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TMI Blog2014 (1) TMI 1482X X X X Extracts X X X X X X X X Extracts X X X X ..... is issue on merit - The issue has been restored for fresh adjduication. - I.T.A. No.6491 /Mum/2011 - - - Dated:- 24-1-2014 - Shri P. M. Jagtap, AM And Shri Vivek Varma, JM,JJ. For the Appellant : Shri Pheroze A. Dhanbhoora For the Respondent : Shri Sonia Kumar ORDER Per P. M. Jagtap, A. M. This appeal filed by the assessee is directed against the order dtd. 5-8- 2011 passed by the ld. CIT(A) - 29, Mumbai. 2. The relevant facts giving rise to this appeal are that the assessee, an individual, filed his return of income for the year under consideration on 28-7-2008 declaring, inter alia, income from long term capital gain of ₹ 20,00,051/-. The said capital gain had arisen from the sale of flat of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the valuation of the flat of the assessee as on the date of transfer. In the valuation report dated 25-11-2010 prepared by the DVO, the value of the flat of the assessee on the date of sale was estimated at ₹ 57,12,039/-. At this juncture, it was brought to the notice of the A.O. by the assessee that the indexed cost of acquisition of his flat was wrongly worked out by taking the purchase value of flat as on 21-05- 1957 as the base price as on 1-4-1981 instead of adopting the fair market value of the flat as on 1-4-1981 as the base value for computing the indexed cost of acquisition. Since this claim made by the assessee for the deduction on account of increased indexed cost of acquisition based on the fair market value of the flat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquisition based on the fair market value as on 1-4-1981 was wrongly denied. The ld. CIT(A) did not accept the first ground of the assessee on merit and upheld the action of the A.O. in adopting the market value of the property as determined by the DVO on the date of transfer as sale consideration relying on the provisions of section 50-C of the Act which, according to the ld. CIT(A), were mandatory. As regards the second issue raised by the assessee claiming deduction on account of indexed cost of acquisition by taking value of the property as on 1- 4-1981 as base value, the ld. CIT(A) relied on the decision of Hon'ble Supreme Court in the case of Goetze (India) Ltd. Vs. CIT, 229 ITR 383 to hold that the claim of the assessee on this i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 1.4.1981. 5. The CIT(A) erred in confirming the A.O.'s action of not following the decision of the Hon'ble ITAT, Mumbai Bench in the case of Chicago Pneumatic India Ltd. v/s. Deputy Commissioner of Income Tax [20071 15 SOT 252 (Mum.). 6. The CIT(A) erred in confirming the A.O.'s action of collecting tax on an amount which would otherwise have not been brought to tax, had the relevant beneficial provisions available to the appellant been applied, and thereby acted in violation of Article 265 of the Constitution of India. 7. The Appellant denies its liability to be charged interest under section 2348 of the Act. The AC. erred in levying interest under section 234B of the Act. 8. The Appellant denies its liability to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limited to the power of assessing authority and it does not impinge on the powers of the Tribunal u/s 254 of the Act. 6. The ld. D.R., on the other hand, has not raised any contention in this regard to dispute the proposition clearly propounded by the Hon'ble Bombay High Court. He, however, has contended that if the claim of the assessee on this issue is to be entertained by the Tribunal, an opportunity may be given to the A.O. to verify the same as neither the A.O. nor the ld. CIT(A) has examined this issue on merit. Since the ld counsel for the assessee also has no objection in this regard, we entertain the claim of the assessee regarding deduction on account of indexed cost of acquisition adopting the fair market value as on 1-4- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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