TaxTMI 
TaxTMI 
TaxTMI 
2021 (4) TMI 114
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntation of facts. 3. The Ld. CIT(A) had erred in law and on facts in treating that the order of Mr. Ramakant Mishra is admitted by the AO while passing the order and not following the direction of the Hon'ble ITAT in letter and spirit and confirming the additions. 3. Briefly stated, the facts of the case are that the assessee filed his return of income for the assessment year (AY) 2007-08 on 16.03.2009 declaring total income of Rs. 96,410/-. Assessment u/s 143(3) was completed by the Assessing Officer (AO) on 23.12.2009, taxing long term capital gains on sale of property at Rs. 43,71,675/- as against the long term capital loss of Rs. 1,01,169/- claimed by the assessee. Aggrieved by the said order of the AO, the assessee filed an appeal before the Ld. CIT(A). The appeal was partly allowed. Aggrieved by the said order of the Ld. CIT(A), both the assessee and the Revenue filed appeal before the Tribunal. We find that the Tribunal vide order dated 20.02.2013 (ITA No. 126/M/2011 and CO No. 208/M/2012) held that : "2. At the outset, Shri Hriday Narain, Ld. Counsel for the assessee mentioned that the issue in these appeals relates to taxability of Long Term Capital Gains earned on ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... it was represented that the assessee and Shri. Ramakant Mishra are the only joint owners of the property. Thus the AO estimated the value of the property for the purpose of calculation of long term capital gains in the hands of the assessee at Rs. 11,28,000/-, by allowing cost inflation index from the financial year 2000-01. 5. In appeal, the Ld. CIT(A) vide order dated 30.11.2018 held that : "4.3 On perusal of the findings of the AO in the assessment order and the submission of the appellant, the following facts emerge. i. Firstly, the contention of the appellant that the AO had passed the order following the directions of ITAT cannot be accepted. The Hon'ble ITAT directed the AO "In our opinion, the order of the AO in the case of Shri Ramakant R. Mishra be admitted by the AO in the set aside proceedings. Accordingly, we set aside all grounds of both the appeal to the file of AO for adjudicating the issue afresh after considering the aforesaid evidences as well as granting reasonable opportunity of being heard to the assessee" and accordingly the order was set aside. First of all during the course of assessment proceedings as directed by the Hon'ble ITAT, the order of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... purpose of calculation of long term capital gain in the hands of the appellant be taxed at Rs. 11,28,000/-. The grounds of appeal filed are dismissed." 6. Before us, the Ld. counsel for the assessee submits that the order of the Tribunal was disregarded by the AO on the pretext that order of the ITO is not binding on the other ITO and the same was upheld by the Ld. CIT(A). Elaborating further, he mentions that in case of another co-owner, the Tribunal in ITA No. 445/Mum/2014 for the same assessment year 2007-08 (Shri Nandlal R. Mishra vide order dated 01.07.2015) has dismissed the appeal filed by the Revenue. Thus it is stated that the above order of the Tribunal in the case of another co-owner be followed. On the other hand, the Ld. Departmental Representative (DR) supports the order passed by the Ld. CIT(A). 7. We have heard the rival submissions and perused the relevant materials on record. The reasons for our decisions are given below. To ascertain the facts, we had asked the Ld. counsel to file a copy of 'Deed of Conveyance'. The same was filed on 15.02.2021. The facts in the present case and in Shri Nandlal R. Mishra are similar. As recorded by the Tribunal, the facts i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the Act, it becomes absolutely clear that the object of the statute is not merely to tax the capital gains arising on transfer of a capital asset acquired by an assessee by incurring the cost of acquisition, but also to tax the gains arising on transfer of a capital asset inter alia acquired by an assessee as provided under s. 49 of the Act where the assessee is deemed to have incurred the cost of acquisition. Therefore, if the object of the legislature is to tax the gains arising on transfer of a capital asset acquired under a gift or will or inheritance by including the period for which the said asset was held by the previous owner in determining the period for which the said asset was held by the assessee, then that object cannot be defeated by excluding the period for which the said asset was held by the previous owner while determining the indexed cost of acquisition of that asset to the assessee. In other words, in the absence of any indication in cl. (iii) of the Explanation to s. 48 of the Act that the words 'asset was held by the assessee' has to be construed differently, the said words should be construed in accordance with the object of the statute, that is, in....