ITO (IT) 4(1), MUMBAI V. ANJALI SHARADCHANDRA PATWARDHAN, MUMBAI

ITA 4970/MUM/2012

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0957 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-04-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-04-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 02-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN
• Keywords: Gift; Cost of acquisition

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI - A BENCH. .. , ! '#$ , # BEFORE S/SH. I.P. BANSAL,JUDICIAL MEMBER & RAJENDRA ,ACCOUNTANT MEMBER /.ITA NO.4970/MUM/2012 , % & /ASSESSMENT YEAR-2009-10. ITO (IT) 4(1), 139, 1 ST FLOOR, SCINDIA HOUSE, BALLARD ESTATE MUMBAI 400038 % / VS. SMT. ANJALI SHARADCHANDRA PATWARDHAN, A-1, PRABHAT CHS LTD., 28, S.B. MARG, DADAR (W), MUMBAI- 400038 PAN: APDPP1993B ( /APPELLANT ) ( / RESPONDENT ) REVENUE BY : SHRI ASGHAR ZAIN (DR) RESPON DENT BY : NONE / DATE OF HEARING :08.04.2015 / DATE OF PRONOUNCEMENT :08 .04 .2015 #( / O R D E R PER I.P.BANSAL ( JM) : THIS APPEAL IS FILED BY THE REVENUE DIRECTED AGAINS T THE ORDER PASSED BY CIT(A) DATED 17 TH MAY 2012, FOR ASSESSMENT YEAR 2009-10. GROUNDS OF APPEAL FILED BY THE REVENUE READ AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN HOLDING THAT THE BASE YEAR FOR DETERMI NING THE INDEXED COST OF THE ACQUISITION SHOULD BE F.Y.1981-82 AS AGAINST F.Y.20 07-08 DETERMINED BY THE ASSESSING OFFICER WITHOUT APPRECIATING THE FACT THA T CLAUSE (III) OF EXPLANATION TO THE PROVISO TO SECTION 48 OF THE I.T. ACT, 1961 SPECIFICALLY ALLOWS INDEXATION FROM THE DATE OF HOLDING OF THE ASSETS BY THE ASSES SEE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE BASE YEAR FOR DETERMINING THE INDEXED COST OF THE ACQUISITION SHOULD BE F.Y. 1981-82 AS AGAINST F.Y. 2007-08 DETERMINED BY THE ASSESSING OFFICER WITHOUT APPRECIATING THE FACT THA T THE RIGHT TO HOLD THE PROPERTY DIVERTED ON THE ASSESSEE ONLY AFTER THE DE MISE OF HER HUSBAND IN F.Y. 2007-08 AND THUS, F.Y. 2007-08 WAS THE FIRST YEAR I N WHICH THE ASSET WAS HELD BY THE ASSESSEE. 3. THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CI T(A) ON THE ABOVE GROUND(S) BE SET ASIDE AND THAT OF THE ASSESSING OFFICER REST ORED. SMT. ANJALI SHARADCHANDRA . 2 4. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 2. THE MOTHER OF THE ASSESSEE HAD EXPIRED ON 19 TH FEBRUARY 2008. FROM HER ASSESSEE HAS RECEIVED LAND SITUATED IN NAUPADA, THA NE, WHICH WAS SOLD ALONG WITH SHOW OF CO-OWNER OF THE SAID LAND FOR RS.2,40, 00,000/- ON WHICH LONG TERM CAPITAL GAIN WAS SHOWN AT RS.93,68,342/-. THE ASSES SEE WHILE COMPUTING LONG TERM CAPITAL GAIN TOOK INDEX COST OF ACQUISITION OF LAND AS ON 01.04.1981. AS AGAINST THE CLAIM OF THE ASSESSEE, AO TOOK THE DATE WHEN ASSESSEE RECEIVED THE LAND PROPERTY IN INHERITANCE FROM HER MOTHER I.E., 19 TH FEBRUARY 2008 AND SUCH ACTION OF THE AO WAS CHALLENGED IN APPEAL BEFORE CI T(A). LD. CIT HAS DECIDED THE ISSUE IN FAVOUR OF ASSESSEE FOLLOWING SPECIAL B ENCH DECISION IN THE CASE OF DCIT VS. MANJULA J. SHAH (2010) 35 SOT 105 (MUM). 3. NOTICE OF HEARING WAS SENT TO ASSESSEE, HOWEVER NONE WAS PRESENT ON THE FIXED DATE OF HEARING AS THE ISSUE IS COVERED, AND WE PROCEED TO DECIDE PRESENT APPEAL EX-PARTY, QUA THE ASSESSEE AFTER HEARING LD. DR. 4. DURING THE COURSE OF HEARING IT WAS BROUGHT TO T HE NOTICE OF LD. DR THAT THIS AFOREMENTIONED DECISION OF SPECIAL BENCH HAS N OW BEEN CONFIRMED BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF DC IT VS. MANJULA J. SHAN 355 ITR 474 (MUM), WHEREIN IT HAS BEEN HELD THAT WHILE COMPUTING THE CAPITAL GAIN ARISING ON TRANSFER OF CAPITAL GAIN ACQUIRED BY ASS ESSEE UNDER GIFT INDEX 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 YEAR IN WHIC H THE ASSESSEE BECAME THE OWNER OF THE ASSET. IN THIS VIEW OF THIS SITUATION, AFTER HEARING LD. DR, WE DISMISS THE APPEAL FILED BY THE REVENUE AS THE ISSU E IS COVERED BY AFOREMENTIONED DECISION BY THE HONBLE JURISDICTION HIGH COURT. SMT. ANJALI SHARADCHANDRA . 3 5. IN THE RESULT , THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS DAY OF 8 TH APRIL 2015. !'# 08.04.2015 + , SD/- SD/- ( '#$ / RAJENDRA) ( . . / I.P.BANSAL ) - / ACCOUNTANT MEMBER / JUDICIAL MEMBER . '/ MUMBAI ; !' DATED : 08.04.2015 AK PATEL* #( ) *+,- .#-&+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. 0 ( ) / THE CIT, MUMBAI. 4. 0 / CIT(A) , MUMBAI 5. 34+ 5567 , 67 , . '/ / DR, ITAT, MUMBAI 6. +9: ; / GUARD FILE. #(% / BY ORDER, 3 5 //TRUE COPY// //0 ' ( DY./ASSTT. REGISTRAR) , . '/ / ITAT, MUMBAI