TaxTMI 
TaxTMI 
2014 (9) TMI 626
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce u/s 143(2) and 142(1) along with questionnaire etc. the Assessing Officer required the assessee to furnish complete details of exemption claimed u/s 54 of the Income Tax Act, 1961. For ready reference we extract para 4 & 5 of the assessment order hereunder in order to address the factual aspect which he required the assessee to explain. 4. "The facts of the case are that the assessee received by way of gift half share of property No.C-2/8, Vasant Vihar, New Delhi, from her mother Mrs. M.H. Hira w/o Late Shri H.V.Hiranandani on 27.02.2008. The assessee alongwith the other co-owner of the property i.e. Shri G.V.Hiranandani entered into Collaboration Agreement with M/s Windchimes Constructions Pvt. Ltd. (Builder) on 21.04.2008. The builder was required to demolish the existing structure and building comprising of basement, ground floor, first floor, second floor and terrace was to be constructed. As per the Collaboration Agreement it was agreed that a sum of Rs. 6,82,50,000/- shall be paid to Shri G.V.Hiranandani (Owner No.1) as non-refundable amount/consideration. It was agreed that Owner No.-1 shall have no right, title or interest of any nature in the newly....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ibunal in the case of DCIT vs. Kishore Kanungo (2006) 290 ITR 298; and order dated 25/01/2008 in ITA No. 1336/Del/2005 rendered by the Delhi Bench of the Tribunal in the case of Arun Shungloo Trust, the AO was of the view that these orders squarely cover the facts of the present case. Referring to the same wherein it had been held that in cases of certain types of transfer of capital asset like inheritance, succession etc. the indexation benefit will be available only from the year in which the asset was first held by the current owner i.e. the assessee and not from the year when the asset was held by the earlier owner/previous owner he rejected the assessee's contention. Accordingly indexation benefit for computing the indexed cost of acquisition was taken with respect to the year when the asset was first held by the assessee i.e. F.Y. 2007-08 for which the cost of CII was 551 as a result of this addition of Rs. 69,28,750/- was made to the declared income under the head "long term capital gains". 5. The assessee agitated the issue before the First Appellate Authority. A perusal of the written submissions extracted in para 4 of the CIT(A)'s order shows that it was reiterated tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m Gains as per relevant provisions dealing with computation of Income from the head "Income from Capital Gain" as contained in section 45 to 55A read with other provisions under Income Tax Act, 1961. STATEMENT OF LONG TERM CAPITAL GAIN OF PROPERTY NO. C- 8/2,VASANT VIHAR, NEW DELHI-110057 AS CALCULATED BY ASSESSEE Particular Sales Price/Year Indexed Cost/Year Transfer Expenses Indexed Cost of Improvement Exempt Capital Gain ½ share of C-8/2, Vasant Vihar, New Delhi 68250000 (21/04/08) 8063610 958430 589750 50000000*** 863821 Total 68250000 8063610 958430 589750 50000000 863821 ½ SHARE OF C-8/2, VASANT VIHAR, NEW DELHI *Cost: 1385500(582/100) = 8063610 **Cost of Improvement: 247249(582/244) = 589750 ***Exempt u/s 54: 50000000" 5.2. Accordingly, referring to the two sections 29A; 2(42A); Explanation 1(b) to section 2(42A) and the expression "indexed cost of acquisition" used in section 48 defined in Explanation (iii) and Explanation (iv) it was submitted that the claim had wrongly been rejec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in the same case has been over ruled. Respectfully following the judgment of the Delhi High Court, it is held that the indexed cost of acquisition of the capital asset acquired by the appellant through gift has to be computed with reference to the year in which the previous owner first held the asset. Accordingly, Ground of Appeal No. 1 is held in favour of the appellant." 6. Aggrieved by this the Revenue is in appeal before the Tribunal. The ld. Sr. DR, Sh. G.S. Sema, relied upon the assessment order and the order of the Delhi Bench of the Tribunal in the case of Arun Shungloo Trust submitted that no doubt the decision of the Hon'ble High Court is available, however, the Department may have gone in appeal before the Apex Court and on facts how relevant documents show that the property came to the assessee needs to be verified. It was further contended that looking at the quantum involved in the appeal the issue should be decided in Revenue's favour or restored to the AO. 7. The Ld. AR on the other hand, relying upon the impugned order contended that the issue is fully covered in assessee's favour by virtue of the judgment of the Jurisdictional High Court. The facts it was su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rty devolving on the assessee on a specific date has been accepted by the AO himself and the fact that the date on which the said owner has been considered to be not a relevant date relying upon the decisions of Kishore Kanungo and Arun Shungloo Trust as opposed to the decision in Manjula P. Shah is a fact on record. It is even otherwise seen that nothing has been placed by the Revenue to challenge the validity of the succession tree reproduced in the impugned order which is also found reproduced in the statement of facts filed before the CIT(A). The AO as observed has only disputed the fact that indexation benefit should be given from the date when the property was first held by the assessee and not from the date when the property was held by the previous owner. Accordingly in these peculiar facts and circumstances available on record, the request of the Ld. Sr. DR for restoring the issue again to the AO has no basis and the perceived perception of the Ld. AR that it amounts to harassment cannot be outrightly ruled out. 8.1. Reverting to the issue under challenge it is seen that it is no longer res-integra as the decisions of the Co-ordinate Bench sitting at Delhi and Mumbai Be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt involved is "big" as such the issue should be restored or decided in Revenue's favour. Considering the argument advanced, we find ourselves surprised and aghast at the request made and unable to accede to the said request. The said request raises no issue of legal relevance and at best suggests lack of exposure and training. The issues before the Tribunal are to be decided on the basis of facts, legal precedents and the arguments advanced on the facts and precedents and as far as the amounts involved are concerned they should not impact the intellect so as to inhibit the arguments or blind the judgement. To our minds the department ideally ought not to be guided by "big" and "small" amounts as what may be perceived by the department as a "small" amount may be sufficiently "big" for a particular assessee and vice versa. The guiding light should be just and fair representation which can only done when the preparation is complete. The attitude to moonlight the posting as a Departmental Representative before the Tribunal should be effectively addressed as the posting should not be seen as a haven for reluctancy to work as it breeds the unwanted and unwarranted public perception of c....