ITO (IT) 1(1), MUMBAI V. SHERWIN CARVALHO, MUMBAI

ITA 4996/MUM/2010

• Counselvise Citation: 499619914 RSA 2010
• Duration Of Justice: 1 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2007-2008
• Appeal Filed On: 16-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V V SHASTRI
• Keywords: Capital asset; Cost of acquisition

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H, MUMBAI BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER & SHRI R.S.PADVEKAR, JUDICIAL MEMBER. I.T.A. NO. 4996/MUM/2010. ASSESSMENT YEAR : 2007-08. THE INCOME TAX OFFICER (I.T.), MR. SHERWIN CARVALHO, 1(1), MUMBAI. VS. BUNGALOW NO.3, BELSCOT, LOKHANDWALA COMPLEX, MUMBAI 400 053. PAN AGTPC 8501E APPELLANT. RESPONDENT. APPELLANT BY : SHRI V.V. SHASTRI RESPONDEN T BY : NONE. DATE OF HEARING : 08-08-2011. DATE OF PRONOUNCEMENT : 12-08-2011 O R D E R. PER P.M. JAGTAP, A.M. : THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST TH E ORDER OF LEARNED CIT(APPEALS)-10, MUMBAI DATED 12-03-2010 AND IN THE SOLITARY GROUND RAISED THEREIN, THE REVENUE HAS CHALLENGED THE ACTION OF T HE LEARNED CIT(APPEALS) IN HOLDING THAT THE BASE YEAR FOR DETERMINING THE INDE XED COST OF ACQUISITION FOR THE PURPOSE OF COMPUTATION OF LONG TERM CAPITAL GAIN SH OULD BE FINANCIAL YEAR 1981-82 AS CLAIMED BY THE ASSESSEE AS AGAINST FINANCIAL YEA R 1999-2000 AS ADOPTED BY THE AO. 2 ITA NO. 4996/MUM/2010 ASSESSMENT YEAR : 2007-08. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L WHO WAS THE JOINT OWNER OF HOUSE PROPERTY ACQUIRED BY WAY OF INHERITANCE ON 0 1-06-1999 AFTER DEATH OF HIS FATHER. THE SAID PROPERTY WAS SOLD BY THE ASSESSEE IN THE YEAR UNDER CONSIDERATION AND WHILE COMPUTING THE CAPITAL GAIN ARISING FROM T HE SAID SALE, THE INDEXED COST OF ACQUISITION WAS TAKEN BY THE ASSESSEE BY ADOPTING B ASE YEAR AS 1981-82 ON THE GROUND THAT THE INDEXED COST OF ACQUISITION HAS TO BE COMPUTED WITH REFERENCE TO THE YEAR IN WHICH THE PREVIOUS OWNER FIRST HELD THE ASSET. THIS CLAIM OF THE ASSESSEE WAS DISALLOWED BY THE AO ON THE GROUND THAT 1999-20 00 WAS THE FIRST YEAR IN WHICH THE ASSET WAS HELD BY THE ASSESSEE. ACCORDING LY HE ADOPTED THE 1999-2000 AS THE BASE YEAR AND RESTRICTED THE DEDUCTION CLAIM ED BY THE ASSESSEE ON ACCOUNT OF INDEXED COST OF ACQUISITION FOR THE PURPOSE OF COMP UTATION OF CAPITAL GAIN. THE LEARNED CIT(APPEALS), HOWEVER, ALLOWED THE CLAIM OF THE ASSESSEE FOR DEDUCTION ON ACCOUNT OF INDEXED COST OF ACQUISITION WORKED OUT T AKING 1981-82 AS BASE YEAR RELYING INTER ALIA, ON THE DECISION OF SPECIAL BENC H OF ITAT IN THE CASE OF DCIT VS. MANJULA J. SHAH REPORTED IN 126 TTJ 145. AGGRIEVED BY THE ORDER OF THE LEARNED CIT(APPEALS), THE REVENUE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 3. AT THE TIME OF HEARING BEFORE US, NOBODY HAS APP EARED ON BEHALF OF THE ASSESSEE. THIS APPEAL OF THE REVENUE IS, THEREFORE, BEING DISPOSED OF EXPARTE QUA THE RESPONDENT ASSESSEE AFTER HEARING THE ARGUMENTS OF THE LEARNED DR AND PERUSING THE RELEVANT MATERIAL ON RECORD. AS AGREED BY THE LEARNED DR, THE ISSUE INVOLVED IN THE PRESENT CASE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF MUMBAI SPECIAL BENCH OF ITAT IN THE CAS E OF DCIT VS. MANJULA J. SHAH (SUPRA) WHEREIN IT WAS HELD THAT THE INDEXED C OST OF ACQUISITION OF CAPITAL ASSET INHERITED BY THE ASSESSEE HAS TO BE COMPUTED WITH R EFERENCE TO THE YEAR IN WHICH THE PREVIOUS YEAR FIRST HELD THE ASSET. RESPECTFULL Y FOLLOWING THE SAID DECISION OF THE SPECIAL BENCH OF THIS TRIBUNAL, WE UPHOLD THE I MPUGNED ORDER OF THE LEARNED 3 ITA NO. 4996/MUM/2010 ASSESSMENT YEAR : 2007-08. CIT(APPEALS) GIVING RELIEF TO THE ASSESSEE ON THIS ISSUE AND DISMISS THIS APPEAL FILED BY THE REVENUE. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. \. ORDER PRONOUNCED ON THIS 12 TH DAY OF AUGUST, 2011. SD/- SD/- (R.S. PADVEKAR)) (P.M . JAGTAP) JUDICIAL MEMBER A CCOUNTANT MEMBER MUMBAI, DATED: 12 TH AUGUST, 2011. COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, H-BENCH. (TRUE COPY ) BY O RDER ASSTT. REGISTRAR, ITAT, MUMBAI BENC HES, MUMBA I. WAKODE