TMI Blog2008 (2) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... s directly covered in favour of the assessee by the decision of the Tribunal in the case of Charanbir Singh Jolly [ 2005 (8) TMI 576 - ITAT MUMBAI] , hence, respectfully following the same, we hold that the assessment order is correct in law. Thus, on merits, the issue is covered in favour of assessee, however, regarding jurisdiction for invoking the provisions of section 263, we would like to add that the assessee filed necessary details before the Assessing Officer and the Assessing Officer has passed assessment order after taking into consideration the same, hence, merely for the reason that no specific findings have been given in the assessment order, the same cannot be said have been passed without application of mind. In this view of the matter, we cancel the order under section 263 passed by the ld. CIT. In the result, appeal filed by the assessee stands allowed. - R.K. GUPTA AND V.K. GUPTA, JJ. R.R. Vora for the Appellant. U.K. Shukla for the Respondent. ORDER V.K. Gupta, Judicial Member. - All these appeals, belong to same assessee group and involve common issue, hence, these were heard together and these are being dispose of through th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng validity of action taken by the CIT under section 263 of the Act. 5. The facts, in brief, are that the assessee filed return of income for the impugned assessment year on 30-9-2004 declaring total income at Rs. 18,06,385 comprising of income from house property, long-term capital gain, income from other sources, share of profit from the firm. The assessment was completed under section 143(3) of the Act on 27-7-2006 wherein the returned income was accepted. The ld. CIT noted that assessee had sold the flat during the year under consideration, whereon, after claiming the indexed cost at Rs. 18,74,571, the long-term capital gain had been shown at Rs. 3,94,229. The ld. CIT also noted that the manner of working of indexed cost of acquisition which is as under : Particulars Date Value Indexation Factor Indexed Price Purchase Price 7-8-1993 Rs. 9,39,000 463/244 Rs.17,81,791 Stamp duty 9-7-1996 Rs. 52,620 463/305 Rs. 79,879 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the relevant section had not been adhered to while working out the capital gain on sale of the property. The ld. CIT, in support of his opinion, placed reliance on various judicial decisions viz., CIT v. Smt. R.R. Sood [1986] 161 ITR 92 (Bom.), Ravi Kumar Narula v. CIT [2001] 249 ITR 480 (Delhi) and CIT v. Dr. D.A. Irani [1998] 234 ITR 850 (Bom.). In the light of above discussions, the ld. CIT finally held that the order passed by the Assessing Officer under section 143(3) was erroneous and prejudicial to the interests of revenue, hence, set aside the order, and directed the Assessing Officer to compute the correct long-term capital gain by adopting the indexed cost of acquisition on the basis of the date on which the property was held by the assessee after providing reasonable and sufficient opportunity of being heard. Aggrieved by this, the assessee is in appeal before us. 6. The ld. counsel narrated the facts and sequence of events starting from the date of agreement to purchase the flat i.e., 7-8-1993 till 12-12-2003, being the date of agreement for sale of the flat and based upon the various clauses of the purchase agreement, the ld. counsel contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dopted by the assessee, the ld. counsel contended that the decision of Tribunal in the case of Charanbir Singh Jolly v. 8th ITO [2006] 5 SOT 89 (Mum.) was directly on the point wherein it was held that the assessee was entitled for indexation on the value of asset i.e., total purchase consideration payable for the property and not on the basis of date of actual payments made by the assessee. Accordingly, the ld. counsel summed up his arguments by stating that the view taken by the Assessing Officer was correct in law, hence, assessment order could not be said to be erroneous or prejudicial to the interests of the revenue so as to enable the CIT to invoke the provisions of section 263 of the Act. Coming to the other legal issue relating to the action of ld. CIT in invoking the provisions of section 263 of the Act, the ld. counsel contended that all the details in this regard had been filed with the Assessing Officer and referred to page 7 of the paper book containing letter dated 12-7-2006 addressed to the Assessing Officer wherein it was mentioned that copy of agreement regarding capital gain on sale of property was submitted. The ld. counsel also contended that it was merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) to section 48 of the Act, the word asset was used as against the term house property and, therefore, the assessee, after acquiring a right in the house property by entering into agreement on 7-8-1993, was entitled for indexation thereon from the date. The ld. Counsel also referred to clauses 2(14)( v ) and 2(14)( vii ) wherein such kinds of situations had been provided for and contended that the decision of the Hon ble Bombay High Court in the case of Smt. R.R. Sood ( supra ) relied on by the ld. CIT, in view of such change in law, not no longer a good law. The ld. counsel also referred to the decision of Hon ble Supreme Court in the case of CIT v. Podar Cement (P.) Ltd. [1997] 226 ITR 625 wherein it was held that the requirement of registration of sale deed in the context of section 22 was not warranted, hence, in view of this decision also the decision of the Hon ble Bombay High Court in the case of Smt. R.R. Sood ( supra ) was not correct in law. The ld. counsel further reiterated that in Explanation ( iii ) to section 48 of the Act, the Legislature used the word asset as against house property used in section 54, hence, the assessee s view that it was ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect in law. Thus, on merits, the issue is covered in favour of assessee, however, regarding jurisdiction for invoking the provisions of section 263, we would like to add that the assessee filed necessary details before the Assessing Officer and the Assessing Officer has passed assessment order after taking into consideration the same, hence, merely for the reason that no specific findings have been given in the assessment order, the same cannot be said have been passed without application of mind. In this view of the matter, we cancel the order under section 263 passed by the ld. CIT. 10. In the result, appeal filed by the assessee stands allowed. 11. Now, we shall take up assessee s appeals in ITA No. 1883/M/07 for assessment year 2004-05 and ITA No. 1885/Mum./07 for assessment year 2004-05. 12. In these appeals also, the grounds raised by the assessee are identical to the grounds raised in ITA No. 1884/M/07 which we have dealt hereinbefore. Both the parties have reiterated their respective submissions in these appeals also. In view of our decision in the aforesaid appeal, we accept these grounds raised by the assessee in these appeals also. 13. In the result, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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