Shri Dilip Hirwani, Indore V. The ITO 4(1), Indore

ITA 55/IND/2014

• Counselvise Citation: 5522714 RSA 2014
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 17-01-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: S N AGRAWAL
• Keywords: Cost of acquisition

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE (SINGLE MEMBER CASE) BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER I.T.A.NO. 55/IND/2014 A.Y.2008-09 SHRI DILIP HIRWANI, INDORE. ITO, 4(1), VS. INDORE APPELLANT RESPONDENT PAN NO :AAIPH7969 K A PPELLANT BY : SHRI S.N.AGRAWAL , C. A. RESPONDENT BY : SHRI R. A. VERMA, DR O R D E R THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A)-II, INDORE, DATED 20.09.2013 FOR THE ASSE SSMENT YEAR 2008-09. DATE OF HEARING : 13. 10 .2015 . DATE OF PRONOUNCEMENT : 13 . 10 .2015 DILIP HIRWANI, INDORE VS. ITO, INDORE. I.T.A.NO. 55 /IND/2014 A.Y. 2008-09 2 2 2. THE SHORT FACTS OF THE CASE ARE AS UNDER. 3. THE ASSESSEE HAS SOLD ONE HOUSE JOINTLY HELD WITH H IS BROTHER SUNIL HIRWANI FOR RS. 37 LACS ON 27.11.2007 . THE ASSESSEE HAS RECEIVED ONE HALF SHARE OF RS. 18,50,0 00/-. THE AO HAS NOT ALLOWED THE INDEXATION AS ON 1.04.1981. 4. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. C IT(A) HAS ALLOWED THE APPEAL OF THE ASSESSEE AND HAS HELD THAT THE ASSESSEE IS ENTITLED FOR INDEXATION AS ON 1.4.1981 BY OBSERVING AS UNDER :- THE FACTS OF THE CASE ARE DETAILED IN THE ASSESSMEN T ORDER. IT IS OBSERVED THAT THE PROPERTY UNDER CONSIDERATION WAS HELD IN JOINT OWNERSHIP OF THE APPELLANT WITH HIS BROTHER AND THE SAME WAS SOLD FO R A CONSIDERATION OF RS. 37 LACS ON 27.11.2007. THE SAID PROPERTY WAS ACQUIRED BY THE APPELLANT JOINTLY RAM HIRWANI AND THE COST OF ACQUISITION WAS TAKEN AS PER REGISTERED LETTER DATED 22.04.1993 OF THE SOCIETY. THE APPELLANT IS ONE HALF SHARE HOLDER OF THIS AMOUNT. AS DILIP HIRWANI, INDORE VS. ITO, INDORE. I.T.A.NO. 55 /IND/2014 A.Y. 2008-09 3 3 BROUGHT OUT IN THE ASSESSMENT ORDER, THE CAPITAL GAIN WAS SHOWN AS NIL IN THE RETURN OF THE INCOME AFTER CONSIDERING THE COST OF ACQUISITION AT RS. 20,323/-, COST OF IMPROVEMENT AT RS. 5,59,000/- AND APPLYING THE INDEXATION FOR THE YEAR 1993-94. IT IS FURTHER OBSERVED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE APPELLANT HAD FILED REVISED CALCULATION OF CAPITAL GAIN CONSIDERING THE COST OF ACQUISITION IN THE HANDS OF PREVIOUS OWNER BEFORE 1981. IT WAS BROUGHT OUT THAT THE PLOT WAS PURCHASED BY THE FATHER OF THE APPELLANT IN THE YEAR 1968 AND THE CONSTRUCTION WAS MADE BY HIS FATHER. THEREFORE, IT WAS CONTENDED THAT THE COST OF HOUSE AS ON 01.04.1981 HAS TO BE CONSIDERED BECAUSE THE PROPERTY WAS TRANSFERRED THROUGH A WILL. HOWEVER, THE ASSESSING OFFICER, AFTER CONSIDERING THE DECISION OF APEX COURT IN THE DILIP HIRWANI, INDORE VS. ITO, INDORE. I.T.A.NO. 55 /IND/2014 A.Y. 2008-09 4 4 CASE OF GOETZ INDIA LTD., 284 ITR 323 (SC) REJECTED THE CLAIM OF THE APPELLANT. BUT THE APPELLANT HAS RAISED THE ISSUE IN THE APPEAL BEFORE THE CIT(A). I HAVE GONE THROUGH THE ASSESSMENT ORDER, SUBMISSIONS OF THE APPELLANT AS REPRODUCED ABOVE AND ALSO GONE THROUGH THE VARIOUS CASE LAWS CITED BY THE APPELLANT IN SUPPORT OF HIS CONTENTION. AFTER CONSIDERING ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, EXISTING JUDICIAL PRONOUNCEMENTS IN FAVOUR OF THE APPELLANT AS BROUGHT OUT BY THE APPELLANT IN THE SUBMISSIONS, THE APPELLANT SHOULD GET BENEFIT OF INDEXATION AS ON 01.04.1981 BECAUSE THE FATHER OF THE APPELLANT, FROM WHOM THE PROPERTY UNDER CONSIDERATION HAS BEEN RECEIVED BY THE APPELLANT THROUGH A WILL HAD PURCHASED THE PLOT IN THE YEAR 1968 AND DONE CONSTRUCTION THEREON. THEREFORE, THE BENEFIT OF INDEXATION IN DILIP HIRWANI, INDORE VS. ITO, INDORE. I.T.A.NO. 55 /IND/2014 A.Y. 2008-09 5 5 THE HANDS OF THE PREVIOUS OWNER CANNOT BE DENIED. THE APPEAL OF THE ASSESSEE ON THE POINT OF INDEXATION IS HEREBY ALLOWED. 5. DURING THE COURSE OF HEARING OF THE APPEAL, THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT THE LD. CI T(A) HAS ALLOWED THE CLAIM OF THE ASSESSEE THAT THE ASSESSEE IS ENTITLED FOR INDEXATION OF HOUSE FROM 1.4.1981 AND LD. CIT(A ) WAS SILENT ON THIS ISSUE. THEREFORE, HE HAS REQUESTED THE TRIB UNAL TO ESTIMATE THE COST OF HOUSE AS ON 1.4.1981 AT RS. 2, 55,000/- AND THE AO IS DIRECTED TO RECOMPUTED THE AMOUNT OF CAPITAL GAINS. 6. ON THE OTHER HAND THE LD. DR OBJECTED TO THIS REQUE ST. 7. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PART IES. I HAVE GONE THROUGH THE ORDER OF THE CIT(A) AND THE L D. CIT(A) HAS RIGHTLY HELD THAT THE ASSESSEE IS ENTITLED FOR INDEXATION FROM 1.4.1981 AND THE CLAIM OF THE ASSESSEE MAY BE ALLOWED. THE LD. CIT(A) HAS NOT ESTIMATED THE COST OF HOUSE AS ON 1.4.1981 AND THE LD. CIT(A) HAS NOT GIVEN ANY FINDI NG ON IT. THEREFORE, I RESTORE THIS BACK TO THE FILE OF CIT(A ) AND CIT(A) IS DILIP HIRWANI, INDORE VS. ITO, INDORE. I.T.A.NO. 55 /IND/2014 A.Y. 2008-09 6 6 DIRECTED TO DECIDE THE COST OF PLOT AND CONSTRUCTIO N AS ON 01.04.1981 AND DIRECTED TO DECIDE THE MATTER AFRESH . 8. GROUND NO.2 IS NOT PRESSED. THE SAME IS DISMISSED A S NOT PRESSED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 13 TH OCTOBER, 2015. SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 13 TH OCTOBER, 2015. CPU* 13