ASST. CIT 25(3), MUMBAI V. UDAY G GADGIL, MUMBAI

ITA 6711/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7626 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2007-2008
• Appeal Filed On: 21-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DIPAK RIPOTE
• Assessee Lawyers: SATENDRA
• Keywords: Gift; Cost of acquisition

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH F,MUMBAI BEFORE SHRI R.S. PADVEKAR (JM) & SHRI B. RAMAK OTAIAH (AM) I.T.A. NO. 6711/MUM/2010 (A.Y. 2007-08) ASST. COMMR. OF INCOME-TAX-25(3), C-11,R.NO.308, PRATYAKSHA KAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA (E), MUMBAI-400 051. VS. SHRI UDAY G. GADGIL, NIWANT CHS, 63, DHANUKARWADI, DATTA MANDIR, KANDIVLI (W), MUMBAI-400 067. PAN: AKKPG 5823 D APPELLANT RESPONDENT APPELLANT BY SHRI DIPAK RIPOTE. RESPONDENT BY S/SHRI K. GOPAL & SATENDRA PANDEY. DATE OF HEARING 12-03-2012 DATE OF PRONOUNCEMENT 28-03-2012 O R D E R PER R.S. PADVEKAR, JM : IN THIS APPEAL, THE REVENUE HAS CHALLENGED THE IMPU GNED ORDER OF THE LD. CIT(A)-35, MUMBAI, DATED 08-07-2010 FOR THE ASS ESSMENT YEAR 2007-08. THE REVENUE HAS TAKEN THE FOLLOWING EFFECTIVE GROUN D : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DIRECTING THE AO T O ACCEPT ASSESSEES CLAIM OF INDEXATION WITH REFERENCE TO YE AR IN ITA NO.6711/MUM/2010 UDAY G. GADGIL 2 WHICH THE PROPERTY WAS ACQUIRED BY THE PREVIOUS OWN ER WITHOUT APPRECIATING THE UNAMBIGUOUS PROVISIONS OF SECTION 48 OF THE I.T. ACT 1961. 2. BRIEFLY STATED FACTS ARE AS UNDER. THE ASSESSEE IS AN INDIVIDUAL WHO FILED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007-08 DECLARING LONG- TERM CAPITAL GAIN OF RS.45,58,320/-. THE AO ENHANCE D THE LONG-TERM CAPITAL GAIN BY MAKING AN ADDITION OF RS.61,77,949/-. THE S AID CAPITAL GAIN WAS IN RESPECT OF THE FLAT OWNED BY THE ASSESSEE, BEING FL AT NO.593, BUILDING NO. 63, MIG COLONY, BANDRA (E). MUMBAI, WHICH WAS SOLD VIDE SALE DEED DATED19-01- 2007 FOR A SUM OF RS.1,18,00,000/-.THE SAID FLAT WA S BELONGING TO HIS FATHER LATE SHRI GOVIND NARAYAN GADGIL AND HIS FATHER GIFT ED THE SAID FLAT TO THE ASSESSEE VIDE REGISTERED GIFT DEED DATED 17-05-2002 . THE SAID FLAT WAS ACQUIRED BY HIS FATHER, THE DONOR, SOME TIME IN TH E YEAR 1963-64. THE ASSESSEE PRODUCED THE COPY OF THE SOCIETYS LETTER AS A PROOF OF ACQUISITION. AS THE FLAT WAS ACQUIRED BY HIS FATHER PRIOR TO 1-4-19 81, HE ADOPTED INDEXATION WITH REFERENCE TO THE YEAR 1981-82 AND NOT AS PER T HE YEAR OF THE GIFT I.E. FINANCIAL YEAR 2002-03. THE ASSESSEE WORKED OUT THE CAPITAL GAIN AFTER CLAIMING DEDUCTION U/S.54EC OF RS.50,00,000/-. THE AO WAS OF THE OPINION THAT IN VIEW OF SEC. 49(1) OF THE I.T. ACT, AN INDE XATION HAS TO BE CONSIDERED FOR THE FIRST YEAR IN WHICH THE ASSESSEE ACQUIRED T HE PROPERTY BY ANY MODE PRESCRIBED IN SEC. 49(1) OF THE I.T. ACT. THE AO, T HEREFORE, PROCEEDED TO ADOPT FINANCIAL YEAR 2002-03, IN WHICH THE ASSESSEE GOT T HE SAID FLAT AS A GIFT FROM HIS FATHER, FOR WORKING OUT COST INFLATION INDEX. I N CONSEQUENCE, THE DEDUCTION TOWARDS COST OF ACQUISITION WAS REDUCED. ITA NO.6711/MUM/2010 UDAY G. GADGIL 3 3. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEF ORE THE CIT(A). THE LD. CIT(A), FOLLOWING THE ORDER OF THE ITAT, MUMBAI SPE CIAL BENCH, IN THE CASE OF MANJULA J. SHAH [30 DTR (SB) (TRIB) 601], DELETED T HE ADDITION MADE BY THE AO. 4. THE REVENUE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD . THE LD. COUNSEL SUBMITS THAT THE DECISION OF THE HONBLE SPECIAL BE NCH OF ITAT IN THE CASE OF MANJULA J. SHAH (SUPRA) HAS BEEN AFFIRMED BY THE HO NBLE JURISDICTIONAL HIGH COURT IN THE APPEAL FILED BY THE REVENUE IN CIT VS. MANJULA J. SHAH REPORTED IN 16 TAXMAN.COM 42 (MUM). THE LD. COUNSEL FAIRLY S UBMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISIO N IN THE CASE OF MANJULA J. SHAH (SUPRA). WE FIND NO REASON TO INTERFERE WITH T HE ORDER OF THE LD. CIT(A) AND THE SAME IS CONFIRMED. 6. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED . ORDER PRONOUNCED ON THE 28TH DAY OF MARCH, 20 12. SD/- SD/- (B. RAMAKOTAIAH) (R.S. PADVEKAR) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI: 28TH MARCH , 2012 . NG: ITA NO.6711/MUM/2010 UDAY G. GADGIL 4 COPY TO : 1. DEPARTMENT. 2.ASSESSEE. 3 CIT(A)-35,MUMBAI. 4 CIT,CITY-25,MUMBAI. 5.DR, F BENCH, MUMBAI. 6.MASTER FILE. (TRUE COPY) BY ORDER, / / TRUE COPY / / ASST. REGISTRAR, ITAT, MUMBAI.