NIKHIL J. MEHTA, MUMBAI V. ITO 12(1)3), MUMBAI

ITA 8947/MUM/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79304 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-07-2014
• Assessment Year: 1993-1994
• Appeal Filed On: 22-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JIVANLAL LAVIDIYA
• Keywords: Gift; Valuation report

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO.8947/MUM/2010, A.Y. 1993-94 SHRI NIKHIL J. MEHTA, C/O. SHRI SUNIL U MEHTA, 301, SAI DARSHAN, MHADA ROAD, NEXT TO VERSOVA TELEPHONE EXCHANGE, ANDHERI (W), MUMBAI 400 053 PAN: AAEPM 3556B (APPELLANT ) VS. THE ITO 12(10(3), MUMBAI. (RESPONDENT) APPELLANT BY : SHRI BHUPENDRA SHAH RESPONDENT BY : SHRI JI VANLAL LAVIDIYA DATE OF HEARING : 07/07/20 14 DATE OF PRONOUNCEMENT : 07/07/2014 ORDER PER I.P.BANSAL, J.M, THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST ORDER PASSED BY LD. CIT(A)-XIII, MUMBAI DATED 27/10/2010 FOR ASS ESSMENT YEAR 1993-94. GROUNDS OF APPEAL READ AS UNDER: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED A.O. ERRED IN ADOPTING F.M.V. AT RS. 2,34,842/- AS ON 1/4/81 IN R ESPECT OF CAPITAL GAIN ON SALE OF FLAT BY REFERRING THE MATTER OF VALUATION TO THE D. V.O. & THEREBY NOT FOLLOWING THE JUDGMENT OF BENCH OF MUMBAI, ITAT IN THE CASE OF R. M. KAZERANI. WITHOUT PREJUDICE TO THE ABOVE, 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED A.O. ERRED IN ADOPTING F.M.V. AT RS. 2,34,842/- AS ON 1/4/81 IN R ESPECT OF CAPITAL GAIN ON SALE OF FLAT EVEN THOUGH THE SAME IS BASED ON PRELIMINARY R EPORT OF D.V.O. WHICH HAS NOT BECOME FINAL AS AGAINST RS. 5,52,507/- AS PER THE V ALUATION REPORT OF THE REGISTERED VALUERS REPORT FILED BY THE APPELLANT. ITA NO.8947/MUM/2010, A.Y. 1993-94 2 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED A.O. ERRED IN ADOPTING F.M.V. AT RS. 2,34,842/- AS ON 1/4/8 1 IN RESPECT OF CAPITAL GAIN ON SALE OF FLAT EVEN THOUGH THE VALUE OF FLAT WAS ADOPTED A T RS. 5,92,000/- AS ON 3/3/1980 FOR THE PURPOSE OF ASSESSMENT OF THE GIFT OF THE SI MILAR FLAT IN THE SAME BUILDING. 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED COMMISSIONER OF INCOME TAX (A) ALSO ERRED IN CONFIRMING THE ADDI TIONS MADE BY THE ASSESSING OFFICER AS WELL AS REFERENCE TO THE D.V.O. 5. LD. AO HAS WRONGLY LEVIED INTEREST U/S. 234A, B & C. 2. AT THE OUTSET IT WAS POINTED OUT BY LD. A.R THA T THE ISSUE RAISED IN THE PRESENT APPEAL IS COVERED IN FAVOUR OF THE ASSESSEE BY THE EARLIER ORDER OF THE TRIBUNAL. REFERENCE WAS MADE TO THE ORDER OF THE T RIBUNAL DATED 26/8/2013 IN ITA NO.5819/MUM/2011 IN THE CASE OF LATE SMT. KISHO RIBEN U. MEHTA, C/O. SUNIL U. MEHTA, COPY OF ORDER WAS PLACED ON OUR RE CORD AND WAS ALSO GIVEN TO LD. D.R. IT WAS SUBMITTED THAT IN THE CASE OF ANOTHER CO-OWNER THE TRIBUNAL ON SIMILAR GROUNDS OF THE ASSESSEE HAS DECIDED THE ISS UE IN FAVOUR OF THE ASSESSEE. 3. LD. DR DID NOT CONTROVERT TO SUCH SUBMISSIONS O F THE ASSESSEE. 4. IN THIS VIEW OF THE SITUATION, AFTER HEARING BOT H THE PARTIES, WE DECIDE THE PRESENT APPEAL IN FAVOUR OF THE ASSESSEE. IT MAY B E MENTIONED HERE THAT BOTH OF US ARE PARTY TO THE AFOREMENTIONED DECISION IN ONE OF THE CO-OWNERS CASE. FOR THE SAKE OF COMPLETENESS RELEVANT PORTION OF THE AFOREM ENTIONED ORDER OF THE TRIBUNAL IS REPRODUCED BELOW: 6. WE HAVE HEARD LD. DR AND WE HAVE CAREFULLY GONE THROUGH THE EARLIER ASSESSMENT ORDER, IMPUGNED ASSESSMENT ORDER, ORDER PASSED BY LD. CIT(A) AND DOCUMENTS SUBMITTED IN THE PAPER BOOK, WHICH PART OF THE APPEAL FILE AND CONTAINS 47 PAGES. WE FIND THAT THERE IS A FORCE IN THE CL AIM OF THE ASSESSEE THAT SAME FLAT ACCORDING TO EARLIER VALUATION REPORT WAS VALUED FO R THE PURPOSE OF GIFT TAX AND IT WAS VALUED BY THE VALUATION CELL OF THE DEPARTMENT AT RS.5,92,000/- AS ON 3/3/1980 AND ON THE BASIS OF THAT REPORT ONLY GIFT OF THE SAID FLAT WHICH WAS RETURNED BY THE SAID ASSESSEE AT RS.1,46,000/- WAS ENHANCED TO RS.5,92,000/- BY THE DEPARTMENT. THE SAID ASSESSMENT ORDER IS AN IM PORTANT EVIDENCE WHICH CANNOT BE IGNORED AND CAN BE TAKEN AS COMPARABLE CASE. IF THE SAME IS TAKEN INTO CONSIDERATION THEN WE SEE NO REASON TO DISPUTE THE VALUE TAKEN BY THE ASSESSEE AS ON 1/4/1981 AT RS.4,44,200/-, WHICH IS BELOW THE AMOUNT OF RS.5,92,000/-. ITA NO.8947/MUM/2010, A.Y. 1993-94 3 THEREFORE, THE AO IS DIRECTED TO CONSIDER AN AMOUN T OF RS.4,44,200/- AS ON 1/4/1981 FOR THE PURPOSE OF INDEXATION BENEFIT. WE MAY MENTION HERE THAT THOUGH THE VALUATION WAS GOT DONE AS PER EARLIER ORDER OF ITAT BUT THE FACT OF SIMILAR VALUATION MADE BY THE DEPARTMENT IN RESPECT OF GIFT TAX PROCEEDINGS WAS NOT BROUGHT TO THE NOTICE OF ITAT AS THE SAME WAS A VALID EVIDE NCE TO DETERMINE THE VALUE AS ON 1/4/1981. IN VIEW OF ABOVE DISCUSSIONS, WE ALLOW T HE APPEAL FILED BY THE ASSESSEE IN THE MANNER AFORESAID. 6.1 SO FAR AS IT RELATES TO LEVY OF INTEREST THE A O WILL RECALCULATE THE SAME AFTER GIVING EFFECT TO THIS ORDER. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED IN THE MANNER AFORESAID. 4.1 FOLLOWING THE AFOREMENTIONED ORDER THE ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE. THE AO IS DIRECTED TO GIVE INDEXATION BE NEFIT TO THE ASSESSEE AS PER VALUE TAKEN BY THE ASSESSEE AS ON 1/4/1981 AND ALSO RECOMPUTE THE LEVY OF INTEREST AFTER GIVING EFFECT TO THIS ORDER. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 07/07/2014 ! ' #$ % &'( 07/07/2014 ' ) SD/- SD/- ( /SANJAY ARORA ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; &' DATED 07/07/2014 ITA NO.8947/MUM/2010, A.Y. 1993-94 4 ! ! ! ! ' '' ' *+, *+, *+, *+, -,$+ -,$+ -,$+ -,$+ / COPY OF THE ORDER FORWARDED TO : 1. ./ / THE APPELLANT 2. *0./ / THE RESPONDENT. 3. 1 ( ) / THE CIT(A)- 4. 1 / CIT 5. ,2) *+' , , / DR, ITAT, MUMBAI 6. )3 4 / GUARD FILE. !' !' !' !' / BY ORDER, 0,+ *+ //TRUE COPY// 5 55 5 / 6 6 6 6 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . ' . ./ VM , SR. PS