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TMI Blog2014 (9) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to decide the issues arising before them on the basis of law as available on date and not keep the issues in abeyance ad infinitum on the plea that the decision has or may have been appealed against before a Higher Forum – revenue has made no attempt whatsoever to even seek an adjournment to verify the actual position and has merely made the submission casually - in case there is any interim order of a Higher Appellate Forum staying the proceedings, the Tribunal is bound to follow it – Decided against revenue. - ITA No.6444/Del/2012 - - - Dated:- 11-7-2014 - Diva Singh And B C Meena, JJ. For the Appellant : Shri G S Sema, Sr DR For the Respondent : Shri Ajay Wadhwa, Adv. ORDER:- PER : Diva Singh This is an appeal filed by the Revenue against the order dated 25.10.2012 of CIT(A)-XXIII, New Delhi, pertaining to the A.Y. 2009-10 on the following grounds: - 1) On the facts and in the circumstances of the case the ld. CIT(A) has erred in deleting the addition of ₹ 69,28,750/- made by the Assessing Officer on account of exemption claimed u/s 54 of the I.T. Act. 2) The appellant craves leaves to add, alter or amend any of the grounds o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter. Considering this the assessee vide order sheet entry dated 13.10.2011, was required to explain as to why the long term capital gain on sale of house property should not be increased by ₹ 69,28,750/- and an addition of ₹ 69,28,750/- should not be made in the total income. Further the assessee claimed the indexed cost of acquisition by taking the indexation as on 01.04.1981 at ₹ 80,63,610/- which should have been at ₹ 14,63,450/- by taking the indexation of F.Y. 2007-08 because the property in question was inherited property and provisions of section 48 Explanation (iii) of the I.T. Act 1961, will apply. Similarly the cost of improvement should have been ₹ 2,61,160/- instead of ₹ 5,89,750/- claimed as indexed cost of improvement by taking the indexation of F.Y.93-94. As per the provisions of section 48 Expn. (iii) of the I.T. Act 1961, the benefit of indexation to the assessee will be the cost of indexation of the year in which asset is first held by the assessee and in her case the asset was acquired on 27.02.2008 (F.Y.2007-08). 3. The assessee in response submitted that since the property had been received by way of gift hence the value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nandani on 11.04.1990, Share each inherited by will by her only two sons: Mr. Hiru Vishindas Hiranandani (H.V. Hiranandani) Mr. Gobind Vishindas Hiranandani (G.V. Hiranandani) On death of Mr. H.V. Hiranandani on 28.04.1992, his share inherited by will by his wife Mrs. Mithu Hiru Hira (M.H. Hira) On 27.02.2008 Mrs. H. Hira transferred her share to her daughter Mrs. Sheetal Bahl by way of Gift. 5.1. Referring to the same it was claimed that the holding period of the assessee started w.e.f. 1971 which works out to more than 3 years and consequently the calculations were to be made w.e.f. 01/04/1981. The following submissions on facts are also found to have been made:- - The assessee along with the other co-owner of the property i.e. Shri G.V. Hiranandani entered into Collaboration Agreement with M/s Windchimes Constructions P. Ltd. (Builder) on 21.04.2008. The Builder was required to demolish the existing structure and building comprising of basement, ground floor, first floor, second floor and terrace was to be constructed. As per collabora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirmed by the Hon ble High Court on 11/10/2011 and the decision in Arun Shungloo Trust relied upon by the AO also stood reversed by the Delhi High Court and reliance was further placed on CIT- 18 Mumbai vs. M/s Janhavi S Desai (2012) 24 taxmann.com 314 (Bom.) dated 05.07.2012. Considering the same the CIT(A) came to the following conclusion: 6. I have carefully considered the appellant s submissions and perused the cases laws relied on by the appellant. In respect of Ground of Appeal No. 1 relating to the indexed cost of acquisition of the capital asset, the AO has held that the appellant had become the owner of half share of the property by way of gift from her mother on 27.02.2008. While the AO has allowed the market value as on 1.4.1981 to be the cost of acquisition of the property, however, he has allowed the indexation of the cost of half of the property only from the year in which the appellant received the gift. I find that this issue stands fully covered by the order of the Special Bench of ITAT, Mumbai in the case of Manjula J. Shah [2009] 318 ITR 417. The Hon ble Tribunal has referred to the provisions of Explanation 1(b) to section 2(42A), Explanation (iii) to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional High Court rendered in February, 2012 then by now the same may have been dismissed. Carrying the argument further it was submitted that as on date the judgement of the Jurisdictional High Court is available and no contrary judgement has been referred by the Ld. Sr. DR the appeal accordingly should be decided on the basis of law as it stands today. It was further contended that by advancing such half baked arguments by raising a specious plea that even facts need verification when the AO has himself accepted the devolvement of the property by way of gift on the assessee it was argued is an act of harassment for the assessee for which in fact costs should be imposed on the Revenue. It was argued that not only the Ld. Sr. DR is travelling beyond the ground raised he is also travelling beyond the assessment order itself as there is no dispute on facts which have been taken note of in the assessment order itself and the Assessing Officer considering the undisputed facts followed the view propounded by the Mumbai Bench in Kishore Kanungo and of the Delhi Bench in Arun Shungloo Trust vs CIT as opposed to the decision relied upon by the assessee in the case of Manjula J.Shah. 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the afore-mentioned peculiar facts and circumstances, we do not find any merit in the Ld. Sr. DR s submission that there may have been a Special Leave Appeal filed against it by the department. The mere filing of a SLP or a Civil Appeal by a party cannot be a ground for either seeking a reversal of the impugned order or for seeking an adjournment. The Courts and Tribunals are necessarily required to decide the issues arising before them on the basis of law as available on date and not keep the issues in abeyance ad infinitum on the plea that the decision has or may have been appealed against before a Higher Forum. In the facts of the present case it is seen that the Ld. Sr. DR has made no attempt whatsoever to even seek an adjournment to verify the actual position and has merely made the submission casually. It is a settled legal position that in case there is any interim order of a Higher Appellate Forum staying the proceedings, the Tribunal is bound to follow it. However merely because a SLP may have been filed or a Civil Appeal may be pending the hearings are not required to be adjourned unless it is a case that hearing has concluded and judgement is awaited. In that situation i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other argument, to only refer to amounts and seek a restoration is a frivolous and irrelevant argument and fosters the perception of callousness. Submissions seeking re-adjudication on settled facts unless warranted by facts is not acceptable as it harms the trust reposed by the general public in the fairness as well as capability of the department and if allowed would seriously prejudice the trust reposed in the justice delivery system. The Tribunal under law is mandated to decide the issues raised by way of specific grounds on appeal by the parties before it and it is painful to observe that it most definitely does not behove the department to show a reluctance in advancing arguments on the ground that the amounts involved are big . Being conscious of the fact that the departmental representatives may not have been supported by adequate training and exposure as such we believe the issues may be addressed by providing training and exposure as Revenue Officers are the interface of the government with the tax payers and their actions and inactions should not adversely impact the public perceptions of their fairness and impartiality. It cannot be over emphasized that as a department ..... X X X X Extracts X X X X X X X X Extracts X X X X
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