SHRI RAJENDRA AGRAWAL, JAIPUR V. INCOME TAX OFFICER, JAIPUR

ITA 1052/JPR/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3493 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 29-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RUNI PAUL J DHK
• Keywords: Revision of order; Rectification of order; Question of law; Cost of acquisition; Capital Gains
• Section: 143(3); 54F; 234B; 54; 263; 154

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH B , JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE : SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 1052/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12 SHRI RAJENDRA AGARWAL 8/138, VIDHYADHAR NAGAR JAIPUR 302 039 CUKE VS. THE ITO WARD- 7(1) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AATPA 7184 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA, ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY : SMT. RUNI PAUL, JCIT-DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 10/01/2020 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 03 /03/2020 VKNS'K@ ORDER PER VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF LD. CIT(A)-3, JAIPUR DATED 01-11-2017 FOR THE ASSESSME NT YEAR 2011-12. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS. 1 THE IMPUGNED ORDER U/S 154 IS TOTALLY WITHOUT JURISDICTION BEING A CASE OF REVIEW AND FOR VARIOUS OTHER REASONS. HENCE, THE SAME MAY PLEASE BE QUASHED. 2. THE LD. CIT(A) ERRED IN LAW IN CONFIRMING THE AC TION OF THE AO AND THE IMPUGNED ORDER PASSED U/S 154 DATED 20-05-2015 ITA NO.1052/JP/2017 SHRI RAJENDRA AGARWAL VS ITO , WARD- 7(1), J AIPUR 2 WHICH IN FACT WAS COMPLETELY BEYOND SCOPE OF SECTIO N 154 AND HENCE WAS PASSED WITHOUT JURISDICTION. 3. THE LD. CIT(A) FURTHER ERRED IN LAW AS WELL AS I N THE FACTS OF THE CASE IN CONFIRMING THE FOLLOWING ADDIT IONS AND ALSO ERRED IN DISALLOWING THE DEDUCTIONS CLAIMED (AND ALLOWED ORI GINALLY VIDE ORDER PASSED U/S 143(3) DATED 30-12-2013) BEING COMPLETEL Y BEYOND THE SCOPE AND JURISDICTION OF SECTION 154. (I) DENIAL OF THE CLAIM OF THE DEDUCTION U/S 54F OF RS. 5,25,700/-. (II) DISALLOWANCE OF THE INDEXED COST OF IMPROVEMENT OF RS. 1,80,514/- (III) DISALLOWANCE OF TRANSFER EXPENSES OF RS. 60,000/- 4. THE AO FURTHER ERRED IN LAW AS WELL AS ON THE FA CTS OF THE CASE IN CHARGING INTEREST U/S 234B OF THE ACT. THE APPELLANT TOTALLY DENIES ITS LIABILITY OF CHARGING OF ANY SUC H INTEREST. THE INTEREST SO CHARGED, BEING CONTRARY TO THE PROVISIO NS OF LAW AND FACTS, KINDLY DELETED IN FULL. 2.1 THE ASSESSEE IS AN INDIVIDUAL AND FILED HIS RET URN OF INCOME ON 14- 02-2012 DECLARING TOTAL INCOME OF RS. 1,86,420/-. D URING THE SCRUTINY ASSESSMENT, THE AO NOTED THAT THE ASSESSEE HAS DECL ARED CAPITAL GAINS OF RS. 1,81,604/- ON SALE OF PROPERTY BEARING NO. B-27 7, VIGYAN NAGAR,JAIPUR FOR SALE CONSIDERATION OF RS. 15.21. L ACS. THE AO FURTHER NOTED THAT THE ASSESSEE HAS CLAIMED INDEXED COST OF ACQUISITION WHILE COMPUTING CAPITAL GAINS. ACCORDINGLY, THE AO ACCEPT ED RETURNED INCOME WHILE FRAMING THE ASSESSMENT U/S 143(3) OF THE ACT ON 30-12-2013. THEREAFTER THE AO PROPOSED TO RECTIFY THE MISTAKE I N THE ASSESSMENT ORDER U/S 154 OF THE ACT TO WITHDRAW THE CLAIM OF DEDUCTI ON U/S 54 OF THE I.T. ITA NO.1052/JP/2017 SHRI RAJENDRA AGARWAL VS ITO , WARD- 7(1), J AIPUR 3 ACT, 1961 ON 20-05-2015. THE ASSESSEE CHALLENGED TH E ORDER PASSED U/S 154 OF THE ACT BEFORE THE LD. CIT(A) AND SUBMITTED THAT WITHDRAWAL OF DEDUCTION U/S 54/54F IS BEYOND THE SCOPE OF RECTIFI CATION OF APPARENT AND PATENT MISTAKE AS PER SECTION 154 OF THE ACT. THE L D. CIT(A) DID NOT ACCEPT THE OBJECTION OF THE ASSESSEE AND UPHELD THE ORDER OF THE AO PASSED U/S 154 OF THE ACT. 2. BEFORE US, THE LD.AR OF THE ASSESSEE SUBMITTED T HAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE SOLD THE PLOT BEA RING NO. B-277, VIGYAN NAGAR,JAIPUR FOR A SALE CONSIDERATION OF RS. 15.21 LACS VIDE SALE DEED DATED 24-11-2010 AGAINST WHICH THE ASSESSEE CL AIMED INDEXED COST OF ACQUISITION/ INDEXED COST OF IMPROVEMENT/ CONSTR UCTION TOTAL AMOUNTING TO RS. 2,17,526/- AND THEREBY COMPUTED LO NG TERM CAPITAL GAIN OF RS. 13,03,474/-. THE ASSESSEE CLAIMED EXEMP TION U/S 54 OF THE ACT OF RS. 5,25,700/- ON ACCOUNT OF CONSTRUCTION OF FIRST FLOOR ON THE EXISTING HOUSE PROPERTY BEARING 8/138, VIDHYADHAR N AGAR, JAIPUR . THE LD.AR OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD PRODUCED THE EVIDENCE IN SUPPORT OF THE CONSTRUCTION OF FIRST FL OOR DURING THE ASSESSMENT PROCEEDING WHICH INCLUDES AGREEMENT DATE D 25-10-2010 WITH THE CONTRACTOR SHRI LOKESH SHAH PROP: M/S. RITU CON STRUCTION. THE AO ITA NO.1052/JP/2017 SHRI RAJENDRA AGARWAL VS ITO , WARD- 7(1), J AIPUR 4 AFTER VERIFICATION OF THE DOCUMENTS PRODUCED BY THE ASSESSEE IN SUPPORT OF CLAIM OF DEDUCTION U/S 54 OF THE ACT ACCEPTED THE CLAIM WHILE PASSING THE SCRUTINY ASSESSMENT U/S 143(3) OF THE ACT. THEREAFT ER THE SUCCESSOR AO ISSUED NOTICE U/S 154 OF THE ACT ON 19-01-2015 WHER EBY HE PROPOSED TO WITHDRAW THE CLAIM OF DEDUCTION U/S 54 OF THE ACT. WHILE PASSING THE ORDER U/S 154 OF THE ACT, THE AO NOT ONLY DISALLOWE D THE CLAIM OF DEDUCTION U/S 54 OF THE ACT BUT ALSO DISALLOWED THE COST OF IMPROVEMENT AS WELL AS TRANSFER EXPENSES. THE AO COMPUTED THE L ONG TERM CAPITAL GAINS AT RS. 9,74,818/- WHILE PASSING THE ORDER U/S 154 OF THE ACT AS AGAINST CAPITAL GAINS DECLARED AND ACCEPTED BY THE AO WHILE PASSING THE SCRUTINY ASSESSMENT AT RS. 1,81,604/-. THUS THE AO HAS MADE AN ADDITION OF RS. 7,66,214/- WHILE PASSING THE IMPUGNED ORDER U/S 154 OF THE ACT. THE LD.AR OF THE ASSESSEE THUS CONTENDED THAT WITHD RAWAL OF DEDUCTION U/S 54 OF THE ACT AS WELL AS DISALLOWANCE OF COST O F IMPROVEMENT AND TRANSFER EXPENSES ARE BEYOND THE SCOPE OF SECTION 1 54 OF THE ACT AS THESE ARE NOT APPARENT MISTAKES WHICH CAN BE RECTIFIED. T HE LD.AR OF THE ASSESSEE CONTENDED THAT IT IS SETTLED PROPOSITION O F LAW THAT MISTAKE WHICH IS APPARENT AND PATENT CAN BE RECTIFIED U/S 154 OF THE ACT AND NOT SOMETHING WHICH COULD BE ESTABLISHED BY A LONG DRAW N PROCESS OF ITA NO.1052/JP/2017 SHRI RAJENDRA AGARWAL VS ITO , WARD- 7(1), J AIPUR 5 REASONING ON THE POINT OF ISSUE INVOLVED. THE LD.AR OF THE ASSESSEE RELIED ON THE DECISION OF RELIED ON THE DECISION OF HON'BL E SUPREME IN THE CASE OF T.S. BALARAM, INCOME TAX OFFICER VS VOLKART BRO THERS & ORS, 82 ITR 50 (SC). THE LD.AR OF THE ASSESSEE FURTHER CONTENDE D THAT HON'BLE SUPREME COURT HAS CONSIDERED THE TERM APPARENT, PAT ENT AND MANIFEST MISTAKE ON THE FACE OF THE RECORD IN NUMBER OF DECI SIONS INCLUDING THE DECISION IN THE CASE OF ACIT VS SAURASHTRA KUTCH ST OCK EXCHANGE LTD [2008] 219 CTR 90 AS WELL AS DECISION IN THE CASE O F CIT VS HERO CYCLES (P) LTD (1997) 228 ITR 463 (SC). THUS THE LD.AR OF THE ASSESSEE SUBMITTED THAT THE AO WHILE PASSING THE SCRUTINY AS SESSMENT ON 30-12- 2013 HAD GIVEN A FINDING ON THE ISSUE OF DEDUCTION U/S 54 OF THE ACT AS WELL COST OF ACQUISITION AND IMPROVEMENT. THE AO A CCEPTED THE CLAIM AFTER VERIFICATION OF THE NECESSARY EVIDENCES AND H E WAS SATISFIED ABOUT THE ALLOWABILITY OF DEDUCTION. THEREFORE, WITHDRAWI NG THE CLAIM BY THE AO IN THE PROCEEDINGS U/S 154 OF THE ACT IS ALSO BE YOND THE SCOPE AND JURISDICTION OF THE AO U/S 154 OF THE ACT. THUS THE JURISDICTION AND SCOPE OF PROCEEDINGS U/S 154 OF THE ACT IS LIMITED TO REC TIFY THE APPARENT AND PATENT MISTAKE ON THE FACE OF THE RECORD AND NOT TO REVIEW THE ORDER PASSED U/S 143(3) OF THE ACT. THE LD.AR OF THE ASSE SSEE THUS SUBMITTED ITA NO.1052/JP/2017 SHRI RAJENDRA AGARWAL VS ITO , WARD- 7(1), J AIPUR 6 THAT EVEN IF THE AO NOTED FROM THE RECORDS THAT DED UCTION U/S 54 OF THE ACT WAS WRONGLY ALLOWED THEN PROPER REMEDY WAS TO I NITIATE PROCEEDINGS U/S 263 OF THE ACT AND NOT TO INITIATE PROCEEDINGS U/S 154 OF THE ACT. THUS THE LD.AR OF THE ASSESSEE SUBMITTED THAT THE IMPUGN ED ORDER PASSED U/S 154 OF THE ACT IS NOT SUSTAINABLE IN LAW AS IT IS B EYOND THE SCOPE AND JURISDICTION CONFERRED U/S 154 OF THE ACT. 2.3 ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THA T THERE IS AN APPARENT MISTAKE ON RECORD AS THE AO FOUND THAT WHA T WAS SOLD BY THE ASSESSEE WAS NOT A RESIDENTIAL HOUSE BUT A PLAIN PL OT OF LAND AND THEREFORE, THE DEDUCTION U/S 54 OF THE ACT IS NOT ALLOWABLE. F URTHER THE ASSESSEE HAS NEITHER PURCHASED NOR CONSTRUCTED A NEW HOUSE BUT C LAIMED TO HAVE INVESTED IN BUILDING THE FIRST FLOOR OF THE EXISTIN G HOUSE OCCUPIED BY THE ASSESSEE. EVEN IN SUPPORT OF THAT CLAIM, THE ASSESS EE FILED SO CALLED AGREEMENT WITH CONTRACTOR ON A PLAIN PAPER WHICH IS NOT VERIFIABLE. THE LD. DR THUS RELIED ON THE ORDERS OF THE LOWER AUTHO RITIES. 2.4 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS RELEVANT MATERIALS AVAILABLE ON RECORD. THE AO WHILE PASSING THE SCRUTINY ASSESSMENT U/S 143(3) OF THE ACT ON 30-12-2013 ACCE PTED THE RETURNED INCOME DECLARED BY THE ASSESSEE AS CAPITAL GAINS FR OM SALE OF PLOT BEARING ITA NO.1052/JP/2017 SHRI RAJENDRA AGARWAL VS ITO , WARD- 7(1), J AIPUR 7 NO. B-277, VIGYAN NAGAR,JAIPUR. THE AO HAS DISCUSS ED THE FACTS RELATING TO THE TRANSACTION OF SALE AND INVESTMENT MADE TOWA RDS CONSTRUCTION OF FIRST FLOOR OF THE EXISTING HOUSE BEARING NO. 8/138 , VIDHYADHAR NAGAR, JAIPUR IN PARA 1 TO 3 AS UNDER:- 1. DURING THE YEAR UNDER CONSIDERATION THE ASSESS EE MAINLY PURCHASED A LAND FOR RS. 99,21,000/- ON 28-04-2010 JOINTLY WITH HIS WIFE SMT. ABHA AGARWAL. THE SHARE OF INVESTMENT OF THE ASSESSEE COMES TO RS. 52,36,070/-. THE ASSESSEE HAS FILED TH E DETAILS OF THE VARIOUS SOURCES FROM WHICH RS. 42,36,070/- WAS INV ESTED IN THE PURCHASE OF THE ABOVE PROPERTY. RS. 10 LAC WAS PAID ON 28-04-2012 TO THE SELLER OF THE PROPERTY. DURING THE YEAR UNDER C ONSIDERATION, THE ASSESSEE HAS DECLARED CAPITAL GAIN FOR TAXATION AT RS. 1,81,604/-. 2. NECESSARY EVIDENCES WERE FILED FOR SALE/PURCHA SE OF PROPERTIES WHICH WERE CONSIDERED AND PLACE ON FILE. THE ASSESSEE HAS SOLD A PLOT NO. B-277, VIGYAN NAGAR,JAIPUR FOR RS. 15,21,000/- TO SMT. SONIYA AHUJA WIFE OF SHRI RAMESH AHUJA ON 24-11-201 0. AFTER INDEXING THE CAPITAL GAIN COMES AT RS. 13,03,474/-. AGAINST THE CAPITAL GAIN THE ASSESSEE HAS INVESTED IN SEPARATE UNIT AT FIRST FLOOR AT HIS RESIDENCE AT PLOT NO. 8/138, VIDHYADHAR NAGAR, JAIP UR. RS. 5,25,700/- WAS PAID TO MR. LOKESH SHAH PROP. M/S. RITU CONSTRU CTION, JAIPUR FOR CONSTRUCTION OF FIRST FLOOR AND RS. 1,01,700/- WAS PAID TO CONTRACTOR SHRI GHASILAL KUMAWAT FOR BOUNDARY WALL OF THE PLOT . DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS SOLD SHARES O F VARIOUS COMPANIES AND LOSS ADJUSTED AGAINST THE CAPITAL GAIN. 3. IN VIEW OF ABOVE FACTS AND CIRCUMSTANCES OF TH E CASE, AFTER DISCUSSION AND CONSIDERING THE DETAILS/ INFOR MATION PLACED ON FILE, THE RETURNED INCOME OF RS. 1,86,420/- IS ACCEPTED A ND ASSESSED TO TAX. IT IS MANIFEST FROM THE SCRUTINY ASSESSMENT ORDER P ASSED U/S 143(3) OF THE ACT THAT THE AO HAS DULY CONSIDERED THE RELEVANT FA CTS AS WELL AS DOCUMENTS FILED BY THE ASSESSEE IN SUPPORT OF CLAIM OF INVESTMENT MADE FOR CONSTRUCTION OF FIRST FLOOR AT HIS RESIDENTIAL HOUSE BEARING NO. 8/138, ITA NO.1052/JP/2017 SHRI RAJENDRA AGARWAL VS ITO , WARD- 7(1), J AIPUR 8 VIDHYADHAR NAGAR, JAIPUR. THE AO HAS ALSO CONSIDERE D THE COST OF ACQUISITION, IMPROVEMENT AND OTHER EXPENDITURE TOWA RDS TRANSFER OF THE PROPERTY. THOUGH THE CLAIM OF DEDUCTION U/S 54 OF T HE ACT MAY NOT BE ALLOWABLE IN THE CASE IF THE IMMOVABLE PROPERTY SOL D BY THE ASSESSEE BEARING NO. B-277, VIGYAN NAGAR, JAIPUR IS ONLY A P LOT OF LAND AND NOT RESIDENTIAL HOUSE, HOWEVER, IN SUCH A SITUATION, TH E DEDUCTION U/S 54F OF THE ACT WOULD BE ALLOWABLE AND QUANTUM OF DEDUCTION MAY BE LESS THAN THE DEDUCTION CLAIMED U/S 54 OF THE ACT. EVEN IF IT IS PRESUMED THAT THE AO WHILE PASSING THE SCRUTINY ASSESSMENT HAS WRONGL Y ALLOWED THE CLAIM U/S 54 OF THE ACT THEN THE SAME WOULD NOT FALL IN T HE AMBIT OF APPARENT, PATENT AND MANIFEST MISTAKE ON THE FACE OF RECORD. IT MAY BE A MISTAKE OF DECISION ON THE PART OF THE AO. THE REMEDY FOR SUCH ERRONEOUS ORDER PASSED BY THE AO LIES U/S 263 OF THE ACT AND NOT U /S 154 OF THE ACT. THE AO IS NOT EMPOWERED TO REVIEW ITS OWN ORDER OR PRED ECESSOR ORDER EVEN IF SUCH ORDER SUFFERS FROM ERROR AND MISTAKE BUT TH OSE ERRORS AND MISTAKES ARE THE ERRORS OF JUDGEMENT AND DECISION AND NOT AN APPARENT AND PATENT ERROR ON THE FACE OF IT. A MISTAKE APPARENT ON RECO RD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH COULD BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON THE POINT OF ISS UE INVOLVED ON WHICH ITA NO.1052/JP/2017 SHRI RAJENDRA AGARWAL VS ITO , WARD- 7(1), J AIPUR 9 THERE MAY CONCEIVABLY BE TWO OPINIONS. A DECISION O N DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM RECORD AS HELD B Y THE HON'BLE SUPREME COURT IN THE CASE OF T.S. BALARAM, INCOME TAX OFFIC ER VS VOLKART BROTHRS & ORS (SUPRA). ONLY THE GLARING AND OBVIOUS MISTAKE ON THE FACE OF RECORD CAN BE RECTIFIED U/S 154 OF THE ACT. A POINT WHICH IS NOT EXAMINED ON FACTS OR ON LAW CANNOT BE HELD AS A MISTAKE APPAREN T FROM RECORD. THEREFORE, A MISTAKE OF DECISION OF WRONG APPRECIAT ION OF FACTS DOES NOT FALL IN THE AMBIT OF OBVIOUS, PATENT AND APPARENT M ISTAKE FROM RECORD WHICH CAN BE RECTIFIED U/S 154 OF THE ACT. THE HON' BLE SUPREME COURT IN THE CASE OF CIT VS HERO CYCLES (P) LTD. (1997) 228 ITR 463 HAS HELD IN PARA 2 AS UNDER:- 2. THE HIGH COURT DECLINED TO CALL FOR A REFERENC E UNDER SECTION 256(2) OF THE I.T. ACT, 1961. IT APPEARS TH AT THE CLAIM FOR DEDUCTION U/S 35B WAS NOT ORIGINALY ALLOWED AT ALL. THEREAFTER, ON ASSESSEE'S APPLICATION AN ORDER WAS PASSED BY THE CIT(A), JALANDHAR, IN WHICH HE DIRECTED CERTAIN ALL OWANCES TO BE GIVEN ON PROPORTATIONE BASIS AFTER VERIFICATION OF THE ASSESSEE'S CLAIM U/S 35B. THE AO THEREAFTER ENTERTAINED ASSESSEE'S PRAYER FOR RECTIFICATION OF THE ORDER AND ALLOWED THE ASSESSEE'S CLAIM IN RE SPECT OF MATTERS LIKE COLOURED ALBUMS, EXPORT STAFF TRAVELLI NG EXPENSES, EXPORT SALES COMMISSION, ECGC, FOREIGN DEALERS VISI TING EXPENSES. RECTIFICATION U/S 154 CAN ONLY BE MADE WH EN GLARING MISTAKE OF FACT OR LAW HAS BEEN COMMITTED BY THE OF FICER PASING THE ORDER BECOMES APPARENT FROM THE RECORD.. RECTIF ICATION IS NOT POSSIBLE IF THE QUESTION IS DEBATABLE. MOREOVER , THE POINT WHICH WAS NOT EXAMINED ON FACT OR IN LAW CANNOT BE DEALT AS MISTAKE APPARENT ON THE RECORD. THE DISPUTE RAISED A MIXED QUESTION OF FACT AND LAW. ITA NO.1052/JP/2017 SHRI RAJENDRA AGARWAL VS ITO , WARD- 7(1), J AIPUR 10 THE TRIBUNAL WAS IN ERROR IN UPHOLDING THE ASSESSEE 'S CLAIM FOR WEIGHTED DEDUCTIONS. THERE IS NO POINT IN SENDING THE MATTER TO THE HIGH COURT TO DEAL WITH THE QUESTION RAISED AT THIS STAGE. WE TRE AT THE QUESTION AS REFERRED TO THIS COURT AND ANSWER THE QUESTION I N THE NEGATIVE AND IN FAVOUR OF THE REVENUE. THERE WILL BE NO ORDE R AS TO COSTS. THE APPEAL IS ALLOWED. THE HON'BLE SUPREME COURT HAS HELD THAT RECTIFICAT ION IS NOT POSSIBLE IF QUESTION IS DEBATABLE. MOREOVER, THE POINT WHICH WA S NOT EXAMINED ON FACTS OR IN LAW CANNOT BE DEALT AS MISTAKE APPARENT ON RECORD WHEN THE DISPUTE RAISED A MIXED QUESTION OF FACTS AND LAW. I N THE CASE IN HAND, IT CAN BE A MATTER OF LACK OF ENQUIRY OR LACK OF PROPE R ENQUIRY ON THE PART OF THE AO WHILE PASSING SCRUTINY ASSESSMENT ORDER U/S 143(3) OF THE ACT BUT THE DECISION TAKEN BY THE AO AFTER CONSIDERING THE FACTS AND EVIDENCES PRODUCED BY THE ASSESSEE CANNOT BE HELD AS A MISTA KE APPARENT AND PATENT ON THE FACE OF THE RECORD. THE AO WHILE PASSING THE ORDER U/S 154 OF THE ACT HAS STATED THAT ON PERUSAL OF THE RECORD OF THE ASSESSEE AND SPECIFICALLY ON PERUSAL OF THE SALE DEED DATED 24-1 1-2010 WHEREBY THE ASSESSEE SOLD THE IMMOVABLE PROPERTY BEARING NO. B- 277, VIGYAN NAGAR, JAIPUR, THERE WAS NOWHERE MENTIONED ABOUT THE CONST RUCTION OF THE SAID PROPERTY. THEREFORE, THE AO IN PROCEEDINGS U/S 154 OF THE ACT HAS RE-APPRECIATED THE EVIDENCES WHICH WAS ALREADY AVAI LABLE ON RECORD AND ITA NO.1052/JP/2017 SHRI RAJENDRA AGARWAL VS ITO , WARD- 7(1), J AIPUR 11 CONSIDERED BY THE AO WHILE PASSING THE SCRUTINY ASS ESSMENT ORDER U/S 143(3) OF THE ACT. THE AO HAS NO JURISDICTION U/S 1 54 OF THE ACT TO RE- APPRECIATE THE EVIDENCES ALREADY CONSIDERED BY THE AO DURING THE SCRUTINY ASSESSMENT AS IT WOULD AMOUNT TO REVIEW OF ITS OWN ORDER. THE AO HAS TRAVELLED BEYOND THE JURISDICTION AND SCOPE OF SECTION 154 OF THE ACT WHILE PASSING THE IMPUGNED ORDER. IT IS A GROSS MISUSE OF THE PROVISIONS AND POWERS U/S 154 OF THE ACT. INSTEAD O F SENDING A PROPOSAL FOR REVISION OF THE ORDER U/S 263 OF THE ACT, THE A O HAS ASSUMED THE POWERS AND JURISDICTION U/S 154 OF THE ACT TO REVIE W THE EARLIER ORDER IN THE GARB OF RECTIFICATION OF MISTAKE. THUS IT IS PE RTINENT TO NOTE THAT ON THE DATE OF INITIATION OF PROCEEDINGS U/S 154 OF THE AC T, THE LIMITATION FOR INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT W AS VERY MUCH AVAILABLE BUT INSTEAD OF TAKING THE STEP FOR APPROP RIATE PROCEEDINGS U/S 263 OF THE ACT, THE AO ASSUMED THE JURISDICTION WHI CH IS OTHERWISE NOT PERMISSIBLE U/S 154 OF THE ACT. EVEN OTHERWISE, IF THERE IS AN ERROR IN THE EARLIER ORDER FOR ALLOWING DEDUCTION U/S 54 OF THE ACT, THIS IS A MISTAKE OF QUESTION OF LAW AND FACTS. THE ASCERTAINMENT OF FAC TS REQUIRES A PROPER INVESTIGATION AND VERIFICATION OF THE RECORD AS WEL L AS REALITY ON THE GROUND. THEREFORE, SUCH AN EXERCISE OF INVESTIGATIO N AND EXAMINATION ITA NO.1052/JP/2017 SHRI RAJENDRA AGARWAL VS ITO , WARD- 7(1), J AIPUR 12 CANNOT BE UNDERTAKEN U/S 154 OF THE ACT. ACCORDINGL Y, THE ORDER PASSED BY THE AO U/S 154 OF THE ACT IS A GROSS MISUSE AND ABUSE OF THE PROVISIONS OF THE ACT IN THE GARB OF RECTIFICATION OF MISTAKE. HENCE, THE ORDER OF THE AO IS QUASHED WHICH IS WITHOUT JURISDI CTION. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED. 3.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED ORDER PRONOUNCED IN THE OPEN COURT ON 03 /03/202 0. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 03/03/ 2020 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1 VIHYKFKHZ@ THE APPELLANT- SHRI RAJENDRA AGARWAL, JAIPUR 2 IZR;FKHZ@ THE RESPONDENT- ITO, WARD- 7(1), JAIPUR 3. VK;DJ VK;QDRVIHY ) @ CIT(A), 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.1052/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR