Appeal Details
Counselvise Citation
[2013] 120 COUNSELVISE.COM (IT) 3565 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
1 year(s) 5 month(s) 23 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
21-06-2013
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
A
Next Hearing Date
06-06-2013
Assessment Year
2008-2009
Appeal Filed On
29-12-2011
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI . .. . . . . . , ,, , !'# !'# !'# !'# $ $ $ $ %$$ $& %$$ $& %$$ $& %$$ $&, ,, , ' !'# ' !'# ' !'# ' !'# !( !( !( !( BEFORE SHRI P.M. JAGTAP, AM AND SHRI VIVEK VARMA , JM !./ I.T.A. NO. 8837 & 8838/MUM/2011 ( '* & $+& '* & $+& '* & $+& '* & $+& / / / / ASSESSMENT YEAR : 2007-08 & 2008-09) SHRI ASIF ABDUL KADER FAZLANI, 21A NIRMAL, NARIMAN POINT, MUMBAI-400021 * * * * / VS. ACIT, CENTRAL CIRCLE - 44, 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI-400020 #, ! ./ PAN : ACRPA7796A ( ,- / // / APPELLANT ) .. ( ./,- / RESPONDENT ) !./ I.T.A. NO. 8848 & 8849/MUM/2011 ( '* & $+& '* & $+& '* & $+& '* & $+& / / / / ASSESSMENT YEAR : 2008-09 & 2007-08) SHRI ABDUL GAFFAR ABDUL LATIF FAZLANI 21A NIRMAL, NARIMAN POINT, MUMBAI-400021 * * * * / VS. ACIT, CENTRAL CIRCLE - 44, 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI-400020 #, ! ./ PAN : AADPF9227H ( ,- / // / APPELLANT ) .. ( ./,- / RESPONDENT ) !./ I.T.A. NO. 8845 & 8846/MUM/2011 ( '* & $+& '* & $+& '* & $+& '* & $+& / / / / ASSESSMENT YEAR : 2007-08 & 2008-09) SHRI ARIF ABDUL KADER FAZLANI 21A NIRMAL, NARIMAN POINT, MUMBAI-400021 * * * * / VS. ACIT, CENTRAL CIRCLE - 44, 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI-400020 #, ! ./ PAN : AABPC2955K ( ,- / // / APPELLANT ) .. ( ./,- / RESPONDENT ) ,- 0 1 ! / APPELLANT BY : SHRI RAHUL K.HAKANI ./,- 0 1 ! / RESPONDENT BY : SHRI SURINDER JIT SINGH 2 ITA NO.8837,8838,8848,8849,8845,8846 /MUM/2012 ABDUL GAFFAR ABDUL LATI FAZLANI ASIF ABDUL KADER FAZLANI & ARIF ABDUL KADER FAZLANI. ! *$ 0 / // / DATE OF HEARING : 06-06-2013 23+ 0 / DATE OF PRONOUNCEMENT : 21.06.2013 '4 / O R D E R PER P.M. JAGTAP, A.M . .. , !'# : THESE SIX APPEALS FILED IN THE CASES OF THREE ASSES SEES RELATING TO A.Y.-2007-08 AND 2008-09 INVOLVE COMMON ISSUE AND THE SAME THEREFORE HAVE BEEN HEARD TOGETHER AND ARE BEING DISPOSED BY THIS SINGLE CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST WE SHALL TAKE UP THE APPEALS OF THE ASSESS EE FOR A.Y.- 2007-08 WHICH ARE DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-38. 3. THE RELEVANT FACTS OF THE CASE GIVING RISE OF TH ESE APPEALS ARE THAT A SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT WAS CONDUCTED IN THE CASES OF THE ASSESSEES AS WELL AS OTHER PERS ONS BELONGING TO THE SAME FAMILY/GROUP. PURSUANT TO THE SAID ACTION , NOTICES U/S.153 A WERE ISSUED BY THE AO IN RESPONSE TO WHIC H THEIR RETURNS OF INCOME FOR A.Y.-2007-08 WERE FILED BY AS SESSEE. IN THE SAID RETURNS, LONG TERM CAPITAL GAIN ARISING FROM S ALE OF SHARES HELD BY THE ASSESSEES IN A COMPANY NAMELY M/S. KAMALA ME NSION PVT. LTD. WAS SHOWN BY THE ASSESSEES. THE ENTIRE SHARE CAPITAL OF THE SAID COMPANY WAS HELD BY THE ASSESSEES AS WELL AS O THER PERSONS BELONGING TO THE SAME FAMILY/GROUP AND THE SAME WAS TRANSFERRED/SOLD TO REKHA GUNWANT ASHOK SHAH AND M/ S. SURAJ LTD. BY THE AGREEMENT DATED 14.11.2006 AT THE RATE OF RS.9,093/- PER SHARE. ON PERUSAL OF THE SAID AGREEMENT AS WELL AS RELEVANT BALANCE-SHEET AND PROFIT & LOSS ACCOUNT OF M/S. KA MALA MENSION 3 ITA NO.8837,8838,8848,8849,8845,8846 /MUM/2012 ABDUL GAFFAR ABDUL LATI FAZLANI ASIF ABDUL KADER FAZLANI & ARIF ABDUL KADER FAZLANI. PVT. LTD., THE AO FOUND THAT SAID COMPANY WAS NOT ENGAGED IN ANY SORT OF BUSINESS ACTIVITY AND IT WAS MERELY DERIVIN G INCOME IN THE FORM OF RENT FROM TWO FLATS NOS. 1901B AND 2001B IN THE BUILDING OF OM VIKAS APARTMENTS AT WALKESHWAR ROAD, MUMBAI O WNED BY IT TOGETHER WITH GARAGE NUMBERS 28 & 29. ACCORDING TO HIM, THE AGREEMENT ENTERED INTO BY THE ASSESSEES IN THE GARB OF SHARE TRANSFER AGREEMENT THUS WAS DE FACTO THE AGREEMENT FOR TRANSFER OF PROPERTY BEING FLAT NUMBERS 1901B AND 2001B IN OM V IKAS APARTMENTS AND THE REAL INTENT TO TRANSFER THE ENTI RE SHARES IN M/S. KAMALA MENSION PVT. LTD. WAS TO TRANSFER OWNER SHIP OF THE TWO FLATS OWNED BY THE SAID COMPANY TO THE PURCHASE RS OF THE SHARES. HE, THEREFORE, HELD THAT IT WAS A CASE OF T RANSFER OF IMMOVABLE PROPERTY AND THE PROVISIONS OF SECTION 50 C WERE APPLICABLE. ACCORDINGLY, INVOKING THE PROVISIONS O F SECTION 50C, HE ADOPTED THE STAMP DUTY VALUATION OF RS.4,12,16,500/ - FOR THE PURPOSE OF COMPUTATION OF LONG TERM CAPITAL GAIN AS AGAINST THE AGREEMENT VALUE OF RS.3,46,71,609/- SHOWN BY THE AS SESSEE FOR TRANSFER OF SHARES. THE AO, ALSO FOUND THAT AS PER THE AGREEMENT FOR SALE OF SHARES, THE PURCHASERS/TRANSFEREES WERE TO PAY SEPARATELY A SUM OF RS.55,28,500/- WHICH WAS INTROD UCED IN THE COMPANY M/S. KAMALA MENSION PVT. LTD. AND UTILIZED TO REPAY THE LOANS ADVANCED BY THE ERSTWHILE DIRECTORS/SHAREHOLD ERS. ACCORDING TO THE AO, THE SAID AMOUNT THUS REPRESENT ED ADDITIONAL CONSIDERATION FOR THE TRANSFER OF PROPERTY EFFECTED IN THE GARB OF THE SHARE TRANSFER AGREEMENT AND ACCORDINGLY TOTAL CONS IDERATION OF RS.4,67,45,000/- WAS TAKEN BY HIM FOR THE PURPOSE O F WORKING OUT THE LONG TERM CAPITAL GAIN ARISING FROM THE TRANSFE R OF THE PROPERTY WHICH WAS ALLEGEDLY EFFECTED IN THE GARB O F SHARE TRANSFER AGREEMENT. ACCORDINGLY, THE LONG TERM CAPITAL GAIN AS WORKED OUT BY HIM BY TAKING THE SAID AMOUNT AS SALE CONSIDERAT ION WAS 4 ITA NO.8837,8838,8848,8849,8845,8846 /MUM/2012 ABDUL GAFFAR ABDUL LATI FAZLANI ASIF ABDUL KADER FAZLANI & ARIF ABDUL KADER FAZLANI. BROUGHT TO TAX BY THE AO IN THE HANDS OF THE ASSESS EES AS WELL AS THE OTHER PERSONS BELONGING TO THE SAME GROUP/FAMIL Y IN THE RATIO OF THEIR RESPECTIVE SHARE HOLDING IN M/S. KAMALA ME NSION PVT. LTD. ON APPEAL, THE LD CIT(A) CONFIRMED THE ACTION OF TH E AO ON THIS ISSUE. 4. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE AS SESSES HAVE PREFERRED THESE APPEALS BEFORE THE TRIBUNAL ON THE FOLLOWING IDENTICAL GROUNDS: - ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HEREIN AFTER CALLE CIT(A) ERRED IN CONFIRMING INVOCATION OF THE PROVISIONS OF SECTION 50C OF THE INCOME TAX ACT 1961 EVEN THOU GH THE DOCUMENT FOR SALE OF SHARES OF M/S. KAMALA MENSION PVT. LTD. WAS NOT REQUIRED TO BE REGISTERED WITH STAMP AUTHORITIES AND IN DETERMINING THE SALE VALUE AT RS.4,12,16,500/- AGAINST AGREEMENT VALUE OF RS.3,46,71,609/- WHILE WORKING OUT THE CAPITAL GAIN ON SALE OF SHARES OF M/S. KAMALA MENSION PVT. LTD. THE PURCHASER OF THE SHARES OF THE COMPANY ARE NOT RELATIVES OF THE DIRECTORS/SHAREHOLDERS OF THE COMP ANY NOR THEY HAVE ANY BUSINESS RELATIONSHIP WITH THE DIRECTORS/SHAREHOLDERS OR ANY ASSOCIATES THEREOF. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LD. CIT(A) ERRED IN CONFIRMING ADDITION OF RS.55,28,500 /- TO THE SALE CONSIDERATION BEING SEPARATE PAYMENT TO THE CO MPANY FOR REPAYMENT OF LOAN TAKEN BY THE COMPANY FOR PURCHASE OF PROPERTY. WITHOUT PREJUDICE ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN NOT CONSIDERING THE GROUND OF THE APPELLANT TO SUBSTITUTE INDEXED COST OF THE VALUE OF THE 5 ITA NO.8837,8838,8848,8849,8845,8846 /MUM/2012 ABDUL GAFFAR ABDUL LATI FAZLANI ASIF ABDUL KADER FAZLANI & ARIF ABDUL KADER FAZLANI. IMMOVABLE PROPERTY WHILE COMPUTING CAPITAL GAINS ON SALE OF IMMOVABLE PROPERTY. 5. WE HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. AS SUBMITTED BY T HE LD. COUNSEL FOR ASSESSEE, SIMILAR ADDITIONS MADE ON ACCOUNT LON G TERM CAPITAL GAIN BY ENHANCING THE VALUE OF SALE CONSIDERATION I N THE CASES OF OTHER ASSESSEE BELONGING TO THE SAME FAMILY/GROUP VIZ. SHRI IRFAN ABDUL KADER FAZLANI, SHRI IQBAL ABDUL KADER FAZLANI AND SHRI IMRAN YUNUS FAZLANI, WHO HAD ALSO SOLD THE SHA RES HELD BY THEM IN M/S. KAMALA MENSION PVT. LTD., WERE DISPUTED IN THE APPEALS FILED BEFORE THE TRIBUNAL TAKING IDE NTICAL GROUNDS AND THE TRIBUNAL VIDE ITS ORDER DATED 2 ND JANUARY 2013 PASSED IN ITA NOS.8831, 8835, AND 8851/MUM/2011 HAS DELETED T HE SAID ADDITIONS VIDE PARAGRAPH NO. 11-12 AND 14 OF THE SA ID ORDER WHICH READ AS UNDER:- WE HAVE HEARD BOTH THE PARTIES, PERUSED THE ORDER O F THE REVENUE AND THE MATERIAL AVAILABLE BEFORE US. THERE IS NO DISPUTE O N THE FACTS AND THEREFORE, THE DISPUTE RELATES TO THE APPLICABILITY OF PROVISI ONS OF SECTION 50C OF THE ACT. FOR EXAMINING THE VALIDITY OF THE APPLICABILITY OF THE SAID PROVISIONS, WE PROCEED TO EXAMINE RELEVANT PROVISIONS AND THE PROV ISIONS OF SECTION 50C OF THE ACT READ AS FOLLOWS. SECTION 50C. (1) WHERE THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF THE TRANSFER BY AN ASSESSEE OF A CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH, IS LESS THAN THE VALUE ADOPTED OR ASSESSED [OR ASSESSABLE] BY ANY AUTHORITY OF A STATE GOVERNMENT (HEREAFTER IN THIS SECTION REFERRED TO AS THE 'STAMP VALUATION AUTHORI TY') FOR THE PURPOSE OF PAYMENT OF STAMP DUTY IN RESPECT OF SUCH TRANSFER, THE VALUE SO ADOPTED OR ASSESSED [OR ASSESSABLE] SHALL, FOR THE PURPOSES OF SECTION 48 , BE DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUING AS A RESULT OF SUCH TRANSFER. PRIMA FACIE , THE ABOVE SECTION REFERS TO THE EXPRESSIONS IE CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH , ASSESSED (ASSESSABLE DOES NOT APPLY TO THE AY IN QUESTION), CAPITAL ASSET, BEING LAND OR BUILDING OR BOTH , DEEMED TO BE THE FULL VALUE OF THE CONSIDERATION ETC. THE ABOVE SUB- 6 ITA NO.8837,8838,8848,8849,8845,8846 /MUM/2012 ABDUL GAFFAR ABDUL LATI FAZLANI ASIF ABDUL KADER FAZLANI & ARIF ABDUL KADER FAZLANI. SECTION PROVIDES FOR MEANING OF THE FULL VALUE OF THE CONSIDERATION (FVC) AND IT IS A DEEMED DEFINITION. ACCORDINGLY, WHEN THE ASSESSEE TRANSFERS A CAPITAL ASSET BEING LAND OR BUILDING OR BOTH, FOR A CONSIDERATION LESSER THAN THE VALUE ADOPTED, ASSESSED BY ANY AUTHORITY OF A S TATE GOVERNMENT, THE VALUE SO ADOPTED OR ASSESSED SHALL BE DEEMED TO THE FULL VALUE CONSIDERATION FOR THE PURPOSE OF COMPUTING CAPITAL GAINS U/S 48 OF TH E ACT. THE EXPRESSION ASSESSABLE HAS INSERTED INTO THE STATUTE FOR PERS PECTIVE APPLICATION W.E.F 1.10.2009 WHEREAS THE ASSESSMENT YEAR UNDER CONSIDE RATION IS 2007-08 AND 2008-09. THE CAPITAL ASSETS THAT ARE COVERED UNDER THE PROVISIONS ARE LAND OR BUILDING OR BOTH. EXPRESSION TRANSFER SHALL HAVE TO BE A DIRECT TRANSFER AS DEFINED U/S 2(47) OF THE ACT WHICH DOES NOT INCLUDE THE TAX PLANNING ADOPTED BY THE ASSESSEE. IT IS SETTLED ISSUE THAT THE PROVISIONS O F SECTION 50C ARE DEEMED PROVISIONS AND, THEREFORE, THE SAME HAVE TO BE INTE RPRETED STRICTLY IN ACCORDANCE WITH THE SPIRIT OF THE PROVISIONS. IN THE LIGHT OF THE ABOVE LEGAL INTERPRETATION OF SECTION 50C OF THE ACT, WE NEED TO EXAMINE THE FACT S OF THE PRESENT CASE. IN THE INSTANT CASE, WHAT TRANSFERRED BY THE ASSESSEE ARE THE SHARES IN THE COMPANY AND NOT THE LAND OR BUILDING OR BOTH. ASSESSEE DOES NOT HAVE FULL OWNERSHIP ON THE FLATS WHICH ARE OWNED BY THE COMPANY. THE TRANSFER OF SHARES WAS NEVER A PART OF THE ASSESSMENT OF THE STAMP DUTY AUTHORITIES OF THE STATE GOVERNMENT. THE COMPANY WAS DERIVING INCOME, TAXABLE UNDER THE HEAD INCOME FROM PROPERTY FOR M ORE THAN A DECADE. THE EXPRESSION ASSESSABLE IS INSERTED IN SECTION 50C (1) OF THE ACT IS NOT RELEVANT FOR THE IMPUGNED ASSESSMENT YEARS. IN SUCH CIRCUMSTANCES, THE AOS DECISION TO INVOKE THE PROVISIONS OF SECTION 50C TO THE TAX PLANNING ADOPTED BY THE ASSESSEE IS NOT PROPER AND IT DOES NOT HAVE THE SAN CTION OF THE PROVISIONS OF IT ACT. THE PROVISIONS OF SECTION 50C ARE DEEMED PROVISIONS WHICH ARE REQUIRED TO BE STRICTLY INTERPRETED, IT IS NOT COVERED BY THE EXPRESSIONS OF THE PRESENT CASE. THEREFORE, WE ARE OF THE OPINION THAT ORDER OF THE CIT (A) IS REQUIRED TO BE REVERSED WITH A DIRECTION TO THE AO TO ALLOW THE CLAIM OF THE ASSESSEE. ACCORDINGLY, GROUND NO.1RAIS ED BY THE ASSESSEE IS ALLOWED . WE HAVE HEARD THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AND THE PAPERS FILED BEFORE US. THE ENTRIES IN THE BOOKS OF ACCOUNTS VIVIDLY SUGGESTS THAT THE TRANSFEREES INFUSED THE MONEY IN THE ACCOU NTS OF THE COMPANY AND THE COMPANY REPAID THE LIABILITIES OF THE DIRECTORS AND IT IS NOT THE CASE OF THE TRANSFEREES PAYING ADDITIONAL CONSIDERATION DIRECTL Y TO THE TRANSFERORS OF THE SHARES IE CAPITAL ASSETS. THEREFORE, CONSIDERING TH E BOOK ENTRIES PLACED BEFORE US, THE ALLEGATIONS OF THE AO DO NOT HAVE SUSTAINAB LE STRENGTH. THEREFORE, INCOME TAX AUTHORITIES HAVE FALLEN INTO ERROR ZONE IN DEEMING THE LOAN REPAYMENTS AS AN ADDITIONAL SALE CONSIDERATION. WE AGREE WITH THE ARGUMENTS OF LD COUNSEL. ACCORDINGLY, GROUND NO.2 RAISED BY T HE ASSESSEE IS ALLOWED 6. AS THE ISSUES INVOLVED IN THE CASES OF THE PRESE NT ASSESSEES AS WELL AS ALL THE MATERIAL FACTS RELEVANT THERETO ARE SIMILAR TO THE CASES OF SHRI IRFAN ABDUL KADER FAZLANI, SHRI IQBAL ABDUL KADER FAZLANI AND SHRI IMRAN YUNUS FAZLANI DECIDED BY THE 7 ITA NO.8837,8838,8848,8849,8845,8846 /MUM/2012 ABDUL GAFFAR ABDUL LATI FAZLANI ASIF ABDUL KADER FAZLANI & ARIF ABDUL KADER FAZLANI. TRIBUNAL, WE RESPECTFULLY FOLLOW THE ORDER OF THE TRIBUNAL DATED 2 ND JANUARY 2013(SUPRA) AND DELETE THE ADDITIONS MADE B Y THE AO AND CONFIRMED BY THE LD. CIT(A) ON ACCOUNT OF LONG TERM CAPITAL GAIN BY ENHANCING THE VALUE OF SALE CONSIDERATION. GROU NDS NO. 1 AND 2 OF THE APPEALS OF THE ASSESSEES FOR THE A.Y. 2007-0 8 ARE ACCORDINGLY ALLOWED. 7. AS REGARDS GROUND NO. 3 OF THE APPEALS OF THE AS SESSEES FOR A.Y.-2007-08, IT IS OBSERVED THAT THE ISSUE INVOLVE D THEREIN RELATING TO ASSESSEES ALTERNATIVE CLAIM HAS BECOME INFRUCTU OUS AS A RESULT OUR DECISION RENDERED ABOVE ON GROUND NO. 1 AND 2 O F THE ASSESSEES APPEALS. THE SAME IS ACCORDINGLY DISMISS ED AS INFRUCTUOUS. 8. NOW, WE SHALL TAKE UP THE APPEALS OF THE ASSESSE E FOR A.Y.2008-09, WHEREIN THE FOLLOWING IDENTICAL GROUND S ARE RAISED BY THE ASSESSEES 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HEREINAFTER CA LLED CIT(A) ERRED IN CONFIRMING INVOCATION OF THE PROVISIONS OF SECTION 50C OF THE INCOME TAX ACT 1961 EVEN THOUGH THE DOCUMENT FOR SA LE OF SHARES OF BLUE DIAMOND REALATORS P. LTD WAS NOT REQUIRED TO B E REGISTERED WITH STAMP AUTHORITIES AND IN DETERMININ G THE SALE VALUE AT RS. 3,02,68,784/- AGAINST AGREEMENT VALUE OF RS.1,4 7,00,000/- WHILE WORKING OUT THE CAPITAL GAIN ON SALE OF SHARES OF B LUE DIAMOND REALATORS P.LTD 2. THE PURCHASERS OF THE SHARES OF THE COMPANY ARE NOT RELATIVES OF THE DIRECTORS! SHAREHOLDERS OF THE COMPANY NOR THEY HAV E ANY BUSINESS RELATIONSHIP WITH THE DIRECTORS / SHAREHOLDERS OR A NY ASSOCIATES THEREOF. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT (A) ERRED IN CONFIRMING ADDITION OF RS. 94,08,637/- TO THE SALE CONSIDERATION BEING SEPARATE PAYMENT TO THE CO MPANY FOR REPAYMENT OF LOAN TAKEN BY THE COMPANY FOR PURCHASE OF THE PROPERTY. 8 ITA NO.8837,8838,8848,8849,8845,8846 /MUM/2012 ABDUL GAFFAR ABDUL LATI FAZLANI ASIF ABDUL KADER FAZLANI & ARIF ABDUL KADER FAZLANI. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW THE LEARNED CIT (A) ERRED IN COMPUTING SHORT TERM CAPITAL GAINS ON SALE OF SHARES OF BLUE DIAMOND REALATORS P. LTD AGAINST LONG TERM CAP ITAL GAINS BY THE APPELLANT AND ASSESSED BY LEARNED ASSE SSING OFFICER ON THE GROUND THAT DEPRECIATION IS BEING CLAIMED ON TH E BUILDING AS PER PROFIT & LOSS ACCOUNT AND BALANCE SHEET OF BLUE DIA MOND REALATORS P LTD WHICH ALSO IS AN ERROR THE APPELLAN T HAS NOT CLAIMED ANY DEPRECIATION IN THE RETURN OF INCOME. 4. WITHOUT PREJUDICE ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED CIT(A) ERRED IN NOT CONSIDERING THE GROUND OF THE APPELLANT TO SUBSTITUTE INDEXED COST OF THE VALUE O F THE IMMOVABLE PROPERTY WHILE COMPUTING CAPITAL GAINS ON SALE OF I MMOVABLE PROPERTY. 9. AS IS EVIDENT FROM GROUND NO. 1 AND 2 RAISED IN THE APPEALS OF THE ASSESSEES FOR A.Y. 2008-09, THE ISSUES INVOL VED THEREIN ARE SIMILAR TO THE ISSUES INVOLVED IN GROUND NO. 1 AND 2 OF THE ASSESSEES APPEALS FOR A.Y. 2007-08 WHICH WE HAVE A LREADY DECIDED IN THE FORGOING PORTIONS OF THIS ORDER. SINCE ALL THE MATERIAL FACTS RELEVANT TO THESE ISSUES AS INVOLVED IN A.Y. 2008-0 9 ARE SIMILAR TO A.Y. 2007-08, WE FOLLOW OUR CONCLUSION DRAWN ON THE SE ISSUES IN A.Y. 2008-09 AND DELETE THE ADDITION MADE BY THE A O AND CONFIRMED BY THE LD. CIT(A) ON ACCOUNT OF LONG TERM CAPITAL GAIN BY ENHANCING THE VALUE OF SALE CONSIDERATION INVOKI NG THE PROVISIONS OF SECTION 50C. GROUND NO. 1 AND 2 OF T HE APPEALS OF THE ASSESSEES FOR A.Y.- 2008-09 ARE ACCORDINGLY AL LOWED. 10. AS REGARDS GROUND NO. 3 RAISED BY THE ASSESSEES IN THEIR APPEALS FOR A.Y. 2008-09, IT IS OBSERVED THAT THE I SSUE RAISED THEREIN IS CONSEQUENTIAL TO THE MAIN ISSUE INVOLVED IN GROUND NO. 1 AND 2 OF THE APPEALS OF THE ASSESSEES IN AS MUCH AS WHEN THE CAPITAL GAIN IS HELD TO BE ARISING IN THE HANDS OF THE ASSESSEE FROM SALE OF SHARES AS CLAIMED BY THE ASSESSEE AND NOT F ROM SALE OF PROPERTY, THE BASIS TAKEN BY THE AUTHORITIES BELOW TO TREAT THE SAME 9 ITA NO.8837,8838,8848,8849,8845,8846 /MUM/2012 ABDUL GAFFAR ABDUL LATI FAZLANI ASIF ABDUL KADER FAZLANI & ARIF ABDUL KADER FAZLANI. AS SHORT TERM CAPITAL GAIN NO MORE SURVIVES AND THE SAID CAPITAL GAIN THUS A CHARGEABLE OF TAX IN THE HAND OF ASSESS EE AS LONG TERM CAPITAL GAIN A SHOWN IN THE RETURNS OF INCOME. WE, THEREFORE, ALLOW GROUND NO. 3 OF THE ASSESSEES APPEALS FOR A.Y. 200 8-09. 11. AS REGARDS GROUND NO. 4 OF THE APPEALS OF THE A SSESSEES FOR A.Y. 2008-09, IT IS OBSERVED THAT THE ISSUE INVOLVE D THEREIN RELATING TO THE ASSESSEES ALTERNATIVE CLAIM HAS BECOME INFR UCTUOUS AS A RESULT OF OUR DECISION RENDERED ON THE MAIN ISSUE I NVOLVED IN GROUND NO. 1 AND 2 OF THE ASSESSES APPEAL. THE SAM E IS ACCORDINGLY DISMISSED AS INFRUCTUOUS. 12. IN THE RESULT, ALL SIX APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 21ST JUNE.20 13 '4 0 23+ 5'*6 21 ST JUNE.2013 3 0 SD/- SD/- ( VIVEK VARMA ) (P.M. JAGTA P ) ' !'# JUDICIAL MEMBER !'# / ACCOUNTANT MEMBER MUMBAI ; 5'* DATED 21.06.2013 '*.!./ S.S.K , PS '4 0 .'7% 8%+ '4 0 .'7% 8%+ '4 0 .'7% 8%+ '4 0 .'7% 8%+/ COPY OF THE ORDER FORWARDED TO : 1. ,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 9 ( ) / THE CIT (A) - , MUMBAI 4. 9 /CIT MUMBAI 5. %$< .''* , , / DR, ITAT, MUMBAI BENCH 6. =& > / GUARD FILE. '4* ! '4* ! '4* ! '4* ! / BY ORDER, !/% .' //TRUE COPY// ? ?? ?/ // /!@ !@ !@ !@ ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI
Other Referred Cases
-
Laws Referred To
-
1:1 Consultation with family dentist -Your Smile Deserves the Best Care!
₹250
1:1 Consultation on FEMA Compliance
₹1
1:1 Consultation on Tax Litigation
₹1
Shipping and Logistics Agreement
₹0
Rectification Letter - Application for rectification of mistake under Section 154 of I.T. Act
Mehul₹0
Transfer Pricing and International Tax Reforms under Finance Bill, 2026: A Practical Overview
Team Counselvise - February 07, 2026
Minimum Alternate Tax (MAT): Comprehensive Overview and Key Changes under Finance Bill, 2026
Team Counselvise - February 06, 2026
When Global Talent Meets GST: The Huawei Secondment Ruling explained
Team Counselvise - March 09, 2026