ACIT CIRCLE-12(3), MUMBAI V. ANOOP K.SAKRANEY, HUF, MUMBAI

ITA 6565/MUM/2013

• Counselvise Citation: 656519914 RSA 2013
• Duration Of Justice: 1 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 08-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Keywords: Capital asset; Gift; Cost of acquisition

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI RAJENDRA , ACCOUNTANT MEMBER ITA NO.6565/MUM/2013(A.Y. 2009-10) ACIT, CIR.12(3), ROOM NO.137,1 ST FLOOR, AAYKAR BHAVAN, MUMBAI 400 020 VS. M/S.ANOOP K. SAKRANEY,HUF, 1A, COURT CHAMBERS, 35, NEW MARINE LINES, MUMBAI 400 020 APPELLANT RESPONDENT APPELLANT BY SHRI NEIL PHILIP RESPONDENT BY NONE DATE OF HEARING 01/04/2015 DATE OF PRONOUNCEMENT 01/04/2015 ORDER PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE REVENUE AND IT IS D IRECTED AGAINST ORDER PASSED BY LD. CIT(A) DATED 5/8/2013. GROUNDS OF APPEAL RE AD AS UNDER: WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION AMOUN TING TO RS.24,21,718/- MADE BY THE ASSESSING OFFICER AS A RESULT OF COMPUT ATION OF THE INDEXED COST OF ACQUISITION. 2. NOTICE OF HEARING WAS SENT TO ASSESSEE, HOWEVER, NONE WAS PRESENT ON BEHALF OF THE ASSESSEE. SINCE THE ISSUE RAISED IN THE PRE SENT APPEAL HAS BEEN DECIDED IN ITA NO.6565/MUM/2013(A.Y. 2009-10) 2 FAVOUR OF ASSESSEE BY LD. CIT(A) FOLLOWING THE DEC ISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V. MANJULA J . SHAH (2013) 355 ITR 474 WE PROCEED TO DECIDE THE PRESENT APPEAL EX-PARTE QUA THE ASSESSEE ON MERITS. 3. THE ASSESSEE DECLARED LONG TERM CAPITAL GAIN OF RS.44,89,530/- ON SALE OF FOLLOWING PROPERTIES OWNED BY IT. ( I) ARUN CHAMBER UNIT NO.729 (II) ARUN CHAMBER UNIT NO.730 THE ASSESSEE BECAME OWNER OF THE SAID PROPERTY ON D IFFERENT DATES AS PER FOLLOWING TABLE: PROPERTY SOLD BECAME OWNER ON MODE ARUN CHAMBER UNIT NO.729 AND 730 09/05/1995 50% SHARE GIFTED TO THE ASSESSES BY ANITA SAKRANEY ARUN CHAMBER UNIT NO.729 AND 730 10/07/1992 50% SHARE AS PER THE WILL OF SHRI ANOOP SAKRANEY 3.1 BOTH THE ABOVE MENTIONED FACTS ARE MENTIONED IN PARA 3.1 OF THE ORDER OF LD. CIT(A) AND WERE NOT DISPUTED BY LD. DR. FOR THE PU RPOSE OF CALCULATING LONG TERM CAPITAL GAIN, THE ASSESSEE FOR THE PURPOSE OF INDEX ED VALUE TOOK BASE YEAR AS 1981- 82 I.E. AS ON 1/4/1981. IT IS THE CASE OF THE ASSE SSEE THAT SINCE THE AFOREMENTIONED PROPERTIES WERE ACQUIRED BY THE ASSESSEE AS BY WAY OF GIFT AND WILL, HE WILL BE ENTITLED TO CLAIM INDEXED BENEFIT FROM THE YEAR 198 1-82 AND FOR CLAIMING SO RELIANCE WAS PLACED ON THE DECISION OF HONBLE BOMB AY HIGH COURT IN THE CASE OF CIT V. MANJULA J . SHAH (2013) 355 ITR 474. LD. CIT(A) HAS ACCEPTED SUCH CONTENTION OF THE ASSESSEE. THE DEPARTMENT IS AGGR IEVED, HENCE, HAS FIELD AFOREMENTIONED APPEAL. ITA NO.6565/MUM/2013(A.Y. 2009-10) 3 3.2 IT IS FURTHER SEEN FROM THE ORDER OF LD. CIT(A) THAT HE HAS ALSO DIRECTED THE AO TO EXAMINE THE ISSUE THAT THE ASSETS IN QUESTION WERE FIRST HELD BY THE PREVIOUS OWNER PRIOR TO 1981-82. FOR THE SAKE OF COMPLETE NESS FINAL OBSERVATION OF LD. CIT(A) IN PARA 3.3.5 ARE REPRODUCED BELOW: 3.3.5 IN THE PRESENT CASE ALSO THE CASE OF THE ASS ESSEE IS COVERED U/S 49(1) OF THE I.T. ACT, 1961. HENCE, APPLYING THE JUDGEMEN T OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF MANJULA J. SHAH (SUPRA), THE CAPITAL GAIN LIABILITY HAS TO BE COMPUTED BY CONSIDERING THAT THE ASSESSEE HELD THE SAID ASSET FROM THE DATE IT WAS HELD BY THE PREVIOUS OWNER AND THE SAME ANALOGY HAS ALSO TO BE APPLIED IN DETERMINING THE INDEXED COST OF ACQUI SITION. IN ARRIVING AT THE INDEXATION, THE FIRST YEAR IN WHICH THE ASSET WERE HELD BY THE PREVIOUS OWNER WOULD BE THE FIRST YEAR FOR WHICH THE SAID ASSET WA S HELD BY THE ASSESSEE. HENCE, THE ACTION OF THE ASSESSING OFFICER OF COMPU TING THE INDEXED COST OF ACQUISITION WITH REFERENCE TO THE YEAR IN WHICH THE ASSESSEE BECAME THE OWNER OF THE ASSETS IN QUESTION CANNOT BE UPHELD. S INCE, THE PROPERTIES IN QUESTION WERE ACQUIRED BY THE ASSESSEE BY WAY OF GI FT AND WILL, WHILE COMPUTING THE CAPITAL GAINS ARISING ON THE TRANSFER OF THE CAPITAL ASSETS IN QUESTION, THE INDEXED COST OF ACQUISITION HAS TO BE COMPUTED WITH REFERENCE TO THE YEAR IN WHICH THE PREVIOUS OWNER FIRST HELD THE ASSETS. THE ASSESSEE HAS CLAIMED THAT THE PREVIOUS OWNERS OF THE ASSETS IN QUESTION FIRST HELD THE ASSETS PRIOR TO 1981-82. THE ASSESSING OFFICER WILL , THEREFORE, EXAMINE THE ABOVE CONTENTION OF THE ASSESSEE. IF THE SAME IS F OUND TO BE CORRECT, THE INDEXED COST OF ACQUISITION WILL BE COMPUTED WITH REFERENCE TO THE YEAR 1981-82 AS DONE BY THE ASSESSEE. SUBJECT TO THE AB OVE, THIS GROUND OF APPEAL FILED BY THE ASSESSEE IS ALLOWED. 4. AFTER NARRATING THE FACTS LD. DR RELIED UPON THE ORDER PASSED BY AO. 5. WE HAVE HEARD LD. DR AND CAREFULLY GONE THROUGH THE ORDER PASSED BY AO AND LD. CIT(A). THE PROPOSITION ACCEPTED BY LD. CI T(A) IS IN ACCORDANCE WITH AFOREMENTIONED DECISION OF HONBLE BOMBAY HIGH COUR T IN THE CASE OF CIT VS. MANJULA J. SHAH (SUPRA). THEREFORE, WE FIND NO INF IRMITY IN THE ORDER PASSED BY ITA NO.6565/MUM/2013(A.Y. 2009-10) 4 LD. CIT(A), WE DECLINE TO INTERFERE AND THE APPEAL FILED BY THE REVENUE IS DISMISSED. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01/04/2015 01/04/2015 SD/- SD/- ( /RAJENDRA ) ( . . / I.P. BANSAL ) /ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; $% DATED 01/04/2015 / COPY OF THE ORDER FORWARDED TO : 1. & '( / THE APPELLANT 2. )*'( / THE RESPONDENT. 3. +, ( & ) / THE CIT(A)- 4. +, / CIT 5. -. ),%/0 , &1 &/0 , / DR, ITAT, MUMBAI 6. 2 / GUARD FILE. / BY ORDER, * -, ), //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . % . ./ VM , SR. PS