DCIT, Cir.-2,, Pune v. Shri Mahendra U. Kothari,, Pune

ITA 509/PUN/2010 | 2006-2007
Pronouncement Date: 08-11-2011 | Result: Dismissed

Appeal Details

RSA Number 50924514 RSA 2010
Assessee PAN ABGPK1922J
Bench Pune
Appeal Number ITA 509/PUN/2010
Duration Of Justice 1 year(s) 7 month(s)
Appellant DCIT, Cir.-2,, Pune
Respondent Shri Mahendra U. Kothari,, Pune
Appeal Type Income Tax Appeal
Pronouncement Date 08-11-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 08-11-2011
Assessment Year 2006-2007
Appeal Filed On 08-04-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B PUNE BEFORE SHRI I.C. SUDHIR JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO ACCOUNTANT MEMBER ITA NO. 509/PN/2010 (ASSTT. YEAR: 2006-07) DY. CIT CIR.2 APPELLANT INCOME-TAX OFFICE 1 ST FLOOR B WING PMT BLDG SHANKARSHETH ROAD PUNE 37 V. SHRI . MAHENDRA U. KOTHARI ... RESPONDENT 39/D VIJAYA APARTMENTS GULTEKDI PUNE -37 PAN : ABGPK 1922 J APPELLANT BY : NONE DEPARTMENT BY : MS. S. PRAVEENA DATE OF HEARING :12.9.11 DATE OF PRONOUNCEMENT: 08 .11.11 ORDER PER I.C. SUDHIR JM THE REVENUE HAS QUESTIONED THE FIRST APPELLATE ORD ER ON SEVERAL GROUNDS INVOLVING THE SOLE ISSUE AS TO WHETHER THE LD CIT(A) HAS ERRED IN HOLDING THAT FOR THE PURPOSE OF DETERMINING THE INDEXED COS T OF ACQUISITION IN RESPECT OF AN ASSET ACQUIRED UNDER A GIFT OR WILL THE COST INFLATION INDEX HAS TO BE WORKED OUT BY TAKING THE DATE OF ACQUISIT ION BY THE PREVIOUS OWNER. 2. IN SUPPORT OF THE GROUNDS THE LD. D.R. HAS BASI CALLY PLACED RELIANCE ON THE ASSESSMENT ORDER. 3. HAVING GONE THROUGH THE ORDERS OF THE AUTHORITIE S BELOW WE FIND THAT THE LD CIT(A) HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSES SEE FOLLOWING A DECISION OF SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF DCIT V S. MANJULA J. SHAH (2009) 318 ITA . NO 509/PN/2010 SHRI MAHENDRA U. KOTHARI A.Y. 2006-07 PAGE OF 3 2 ITR (AT) 417 (MUMBAI)(SB) HOLDING THAT THE INDEXED COST OF THE GIFTED ASSET HAS TO BE DETERMINED WITH REFERENCE TO PREVIOUS OWNER. IN THAT CASE THE ASSESSEE HAD RECEIVED THE CAPITAL ASSET BY GIFT ON 1.2.2003 WHE REAS THE PREVIOUS OWNER HAD ACQUIRED IT ON 29.1.1993. THE ASSESSEE HAD CLAIMED THE COST INFLATION INDEX FOR THE YEAR BY TAKING THE DATE OF ACQUISITION OF THE PREVI OUS OWNER WHEREAS THE A.O TOOK IT WITH REFERENCE TO THE DATE OF RECEIPT OF GIFT BY TH E ASSESSEE. THE SPECIAL BENCH OF THE TRIBUNAL DECIDED THE ISSUE AFTER CONSIDERING TH E PROVISION OF EXPLANATION (III) TO SECTION 48 TOGETHER WITH EXPLANATION 1(B) TO SECTIO N 2(42A). IN THE PRESENT CASE BEFORE US ARE SIMILAR FACTS THAT THE ASSESSEE AND HIS BROTHER HAD SOLD PROPERTY WHICH WAS RECEIVED BY THEM DURING F.Y. 1999-2000 AS PER WILL OF THEIR FATHER. THE A.O. TOOK F.Y. 1999-2000 FOR COST INFLATION INDEX FOR COMPUTATION OF LONG TERM CAPITAL GAIN INSTEAD OF F.Y. 1981-82 TAKEN BY THE A SSESSEE. THE A.O APPLIED INDEXED COST OF ACQUISITION IN THE YEAR OF SALE I. E. 2006-07 WHICH RESULTED IN LONG TERM CAPITAL GAIN OF RS. 1 53 95 574/-AS AGAINST RS .11 89 198/- OFFERED BY THE ASSESSEE IN THE RETURN. THE A.O HELD THAT AS PER E XPLANATION (III) BELOW SECTION 48 OF THE ACT COST INFLATION INDEX OF F.Y. 1999-2000 WAS ADOPTED I.E. WHEN THE ASSESSEE RECEIVED THE PROPERTY. THE LD CIT(A) HAS HOWEVER GIVEN RELIEF FOLLOWING THE DECISION OF SPECIAL BENCH OF THE TRIBUNAL WITH THIS OBSERVATION THAT THE COST INFLATION INDEX AND THE INDEXED COST OF ACQUISITION HAS TO BE WORKED OUT BY TAKING THE DATE OF ACQUISITION BY THE PREVIOUS OWNER IN TH E CASE OF THE PLOT RECEIVED BY THE ASSESSEE FROM HIS FATHER BY WAY OF A WILL OR 1.4.1 981 WHICHEVER IS LATER. SINCE ISSUE RAISED IS FULLY COVERED BY THE DECISION OF TH E SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF THE CIT VS. MANJULA J. SHAH (SUPRA) FO LLOWED BY THE LD CIT(A) WE DO NOT FIND INFIRMITY IN THE FIRST APPELLATE ORDER IN THIS REGARD. THE SAME IS UPHELD. THE GROUNDS INVOLVING THE ISSUE ARE THUS REJECTED. 4. IN RESULT APPEAL IS DISMISSED. ITA . NO 509/PN/2010 SHRI MAHENDRA U. KOTHARI A.Y. 2006-07 PAGE OF 3 3 THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 8TH NOVEMBER 2011. SD/- SD/- ( D. KARUNAKARA RAO ) ACCOUNTANT MEMBER (I.C. SUDHIR ) JUDICIAL MEMBER PUNE DATED THE 8TH NOVEMBER 2011 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT -II PUNE 4. THE CIT(A)-II PUNE 5. THE D.R. B BENCH PUNE 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE