABOVE ISS UE FOLLOWING THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN CIT VS. MANJULA J . SHAH (SUPRA) WHEREIN IT HAS BEEN HELD THAT WHILE COMPUTING THE CAPITAL G AINS ON TRANSFER OF A CAPITAL ASSET ACQUIRED BY THE ASSESSEE UNDER A GIFT, THE IN DEXED COST OF ACQUISITION HAS TO BE COMPUTED WITH REFERENCE TO THE YEAR IN WHICH THE PREVIOUS OWNER FIRST HELD THE ASSET AND NOT THE YEAR IN WHICH THE ASSESS EE BECAME THE OWNER OF THE ASSET. THE LD. CIT(A) HAS ALSO RELIED UPON ANOTHER DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. M/S. JANH AVI S. DESAI (2012) 252 CTR 518 (BOM.) WHEREIN SIMILAR VIEW HAS BEEN EXPRES SED. 4. SO FAR AS THE CONTENTION THAT THE DEPARTMENT HAS FILED AN APPEAL AGAINST THE DECISION OF THE HONBLE BOMBAY HIGH COURT IS CO NCERNED, WE FIND THAT AS ON TODAY THE ISSUE IS SQUARELY COVERED BY THE DECIS ION OF THE JURISDICTIONAL HIGH COURT WHICH IS BINDING ON THIS TRIBUNAL. HENCE, RE SPECTFULLY FOLLOWING THE SAID DECISION, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) IN RELYING UPON THE DECISION OF THE HONBLE BOMBAY HIG H COURT WHILE DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE. 5. IN VIEW OF THIS, THERE IS NO MERIT IN THE APP EAL OF THE REVENUE AND THE ITA NO.4554/M/2015 SMT. POONAM KAMAL GABA 3 SAME IS ACCORDINGLY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.07.2016. SD/- SD/- (D. KARUNAKARA RAO) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 20.07.2016. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.