I.T.O.19(3)(4), MUMBAI V. ASHOK SADHURAM ROHERA, MUMBAI

ITA 7309/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75551 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-02-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 10-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M L PERUMAL
• Keywords: Cost of acquisition

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI . . , / , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER . / ITA NO. 7309/MUM/2012 ' ' ' ' # # # # / ASSESSMENT YEAR 2009-10 THE INCOME TAX OFFICER 19(3)(4), ROOM NO.307, 3 RD FLOOR, PIRAMAL CHAMBERS, LALBAUG, MUMBAI 400012 ' ' ' ' / VS. ASHOK SADHURAM ROHERA, FLAT NO.4, PLOT NO.326, TPS III, BRIJBALA CHS LTD., 21 ST ROAD, BANDRA (W), MUMBAI 400 050 $ ./ % ./ PAN/GIR NO. : AACPR 3644R ( $& / APPELLANT ) .. ( '($& / RESPONDENT ) APPELLANT BY : SHRI M.L.PERUMAL RESPONDENT BY : SHRI MADHUR AGRAWAL ' ) *+ / DATE OF HEARING : 18/02/2014 ,# ) *+ / DATE OF PRONOUNCEMENT : 18/02/2014 - / O R D E R PER I.P.BANSAL, JM: THIS IS AN APPEAL FILED BY THE REVENUE AND IT IS DIRECTED AGAINST THE ORDER PASSED BY LD. CIT(A)-30, MUMBAI DATED 20/09/2 012 FOR THE ASSESSMENT YEAR 2009-10. THE GROUNDS OF APPEAL READ AS UNDER: (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DIRECTING TO ALLOW THE COST OF INFLATION INDEX FROM 1980-81 IN WHICH THE PREVIOUS OWNER FIRST HELD THE PROPERTY WI THOUT APPRECIATING THE FACT THAT THE ASSESSEE BECAME THE OWNER OF PROPERTY IN T HE F.Y. 1995-96 AS PER WILL AFTER THE DEATH OF HIS MOTHER IN 1995. . / ITA NO. 7309/MUM/2012 ' ' ' ' # # # # / ASSESSMENT YEAR 2009-10 2 (2) ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT THE EXPLANAT ION (III) TO SECTION 48 CLEARLY STATES THAT THE COST INFLATION INDEX SHALL BE ADOPT ED FROM THE FIRST YEAR IN WHICH THE ASSET WAS HELD BY THE ASSESSEE. (3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT THE D ECISION OF THE SPECIAL BENCH OF THE ITAT IN THE CASE OF MANJULA J. SHAH [35 SOT 105 (MUM)SB] HAS NOT BEEN ACCEPTED BY THE DEPARTMENT. 2. THE ASSESSEE HAD RECEIVED RS.2.50 CRORES BY WAY OF SALE OF A FLAT WHICH WAS SOLD VIDE AGREEMENT DATED 03/11/2008. THE LONG TERM CAPITAL GAIN ON SALE OF SUCH PROPERTY WAS COMPUTED AS PER COST INFLATIO N INDEX FOR FINANCIAL YEAR 1981-82. AS THE ASSESSEE BECAME OWNER OF THE PROP ERTY IN 1995 BY WAY OF A WILL EXECUTED BY HIS MOTHER, THE AO WAS OF THE OPI NION THAT ASSESSEE BECAME OWNER OF PROPERTY IN FINANCIAL YEAR 1995-96, THERE FORE, INDEXED COST OF ACQUISITION WAS TO BE TAKEN FROM FINANCIAL YEAR 199 5-96 AND NOT FROM 1981-82. THEREFORE, THE LONG TERM CAPITAL GAIN WAS COMPUTED BY TAKING COST INFLATION INDEX FROM FINANCIAL YEAR 1995-96. AGGRIEVED, ASSE SSEE FILED AN APPEAL BEFORE LD. CIT(A), WHO HAS ACCEPTED THE CLAIM OF THE ASSES SEE BY FOLLOWING THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. MANULA J. SHAH, 355 ITR 474, WHEREIN IT HAS BEEN HELD THAT AS PER DEEMING PROVISION CONTAINED IN EXPLANATION 1(I)(B) TO SECTION 2(42A), WHILE COMPUT ING THE CAPITAL GAIN, THE INDEXED COST OF ACQUISITION HAD TO BE COMPUTED WITH REFERENCE TO THE YEAR IN WHICH THE PREVIOUS OWNER FIRST HELD THE ASSET AND N OT THE YEAR IN WHICH THE ASSESSEE BECAME THE OWNER OF THE ASSET. THE DEPART MENT IS AGGRIEVED WITH SUCH RELIEF GRANTED BY LD. CIT(A) AND HAS FILED AFO REMENTIONED GROUNDS OF APPEAL. 3. AFTER HEARING BOTH THE PARTIES, WE ARE OF THE O PINION THAT LD. CIT(A) HAS RIGHTLY GRANTED RELIEF TO THE ASESSEE. THE ISSUE I S SQUARELY COVERED BY THE AFOREMENTIONED DECISION OF HONBLE HIGH COURT. IN GROUND NO.3, THE DEPARTMENT IS AGITATING TO THE RELIEF ONLY ON THE GROUND THAT THE DECISION IN . / ITA NO. 7309/MUM/2012 ' ' ' ' # # # # / ASSESSMENT YEAR 2009-10 3 THE SPECIAL BENCH CASE OF MANJULA J. SHAH (SUPRA ) HAS NOT BEEN ACCEPTED BY THE REVENUE. WHEREAS, LD. CIT(A) DID NOT RELY UPO N THE DECISION OF THE TRIBUNAL BUT HAS RELIED UPON THE DECISION OF HONBL E HIGH COURT, WHEREIN AFOREMENTIONED PROPOSITION OF LAW HAS BEEN APPROVE D. ACCORDINGLY, WE DECLINE TO INTERFERE AND THE APPEAL FILED BY THE REVENUE I S DISMISSED. 4. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18/02/20 14 - ) ,# . /'0 18/02/2014 ) 1 SD/- SD/- ( / SANJAY ARORA ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; /' DATED 18/02/2014 - - - - ) )) ) '*2 '*2 '*2 '*2 32#* 32#* 32#* 32#* / COPY OF THE ORDER FORWARDED TO : 1. $& / THE APPELLANT 2. '($& / THE RESPONDENT. 3. 4 ( ) / THE CIT(A)- 4. 4 / CIT 5. 251 '*' , , / DR, ITAT, MUMBAI 6. 16 7 / GUARD FILE. -' -' -' -' / BY ORDER, (2* '* //TRUE COPY// 8 88 8 / 9 9 9 9 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . ' . ./ VM , SR. PS