ITO 18(1)(5), MUMBAI vs. ZANOBIA H. BHAMGARA LEGAL HEIR OF LATE HORMUZ M. BHAMGARA, MUMBAI

O R D E R PER C.N. PRASAD 1. This appeal is filed by the Revenue against order of the Ld. Commissioner of Income-tax (Appeals)– 29 Mumbai dated 25.05.2016 for the Assessment Year 2012-13.

(A.Y: 2012-13) Mrs. Zenobia H. Bhamgara 1) On, the facts and in the circumstances of the case, the CIT(A) has erred in law as well as on facts in holding that the provision of section 55(2)(a) is not applicable to the case of the assessee when the section specifically deals with the cost of acquisition of tenancy rights. 2) On the facts and in the circumstances of the case, the CIT(A) has erred in law as well as on facts in ignoring the fact that the assessee could not prove that any expenditure was incurred by the previous owner for acquiring the tenancy right's. 3) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that the provisions of section 55(2)(b) are applicable to the case of the assessee whereas this section is applicable only in the case of any other asset which is not covered by the provisions of section 55(2)(a), 55(2)(aa) & 55(2)(ab) which contain the valuation of cost acquisition of specific assets mentioned therein. 4) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in granting relief to the assessee by misquoting the provisions of the Act as the order is in contravention of the clear cut provisions of the Act relating to the valuation of cost of tenancy rights. 5) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that cost of tenancy rights of the assessee was not Nil for the purpose of computation of long term capital gain arising from the transfer of tenancy rights by the assessee. 6) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in granting relief to the assessee, in that even though the facts in the case of Mehar R. Surti, relied upon by the Ld. CIT(A), are similar to the facts of the assessee, the decision of the Ld. CIT(A) is not acceptable as the department has filed further appeal in Hon'ble Bombay High Court against the decision of the ITAT which is in pre-admission stage. 7) For the above mentioned reason and any other reasons that may be urged at the time of hearing, it is requested that the order of the CIT(A) be quashed and that of the A.O be restored. 8) The appellant craves leave to amend or alter any ground or add a new ground, which may be necessary”

(A.Y: 2012-13) Mrs. Zenobia H. Bhamgara 3. Briefly stated the facts are that, assessee an individual Late. Shri. Hormuz M. Bhamgara who is represented by his legal heir, Smt. Zenobia Bhamgara has inherited tenancy rights from Smt. Rati R. Bhiwandiwala in respect of a property at Sai Kunj, Plot No.214, Dadar, Mumbai. Smt. Rati Bhiwandiwala was occupying the property for more than 50 years. Photo copy of the rent received prior to 1966 was furnished as proof before the Assessing Officer. Shri. Harmuz M. Bhamgara had sold the tenancy rights during the relevant assessment year for ₹.60 lacs. The return of income was filed declaring NIL income. During the course of assessment, the AO noticed that the assessee has claimed exemption u/s. 54EC on account of investment made in certain funds and he asked the assessee to submit the proof of investment. However, the assessee failed to comply. Further, the assessee has submitted that they had invested ₹.40 lacs for acquiring tenancy rights in flat No.5, 2nd Fl., Bldg.No.11, Malcom Baug, S.V. Rd., Jogeshwari, Mumbai and submitted that they are entitled for exemption u/s.54F. Further the assessee submitted that she is entitled to consider Fair Market Value for tenancy rights as on 01.04.1981 as she is the tenant of the said premises prior to 1970. Rent received for Oct., 1966 was also furnished before the AO. The assessee has also furnished valuation report of tenancy rights as on 01.04.1981 and the working of the capital gain. The AO refused to entertain the fresh claim of the assessee placing

(A.Y: 2012-13) Mrs. Zenobia H. Bhamgara reliance on the Hon'ble Apex Court in the case of Goetz(I) Ltd. [157 Taxman 1]. Further, Assessing Officer discussed the issue on merits as well and concluded that the assessee is not entitled for exemption U/S.54F. In regard to assessee contention that the Fair Market Value as on 1.4.1981 has to be adopted as per section 55(2)(b)(ii) of the Act is concerned the AO concluded that the assessee’s case falls u/s.55(2)(a) and not 55(2)(b) and rejected the contention of the assessee. Thus, Assessing Officer brought to tax an amount of consideration of ₹.60,00,000/- which was received on transfer of tenancy rights under the head Long term capital gains.

(A.Y: 2012-13) Mrs. Zenobia H. Bhamgara section 55(2)(b) is in relation to any other capital asset which are not mentioned in section 55(2)(a) of the Act and therefore it has no relevance to the assessee’s case.

“5.3. I have gone through the submissions of the appellant and find considerable force in the same. Section 55(2)(a) and 55(2)(b) are reproduced as under: - 55(2)(a) - (i) in the case of acquisition of such asset by the assessee by purchase from a previous owner, means the amount of the purchase price and; (ii) in any other case (not being a case falling under sub-clause) to (iv) of sub-section (1) of section 49] shall be taken to be nil. 55(2)(b) - (i) Where the capital asset became the property of the assessee before the 1st day of April, 1981, means the cost of acquisition of the asset to the assessee of the fair market value of the asset on the 1st day of April, 1981, the option of the assessee. 5.3.1. For the purposes of section 48 and 49, cost of acquisition is explained in section 55(2). Tenancy rights are covered u/s.55(2)(a). In case, the acquisition of tenancy rights by the assessee is through purchase from a previous owner, then the cost of acquisition will be the amount of purchase price. In any other case, not being a case falling under sub clause (i) to (iv) of section 1 to 49, the cost of acquisition shall be taken as NIL. The case is falling under section 49(1) (i to iv) and therefore will not be covered under 55(2)(a). As they are excluded from 55(2)(a), they would naturally be covered u/s.55(2)(b). The appellant's case is covered u/s.49(l)(iii)(a) which is the capital asset becoming the property of the assessee by succession, inheritance or (A.Y: 2012-13) Mrs. Zenobia H. Bhamgara devolution. Since this is excluded from 55(2)(a), this will fall u/s.55(2)(b) which is cost of acquisition in relation to any other capital asset. Sec.55(2)(b)(i) states that where the capital asset became the property of the assessee before the first day of April, 1981, means the cost of acquisition of the asset to the assessee or the Fair Market Value of the asset on the first day of April, 1981, at the option of the assessee. In this case, there is no dispute that the asset became the property of the appellant before 01.04.1981. Therefore, the appellant has an option of choosing the cost of acquisition of the asset to the assessee or Fair Market Value of the asset as on 01.04.1981. The appellant chose the latter. He had furnished a copy of the valuation report given by the Government Registered Valuer. 5.3.2. The Hon'ble ITAT, Mumbai "A" Bench has in the case of Ajay I. Thakore, on identical facts held that the Fair Market Value as on 1.4.1981 for the property inherited by the assessee from his father has to be adopted. The jurisdictional ITAT in the case of Meher R. Surti vs. ITO, 61 SOT 5, Mumbai held as under: - " Section 55 read with section 49 of the Income-tax Act, 1961 - capital gains - cost of acquisition - Assessment year 2009-10 - assessee transferred tenancy right in the property which was inherited from her grandfather who had acquired the same in 1944-45 - while computing capital gains, assessee claimed cost of acquisition being fair market value as on 1.4.1981 - AO held that there was no cost incurred for purchase /acquisition of tenancy rights and accordingly took cost of acquisition at nil - whether case of assessee fell u/s.49(l)(iii)(a) and once capital asset in question became property of assessee as per section 49(l)(iii)(a) and previous owner acquired property prior to 1.4.1981, then cost of acquisition of asset to previous owner or fair market value of asset as on 1.4.1981 at option of assessee provided under provisions of section 55 (2)(ii)(b) - Held, yes (paras 21 & 25) (in favour of the assessee )" 5.3.3. The appellant's case is squarely covered by the above two judgements. Respectfully following the jurisdictional ITAT's decisions on identical facts referred in cases (supra), the appellant's claim for adopting the fair market value as on 1.4.1981 to compute the cost of acquisition is to be allowed. This ground of appeal is therefore allowed.”

8. On a careful reading and perusing of the findings of the Ld.CIT(A), we do not find any infirmity in the order of the Ld.CIT(A) in holding that the assessee is entitled for exemption u/s. 54F of the Act. However, it is the finding of the Ld.CIT(A) that assessee has failed to comply to produce necessary proof for investment. We also find from the Assessment Order vide notice dated 07.07.2014 u/s. 142(1) of the Act issued to the (A.Y: 2012-13) Mrs. Zenobia H. Bhamgara assessee, it was asked by the Assessing Officer to submit proof of investment of ₹.60,00,000/- made u/s. 54EC of the Act. However, it is the finding of the Assessing Officer that no evidence whatsoever was furnished by the assessee in this regard. We also find that Assessee was once again asked to furnish the document to justify the claim for exemption u/s. 54EC vide notice u/s. 142(1) dated 08.01.2015. However, we find from Assessment Order that the assessee made submissions before the Assessing Officer that they have invested ₹.40,00,000/- for acquiring tenancy rights in the property situated at Building No.11, Malcom Baug, S.V. Road, Jogeshwari (W), Mumbai by agreement dated 18.01.2012 and therefore entitled for exemption u/s. 54F of the Act. This agreement was neither produced before us nor any proof of investment was furnished either before the Ld.CIT(A) or before us. Therefore, though in principle we agree with the view taken by the Ld.CIT(A) that the assessee is entitled for exemption u/s. 54F of the Act, for the limited purpose of verification of the fact that the assessee acquired tenancy rights in the above referred property has to be examined with reference to the agreement and propr proof. Therefore, for the limited purpose of verification of this fact we restore this issue to the file Assessing Officer who shall examine the proof of investment and allow the claim for (A.Y: 2012-13) Mrs. Zenobia H. Bhamgara exemption u/s.54F of the Act to the assessee. Subject to verification, claim of the assessee shall be allowed.

Order pronounced in the open court on the 15th June, 2018.