HEMENDRA MATHRADAS KOTHARI, MUMBAI V. ACIT 17(1), MUMBAI

ITA 599/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8060 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2015-2016
• Appeal Filed On: 24-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GURUBINDER SINGH
• Keywords: Cost of acquisition; Revised return; Capital Gains
• Section: 20

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER . 599 / / 20 20 (. . 2015-16 ) ITA NO.599/MUM/2020 (A.Y.2015-16) HEMENDRA MATHRADAS KOTHARI 11 TH FLOOR, MAFATLAL CENTRE, NARIMAN POINT, MUMBAI-400021. PAN: ABOPK8771F ...... / APPELLANT VS. ACIT- 17(1), 1 ST FLOOR, KAUTILYA BHAVAN, B.K.C. MUMBAI-400051. ..... / RESPONDENT / APPELLANT BY : SH. MADHUR AGARWAL / RESPONDENT BY : SH. GURUBINDER SINGH / DATE OF HEARING : 17/08/2021 / DATE OF PRONOUNCEMENT : 27/08/2021 / ORDER PER VIKAS AWASTHY, J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-28, MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] ' DATED 29.11.2019 FOR THE ASSESSMENT YEAR (AY) 2015-16. 2. SH. MADHUR AGARWAL APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT IN THE RETURN OF INCOME, THE ASSESSEE HAD DISCLOSED LONG TERM CAPITAL GAIN (LTCG), HOWEVER, WHILE COMPUTING LTCG, THE ASSESSEE FAILED TO CLAIM THE 2 . 599 / /20 20 (. .2015-16 ) ITA NO.599/MUM/2020 (A.Y.2015-16) BENEFIT OF INDEXATION. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE FILED REVISED COMPUTATION OF LTCG AFTER CLAIMING INDEXATION ON COST OF ACQUISITION OF ASSET. THE ASSESSING OFFICER (AO) REJECTED THE ASSESSEES REVISED COMPUTATION ON THE GROUND THAT THE CLAIM HAS NOT BEEN MADE EITHER IN THE RETURN OF INCOME OR IN THE REVISED RETURN OF INCOME, HENCE, THE CLAIM CANNOT BE ACCEPTED. THE ASSESSEE FILED APPEAL AGAINST THE ASSESSMENT ORDER DATED 29.06.2016 BEFORE THE CIT(A). IN FIRST APPELLATE PROCEEDINGS, THE CIT(A) REFUSED TO ENTERTAIN REVISED COMPUTATION OF LTCG IN THE LIGHT OF DECISION OF HONBLE APEX COURT IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT 288 ITR 323. THE LD. AUTHORIZED REPRESENTATIVE (AR) SUBMITTED THAT THERE IS NO BAR IN ENTERTAINING FRESH CLAIM OF THE ASSESSEE BY THE APPELLATE AUTHORITIES. IN SUPPORT OF HIS SUBMISSION, THE LD. AR PLACED RELIANCE ON THE DECISION OF CIT VS. PRUTHVI BROKERS AND SHAREHOLDERS P. LTD. 349 ITR 336 (BOM). 3. PER CONTRA, SH. GURUBINDER SINGH REPRESENTING THE DEPARTMENT VEHEMENTLY SUPPORTED THE ORDER OF CIT(A). THE LD. DR SUBMITTED THAT THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF GOETZE INDIA (SUPRA) HAS HELD THAT THE AO CAN ONLY ENTERTAIN ASSESSEES CLAIM EITHER IN RETURN OF INCOME OR BY WAY OF REVISED RETURN OF INCOME. THE AO HAS NO JURISDICTION TO ENTERTAIN FRESH CLAIM MADE IN ASSESSMENT PROCEEDINGS BY WAY OF REVISED COMPUTATION. 4. BOTH SIDES HEARD, ORDERS OF AUTHORITIES BELOW EXAMINED. THE SOLITARY ISSUE IN THE PRESENT APPEAL IS WITH REGARD TO ASSESSEES CLAIM OF INDEXATION ON THE COST OF ACQUISITION OF ASSET. UNDISPUTEDLY, THE ASSESSEE IN THE RETURN OF INCOME HAS DECLARED LTCG AND WHILE DECLARING SUCH CAPITAL GAIN, THE ASSESSEE HAS NOT CLAIMED THE BENEFIT OF INDEXATION ON THE COST OF ACQUISITION OF ASSET. THE PROVISIONS OF THE ACT GRANT BENEFIT TO THE ASSESSEE TO CLAIM INDEXATION ON 3 . 599 / /20 20 (. .2015-16 ) ITA NO.599/MUM/2020 (A.Y.2015-16) THE COST OF ACQUISITION WHILE COMPUTING CAPITAL GAINS. THE AO RIGHTLY REJECTED THE ASSESSEES CLAIM MADE DURING ASSESSMENT PROCEEDINGS BY WAY OF REVISED COMPUTATION. THE AO HAS NO POWER TO ENTERTAIN CLAIM MADE OTHERWISE THAN BY WAY OF REVISED RETURN. THE HONBLE APEX COURT IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT (SUPRA) HAS CLARIFIED THAT THE POWERS OF THE APPELLATE TRIBUNAL ARE NOT IMPINGED TO ENTERTAIN FRESH CLAIM MADE OTHERWISE THAN BY FILING REVISED RETURN. 5. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. PRUTHVI BROKERS AND SHAREHOLDERS P. LTD. (SUPRA) CONSIDERING THE RATIO LAID DOWN IN GOETZE (INDIA) LTD. (SUPRA) HAS HELD THAT THE APPELLATE AUTHORITIES HAVE POWER TO ADMIT ADDITIONAL CLAIM MADE BEFORE THEM. THUS, IN VIEW OF THE FACTS OF THE CASE AND THE LAW LAID DOWN BY THE HONBLE APEX COURT AND THE HONBLE JURISDICTIONAL HIGH COURT, WE ADMIT REVISED COMPUTATION OF LTCG MADE BY THE ASSESSEE AFTER CLAIMING BENEFIT OF INDEXATION ON THE COST OF ACQUISITION. WE DEEM IT APPROPRIATE TO RESTORE THE ISSUE BACK TO THE FILE OF AO TO RE-COMPUTE LTCG AFTER GRANTING THE BENEFIT OF INDEXATION TO THE ASSESSEE, IN ACCORDANCE WITH LAW. 6. IN THE RESULT, APPEAL OF THE ASSESEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON FRIDAY , THE 27 TH DAY OF AUGUST, 2021. SD/- SD/- (MANOJ KUMAR AGGARWAL) (VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / MUMBAI, / DATED: /08/2021 SK, PS 4 . 599 / /20 20 (. .2015-16 ) ITA NO.599/MUM/2020 (A.Y.2015-16) COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT , 2. / THE RESPONDENT. 3. ( )/ THE CIT(A)- 4. CIT 5. , . . . , / DR, ITAT, MUMBAI 6. [ / GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI