9911796707
TMI Blog2016 (5) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... er shall be adopted while computing capital gains in the hands of the assessee, and also, the period of holding of the assets in the hands of the assessee should also be reckoned from 1963, and, accordingly, for the purpose of taking cost of acquisition, the value as on April 1, 1981, should be adopted in the hands of the assessee for the purpose of computing the taxable amount of capital gain. The benefit of indexation should accordingly be provided with effect from April 1, 1981. Therefore, we find that the findings of the learned Commissioner of Income-tax (Appeals) are correct as per law and facts, no interference is called for therein, and the same are upheld. - Decided against revenue - I. T. A. No. 7955/Mum/2010 - - - Dated:- 18-11-2015 - Joginder Singh (Judicial Member) And Ashwani Taneja (Accountant Member) For the Petitioner : Somnath Ukkal For the Respondent : Nitesh Joshi ORDER Ashwani Taneja (Accountant Member) 1. This appeal has been filed by the Revenue against the order of the learned Commissioner of Income- tax (Appeals)-9, Mumbai (in short Ld. CIT (A)) dated September 15, 2010, for the assessment year 2007-08, decided against the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, holding that the family settlement cannot be termed as transfer, and reliance was placed upon the judgment of the hon'ble Madras High Court in the case of CIT v. Shanthi Chandran [2000] 241 ITR 371 (Mad). It was held that the assessee was the owner of the property since 1963. It was further held by him, relying upon the judgment of the Special Bench of the Income-tax Appellate Tribunal, Mumbai, in the case of Deputy CIT v. Manjula J. Shah (ITA No. 7315/ Mum/2007 [2009] 318 ITR (AT) 417 (Mum) [SB]) that indexation should be provided with effect from April 1, 1981, i.e., the year in which the previous owner held the assets. 5. Before us, detailed arguments have been made by both the sides. The learned Departmental representative supported the orders of the Assessing Officer and has submitted that the order of the learned Commissioner of Income-tax (Appeals) should be reversed. On the other hand, the learned counsel for the assessee has supported the order of the learned Commissioner of Income-tax (Appeals) and drew our attention on various pages of paper book, containing a copy of return filed, a copy of the deed of family arrangement dated November 15, 1985, and a copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owner of the said land, and accordingly, holding period of the land would be reckoned from that date. 9. In our considered opinion, the aforesaid family arrangement/settlement (which has been given legal recognition by the hon'ble High Court through award dated 21st January, 1987), should not be regarded as an event giving rise to transfer as envisaged under section 45 of the Act. We can here make reference to section 47, which, inter alia, provides that any distribution of capital assets on the total partition of the Hindu undivided family shall not be regarded as transfer within the meaning of section 45. It is noteworthy that if the said family partition/settlement/distribution of the properties would have been regarded as transfer within the meaning of section 45 by the Department, in that case, applying the provisions of section 45, it would have brought to tax some amount of capital gain in the hands of the firm of the Hindu undivided family, etc., in the year 1987, i.e., when the High Court passed the order, when the assessee allegedly becoming the owner, as has been contended by the Assessing Officer in the assessment order. But no such action has been taken by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct is with reference to a capital asset and the term, 'capital asset' is not confined and restricted to ownership of a property or an asset. Capital assets can consist of rights other than ownership right in an asset, like lease hold rights, allotment rights, etc. The sequitur, therefore, is that the word 'held' or 'hold' is not synonymous with right over the asset as an owner and has to be given a broader and wider meaning. In Black's Law Dictionary, Sixth Edition, the word 'hold' has been given a variety of meanings under nine different headings. Four of them, i.e., 1, 4, 8 and 9 read as under : '1. To possess in virtue of a lawful title ; as in the expression, common in grants, to have and to hold , or in that applied to notes, the owner and holder . . . 4. To maintain or sustain ; to be under the necessity or duty of sustaining or proving ; as when it is said that a party holds the affirmative or negative of an issue in a cause . . . 8. To possess ; to occupy ; to be in possession and administration of ; as to hold office. 9. To keep ; to retain ; to maintain possession of or authority over.' As per claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held that for the purpose of calculating period of holding, one has to look and take into account the date since the assessee got beneficial interest in the property. 14. We have already held that in the given facts of this case, the assessee was the beneficial owner of the impugned asset, and in any case, on the event of family partition, there was at the best improvement in title of the assessee over the property, which the assessee was already having. Thus, from the above discussion, it is clear that the term held , used in the context of section 2(42A) is of wide amplitude and scope. The asset need not be necessarily held as owner by the assessee. Thus, in view of the aforesaid legal position and facts of the case, it can be said that the assessee was holding this property since 1963. 15. Even otherwise, the case of the assessee would fall in the situations envisaged in section 49(1). Therefore, in our view, in any case, the cost incurred by the previous owner shall be adopted while computing capital gains in the hands of the assessee, and also, the period of holding of the assets in the hands of the assessee should also be reckoned from 1963, and, accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
