ITO 17(2)(2), MUMBAI V. ASHOK VINAYKUMAR, MUMBAI

ITA 5735/MUM/2009

• Counselvise Citation: 573519914 RSA 2009
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 11-10-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 27-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANISH KANOJA
• Assessee Lawyers: VISHWAS V MEHENDALE
• Keywords: Fair market value; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, D, MUMBAI BEFORE S/SHRI D.K.AGARWAL (JM) AND PRAMOD KUMAR (A.M ) ITA NO. 5735/MUM/2009 (ASSESSMENT YEAR: 2006-07) INCOME TAX OFFICER, 17(2)(2), ROOM NO.212, PIRAMAL CHAMBERS, LALBAUG, MUMBAI-400012. SHRI ASHOK VINAYKUMAR OZA, 82; ANJU MANSION, V.A.OZA MARG, KING CIRCLE, MATUNGA, MUMBAI-400019 PAN: AAAPO0910M APPELLANT V/S RESPONDENT DATE OF HEARING : 11.10.2011 DATE OF PRONOUNCEMENT : 11.10.2011 APPELLANT BY : SHRI MANISH KANOJA RESPONDENT BY : SHRI VISHWAS V.MEHENDALE O R D E R PER D.K.AGARWAL (JM) THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 12.8.2009 PASSED BY THE LD. CIT(A) FOR THE ASSESSMENT YEAR 2006-07. 2. THE GROUNDS TAKEN BY THE REVENUE READ AS UNDER : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN DIRECTING THE A O TO TAX 60.5% OF THE LONG TERM CAPITAL GAIN IN THE HA NDS OF THE ASSESSEE WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS FAILED TO PROVE THE OWNERSHIP OF THE PROPERTY IN THE NAME OF M/S AMRITLAL POPATLAL & SO NS; ITA NO. 5735/MUM/2009 (ASSESSMENT YEAR: 2006-07) 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN DIRECTING THE A O TO ADOPT AVERAGE FAIR MARKET VALUE OF FMV SHOWN BY TH E ASSESSEE AND FMV ADOPTED BY THE AO 3. AT THE TIME OF HEARING, IT WAS OBSERVED THAT THE TAX EFFECT ON THE DISPUTED AMOUNT OF LONG TERM CAPITA L GAIN IN THE APPEAL FILED BY THE REVENUE IS LESS THAN THE MONETARY LIMIT OF RS.3,00,000/- FIXED BY THE CBDT. THE LEARN ED DEPARTMENTAL REPRESENTATIVE DID NOT DISPUTE ON THE SAID FACTUAL MATRIX OF THE CASE. 4 THAT BEING SO AND IN VIEW OF THE RECENT CBDT INSTRUCTION NO. 3 OF 2011 DATED 9 TH FEBRUARY, 2011 REPORTED IN (2011) 332 ITR 1 (STATUTES) AND THE RATIO OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE O F CIT V. MADHUKAR K. INAMDAR (HUF) (2009) 318 ITR 148(BOM), WHEREIN IT HAS BEEN HELD THAT THE REVISED MONETARY LIMIT IN THE CIRCULAR DATED MAY 15, 2008 WOULD BE APPLICABLE FOR ALL PENDING APPEALS AND ALSO THE CONSISTENT VIEW OF TH E CO- ORDINATE BENCHES OF THE TRIBUNAL, WE ARE OF THE VIE W THAT THE DEPARTMENT SHOULD NOT HAVE FILED THE APPEAL AND ACC ORDINGLY, THE APPEAL FILED BY THE REVENUE IS DISMISSED. 5. IN THE RESULT, THE REVENUES APPEAL STANDS DISM ISSED AS NOT MAINTAINABLE. ITA NO. 5735/MUM/2009 (ASSESSMENT YEAR: 2006-07) 3 ORDER PRONOUNCED IN THE OPEN COURT ON 11.10.2011 SD SD ( PRAMOD KUMAR ) (D.K.AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 11 TH OCTOBER, 2011 SRL: COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILE. TRUE COPY BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI