ACIT 19(3), MUMBAI V. CAPT RAMSAY J FERNANDES, MUMBAI

ITA 7067/MUM/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9269 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 20-12-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 12-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VISHWAS V MEHENDALE
• Keywords: Capital asset

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI . . !'# , $ %& BEFORE SHRI H.L. KARWA, PRESIDENT AND SHRI N.K. BILLAIYA, AM ./I.T.A. NO. 7067/MUM/2010 ( ' ' ' ' / ASSESSMENT YEAR : 2006-07 THE ACIT 19(3), PIRAMAL CHAMBERS, PAREL, MUMBAI-400 012 / VS. CAPT. RAMSAY J. FERNANDES, A-3, DATTA APARTMENTS, RAMKRISHNA MISSION MFG. KHAR, MUMBAI-400 052 &( $ ./ )* ./PAN/GIR NO. AAAPF 2212R ( (+ /APPELLANT ) .. ( ,-(+ / RESPONDENT ) (+ . / APPELLANT BY: SHRI RAKESH RANJAN ,-(+ / . / RESPONDENT BY SHRI VISHWAS V. MEHENDALE / 01$ / DATE OF HEARING : 20.12.2012 23' / 01$ /DATE OF PRONOUNCEMENT : 20.12.2012 %4 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-30, MUMBAI DT.3.7.2010 PERTAINING TO A.Y. 20 06-07. ITA NO7067/MUM/2010 2 2. THE ONLY GRIEVANCE OF THE REVENUE IS THAT THE L D. CIT(A) ERRED IN ALLOWING THE INDEXATION FROM THE DATE OF ACQUISITIO N OF THE CAPITAL ASSET BEFORE 1.4.1981 INSTEAD OF THE DATE OF TRANSFER OF THE ASSET ON INHERITANCE. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT DU RING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSING OFFI CER ASKED THE ASSESSEE VIDE ORDER SHEET NOTING DT. 4.9.2008 WHY NOT COST INFLATION INDEX OF 2004-05 SHOULD BE TAKEN INSTEAD OF 1980-81 AS PER PROVISIONS OF SEC. 48(III) AS MRS. MARTHA FERNANDES EXPIRED ON 6. 5.2004. IN RESPONSE TO THE SAID QUERY, THE ASSESSEE FILED A DETAILED RE PLY STATING THAT THE COST INFLATION INDEX HAS TO BE TAKEN FROM THE DATE WHEN THE ORIGINAL OWNER ACQUIRED THE PROPERTY. HOWEVER, THE SUBMISSIONS OF THE ASSESSEE WERE REJECTED BY THE AO WHO WAS OF THE OPINION THAT THE ASSESSEE WOULD GET BENEFIT OF COST INFLATION INDEX FROM THE DATE OF WH ICH HE BECAME THE OWNER OF THE PROPERTY. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A) AND REITERATED THAT BENEFIT OF COST INFLATION INDEX SHO ULD BE GIVEN FROM THE DATE ON WHICH THE PREVIOUS OWNER CAME INTO POSSESSI ON OF THE PROPERTY. 5. AFTER CONSIDERING THE FACTS OF THE CASE, THE LD. CIT(A) RELIED UPON THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL I N THE CASE OF DCIT VS MANJULA J. SHAH IN ITA NO. 7315/M/07 AND DIRECTED T HE AO TO ADOPT COST INFLATION INDEX OF ACQUISITION OF THE CAPITAL ASSET WITH REFERENCE TO THE YEAR IN WHICH THE PREVIOUS OWNER FIRST HELD THE ASSET AND FURTHER DIRECTED THE AO TO RECOMPUTE THE LONG TERM CAPITAL GAINS. 6. REVENUE IS BEFORE US AGAINST THIS FINDING OF LD. CIT(A). THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE DECIS ION OF THE SPECIAL BENCH OF MUMBAI HAS BEEN CONFIRMED BY THE JURISDICT IONAL HIGH COURT IN ITA NO7067/MUM/2010 3 THE CASE OF MANJULA J. SHAH IN ITA NO. 3378 OF 201 0 REPORTED IN 16 TAXMAN.COM 42. 7. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE LOWE R AUTHORITIES AND THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COU RT IN THE CASE OF MANJULA J. SHAH (SUPRA). WE FIND THAT THE FACTS O F THE CASE ARE IDENTICAL WITH THE FACTS OF THE CASE OF MANJULA J. SHAH. TH EREFORE, THE BENEFIT OF COST INFLATION INDEX SHOULD BE GIVEN WITH REFERENC E TO YEAR IN WHICH PREVIOUS OWNER FIRST HELD AND NOT YEAR IN WHICH THE ASSESSEE BECAME OWNER OF THE ASSET. THIS FINDING OF THE LD. CIT(A) IS ACCORDINGLY CONFIRMED. 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. 5 06 )& / 7 $5) / )0 8' ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 20.12.2012 %4 / 3' $ 7 9%6 20.12.2012 3 / : SD/- SD/- (H.L. KARWA) (N.K. BILLAIYA) /PRESIDENT $ %& / ACCOUNTANT MEMBER MUMBAI; 9% DATED 20.12.2012 . . ./ RJ , SR. PS ITA NO7067/MUM/2010 4 %4 / ,0 ; '0 / COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPELLANT 2. ,-(+ / THE RESPONDENT. 3. < ( ) / THE CIT(A)- 4. < / CIT 5. =: ,0 , , / DR, ITAT, MUMBAI 6. :> ? / GUARD FILE. %4 / BY ORDER, - 0 ,0 //TRUE COPY// @ / 8 ) DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI