INCOME TAX OFFICER (INTERNATIONAL TAXATION) 4(2)(1), MUMBAI vs. VIJAYKUMAR K SOPARKAR, MUMBAI

PDF · subscribers
ITA 303/MUM/2018Status: DisposedITAT Mumbai03 December 2020AY 2013-144 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal dismissed the Revenue's appeal. The dismissal was based on the low tax effect of the appeal, which was below ₹.50 Lakhs, rendering it not maintainable as per CBDT Circular No. 17/2019.

What were the facts?

The Revenue appealed the CIT(A)'s order regarding the computation of capital gains on inherited property. The core dispute was whether to use the year the previous owner acquired the asset or the year the assessee became the owner for indexation.

What were the issues?

The primary issue was the correct year for indexation of inherited property for capital gains computation. A secondary issue involved the interpretation of Section 54 regarding investments within India.

Which sections of the Income-tax Act were involved?

Section 48,Section 54,Section 45,Section 5(2),Section 5(1)

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(1)Show list

Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.

Income Tax Appellate Tribunal, MUMBAI BENCH “I”, MUMBAI

Before: SHRI C.N. PRASAD, HON’BLE & SHRI RAJESH KUMAR, HON’BLEShri Vijaykumar K. Soparkar

For Respondent: Shri S.S. Iyengar
Hearing: 03.12.2020Pronounced: 03.12.2020

O R D E R PER C.N. PRASAD (JM) This appeal is filed by the Revenue against the order of the Learned Commissioner of Income Tax (Appeals)-58, Mumbai [hereinafter in short “Ld.CIT(A)”] in Appeal No. CIT(A)-58/ITO(IT)-4(2)(2)/2016-17/16-F dated 18.10.2017 for the Assessment Year 2013-14.

2.

Revenue has raised the following grounds in its appeal: - “1) On the facts and circumstances of the case and in law, the Learned CIT(A) erred' in holding that while computing the capital gain on the sale of inherited

(A.Y: 2013-14) Shri Vijaykumar K. Soparkar property, the indexed cost of acquisition has to be computed with reference to the year in which the previous owner first held the asset and not the year in which the assessee became the owner of the asset." 2) "On the facts and in the circumstances of the case and in law. the Learned CIT(A) erred in not adopting a 'literal interpretation' in case of tax statutes whereas the Explanation (iii) to section 48 of the Act clearly mentions that for computing the indexed cost of acquisition, the base year has to be the first year in which the asset was held by the "assessee" and not the previous owner of the asset and thus going against the decision of the Hon'ble Jurisdictional High Court in the case of M/s. Vodafone India Services Pvt Ltd. vs. Union of India & Ors. (W.P No. 871 of 2014) (Bom) wherein it has been stated that there is no intendment in tax laws." 3) "On the facts and in the circumstances of the case and in law, the Learned CIT(A) erred in not appreciating the fact that the exemption u/s 54 is allowed on capital gains to ensure the purpose of investment in residential property only in India." 4) "On the facts and circumstances of the case and in law, the Ld CIT(A) erred in not appreciating the fact that that reference to section 54 has been made in section 45 of the Act itself, which is the charging section for income under the head 'capital gains' and all the charging sections for different heads of income are in consonance with section 4, which does not include the words 'in India' and these words are automatically read in the context of these charging sections on account of section 5(2) of the Act in the case of Non- resident, while remain free of this connotation in case of residents on account of section 5(1) of the act which allows for charging income accruing or arising outside India." 5) "On the facts and circumstances of the case and in law, the Ld CIT(A) erred in not appreciating the fact that the provisions of section 54 contain machinery provisions that may fail if the assessee invests in a property outside India, and there is no Jurisdictional machinery to ascertain the same from the Non-resident." 6) "On the facts and circumstances of the case and in law, the Ld CIT(A) erred in not appreciating the fact that the Finance (No.2) Act, 2014 inserted the words (in India' into section 54(1) with effect from 01.04.2015, which was only clarificatory in nature as is apparent from the phrase 'the benefit was intended for investment in one residential house within India’ used in the Memorandum to the Finance Bill, and that the Hon'ble Apex Court in the case of Allied Motors Pvt. Ltd., v. CIT (224 ITR 677) has already held that when a proviso is inserted to remedy unintended consequences and to make the provision workable, it could be read as retrospective, and which has been followed by the Hon'ble ITAT 'F' Bench in for AY 2009- 10, in the case of Fiduciary Shares & Stock P. Ltd. vs. ACIT."

(A.Y: 2013-14) Shri Vijaykumar K. Soparkar 7) "Without prejudice to the above ground number 6, and on the facts and circumstances of the case and in law, the Ld CIT(A) erred in not appreciating the fact that the words {in India' were already operating in the background in all the charging sections applicable to income of Nonresidents, including section 45." 8) The Appellant prays that the order of the CIT(A) be set aside on the above ground and that of the Assessing Officer be restored.”

3.

At the time of hearing, Ld. DR fairly submitted that tax effect on the issue in the present appeal is below ₹.50 Lacs and in view of the CBDT Circular No. 17/2019 dated 08.08.2019 in F.No.279/Misc.142/2007-ITJ (Pt), the appeal of the revenue is not maintainable.

4.

We have heard the submissions of Ld. DR and perused the grounds of appeal in this appeal. We find that the tax effect in this appeal is less than ₹.50 Lakhs and therefore the appeal of the Revenue is not maintainable on account of low tax effect in view of the CBDT Circular No.17/2019 dated 08.08.2019. Hence this appeal is dismissed.

5.

In the result, appeal of the Revenue is dismissed.

Order Pronounced in the virtual Court on the 03rd December, 2020

More judgments on Section 48

All 1,457 judgments and leading authorities on Section 48 →

Recent GST High Court judgments

Search GST case law →