NITUL B SHAH, MUMBAI V. INCOME TAX OFFICER 19(1)(1), MUMBAI

MA 213/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6239 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 17-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI
• Keywords: Capital asset; Gift; Principle of natural justice; Question of law; Cost of acquisition
• Section: 260A

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO. 213/MUM2017 (ARISING OUT OF ITA NO.5756/MUM/2012 ASSESSMENT YEAR: 2009 - 2010 NITUL B SHAH 101, KUSUMKUNJ, 1ST FLOOR, 9TH & 10TH ROAD KHAR (WEST) MUMBAI 400 052 / VS. INCOME TAX OFFICER WARD 19(1)(1) MUMBAI ( !' # /ASSESSEE) ( $ / REVENUE) P.A. NO. ATAPS0054P !' # / ASSESSEE BY SHRI PARESH SHAPARIA $ / REVENUE BY SHRI RAM TIWARI SR.DR $% & # ' / DATE OF HEARING : 02/02/2018 & # ' / DATE OF PRONOUNCEMENT 02/02/2018 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THIS MISCELLANEOUS APPLICATION IS BY THE ASSESSEE SEEKING RECTIFICATION/ RECALLING OF THE ORDER OF TH E TRIBUNAL 2 DATED 5 TH NOVEMBER 2015. DURING HEARING THE LEARNED COUNSEL FOR THE ASSESSEE SHRI PARESH SHAPARIA EXPLA INED THAT THE ASSESSEE EARNED LONG TERM CAPITAL GAINS ON 29 TH JULY 2008 ON THE SALE OF FLAT RECEIVED AS PER INTEN T OF HIS GRANDMOTHER, MRS. KANTABEN K SHAH, WHO EXPIRED ON 1 0 TH DECEMBER 1999. SINCE SHE DIED INTERSTATE (WITHOUT WILL) AND IN ORDER TO TRANSFER THE SAID RESIDENTIAL PREMISES, AS PER LAST WISH KNOWN TO THE FAMILY MEMBERS, THEY APPROACHED T HE SOCIETY FOR TRANSFER OF THE FLAT. THE ASSESSEE WAS ASKED TO FILE AN AFFIDAVIT OF ALL THE LEGAL HEIRS OF LATE KA NTABEN SHAH. THE REMAINING FAMILY MEMBERS GAVE NOC FOR TRANSFER O F THE FLAT IN THE NAME OF THE ASSESSEE. THE CRUX OF THE ARGUMENT BEFORE US IS THAT WHILE ADJUDICATING THE APPEAL OF THE ASSESSEE THE TRIBUNAL INADVERTENTLY, COULD NOT CONS IDER THE CASE OF MANJULA SHAH 16 TAXMAN.COM 42, ORDER DATED 11.10.2011 FROM HON'BLE BOMBAY HIGH COURT THUS, CONSIDERING THE PRINCIPLE OF NATURAL JUSTICE THE OR DER MAY BE RECALLED. RELIANCE WAS PLACED UPON THE DECISION IN INCOME TAX OFFICER VS. NANDLAL R MISHRA (2015) 62 TAXMAN.C OM 134 AND THE DECISION FROM HON'BLE JURISDICTION HIGH COU RT IN CIT VS. MS. JHANVI S DESAI (2012) 24 TAXMAN.COM 31 4 (BOM). 3 2. ON THE OTHER HAND, THE LEARNED DR SHRI RAM TIWARI, CONTENDED THAT THOUGH THERE IS A DECISION F ROM HON'BLE BOMBAY HIGH COURT, IN FAVOUR OF THE ASSESSE E STILL THE TRIBUNAL CANNOT RECALL ITS ORDER AS THERE IS NO APPARENT MISTAKE FROM RECORD WHICH CAN BE RECTIFIED U/S. 254 (2) OF THE ACT. RELIANCE WAS PLACED UPON THE DECISION IN CIT VS. GUJARAT INSTITUTE OF HOUSING ESTATE DEVELOPERS (201 7) 84 TAXMAN.COM 148 (GUJ). 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. BEFORE ADVERTIN G FURTHER, WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTION F ROM THE ORDER DATED 5 TH JULY 2012 FROM HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. MS. JHANVI S DESAI (SUPRA), FOR READY REFERENCE AND ANALYSIS: 1. WITH THE CONSENT OF THE PARTIES, WE PROCEED TO HEAR THE APPEAL FILED UNDER SECTION 260A OF THE INCOME TAX A CT, 1961 AND THE CROSS-OBJECTIONS FINALLY. 2. THE APPEAL IS ADMITTED ON THE FOLLOWING SUBSTANT IAL QUESTION OF LAW : 'WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ITAT WAS RIGHT IN DIRECTING THE A.O. TO CALCULATE T HE LONG TERM CAPITAL GAIN WITHOUT APPRECIATING THAT SECTION 2(42A) OF THE ACT EXPLANATION 1 ONLY DETERMINES THE HOLDIN G PERIOD OF AN ASSET FOR THE PURPOSE OF SHORT TERM CAPITAL G AINS AND HAS NO APPLICATION TO LONG TERM CAPITAL GAIN FOR WH ICH THE ASSESSEE GETS THE BENEFIT OF INDEXATION ?' 4 THE CROSS-OBJECTIONS ARE ADMITTED ON THE FOLLOWING SUBSTANTIAL QUESTION OF LAW : 'WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE TRIBUNAL ERRED IN HOLDING THAT IN RESPECT OF THE 50% OF THE PROPERTY INHERITED BY THE RESPONDENT FRO M HIS MOTHER THE PERIOD OF HOLDING WILL START FROM 21.08. 1988 AND NOT FROM 01.04.1981 ? 3. IN OR ABOUT THE YEAR 1942, THE RESPONDENT'S FATH ER ACQUIRED THE ENTIRE IMMOVABLE PROPERTY FROM HIS FAT HER I.E. THE RESPONDENT'S GRAND-FATHER. THE RESPONDENT'S FAT HER EXPIRED IN THE YEAR 1988, LEAVING BEHIND A WILL BEQ UEATHING THE PROPERTY TO HIS WIFE AND THE RESPONDENT IN EQUA L SHARES. THE RESPONDENT'S MOTHER EXPIRED ON 21.02.2000 LEAVI NG BEHIND A WILL BEQUEATHING HER 50% SHARE IN THE PROP ERTY TO THE RESPONDENT. 4. THE RESPONDENT SOLD THE PROPERTY DURING THE ASSE SSMENT YEAR 2005-2006 FOR RS.9.50 CORERS AND DECLARED A LO NG TERM CAPITAL GAIN OF RS.38,44,247/-. THE RESPONDENT CONSIDERED THE DATE OF ACQUISITION OF THE PROPERTY FOR THE PURPOSE OF CALCULATING THE CAPITAL GAINS TO BE PRIO R TO 1.4.1981. THE AO HOWEVER, HELD THAT THE ACTUAL DATE OF ACQUIS ITION MUST BE CONSIDERED FOR CALCULATING THE CAPITAL GAIN S. HE HELD THE DATE ON WHICH THE RESPONDENT INHERITED THE PROPERTY TO BE THE RELEVANT DATE AND ACCORDINGLY RECOMPUTED THE CAPITAL GAINS. THE RE- COMPUTATION W AS ON THE BASIS OF 50% OF THE PROPERTY HAVING BEEN INHERI TED BY THE RESPONDENT FROM HIS FATHER ON 21.8.1988 AND THE OTHER 50% THEREOF HAVING BEEN INHERITED BY HIM FROM HIS M OTHER ON 21.2.2000 AND ACCORDINGLY APPLIED THE COST INFLA TION INDEX. 5. THE CIT (A) ALLOWED THE RESPONDENT'S APPEAL BY A N ORDER DATED 23.6.2008. IT WAS HELD IN THE RESPONDENT'S FA VOUR THAT THE PERIOD OF HOLDING FOR DETERMINING THE LONG TERM CAPITAL GAIN INCLUDED THE PERIOD FOR WHICH THE ORIG INAL OWNER HELD THE ASSETS THAT DEVOLVED UPON THE LEGAL HEIR. 6. THE APPELLANT CHALLENGED THE ORDER OF THE CIT (A ) BEFORE THE INCOME TAX APPELLATE TRIBUNAL (ITAT). THE ITAT HELD THAT THE PERIOD FOR HOLDING 50% OF THE PROPERTY INH ERITED BY THE RESPONDENT FROM HIS FATHER WOULD START FROM 1.4.1981, WHEREAS IN RESPECT OF 50% OF THE PROPERTY INHERITED BY THE RESPONDENT FROM HIS MOTHER, THE PE RIOD FOR HOLDING WOULD START FROM 21.8.1988, AS SHE BECAME T HE 5 OWNER OF HER 50% SHARE IN THE PROPERTY ONLY FROM TH AT DATE. THE TRIBUNAL ORDERED ACCORDINGLY. 7. THE RESPONDENT'S GRIEVANCE IS ONLY WITH REGARD T O THE FINDING OF THE TRIBUNAL THAT THE PERIOD OF HOLDING IN RESPECT OF 50% OF THE PROPERTY INHERITED BY HIM FROM HIS MO THER WOULD START FROM 21.8.1988 AND NOT FROM 1.4.1981. 8. SECTION 2(42A) OF THE INCOME TAX ACT, 1961 READS AS UNDER : '2. DEFINITIONS ' IN THIS ACT, UNLESS THE CONTEXT O THERWISE REQUIRES,' (42-A) 'SHORT-TERM CAPITAL ASSET' MEANS A CAPITAL A SSET HELD BY AN ASSESSEE FOR NOT MORE THAN THIRTY-SIX MO NTHS IMMEDIATELY PRECEDING THE DATE OF ITS TRANSFER: PROVIDED THAT IN THE CASE OF A SHARE HELD IN A COMP ANY [OR ANY OTHER SECURITY LISTED IN A RECOGNISED STOCK EXC HANGE IN INDIA OR A UNIT OF THE UNIT TRUST OF INDIA ESTABLIS HED UNDER THE UNIT TRUST OF INDIA ACT, 1963 OR A UNIT OF A MU TUAL FUND SPECIFIED UNDER CLAUSE (23-D) OF SECTION 10] [OR A ZERO COUPON BOND], THE PROVISIONS OF THIS CLAUSE SHALL H AVE EFFECT AS IF FOR THE WORDS 'THIRTY-SIX MONTHS', THE WORDS 'TWELVE MONTHS' HAD BEEN SUBSTITUTED. (EXPLANATION 1.) (I) IN DETERMINING THE PERIOD FOR WHICH ANY CAPITAL ASSET IS HELD BY THE ASSESSEE (A) '''''''''''''''''.. (B) IN THE CASE OF A CAPITAL ASSET WHICH BECOMES TH E PROPERTY OF THE ASSESSEE IN THE CIRCUMSTANCES MENTI ONED IN [SUB-SECTION (1)] OF SECTION 49, THERE SHALL BE INC LUDED THE PERIOD FOR WHICH THE ASSET WAS HELD BY THE PREVIOUS OWNER REFERRED TO IN THE SAID SECTION .' SECTION 49(1) OF THE SAID ACT IN SO FAR AS IT IS RE LEVANT READS AS UNDER : '49. COST WITH REFERENCE TO CERTAIN MODES OF ACQUISITION.'(1) WHERE THE CAPITAL ASSET BECAME THE PROPERTY OF THE ASSESSEE' (I) '''''''''''''''''.. (II) UNDER A GIFT OR WILL; (III)(A) BY SUCCESSION, INHERITANCE OR DEVOLUTION, OR (IV)'''''''''''''''''. 6 THE COST OF ACQUISITION OF THE ASSET SHALL BE DEEME D TO BE THE COST FOR WHICH THE PREVIOUS OWNER OF THE PROPER TY ACQUIRED IT, AS INCREASED BY THE COST OF ANY IMPROV EMENT OF THE ASSETS INCURRED OR BORNE BY THE PREVIOUS OWNER OR THE ASSESSEE, AS THE CASE MAY BE. EXPLANATION.'IN THIS SUB-SECTION THE EXPRESSION 'PR EVIOUS OWNER OF THE PROPERTY' IN RELATION TO ANY CAPITAL A SSET OWNED BY AN ASSESSEE MEANS THE LAST PREVIOUS OWNER OF THE CAPITAL ASSET WHO ACQUIRED IT BY A MODE OF ACQU ISITION OTHER THAN THAT REFERRED TO IN CLAUSE (I) OR CLAUSE (II) OR CLAUSE (III) OR CLAUSE (IV) OF THIS SUB-SECTION. ' (EMPHASIS SUPPLIED) 9. TWO ISSUES ARISE. FIRSTLY THE DETERMINATION OF T HE COST OF ACQUISITION. SECONDLY A COMPUTATION OF THE PERIOD F OR WHICH THE ASSET IS HELD BY THE ASSESSEE. 10. SECTION 49 DEALS WITH THE DETERMINATION OF THE COST OF ACQUISITION. WHERE A CAPITAL ASSET BECOMES THE PROP ERTY OF THE ASSESSEE UNDER A WILL OR BY INHERITANCE, THE CO ST OF ACQUISITION THEREOF IS DEEMED TO BE THE COST FOR WH ICH THE PREVIOUS OWNER OF THE PROPERTY ACQUIRED IT. THE PRE VIOUS OWNER OF THE PROPERTY IS NOT NECESSARILY THE IMMEDI ATE PREVIOUS OWNER FROM WHOM IT IS ACQUIRED BY THE ASSE SSEE IRRESPECTIVE OF THE MANNER IN WHICH SUCH PERSON ACQ UIRED THE PROPERTY. THE EXPLANATION TO SECTION 49(1) DEFINES THE EXPRES SION 'PREVIOUS OWNER OF THE PROPERTY' TO BE THE LAST PRE VIOUS OWNER THEREOF WHO ACQUIRED IT BY A MODE OF ACQUISIT ION 'OTHER THAN THAT REFERRED TO IN CLAUSES (I) TO (IV) OF SUB SECTION (1)'. THUS THE AMBIT OF THE WORDS 'PREVIOUS OWNER OF THE PROPERTY' DOES NOT INCLUDE A PERSON WHO ACQU IRED THE PROPERTY BY A MODE OF ACQUISITION REFERRED TO I N SUB- CLAUSES (I) TO (IV) OF SECTION 49(1). IF THEREFORE, THE PERSON FROM WHOM THE ASSESSEE HAD ACQUIRED THE PROPERTY HA D HIMSELF ACQUIRED IT BY A MODE REFERRED TO IN CLAUSE S (I) TO (IV) OF SECTION 49(1), HE WOULD NOT BE THE 'PREVIOU S OWNER OF THE PROPERTY' FOR THE PURPOSE OF SECTIONS 2(42A) AND 49. 11. THE LAST PREVIOUS OWNER OF THE PROPERTY, WHO AC QUIRED THE PROPERTY BY A MODE OF ACQUISITION OTHER THAN TH OSE REFERRED TO IN CLAUSES (I) TO (IV), WAS THE RESPOND ENT'S GRAND-FATHER. THE RESPONDENT'S FATHER ADMITTEDLY AC QUIRED THE PROPERTY IN 1942 FROM HIS FATHER I.E. THE RESPO NDENT'S GRAND-FATHER. IT WOULD IN THIS CASE MAKE NO DIFFERE NCE EVEN WHETHER OR NOT THE RESPONDENT'S FATHER HAD ACQUIRED THE PROPERTY IN A MODE REFERRED TO IN CLAUSES (I) TO (I V) OF SECTION 49(1) FOR HE ADMITTEDLY ACQUIRED IT PRIOR T O 7 1.4.1981 AND INDEXATION IS GRANTED AT THE EARLIEST ONLY FROM 1.4.1981. THE RESPONDENT ADMITTEDLY ACQUIRED T HE PROPERTY UNDER HIS FATHER'S WILL AND THEREFORE BY A MODE OF ACQUISITION REFERRED TO IN CLAUSE (II) OF SECTION 4 9(1). 12. THUS AS FAR AS THE 50% PORTION OF THE PROPERTY ACQUIRED BY THE RESPONDENT FROM HIS FATHER IS CONCE RNED, THE COST OF ACQUISITION MUST BE DETERMINED TO BE TH E COST AT WHICH THE RESPONDENT'S GRANDFATHER OR IN ANY EVE NT THE RESPONDENT'S FATHER ACQUIRED THE PROPERTY AND NOT T HE DATE ON WHICH THE RESPONDENT ACQUIRED IT. THE TRIBUNAL D OES NOT HOLD OTHERWISE EITHER. 13. THE TRIBUNAL HOWEVER HELD THAT IN RESPECT OF 50 % OF THE PROPERTY INHERITED BY THE RESPONDENT FROM HIS M OTHER, THE PERIOD FOR HOLDING WOULD START FROM 21.8.1988, AS SHE BECAME THE OWNER OF HER 50% SHARE IN THE PROPERTY O NLY FROM THAT DATE UNDER THE WILL MADE BY HER HUSBAND W HO DIED ON 21.8.1988. 14. THIS REQUIRES A CONSIDERATION OF THE SECOND ISS UE VIZ. A COMPUTATION OF THE PERIOD FOR WHICH THE RESPONDENT HELD THAT 50% PORTION OF THE PROPERTY HE ACQUIRES FROM H IS MOTHER. 15. THE RESPONDENT'S MOTHER ALSO ACQUIRED THE PROPE RTY UNDER HER HUSBAND'S WILL. SHE THEREFORE, ACQUIRED T HE PROPERTY BY A MODE OF ACQUISITION REFERRED TO IN SE CTION 49(1)(II). IN OTHER WORDS, THE RESPONDENT'S MOTHER DID NOT BECOME THE OWNER OF THE ASSET BY A MODE OF ACQUISIT ION OTHER THAN THAN THAT REFERRED TO IN SECTION 49(1). THUS THE DATE OF THE ACQUISITION OF HER SHARE IN THE PROPERT Y IS NOT RELEVANT. THE LAST PREVIOUS OWNER OF HER SHARE WAS THEREFORE HER HUSBAND'S FATHER AND AT THE HIGHEST H ER HUSBAND. 16. SECTION 2(42A) DEFINES 'SHORT TERM CAPITAL ASSE T' TO MEAN A CAPITAL ASSET HELD BY AN ASSESSEE FOR THE ST IPULATED PERIOD IMMEDIATELY PRECEDING THE DATE OF ITS TRANSF ER. EXPLANATION (1)(B) SETS OUT THE FACTORS TO BE TAKEN INTO CONSIDERATION WHILE DETERMINING THE PERIOD FOR WHIC H THE CAPITAL ASSET IS HELD. IN RESPECT OF A CAPITAL ASSE T, WHICH BECAME THE PROPERTY OF THE ASSESSEE IN THE CIRCUMST ANCES MENTIONED IN SECTION 49(1), IT IS PROVIDED THAT THE RE SHALL BE INCLUDED THE PERIOD FOR WHICH THE ASSET WAS HELD BY THE 'PREVIOUS OWNER REFERRED TO IN THE SAID SECTION'. T HE SAID SECTION IS SECTION 49(1). THUS THE DEFINITION OF 'P REVIOUS OWNER' IN THE EXPLANATION TO SECTION 49(1) IS INCOR PORATED IN EXPLANATION (1)(I)(B) TO SECTION 2(42A). IF THER EFORE A CAPITAL ASSET BECOMES THE PROPERTY OF THE ASSESSEE IN THE 8 CIRCUMSTANCES MENTIONED IN SECTION 49(1) AND THE PE RIOD FOR WHICH IT IS HELD AS DETERMINED BY SECTION 49(1) READ WITH SECTION 2(42A) IS MORE THAN THE PERIOD STIPULA TED IN SECTION 2(42A), THE CASE WOULD NOT FALL WITHIN THE AMBIT OF A SHORT TERM CAPITAL ASSET. 17. THE LAST PREVIOUS OWNER OF THE RESPONDENT'S MOT HER'S 50% SHARE IN THE PROPERTY WAS THEREFORE HER HUSBAND 'S FATHER AND AT THE HIGHEST HER HUSBAND. THUS THE RESPONDENT MUST BE DEEMED TO HAVE HELD THIS 50% SHA RE IN THE PROPERTY ALSO FROM 1.4.1981. 18. IN THE CIRCUMSTANCES, THE QUESTIONS ARE ANSWERE D IN FAVOUR OF THE RESPONDENT. THE PERIOD OF HOLDING SHA LL BE FROM 1.4.1981 IN RESPECT OF THE ENTIRE PROPERTY. 19. IN THE RESULT, THE APPEAL IS DISMISSED AND THE CROSS- OBJECTIONS ARE DISPOSED OF ACCORDINGLY. WE NOTE THAT IN THE AFORESAID ORDER THE ASSESSEES FATHER ACQUIRED PROPERTY FROM HIS GRANDFATHER PRIOR TO 198 1 AND FATHER EXPIRED IN 1988 LEAVING BEHIND A WILL BEQUEA THING PROPERTY TO HIS WIFE IN ASSESSEE IN EQUAL SHARES. ASSESSEES MOTHER EXPIRED ON 21 ST FEB 2000 LEAVING BEHIND A WILL BEQUEATHING WITH HER 50% SHARE IN THE PROPERTY TO T HE ASSESSEE. ASSESSEE SOLD SAID PROPERTY AND WHILE CO MPUTING LONG TERM CAPITAL GAIN CONSIDERED THE DATE OF ACQUI SITION TO BE PRIOR TO 1.4.1988. THE LEARNED ASSESSING OFFICE R COMPUTED CAPITAL GAIN ON THE BASIS OF DATE ON WHICH ASSESSEE INHERITED SHARE IN THE PROPERTY FROM HIS F ATHER AND MOTHER RESPECTIVELY. THE QUESTION WAS WHETHER FOR THE PURPOSE OF SECTION 2(42A) AND 49 IT WAS HELD THAT T HE WORD PREVIOUS OWNER OF PROPERTY, DOES NOT INCLUDE A PE RSON WHO 9 ACQUIRED PROPERTY BY A MODE OF ACQUISITION REFERRED TO IN SUB SECTION (I) TO (IV) OF SECTION 49(1) IT WAS DECIDED IN FAVOUR OF THE ASSESSEE ON A QUESTION IN BOTH CASE OF FATHER A ND MOTHER THE COST OF ACQUISITION MUST BE DETERMINED TO BE CO ST AT WHICH ASSESSEES GRANDMOTHER ACQUIRED PROPERTY AND NOT COST ON WHICH ASSESSEE ACQUIRED IT FROM FATHER OR M OTHER. IT WAS HELD THAT IN BOTH CASES PERIOD OF HOLDING WOULD BE FROM 1.4.1981. CONSIDERING THE TOTALITY OF FACTS, WE AR E OF THE VIEW THAT THOUGH RECTIFICATION U/S. 254(2) IS LIMIT ED TO APPARENT MISTAKE FROM RECORD AND A LONG DRAWN PROCE SS OF MERIT CANNOT BE GONE INTO. WE ARE AWARE THAT THERE ARE VARIOUS DECISIONS FROM HON'BLE HIGH COURTS THAT TH E POWERS OF THE TRIBUNAL ARE CONFINED TO RECTIFY MISTAKES WH ICH ARE APPARENT FROM RECORD AND THE TRIBUNAL SHOULD NOT UNDERTAKE ELABORATE CONSIDERATION OF VERY SAME ISSU E ON SAME FACTS TO COME TO A CONTRARY CONCLUSION. OUR V IEW FINDS SUPPORT FROM VARIOUS DECISIONS INCLUDING THE CASE F ROM HON'BLE GUJARAT HIGH COURT IN GUJARAT INSTITUTE OF HOUSING ESTATE DEVELOPERS (RELIED UPON BY LEARNED DR). NOW QUESTION ARISES WHETHER THE ASSESSEE CAN BE PUT TO HARDSHIP DUE TO NON CONSIDERATION OF AN ORDER FORM HON'BLE JURISDICTIONAL HIGH COURT. EVEN AS PER ARTICLE 265 OF 10 CONSTITUTION OF INDIA ONLY DUE TAXES HAVE TO BE LEV IED AND COLLECTED. IT IS ALSO NOTED THAT IN THE CASE OF NAN DLAL R MISHRA (2015) 62 TAXMAN.COM 134 (MUMBAI TRIBUNAL) T HE GAINS ARISING ON TRANSFER OF A CAPITAL ASSET WAS AC QUIRED UNDER A GIFT OR WILL IN THAT SITUATION, IT WAS HELD THAT THE ASSET FROM DATE IT WAS HELD BY PREVIOUS OWNER HAS T O BE CONSIDERED AND NOT IN THE YEAR WHEN THE ASSESSEE BE CAME THE OWNER. LIKEWISE, IN THE CASE OF M/S. JHANVI S DESAI THERE WAS A WILL BEQUEATHING 50% SHARES IN THE PROP ERTY TO THE ASSESSEE WHEREAS, THERE WAS NO WILL IN THE PRES ENT CASE. HOWEVER, CONSIDERING THE PRINCIPLE OF NATURAL JUSTI CE AND FAIR PLAY AND FURTHER THERE IS NO HEROISM IN PERPETUATIN G THE MISTAKE, IF ANY, WE DEEM IT APPROPRIATE TO RECALL T HE ORDER OF THE TRIBUNAL DATED 5 TH NOVEMBER 2015. IT IS ALSO WORTH MENTIONING THAT THIS APPEAL MAY NOT BE PUT UP FOR H EARING AT LEAST BEFORE THIS COMBINATION AND SHOULD BE ADJU DICATED BY A DIFFERENT COMBINATION SO THAT NO GRIEVANCE IS CAUSED TO EITHER SIDE AND AN INDEPENDENT VIEW MAY BE TAKEN BY ANOTHER COMBINATION. FINALLY THE MISCELLANEOUS APPLICATION OF THE ASSESS EE IS ALLOWED. 11 THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 2 ND FEBRUARY, 2018. SD/- (RAJESH KUMAR) SD/- (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % MUMBAI; + DATED : 02 /02/2018 SA %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-./ / THE APPELLANT 2. 01./ / THE RESPONDENT. 3. 2 2 3# , ( , - ) / THE CIT, MUMBAI. 4. 2 2 3# / CIT(A)- , MUMBAI 5. 5$6 0# , 2 ,-' , , % / DR, ITAT, MUMBAI 6. 7! 8% / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) , % / ITAT, MUMBAI