TMI Blog2021 (4) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... case and in Shri Nandlal R. Mishra are similar [ 2015 (10) TMI 1074 - ITAT MUMBAI] wherein held t in the case of an assessee covered under s. 49(1) of the Act, the capital gains liability has to be computed by considering that the assessee held the said asset from the date it was held by the previous owner and the same analogy has also to be applied in determining the indexed cost of acquisition. For determining the capital gain, the cost of acquisition of capital asset is crucial. We hold that the long terms capital gains has to be from the date from which the capital asset in question was held by the previous owner and the indexed cost of acquisition also has to be determined on the very same basis, consequently, the indexed cost of acquisition has to be computed with reference to the year in which the previous owner first held the asset and not the year in which the assessee became the owner of such asset. See Commissioner of Income-tax Versus Manjula J. Shah [ 2011 (10) TMI 406 - BOMBAY HIGH COURT] - Decided in favour of assessee. - ITA No. 1505/MUM/2019 - - - Dated:- 30-3-2021 - Shri Saktijit Dey (Judicial Member) And Shri N.K. Pradhan (Accountant Member) For th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the decision of the AO in the case of Shri Ramakant R Mishra. In said order of assessment, we find the said assessment order was passed prior in time but it is claimed to have come to the hands of the assessee subsequent in time and therefore, assessee is prevented from furnishing the same before the Revenue Authorities at the time of passing of the impugned orders by the AO/CIT(A). Therefore, in our opinion, the order of the AO in the case of Sri Ramakanth R Mishra should be admitted by the AO in the set aside proceedings. Accordingly, we set aside all the grounds of both the appeals to the files of the AO for adjudicating the issue afresh after considering the aforesaid evidences as well as grating a reasonable opportunity of being heard to the assessee. Grounds and the Objections raised are accordingly set aside. 3. In the result, appeal filed by the Revenue and the Cross Objection filed by the assessee are allowed for statistical purposes. 4. The AO passed an order dated 14.03.2014 u/s 143(3) r.w.s. 254, giving effect to the above direction of the Tribunal and held that the property in question has devolved onto the assessee upon the dissolution of the partnership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent view other than order of higher authorities is against judiciary discipline cannot be considered. The appellant stated that he could not submit the Assessment Order of Shri Ramakant Mishra at the time of the assessment proceedings of the appellant before the AO. This was the argument of the appellant before the Tribunal also that he could not submit the order of Ramakant Mishra at the time of his proceedings as Ramakant Mishra is the joint owner of the property. In the light of this argument, the Hon ble ITAT directed the AO to admit Ramakant Mishra's order in the proceedings of the appellant and directed the AO for adjudicating the issue afresh after considering the aforesaid evidence as well as granting reasonable opportunity of being heard. This doesn't indicate that the order of Shri Ramakant Mishra is required to be followed while deciding the issue in the case of the appellant. It is also to mention here that the A.O of the appellant is not required to follow the order of the other Assessing Officer even in the case of co-owner if the order is wrongly decided. Therefore, there is no judicial precedence of following the order one AO by the other AO. Two diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year 1975. The father of the assessee expired in 1976 who was a partner in the said firm. The assessee has taken the cost of the property as on 01/04/1981, while computing long term capital gain, at ₹ 44,32,500/- as against the cost price given by the valuer as ₹ 44 lakh. For the purpose of claiming rights in the property, the accounts of the firm were made up on the date of sale and sale consideration so received was distributed among all the legal heirs of the partners of the firm. The assessee received 1/8th share out of the total sale consideration and the same was offered for tax in his return under the head income from long term capital gain. The Assessing Officer was of the view that the right on the property arise in the hands of the assessee after the dissolution of the firm, therefore, cost inflation index will be allowable after the dissolution of the firm and not as on 01/04/1981. The Assessing Officer estimated the value of the property, for the purposes of computation of LTCG, in the hands of the assessee, at ₹ 4,64,250/- i.e. 1/8th of ₹ 45,14,000/-, as per valuation of Mundrak Zila Adhikari, thus, the long term capital gain, in the hands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of the Act, not only the cost of improvement incurred by the assessee but also the cost of improvement incurred by the previous owner shall be deducted from the total consideration received by the assessee while computing the capital gains under s. 48 of the Act. The question of deducting the cost of improvement incurred by the previous owner in the case of an assessee covered under s. 49(1) of the Act would arise only if the period for which the asset was held by the previous owner is included in determining the period for which the asset was held by the assessee. Therefore, it is reasonable to hold that in the case of an assessee covered under s. 49(1) of the Act, the capital gains liability has to be computed by considering that the assessee held the said asset from the date it was held by the previous owner and the same analogy has also to be applied in determining the indexed cost of acquisition. For determining the capital gain, the cost of acquisition of capital asset is crucial. Thus, keeping in view, the totality of facts, we hold that the long terms capital gains has to be from the date from which the capital asset in question was held by the previous owner a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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