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Shri Narendra R. Merchant, C/o. M/s. Narendra & Co., 201, Dhun Building, 23/25 Ghoga Street, Fort, Mumbai 400 001
March, 19th 2015
                  IN THE INCOME TAX APPELLATE TRIBUNAL,
                         MUMBAI BENCH "B", MUMBAI

       BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND
               SHRI SANJAY GARG, JUDICIAL MEMBER

                                   ITA No.5994/M/2011
                                 Assessment Year: 2008-09

           Shri Narendra R. Merchant,                I.T.O. 12(1)(4),
           C/o. M/s. Narendra & Co.,                 Mumbai
           201, Dhun Building,                Vs.
           23/25 Ghoga Street, Fort,
           Mumbai ­ 400 001
           PAN: AACPM6073B
                 (Appellant)                            (Respondent)


      Assessee by                     : Shri Rajiv Khandelwal, A.R.
      Revenue by                      : Shri Asghar Zain V.P., D.R.

      Date of Hearing                 : 13.01.2015
      Date of Pronouncement           : 18.03.2015

                                        ORDER

Per Sanjay Garg, Judicial Member:

      The present appeal has been preferred by the assessee against the order
dated 01.07.2011 of the Commissioner of Income Tax (Appeals) [(hereinafter
referred to as CIT(A)] relevant to assessment year 2008-09.




2.    The assessee has taken the following grounds of appeal:
      "1.    On the facts and the circumstances of the case and in law the learned CIT(A)
             has erred in confirming the order passed by the A.O. with regard to the
             addition of Rs.42,41,476/- on account of Long Term Capital Gains. Reasons
             assigned by him for confirming the same are wrong and insufficient.

      2.     He has further erred in treating the sale of Life Interest in the property as sale
             of property and thereby erred in confirming the application of Sec.50C made
             by the A.O. without properly applying the ratio of the decisions cited by the
             appellant.

      3.     He has further erred in confirming the value as on 1.4.1981 at
             Rs.41,293/- as against Rs.3,00,000/- shown by the appellant without
                                            2                                 ITA No.5994/M/2011
                                                                         Shri Narendra R. Merchant

           appreciating the contention of the appellant that the A.O. has determined the
           value of the Life Interest as on 1.4.1981 and not the value of the property as
           on 1.4.1981 in contrast to the fact that while determining the sale value
           A.O. has adopted the value of the property as per stamp duty authority
           but did not index the value of the property as on 1.4.1981 as per
           approved valuer's certificate.

      4.   He has further erred in not accepting the value made by the Registered
           Valuer without bringing any material to the contrary on the record and
           further erred in holding that the A.O. can not resort to Sec.5A once the
           assessment is completed.

      5.   He has further erred in confirming the charge of interest u/s.234A and 234B.

      6.   Order passed is bad in law and contrary to the provisions of the Act.

      7.   The appellant craves leave to add, alter and/or modify the grounds of
           appeal."

3.    A perusal of the above grounds of appeal reveals that the sole issue
taken by the assessee is with regard to the addition in respect of long term
capital gains by way of application of section 50C of the Income Tax Act.
The contention of the assessee has been that the assessee had not sold the
property in question but had transferred only the life interest in the property.
The lower authorities have assessed the value of the property and not of the
life interest. It has been contended that the assessee has been the beneficiary
of the trust and not the owner of the property. The assessee has got no right to
transfer the property in question. His rights are limited to his life interest in
the property. The lower authorities have assessed the capital gains taking the
value of the property as per section 50C of the Act and even have not
considered the sale value as estimated by the approved valuer. The Ld. A.R.
has invited our attention to the trust deed dated 19.10.1935 and further transfer
deed dated 22.03.2007 between N.R. Merchant and Harsha A Zaveri. It has
been contended that since only the life interest has been transferred by the
assessee and the said interest/property will devolve back to the trust after the
death of the assessee and that the purchaser will not have absolute right over
                                              3                            ITA No.5994/M/2011
                                                                      Shri Narendra R. Merchant





the property. The consideration for the transfer was to be assessed by the
lower authorities in relation to life interest of the assessee in the said property
and not that of the property itself.

4.       We find that the above contentions raised by the assessee have not been
looked into by the lower authorities. The matter needs re-examination at the
hands of the Assessing Officer with regard to the contentions raised by the
assessee in this respect. We accordingly restore the matter to the file of the
Assessing Officer for decision afresh after considering the contentions of the
assessee as discussed above and also the necessary evidences produced in this
respect.

5.       In view of our above observations, the appeal of the assessee is allowed
for statistical purposes.

                  Order pronounced in the open court on 18.03.2015.


          Sd/-                                                   Sd/-
   (B.R. Baskaran)                                          (Sanjay Garg)
ACCOUNTANT MEMBER                                       JUDICIAL MEMBER

Mumbai, Dated: 18.03.2015.
* Kishore, Sr. P.S.



Copy to: The Appellant
        The Respondent
        The CIT, Concerned, Mumbai
        The CIT (A) Concerned, Mumbai
        The DR Concerned Bench
//True Copy//                             [




                                                  By Order



                                 Dy/Asstt. Registrar, ITAT, Mumbai.

 
 
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