TMI Blog2016 (2) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee's late mother first held her 50% share in the said property by inheritance on the expiry of her husband on 11.11.1963) and not in the year in which the assessee became the owner of the asset, viz. in 2006. We, accordingly, hold and direct the AO to allow indexation of the cost of acquisition of the said property entirely w.e.f. 01.04.1981. - Decided in favour of assessee - ITA No. 4650/Mum/2013, ITA No. 3478/Mum/2013 - - - Dated:- 5-2-2016 - Jason P. Boaz, AM And Sandeep Gosain, JM For the Appellants : Shri Sumit Kumar For the Respondent : Shri K K Ved ORDER Per Jason P Boaz, AM These are cross appeals by the Revenue and assessee directed against the order of the CIT(A)-10, Mumbai dated 26.03.2013 for A.Y. 2009-10. 2. The facts of the case, briefly, are as under:- 2.1 The assessee, a non-resident, filed his return for A.Y. 2009-10 on 30.07.2009 declaring total income of ₹ 63,62,578/-. The case was taken up for scrutiny. In the course of assessment proceedings, it was seen that in the year under consideration, the assessee sold Flat No. 21-22, A, Mehezin, Woodhouse Road, Colaba, Mumbai-400005 to Shri Naran J. Shah and others for a sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Less Exemption U/s. 54 Investment amount in the new house property ----- Taxable LTCG 2,01,35,891 In view of the re-computation of LTCG on sale of the said property, the assessee's income was determined at ₹ 2,01,35,891/- as per the order of the assessment passed under section 143(3) of the Act vide order dated 21.11.2011. 2.2 Aggrieved by the order of assessment for A.Y. 2009-10, the assessee preferred an appeal before the CIT(A)-10, Mumbai. The learned CIT(A) disposed off the appeal vide the impugned order dated 26.03.2013 allowing the assessee partial relief. In the impugned order, the learned CIT(A): (i) upheld the AO's action in denying the assessee's claim for exemption under section 54 of the Act, and (ii) following the decision of the Hon'ble Bombay High Court in the case of CIT vs. Manjula J. Shah (2013) 355 ITR 474 (Bom) directed the AO to allow indexation of the cost of acquisition w.e.f. 01.04.1981 in respect of the said property. 3. Both Revenue and the assessee are aggrieved by the impugned order of the learned CIT(A)-10, Mumbai dated 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll as the decision of the ITAT, Ahmadabad Bench in the case of Smt. Leena J. Shah [(2006) 6 SOT 74 (Ahd)] 4.3.1 We have heard the rival contentions and perused and carefully considered the material on record, including the judicial pronouncements cited and placed reliance upon. We find that a similar issue has already been decided in the case of Ms. Dhun Jehan Contractor in ITA No. 7058/Mum/2013 dated 13.05.2015. In that case the Coordinate Bench, after considering the facts of that case at para 2 thereof, allowed the assessee's claim for exemption under section 54 of the Act on account of investment in the acquisition of a new property outside India. In doing so the Coordinate Bench followed the decision of another Coordinate Bench of this Tribunal in the case of Girdhar Mohanani and Smt. Varsha Girdhar in ITA Nos. 4591 4592/Mum/2013 dated 06.05.2015. In its order in the case of Ms. Dhun Jehan Contractor (supra) the Coordinate Bench at paras 6 7 thereof held as under:- 6. Having considered the rival submissions as well as the relevant material on record, we find that a similar issue has already been decided by the coordinate bench of the Tribunal in the case of Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial house in India has to be substituted w.e.f. 1st day of April, 2015. Thus, it is clear from the amendment so brought for claiming exemption u/s.54, that new residential house should to be constructed in India only w.e.f. assessment year 2015-2016.. However, the assessment year under consideration is 2010-2011 i.e. much prior to the amendment so brought in Finance (No.2) Bill, 2014. There is no reason to decline exemption u/s.54 during the A.Y.2010-11 under consideration. 8. The provisions contained in sub-section (1) of section 54 of the Income-tax Act, before its amendment by the Act, inter alia, provided that where capital gain arises from the transfer of a long-term capital asset, being buildings or lands appurtenant thereto, and being a residential house, and the assessee within a period of one year before or two years after the date of transfer, purchases, or within a period of three years after the date of transfer constructs, a residential house, then, the amount of capital gains to the extent invested in the new residential house is not chargeable to tax under section 45 of the Income-tax Act. 9. In view of the above, we hold that during the year under consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A) was justified in holding that the AO's action of not allowing indexation benefit on part of the property received on inheritance cannot be upheld even though the 2nd proviso to section 48 of the I.T. Act, which deals with indexed cost of acquisition and as defined in clause (iii) to Explanation to sec. 48 provides that indexation is to be allowed to the assessee from the 1st year of acquisition in which the asset was held by him. 3. The appellant prays that the order of the Ld. CIT(A), Mumbai on the above ground(s) be set aside and the order of the Assessing Officer be restored. 4. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary. 8. The grounds raised at S.Nos. 3 and 4 (supra) by Revenue being general in nature, no adjudication is called for thereon. 9. Grounds at S.Nos. 1 2: Dates to be adopted for Indexed Cost of Acquisition 9.1 In these grounds, the Revenue has assailed the decision of the learned CIT(A) in allowing the assessee's claim for indexation of the cost of acquisition w.e.f. 01.04.1981 by following the decision in the case of Manjula J. Shah (2013) 355 ITR 474 (Bom) since this decis ..... 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