INCOME TAX OFFICER (IT)-2(1)(1), MUMBAI vs. SHRI PSALM SOLI DASTUR, MUMBAI
In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.
What did the Tribunal hold?
The Tribunal held that the assessee is entitled to count the holding period and benefit of indexation from the year the previous owner acquired the asset, which was before 01/04/1981. This decision aligns with the Bombay High Court's ruling, whose SLP was dismissed by the Supreme Court.
What were the facts?
The assessee sold a piece of land and claimed a long-term capital loss based on the fair market value as of 01/04/1981. The Assessing Officer (AO) disputed this, arguing the cost of acquisition should be based on the value at the time of settlement in 1987, as the land devolved upon the assessee via a deed of settlement.
What were the issues?
The key issue was whether the indexed cost of acquisition should be taken from the year the previous owner acquired the asset or the year the assessee became the owner through settlement.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cases cited in this judgment(1)Show listHide list
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- CIT v. Manjula J. Shah113 citing16 Taxmann.com 42 · 2013 · HC
Income Tax Appellate Tribunal, “C” BENCH, MUMBAI
Before: HON’BLE SHRI MAHAVIR SINGH, JM & HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM
Per Manoj Kumar Aggarwal (Accountant Member) 1. Aforesaid appeal by revenue for Assessment Year [in short referred to as ‘AY’] 2014-15 contest the order of Ld. Commissioner of Income- Tax (Appeals)-56, Mumbai, [in short referred to as ‘CIT(A)’], Appeal No. CIT(A)-56/ITO(IT)-2(1)(1)/2016-17/162-D dated 23/08/2017 on following grounds of appeal: - Shri Psalm Soli Dastur Assessment Year :2014-15 “1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition made by AO by relying on the judgement of Bombay High Court in the case of Manjula Shah Vs DCIT reported in 355 ITR 474( Bom) (2013) when the SLP filed in the said case is pending before SC." 2. “On the facts and circumstances of the case and in law, the Ld.ClT(A) erred in directing the AO that indexed cost of acquisition should be taken from the year in which previous owner acquired the asset i.e. 01/04/1981 and not from the year in which assessee became owner of the asset for the purpose of computation of LTCG."
3. The Appellant prays that the order of the Ld.CIT(A) on the above grounds be set aside and that of the Assessing Officer be restored. "
2.1 Facts on record reveal that the assessee being non-resident individual was assessed for impugned AY u/s 143(3) on 15/12/2016 at Rs.153.09 Lacs after certain adjustments as against returned income of Rs.0.10 Lacs e-filed by the assessee on 30/07/2014. 2.2 During assessment proceedings, it transpired that the assessee sold a piece of land i.e. Plot No.3, admeasuring 514.42 Square Meters situated at village Bandivali, Near caves Road, Jogeshwari (E), Mumbai for sale consideration of Rs.160 Lacs. The cost of acquisition of the same was taken as Rs.20.57 Lacs, being fair market value of the land as on 01/04/1981 based on valuation report of government registered valuer. The indexed cost by applying applicable cost inflation index was worked out to be Rs.193.21 Lacs and accordingly, Long Term Capital Loss was reflected as Rs.33.21 Lacs. The only point of dispute under appeal is applicable cost of acquisition of the said plot of land. 2.3 Upon perusal of ownership documents, it transpired that the said plot of land devolved upon assessee vide deed of settlement dated 11/05/1987 executed by the settlor of the land Dr.Adi Eruch Dastur in favor of certain trustees for the benefit of the assessee since assessee was minor at that point of time. The trustees consented to act as such till Shri Psalm Soli Dastur Assessment Year :2014-15 the assessee attained the age of 18 years. The market value of the plot on the date of settlement as cited in the deed of settlement, in terms of valuation report dated 30/10/1986, was stated to be Rs.1.12 Lacs. The same led the Ld. AO to form an opinion that the cost of acquisition was to be taken as Rs.1.12 Lacs as against Rs.20.57 Lacs taken by the assessee and the applicable cost of index would be the index for AY 1987-1988. Although the assessee defended the same on the strength of decision of Hon’ble Bombay High Court rendered in CIT Vs. Manjula J.Shah [16 Taxmann.com 42], however, not convinced, Ld. AO adopted the cost of acquisition as Rs.1.12 Lacs and re-worked the gains at Rs.152.98 Lacs. The Ld. AO, inter-alia, observed that the revenue was under appeal before Hon’ble Supreme Court against the cited decision of Hon’ble Bombay High Court.
Aggrieved, the assessee agitated the same with success before Ld. first appellate authority vide impugned order dated 23/08/2017 wherein the appeal was allowed in terms of cited decision of Hon’ble Bombay High Court. Aggrieved, the revenue is in further appeal before us.
The Ld. Authorised Representative for assessee, at the outset, submitted that Special Leave Petition filed by the Department against the cited decision has already been dismissed by Hon’ble Apex Court, although on account of low tax effect vide SLP(C) No. 8184/2014 dated 18/09/2018 and therefore, the matter has attained finality & is squarely covered by the binding judicial precedent. The Ld. Departmental Representative could not controvert the said legal position.
Shri Psalm Soli Dastur Assessment Year :2014-15 5. We have carefully heard the rival submissions and perused relevant material on record. The undisputed position that emerges is that the assessee has acquired the said land through gift / inheritance vide deed of settlement dated 11/05/1987. The said land was acquired by the owner / donor / settlor before 01/04/1981. Therefore, for the purpose of computing assessee’s holding period, the holding period of the owner / donor / settlor was also to be counted while working out the capital gains. Further, the benefit of indexation would also be available to the assessee as available to the owner / donor / settlor. The said legal position is squarely in line with the binding judicial precedent in the shape of cited decision of Hon’ble Bombay High Court which has already attained finality by way of dismissal of revenue’s SLP. The first appellate authority has provided relief to the assessee by following the same and therefore, no infirmity could be found in the same.
Resultantly, the appeal stands dismissed. Order pronounced in the open court on 22/03/2019 Sd/- Sd/- (Mahavir Singh) (Manoj Kumar Aggarwal) �ाियक सद� / Judicial Member लेखा सद� / Accountant Member मुंबई Mumbai; िदनांक Dated : 22/03/2019 Sr.PS, Jaisy Varghese आदेशकी�ितिलिपअ�ेिषत/Copy of the Order forwarded to : अपीलाथ�/ The Appellant 1. ��थ�/ The Respondent 2. आयकरआयु�(अपील) / The CIT(A) 3. आयकरआयु�/ CIT– concerned 4. िवभागीय�ितिनिध, आयकरअपीलीयअिधकरण, मुंबई/ DR, ITAT, Mumbai 5. गाड�फाईल / Guard File 6.
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