SMT. MUNIRA Z. TINWALLA, MUMBAI V. ITO, WD -11(3)(1), MUMBAI

ITA 5672/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1168 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 08-07-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 22-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Assessee Lawyers: K R LAKSHMINARAYAN
• Keywords: Cost of acquisition; Capital Gains

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI A L GEHLOT, AM ITA NO 5672/MUM/2009 (ASSESSMENT YEAR 2005-06) SMT MUNIRA Z TINWALLA , N M FLATS, FLAT NO 4, IIND FLOOR, 190, TURNER ROAD, BANDRA (W), MUMBAI -400 050 PAN: AADPT 8137 C VS. IT O 1 6 ( 2 ) - 4 , MUMBAI APPELLANT RESPONDENT APPELLANT BY : SHRI K R LAKSHMINARAYAN RESPONDENT BY : SHRI S K SINGH ORDER THIS APPEAL FILED BY THE ASSESSEE ARISES OUT OF TH E ORDER PASSED BY THE CIT (A)-CENTRAL VII MUMBAI ON 17.8.2 009 IN RELATION TO THE ASSESSMENT YEAR 2005-06. 2. THE ASSESSEE RAISED AS MANY AS EIGHT GROUNDS. HOWE VER, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THA T IN THE GROUNDS OF APPEAL THE CLAIM OF THE ASSESSEE IS ONLY THAT WHILE CALCULATING LONG-TERM-CAPITAL-GAIN ON SALE OF JEWEL LERY COST OF ACQUISITION RS 1,33,670/- MAY BE ALLOWED. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE S OLD CERTAIN GOLD JEWELLERY WEIGHING 366.750 GRAMS @ RS 5,400/- PER 10 GRAMS FOR TOTAL CONSIDERATION OF RS 1,98,045/-. THE ASSE SSING OFFICER TREATED THE ENTIRE RECEIPT OF RS 1,98,045/- AS LONG TERM CAPITAL GAIN. THE ASSESSEE FILED THE APPEAL BEFORE THE CIT (A). THE CIT (A) HELD THAT THE AMOUNT IS ASSESSABLE AS INCOME FROM OTHER SOURCES INSTEAD OF LONG TERM CAPITAL GAIN AS HELD BY THE ASSESSING OFFICER. THE LEARNED AUTHORIZED REPRESENTATIVE SUBMITTED THA T WITHOUT GOING INTO TECHNICALITIES IN THE PROVISIONS, THE AS SESSEES CLAIM IS ITA 5672/M/2009 SMT MUNIRA Z TINWALLA ============== 2 ONLY THAT THE COST OF ACQUISITION OF THE JEWELLERY MAY BE ALLOWED. THE ASSESSEE HAS FILED AN AFFIDAVIT WHEREIN IT IS S TATED THAT THE JEWELLERY IS PURCHASED IN 1993 AT THE TIME OF HER M ARRIAGE. THE LEARNED AUTHORIZED REPRESENTATIVE SUBMITTED THAT TH OUGH BEFORE THE CIT (A) THE ASSESSEE CLAIMED COST INDEX BENEFIT OF WHICH CALCULATION COMES TO RS 2,87,584/- BUT THE ASSESSEE SATISFIED IF THE COST OF RS 1,33,607/- IS ALLOWED IN COMPUTING THE L ONG-TERM-CAPITAL- GAIN. LEARNED AUTHORIZED REPRESENTATIVE SUBMITTED A LETTER, RELEVANT PORTION OF WHICH, READS AS UNDER:- JULY 8, 2010 ACCORDINGLY UNDER INSTRUCTIONS FROM OUR CLIENT, WE ARE SUBMITTING THE COMPUTATION OF CAPITAL GAIN WHICH MA Y PLEASE BE PLACED BEFORE HONBLE MEMBER. SALE PROCEEDS OF 366.750 GMS OF JEWELLERY RS 1,98, 045/-(A) LESS: COST OF ACQUISITION OF JEWELLERY: COST OF 10 GRAMS ON 31-3-1993 RS 4,140/- LESS 12% FOR IMPURITY RS 497/- FOR 10 GRAMS RS 3,643/- FOR 366.750 GMS X RS 3643 RS 1,33,670/-(B) LONG TERM CAPITAL GAIN A-B RS 64,375/ - IT IS REQUESTED THAT THE AMOUNT OF RS 64,375/- MAY PLEASE BE ASSESSED AS LONG TERM CAPITAL GAINS. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTH ER HAND RELIED UPON THE ORDER OF CIT (A). 5. I HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PAR TIES RECORD PERUSED. THE MAIN CONTENTION OF THE LEARNED AUTHORIZED REPRESENTATIVE IS THAT THE ASSESSEE IS A SOLICITOR AND WITHOUT INDULGING INTO TECHNICALITIES OF THE PROVISIONS, WH ETHER A PERSONAL ASSET LIABLE TO BE CAPITAL GAIN OR NOT AND WHETHER JEWELLERY WAS BENEFIT OF COST INDEX IS ALLOWED OR NOT, THE SAID C LAIM OF THE ASSESSEE IS THAT THE ACQUISITION COST MAY BE ALLOWE D IN COMPUTING THE LONG-TERM-CAPITAL-GAIN. CONSIDERING THE PECULI AR FACTS & CIRCUMSTANCES OF THE CASE AND TO AVOID MULTIPLE LIT IGATIONS IT IS FAIR AND JUST TO ALLOW THE ACQUISITION COST OF THE JEWEL LERY AS CLAIMED BY ITA 5672/M/2009 SMT MUNIRA Z TINWALLA ============== 3 THE ASSESSEE AT RS 1,33,670/-. THE ASSESSING OFFIC ER IS DIRECTED TO CALCULATE THE COST OF ACQUISITION AFTER ALLOWING CO ST OF RS 1,33,670/-. THE ASSESSING OFFICER IS DIRECTED ACCORDINGLY. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D, AS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THE DATE OF HE ARING ITSELF. SD/ - ( A L GEHLOT ) ACCOUNTANT MEMBER MUMBAI, DATED 8TH JULY, 2010 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-CENTRAL-VII, MUMBAI 4. THE CIT -XI, MUMBAI 5. THE DR SMC BENCH. //TRUE COPY// / / TRUE COPY / / BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI BENCHES, MUMBAI *CHAVAN ITA 5672/M/2009 SMT MUNIRA Z TINWALLA ============== 4 DATE INITIALS DRAFT DICTATED ON 08 .0 7 .2010 SR. P.S. DRAFT PLACED BEFORE THE AUTHOR 08 .0 7 .201 0 SR. P.S. DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER AM/JM DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM APPROVED DRAFT COMES TO THE SR. PS SR. P.S. KEPT FOR PRONOUNCEMENT ON SR. P.S. FILE SENT TO THE BENCH CLERK SR. P.S. DA TE ON WHICH FILE GOES TO THE HEAD CLERK DATE OF DISPATCH