ITO 19(1)(1), MUMBAI V. PUSHPA VASUDEV MORDANI, MUMBAI

ITA 6380/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92478 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 04-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 18-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PREMANAND J
• Assessee Lawyers: DR K SHIVRAM; AJAY P SINGH
• Keywords: Capital asset; Gift; Cost of acquisition
• Section: 10

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI . . , . , BEFORE SHRI I.P. BANSAL, JM AND RAJENDRA, AM ./ I.T.A. NO.6380/MUM/2012 ( / ASSESSMENT YEAR : 2009-10 THE INCOME TAX OFFICER 19(1)(1), ROOM NO.319, PIRAMAL CHAMBERS, PAREL, MUMBAI 400 012. / VS. SMT.PUSHPA VASUDEV MORDANI, FLAT NO.402, PLOT NO.2, MORUMAL MANSION CH SECIETY, 10 TH ROAD, KHAR (W), MUMBAI 400 052 ./ ./ PAN/GIR NO. : AAOPM 0326M ( / APPELLANT ) .. ( / RESPONDENT ) A PPELLANT BY SHRI PREMANAND J. RESPONDENT BY DR. K.SHIVRAM & SHRI AJAY P. SINGH ' #$ / DATE OF HEARING : 11/05/2015 ' #$ / DATE OF PRONOUNCEMENT : 11/05/2015 / O R D E R PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE REVENUE AND IT IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-30,MUMBAI DATED 16/08/2012 FOR ASSESSMENT YEAR 2009-10. GROUNDS OF APPEAL READ AS UNDER: 1. THAT THE LEARNED CIT(A) HAS ERRED IN DIRECTING TO TREAT THE CAPITAL GAIN AS LONG TERM CAPITAL GAIN WITHOUT APPRECIATING THE FAC T THAT THE ASSESSEE BECAME THE OWNER OF THE SHARES ON 27.08.2008 BY WAY OF MEMORANDUM OF GIFT AND SOLD ON 05.09.2008 AND AS SUCH THE SHARES WERE HELD FOR A PERIOD LESS THAN 12 MONTHS AND HENCE, THE ASSESSING OFFICER HAS CORRECTLY TREATED THE LONG TERM CAPITAL GAIN AS SHORT TERM CAPITAL GAIN. 2. THAT THE LEARNED CIT(A) HAS FAILED TO APPRECIAT E THE FACT THAT THE DECISION IN THE CASE OF MANJULA J. SHAH HAS NOT ACCEPTED BY THE DEPARTMENT. 2. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED . ./ I.T.A. NO.6380/MUM/2012 ( / ASSESSMENT YEAR : 2009-10 2 2. THE ASSESSEE RECEIVED GIFT OF SHARES OF ALPHA X- RAY TECHNOLOGIES INDIA LTD. ON 27/08/2008, WHICH WERE SOLD ON 5/9/2008. A S THE PERIOD OF HOLDING BY THE ASSESSEE WAS LESS THAN 12 MONTHS THE AO TREATED THE GAIN AS SHORT TERM CAPITAL GAIN IN PLACE OF CLAIM OF THE A SSESSEE THAT THE TRANSACTION BEING SALE OF SHARES RECEIVED ON GIFT, THE DATE O F OWNERSHIP BY THE ASSESSEE SHOULD BE CONSIDERED TO BE THE DATE WHEN IT WAS FIR ST OWNED BY THE DONOR. THEREFORE, IT WAS CLAIMED THAT THE GAIN IS ASSESSAB LE AS LONG TERM CAPITAL GAIN. THE DONOR HAD ACQUIRED THESE SHARES ON 21/8/ 2000. THE AO DID NOT ACCEPT SUCH SUBMISSION OF THE ASSESSEE AND ASSESSED THE GAIN AS SHORT TERM CAPITAL GAIN. LD.CIT(A) HAS ACCEPTED SUCH CLAIM OF THE ASSESSEE ON THE BASIS OF DECISION OF HONBLE BOMBAY HIGH COURT IN THE C ASE OF CIT VS. MANJULA J. SHAH 355 ITR 374(BOM). THE DEPARTMENT IS AGGRIEVED , HENCE, HAS FILED AFOREMENTIONED GROUNDS OF APPEAL. 3. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. THE REVENUE HAS NOT DOUBTED THE GENUINENESS OF THE GIFT. THE REVENUE HAS ALSO NOT DISPUTED THE FACT T HAT THE DATE OF ACQUISITION OF SHARES IN THE HAND OF DONOR WAS 21/8/2000. THE REVENUE HAS ALSO NOT DOUBTED THE DATE OF SALE OF SHARES AND DATE OF GIFT OF SHARES TO THE ASSESSEE. IF IT IS SO, THEN THE ISSUE IS COVERED BY THE AFORE MENTIONED DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF MANJULA J. SHAH, 355 ITR 474(BOM), WHEREIN IT HAS BEEN HELD THAT WHILE COMPU TING CAPITAL GAIN ARISING ON TRANSFER OF A CAPITAL ASSET ACQUIRED BY THE ASSESSEE UNDER A GIFT, THE INDEXED COST OF ACQUISITION HAS TO BE COMPUTED WITH REFERENCE TO THE YEAR IN WHICH THE PREVIOUS OWNER FIRST HELD THE ASSET AN D NOT THE YEAR IN WHICH THE ASSESSEE BECAME THE OWNER OF THE ASSET. ACCORD INGLY, WE DO NOT FIND ANY INFIRMITY IN THE RELIEF GRANTED BY LD. CIT(A) TO TH E ASSESSEE. WE DECLINE TO INTERFERE. ./ I.T.A. NO.6380/MUM/2012 ( / ASSESSMENT YEAR : 2009-10 3 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/05/2015 ' + ,- 11/05/2015 ' SD/- SD/- (RAJENDRA) . . (I.P.BANSAL) /ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; , DATED 11/05/2015 !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. 0# ( ) / THE CIT(A)- 4. 0# / CIT 5. 12 #34 , $ 34 , / DR, ITAT, MUMBAI 6. 5 / GUARD FILE. / BY ORDER, 1# # //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . . .VM , SR. PS