TERENCE FERREIRA LEGAL HEIR OF LATE FRANCIS JOSEPH FERREIRA, MUMBAI V. ACIT 19(3), MUMBAI

ITA 737/MUM/2014

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 0896 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 31-01-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: UDAYA BHASKAR JAKKE
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition
• Section: 50C; 6

Judgement Text

TERENCE FERREIRA LEGAL HEIR OF LATE FRANCIS JOSEPH FERR EIRA ITA 737 /M/20 1 4 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C , MUMBAI . , , BEFORE SHRI D KARUNAKARA RAO , ACCOUNTANT MEMBER AND SHRI AMIT SHUK LA , JUDICIAL MEMBER ITA NO. : 737 /MUM/20 1 4 (ASSESSMENT YEAR S : 200 6 - 0 7 ) TERENCE FERREIRA LEGAL HEIR OF LATE FRANCIS JOSEPH FERREIRA , FLAT NO. 9, 2 ND FLOOR, PLOT NO. 17 - A, ST MARTIN ROAD, BANDRA (WEST) MUMBAI - 400 050 .: PAN : AA EPF 5111 F VS ACIT - 19(3), PIRAMAL CHAMBERS , PAREL, LAL BAGH, MUMBAI - 400 012 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJESH S SHAH RESPONDENT BY : SHRI UDAYA BHASKAR JAKKE /DAT E OF HEARING : 1 3 - 0 7 - 2015 / DATE OF PRONOUNCEMENT : 31 - 07 - 2015 ORDER PER AMIT SHUKLA , J.M. : TH E AFORESAID APPEAL HA S BEEN FILED BY THE ASSESSEE AGAINST IMPUGNED ORDER DATED 20.1 1.2013 PASSED BY CIT(A) - 30, MUMBAI FOR THE QUA NTUM OF ASSESSMENT PASSED U/S 143( 3 ) FOR THE ASSESSMENT YEAR 200 6 - 0 7 ON THE FOLLOWING GROUNDS OF APPEAL: 1 . ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN NOT ALLOWING COST OF INFLATION INDEX ON THE BASIS OF DATE OF ACQUI SITION AS ON 01.04.1981, SINCE THE DATE OF ACQUISITION IS TO BE TAKEN AS THAT OF ORIGINAL OWNER WHERE THE PROPERTY HAS BEEN ACQUIRED ON THE BASIS OF WILL. THE APPELLANT ACQUIRED THE PROPERTY FROM HIS FATHER. 2 . ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF BROKERAGE PAID OF RS. 42,000/ - THOUGH THE SAID AMOUNT HAS BEEN ALLOWED IN OTHER CO - OWNERS. THE EXPENDITURE WAS INCURRED FOR SALE OF PREMISES. TERENCE FERREIRA LEGAL HEIR OF LATE FRANCIS JOSEPH FERR EIRA ITA 737 /M/20 1 4 2 2. SO FAR AS THE ISSUE RAISED IN GROUND NO. 1 , THAT THE DATE OF ACQUISITION AS ON 01.04.1981 SHOULD BE TAKEN AS THAT OF ORIGINAL OWNER WHERE THE PROPERTY HAS BEEN ACQUIRED ON THE BASIS OF WILL FROM HIS L ATE FATHER, THE LD. COUNSEL SUBMITTED THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSES S EE BY THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS MANUJLA J SHAH, REPORTED IN 355 ITR 474. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND ON PERUSAL OF MATERIAL ON RECORD, IT IS SEEN THAT, T HE ASSESSEE AND HIS FAMILY MEMBERS WERE CO - OWNERS OF A PIECE OF LAND IN VILLAGE VALANI, MALAD, TALUKA BORIVALI, MUMBAI, WHICH WAS ACQUIRED BY THEM FROM THEIR LATE FATHER (WHO DIED IN THE YEAR 1976) B HIM PRIOR TO 01.04.1981. THE SAID LAND WAS SOLD FOR RS. 1,26,00,000/ - ON 31.12.2005. THE ASSESSEE BEING 1/6 TH OWNER OF THE PROPERTY RECEIVED THE AMOUNT OF RS. 21 LAKHS. HOWEVER, THE ASSESSING OFFICER NOTED THAT THE STAMP VALUATION AUTHORITIES HAD VALUED THE LAND AT RS. 25,44,64,000/ - . THE ASSESSING OFFICER APPLIED THE PROVISION OF SECTION 50C AND DETERMINED THE S ALE VALUE AS PER STAMP DUTY VALUATION. IN THE APPELLATE PROCEEDINGS, AFTER CONSIDERING THE DVOS REPORT THE VALUE OF THE SAID LAND WAS DETERMINED AT RS. 2,99,82,656/ - AND LATER ON WAS SUBJECTED TO CERTAIN MODIFICATION. REGARDING COST OF ACQUISITION , WE FIN D THAT LD. CIT(A) HAS NOT GIVEN ANY FINDING AT ALL . ACCORDINGLY , WE DIRECT THE ASSESSING OFFICER TO APPLY PRINCIPLE/ RATIO LAID DOWN BY HONBLE BOMBAY HIGH COURT IN THE CASE OF MANJULA J SHAH ( SUPRA ), FOR THE PURPOSE OF DETERMINING THE COST OF ACQUISITION AND GRANT RELIEF. ACCORDINGLY, THE GROUND NO.1 IS TREATED AS ALLOWED. 4. IN GROUND NO.2, THE ASSE S SEE HAS CHALLENGED THE ALLOWABILITY OF BROKERAGE EXPENSES OF RS. 42,000/ - WHICH HAS BEEN DISMISSED BY THE CIT(A) ON THE GROUND THAT NO DETAILS HAVE BEEN FURN ISHED WITH REGARD TO THE ALLOWABILITY OF SUCH BROKERAGE IN THE ASSESSMENT TERENCE FERREIRA LEGAL HEIR OF LATE FRANCIS JOSEPH FERR EIRA ITA 737 /M/20 1 4 3 ORDERS OF THE OTHER CO - OWNERS. THIS FACT HAS NOT BEEN REBUTTED BEFORE US, THEREFORE, THE SAID GROUND IS TREATED AS DISMISSED. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST JU LY , 2015. SD/ - SD/ - ( . ) ( ) ( D KARUNAKARA RAO ) ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 31 ST JU LY , 2015 / COPY TO: - 1 ) / THE APPELLANT. 2 ) / THE RESPONDENT. 3) THE CIT (A) - 30 , MUMBAI , 4 ) THE CIT 1 9 , MUMBAI . 5 ) , , / THE D.R. C BENCH , MUMBAI. 6 ) COPY TO GUARD FILE. / BY ORDER / / TRUE COPY / / / , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI * . . *CHAVAN, SR.PS