Shakuntala Agrawal, Sambalpur V. ITO, Ward-1(1), Sambalpur, Sambalpur

ITA 309/CTK/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5424 (ITAT-CUTTACK)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 1998-1999
• Appeal Filed On: 31-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SITAL CHANDRA DAS
• Keywords: Opportunity of being heard; Fair market value; Valuation report
• Section: 143(3); 54; 154

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH, CUTTACK BEFORE SHRI P. K. BABNSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA NO. 309 / CTK /2014 (ASST. YEAR : 1998 - 99 ) SMT . SHAKUNTALA AGRAWAL, AT BAIDYANATH CHOWK, MARWARIPARA, DIST. SAMBALPUR. VS. ITO, WARD - 1(1), SAMBALPUR. PAN NO. AATPA 4059 J (APPELLANT) (RESPONDENT) ITA NO. 3 1 0/CTK/2014 (ASST. YEAR : 1998 - 99 ) HARBINDER SINGH BEDI, C/O GURUNANAK RICE MILL, REMED, SAMBALPUR. VS. DC IT, CIRCLE - 2 (1), SAMBALPUR. PAN NO. A CGPB 0315 D (APPELLANT) (RESPONDENT) ITA NO. 311/CTK/2014 (ASST. YEAR : 1998 - 99 ) HANSRAJ AGRAWAL (HUF) , KARTA MANOJ KU. AGRAWAL, SHIV KUNJ, BEHIND P.N. BANK, VSS MARG, DIST. SAMBALPUR. VS. ITO , WARD - 1 (1), SAMBALPUR. PAN NO. AACHH 5192 Q (APPELLANT) (RESPONDENT) 2 ITA NO. 31 2 /CTK/2014 (ASST. YEAR : 1998 - 99 ) LATE SMT. SHEELA PATEL, L/H MUKESH PATEL, HOSPITAL ROAD, SUNDERGARH. VS. ITO , WARD - 1 , JHARSUGUDA . PAN NO. ABDPP 1334 L (APPELLANT) (RESPONDENT) ITA NO. 313/CTK/2014 (ASST. YEAR : 1998 - 99 ) SHYAM SUNDAR AGRAWAL (HUF) . AT/PO. BELPAHAR , DIST. JHARSUGUDA . VS. ITO, WARD - 1, JHARSUGUDA. PAN NO. AANHS 9245 J (APPELLANT) (RESPONDENT) ITA NO. 31 4 /CTK/2014 (ASST. YEAR : 1998 - 99 ) RAMESH CHANDRA AGRAWAL, SHIV KUNJ, BEHIND P.N. BANK, DIST. SAMBALPUR . VS. ITO, WARD - 1 (1) , SAMBALPUR . PAN NO. ABLPA 9181 C (APPELLANT) (RESPONDENT) ITA NO. 315/CTK/2014 (ASST. YEAR : 1998 - 99 ) BAIJNATH AGRAWAL, SHIV KUNJ, BEHIND P.N. BANK, DIST. SAMBALPUR . VS. ITO, WARD - 1 (1) , SAMBALPUR . PAN NO. ABWPA 0078 P (APPELLANT) (RESPONDENT) 3 ITA NO. 316/CTK/2014 (ASST. YEAR : 1998 - 99 ) LATE HARDAYAL SINGH BEDI, L/H SMT. GURUBACHAN KAUR, C/O GURUNANAK RICE MILL, REMED, SAMBALPUR. VS. DC IT, CIRCLE - 2( 1 ) , SAMBALPUR . PAN NO. ACGPB 0314 C (APPELLANT) (RESPONDENT) ITA NO. 317/CTK/2014 (ASST. YEAR : 1998 - 99 ) SMT. PUSHPA MITTAL, W/O SATYAPAL MITTAL, AT/PO. DHANKAUDA, DIST. SAMBALPUR. VS. ITO, WARD - 1 (1) , SAMBALPUR . PAN NO. ADPPM 3257 R (APPELLANT) (RESPONDENT) ITA NO. 318/CTK/2014 (ASST. YEAR : 1998 - 99 ) LATE BHAGIRATHMAL AGRAWAL (HUF) , L/H RAMESH CHANDRA AGRAWAL, SHIV KUNJ, BEHIND P.N. BANK, VSS MARG, DIST. SAMBALPUR. VS. ITO, WARD - 1 (1) , SAMBALPUR . PAN NO. AACHA 4089 H (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SHRI SITAL CHANDRA DAS - D.R. DATE OF HEARING : 06 / 0 2 /2015 . DATE OF PRONOUNCEMENT : 0 6 / 0 2 /201 5 . 4 O R D E R PER D.T. GARASIA , J .M ALL THESE APPEALS FILED BY THE DIFFERENCE ASSESSEE S ARE DIRECTED AGAINST THE SEPARATE ORDER S OF LD. CIT (A), BE RHAMPUR U/S. 154 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE 'ACT', FOR SHORT) EACH DATED 2 8 /0 5 /201 4 FOR THE A.Y. 1998 - 99 . ALL THE APPEALS RELATING TO ONE GROUP OF ASSESSEE, THEREFORE, IT IS DISPOSED OF BY THIS COMMON ORDER. 2. FOR THE SAKE OF CONVENIENCE, FACTS ARE TAKEN FROM I.T.A.NO. 309/CTK/2014. THE FOLLOWING GROUNDS ARE RAISED BY THE ASSESSEE : 1. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LD. A.O. DATED 29 - 12 - 2008 SUFFERS FROM SEVERAL APPARENT MISTAKES AND THE LD. C.I.T. (A) HAS ERRED IN CONFIR MING THE ACTION OF THE LD. A.O. 2. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE PRIMA FACIE APPARENT MISTAKE COMMITTED BY THE LD. A.O. AS WELL AS THE LD. C.I.T. (A) IS VIOLATION OF THE DIRECTION OF THE TRIBUNAL BY THE LD. A.O. WHICH IS AGAINS T THE PRINCIPAL DECIDED BY THE HONBLE J URISDICTIONAL HIGH COURT IN THE CASE OF ORISSA CE RAMIC SALES VS I.T.O AND ANOTHER 145 ITR, 464(ORISSA). 3. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, IT IS AN ESTABLISHED PRINCIPAL OF LAW THAT JUDICIAL DISCIPLINE DEMANDS THAT AUTHORITIES SUBORDINATE TO THE TRIBUNAL SHOULD ACCEPT THE DECISION O F THE TRIBUNAL AS BINDING. THIS PROPOSITION IS FORTIFIED BY THE DECISION OF HONBLE APEX COURT IN THE CASE OF KHALID AUTOMOBILES VS UNION OF INDIA (1995) 4 5CC (SUPPL.) 65. ANY DEVIATION FROM, THE DIRECTION OF THE ITAT CONSTITUTES A MISTAKE. 4. FOR THAT I N THE FACTS AND CIRCUMSTANCES OF THE CASE, WHETHER NON - CONSIDERATION OF A DECISION OF JURISDICTIONAL COURT OR OF THE SUPREME COURT CAN BE SAID TO BE A MISTAKE APPARENT FROM THE RECORD. IN 5 THIS CONNECTION, THE HONBLE SUPREME COURT VIDE ASSISTANT CIT. VS SAURASTRA KUTCH STOCK EXCHANGE LTD. 305 I.T.R. 227, HAVE OPINED THAT SUCH A MISTAKE CAN BE SAID TO BE A MISTAKE APPARENT FROM THE RECORD. 5. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE VALUATION REPORT DATED 08 - 12 - 97 FILED BEFORE THE LD. IT AT ON 03 - 04 - 2007 IS A REPORT OF THE TECHNICAL PERSON WHICH CANNOT BE COMMENTED UPON BY THE NON TECHNICAL PERSONS AS HAS BEEN HELD BY THE HONBLE APEX COURT IN THE CASE OF SARASWATI INDUSTRIAL SYNDICATE LTD. VS CIT (237 ITR 1). THE AUTHORITIES BELOW HAVE ER RED IN COMMENTING ON THE REPORT DATED 08 - 12 - 97. 6. FOR THAT WITHOUT PREJUDICE TO THE MISTAKES URGED ABOVE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE BY HOLDING THAT THERE IS NO SUITABLE METHOD TO COMPUTE THE FMV OF THE ROUGH DIAMONDS AS ON 01 - 04 - 1981, TH E LD. A.O HAS BROUGHT ANOTHER APPARENT MISTAKE OF LAW. WHEREBY, IN CASE THE COMPUTATION PROVISIONS ARE NOT POSSIBLE, THE CHARGE OF CAPITAL GAINS U/S 45 FAILS (AS HAS BEEN HELD BY HONBLE S.C IN THE CASE OF PNB FINANCE LTD VS CIT,220 CTR 110 AND CIT VS B.C SRINIVASA SHETTY 128 ITR 294). THE ASSESSMENT ON THE APPELLANT THEREFORE DOES NOT SURVIVE. 7. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LD. AO REJECTING THE PETITION U/S 154 DATED 06 - 04 - 2009 AND THE APPELLATE ORDER PASSE D BY THE LD. CIT(A) CONFIRMING THE ACTION OF THE LD. AO, SUFFERS FROM OBVIOUS, PATENT AND APPARENT MISTAKES OF LAW AND FACTS. 8. FOR THAT , BOTH THE AUTHORITIES BELOW HAVE ERRED IN NOT FOLLOWING THE DIRECTION OF LD. ITAT VIDE ORDER DATED 05 - 04 - 2007 AND HA VE FURTHER ERRED IN NOT APPRECIATING THE DICTUM OF HONBLE ODISHA HIGH COURT, HONBLE SUPREME COURT AND THE RECENT DECISION OF THIS HONBLE BENCH IN ITA NO. 203 TO 233/CTK/2011 DATED 27 - 05 - 2011. THE ASSESSMENT THEREFORE DOES NOT SURVIVE AND IS LIABLE TO BE SETASIDE. 9. FOR THAT OTHER GROUNDS, IF ANY, MAY BE URGED AT THE TIME OF, OR BEFORE THE HEARING OF PRESENT HEARING. 3. SHORT FACTS OF THE CASE ARE AS UNDER: - THE ASSESSEE HAS FILED THE RETURN OF INCOME ON 30/10/1998, WHICH WAS PROCESSED U/S. 143(3) OF THE ACT . THEREAFTER, THE INCOME 6 WAS DETERMINED AT RS. 7,28,970/ - AGAINST THE RETURN INCOME OF RS. 37,470/ - . WHILE COMPUTING THE TOTAL INCOME, THE ASSESSING OFFICER HAD CALCULATED LONG TERM CAPITAL GAIN S OF RS. 7,41,656/ - INSTEAD OF LONG TERM CAPITAL GAIN SHOWN AT RS. 415/ - BY THE ASSESSEE OUT OF TRANSFER OF POLISHED DIAMOND. 4 . THE MATTER WAS CARRIED TO THE LD. CIT(A) AND THE LD. CIT(A) HAS CONFIRMED THE ACTION OF THE ASSESSING OFFICER. THE MATTER WAS TRAVELLED TO ITAT AND THE ITAT HAS RESTORED BACK TH E MATTER TO THE FILE OF ASSESSING OFFICER TO ADOPT THE VALUE AS PER VALUATION REPORT , WHICH REVEALS THE FAIR MARKET VALUE OF RAW AND UNCUT DIAMOND AS ON 01/04/1981 AND RECOMPUTE THE CAPITAL GAIN. 5. IN PURSUANCE TO THIS DIRECTION, THE ASSESSING OFFICER HAS RECOMPUTED THE LONG TERM CAPITAL GAIN IN ALL THE ASSESSMENT YEARS . THE ASSESSEE WAS NOT SATISFIED WITH THE ACTION OF ASSESSING OFFICER, THEREFORE , HE FILED A RECTIFICATION APPLICATION U/S. 154 OF THE ACT BEFORE THE LD. CIT(A), WHO DISMISSED THE SAME . THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. 6. THE ASSESSEE DID NOT REMAIN PRESENT AND FILED HIS WRITTEN SUBMISSION, WHICH READS AS UNDER: - 7 1. FACTUAL MATRIXES (EXCEPT FOR FIGURES) AS WELL AS ISSUES ARE SIMILAR IN ALL THESE PRESENT APPEALS . 2. IN THE PRESENT CASES ASSESSMENTS WERE DONE BY THE ASSESSING OFFICER BY NOT FOLLOWING THE ORDER OF HON'BLE TRIBUNAL IN ASSESSEES' OWN CASE. THE ASSESSEES FILED APPEALS BEFORE THE LEARNED CIT(A) WHO CONFIRMED THE ASSESSMENTS IGNORING THE SUBMISSION OF THE ASSESSEES THAT THE LEARNED ASSESSING OFFICER OUGHT TO HAVE MAKE THE ASSESSMENTS BY FOLLOWING THE DIRECTION OF THE HON'BLE TRIBUNAL. THEREFORE, TH E ASSESSEES FILED PETITION U/S.1 54 OF THE I.T.ACT. 1961 BEFORE THE LEARNED CIT(A), WHO, BY IMPUGNED ORDERS, REJECTED THE SAID PETITIONS. HENCE, THE ASSESSEES ARE IN THE PRESENT APPEALS BEFORE YOUR HONOUR. 3. IT IS HUMBLY SUBMITTED THAT THE ASSESSING OFFICER WHILE PASSING THE IMPUGNED ASSESSMENT ORDERS OUGHT TO HAVE FOLLOWED THE DIRECTION OF THE TRIBUNAL TO DECIDE THE ISSUE IN THE LIGHT OF THE DECISION OF THE SPECIAL BENCH IN THE CASE OF HIRALAL LOKCHANDANI V. ITO IN I.T.A.NO.555/CTK/20 02 DT.L7. 11.2006 , WHEREIN, THE ITAT, SPECIAL BENCH HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO RECOMPUTE THE CAPITAL GAIN AFTER CONSIDERING THE VALUATION REPORT OF ROUGH DIAMONDS AS BASIS FOR DETERMINING FAIR MARKET VALUE OF RAW AND UNCUT DIAMOND AS ON 1.4.1981. THE SPECIFIC DIRECTION GIVEN BY THE ITAT, SPECIAL BENCH IN THE SAID CASE, IS AS FOLLOWS : '21. IN VIEW OF ABOVE FACTUAL/LEGAL POSITION IN OUR OPINION, IT WOULD MEET THE ENDS OF JUSTICE IF THE ORDER OF THE LOWER AUTHORITIES ON THIS POINT IS SET ASIDE AND MATTER IS RESTORED BACK TO THE FILE OF A.O. THE ASSESSEE IS DIRECTED TO PRODUCE THE VALUATION REPORT OF RAW AND UNCUT DIAMOND BEFORE THE A.O. THEREAFTER THE A.O. WILL RE - COMPUTE THE CAPITAL GAIN AFTER CONSIDERING SUCH VALUATION REPORT AS BASIS FOR DETERMINING FAIR MARKET VALUE 'OF RAW AND UNCUT DIAMOND AS ON 1.4.1981. THE A.O. WILL ALLOW ADEQUATE OPPORTUNITY TO THE ASSESSEE WHILE GIVING EFFECT TO THIS ORDER.' IT MAY KINDLY BE APPRECIATED THAT THE ORDER OF HON'BLE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE HIRALA LOKCHANDANI V. ITO (SUPRA) IS VERY CLEAR THAT SUCH A DIRECTION WAS MADE AS PER THE SUGGESTION OF THE DEPARTMENT ONLY AS PER THE OBSERVATION MADE IN PARAGRAPH 8 20 OF THE SAID ORDER DT.17.11.2006. THEREFORE, AS PER THAT DIRECT ION, THE ASSESSING OFFICER OUGHT TO HAVE CONSIDERED THE VALUATION REPORT SUBMITTED BY THE ASSESSEES AS THE BASIS FOR DETERMINING FAIR MARKET VALUE OF RAW AND UNCUT DIAMOND AS ON 1.4.81. THE ASSESSEES HAVE MADE AVAILABLE TO THE ASSESSING OFFICER THE VALUATI ON REPORT OF RAW AND UNCUT DIAMONDS AS ON 1.4.1981, BUT WITHOUT TAKING THE SAME AS THE BASIS FOR COMPUTATION OF CAPITAL GAINS AS PER THE DIRECTION OF THE TRIBUNAL, THE ASSESSING OFFICER COMPUTED THE CAPITAL GAINS ON ITS OWN INTERPRETATION OF FACTS, WHICH IN FACT HAD ALREADY BEEN CONSIDERED BY THE ITAT, SPECIAL BENCH IN THE CASE OF HIRALAL LALCHANDANI (SUPRA). THE LEARNED CIT(A) IGNORING THE ABOVE DIRECTION, CONFIRMED THE ASSESSMENTS. THUS, THERE BEING NON - COMPLIANCE OF TH E DIRECTION OF THE TRIBUNAL, THE ASSESSEES FILED PETITIONS U/S.154 BEFORE THE LEARNED CIT( A) FOR RECTIFICATION OF HIS ORDERS AND TO DIRECT THE LEARNED ASSESSING OFFICER TO MAKE ASSESSMENTS BY FOLLOWING THE DIRECTION OF THE TRIBUNAL, WHICH THE LEARNED CIT(A ) HAS REJECTED AND IT IS AGAINST SUCH ORDERS, THE ASSESSEES ARE IN PRESENT APPEALS. 4. RESPECTFULLY IT IS SUBMITTED THAT IN THE ASSESSMENT ORDERS PASSED PURSUANT TO THE DIRECTION OF THE TRIBUNAL, THE ASSESSING OFFICER HAS CIRCUMVENTED THE DIRECTION OF I.T.A.T. CUTTACK BENCH AS WELL AS THAT OF THE HON'BLE SPECIAL BENCH OF I.T.A.T. THE ASSESSING OFFICER WAS NOT EXPECTED TO SIT OVER THE JUDGMENT ON THE ISSUES ALREADY ADJUDICATED BY THE ITAT, CUTTACK AS WELL AS THE SPECIAL BENCH OF THE TRIB UNAL. THE SAID ORDERS HAVING BECOME FINAL AND BINDING ON THE PARTIES THERETO, THE DEPARTMENTAL AUTHORITIES HAVE NO OTHER ALTERNATIVE THEN TO FOLLOW THE SAME. CONTRARY TO THIS, THE ASSESSING OFFICER IN THE PRESENT CASES HAVE AGAIN ADJUDICATED THE VERY SAME ISSUES THOSE WERE CONSIDERED BY HON'BLE ITAT, CUTTACK AS WELL AS THE SPECIAL BENCH OF THE TRIBUNAL, AND HAVE PA SSED THE ASSESSMENT ORDERS U/S.143 (3). THEREFORE, SUCH ORDERS ARE NOT AT ALL SUSTAINABLE FOR LEGAL SCRUTINY AND REQU IR E TO BE SET ASIDE. IN A WAY THAT ACTION OF THE ASSESSING OFFICER RESULTED IN VIOLATION OF THE NORMS OF JUDICIAL DISCIPLINE AND IN THAT VIEW OF THE MATTER, THE ORDERS PASSED BY THE ASSESSING OFFICER ARE VOID AS PER THE PRINCIPLES DECIDED BY THE HON'BLE JURISDICTIONAL HIGH COURT RENDE RED IN THE CASE OF ORISSA CERAMIC SALES VS. I . T.O. AND ANOTHER,(1984) 145 ITR 464(ORI). SIMILAR OPINION WAS EXPRESSED BY HON' B LE ALLAHABAD HIGH COURT IN THE CASE OF OM PRAKASH 9 TRIVEDI VS. UNION OF INDIA AND A NOTHER (2006) 287 ITR 11 (ALL). IT IS AN ESTABLI SHED PRINCIPLE OF LAW THAT JUDICIAL DISCIPLINE DEMANDS THAT AUTHORITIES SUBORDINATE TO THE TRIBUNAL SHOULD ACCEPT THE DECISIONS OF THE TRIBUNAL AS BINDING. THIS PROPOSITION IS FORTIFIED BY THE DECISION OF HON'BLE APEX COURT IN THE CASE OF KHALID AUTOMOBILES VS. UNION OF INDIA (1995) 4 SCC (SUPPL.) 65, WHEREIN IT WAS HELD THAT THE TRIBUNAL ORDERS ARE BINDING ON THE ASSESSING OFFICER AND THE FIRST APPELLATE AUTHORITY. HON'BLE MADRAS HIGH COURT; WAS OF THE SAME VIEW AS PER THE DICTUM RENDERED IN THE CASE OF SREE RAJE N DRA MILLS LTD. VS. JOINT CTO, 28 STC 483 (MAD) AND IN THE CASE OF SENTHIL RAJA METAL, VS. CTO, 79 STC 38 (MAD). THESE PRINCIPLES WERE A LSO UPHELD BY THE HON'BLE APEX COURT IN THE DECISION RENDERED IN UNION OF INDIA VS. KAMALAKSHI FINANCE CORPORATION LTD. AIR 1992 SC 711. FROM THESE DICTUMS, IT IS CLEAR THAT THE SUBORDINATE AUTHORITIES HAVE TO UNRESERVEDLY FOLLOW THE ORDERS OF THE HIGHER APPELLATE AUTHORITIES. HON'BLE MADHYA PRADESH HIGH COURT HAS ALSO EXPRESSED SAME VIEW IN THE CASE OF AGR AWAL WAREHOUSING AND LEASING LTD. VS. CIT (2002) 257 ITR 235 (MP), WHEREIN IT WAS HELD THAT THE ORDERS PASSED BY THE TRIBUNAL ARE BINDING ON ALL TAX AUTHORITIES FUNCTIONING UNDER THE JURISDICTION OF TRIBUNAL. 5. IT IS SUBMITTED THAT ON SIMILAR FACTS AND CIRCUMSTANCES AS IN THE PRESENT CASE WHEN THE ASSESSING OFFICER DID NOT FOLLOW THE DIRECTION OF THE TRIBUNAL, IN ITA NOS.203 TO 223/CTK/2011 IN THE CASES OF PUTTA SURYA RAO & OTHERS V. ITO {GROUP CASES) VIDE CONSOLIDATED ORDER DT.27.5.2011 FOLLOWED IN OTHE R GROUP CASES IN ITA NO,273 TO 288/CTK/2011 VIDE CONSOLIDATED ORDER DT.30.6.2011 IN THE CASE OF SMT. ASHA SONI & OTHERS V. ITO, HON'BLE ITAT, CUTTACK HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A SPECIFIC DIRECTION TO ADOPT THE VALUE AS PER THE VALUATION REPORT STATING THEREIN THE FAIR MARKET VALUE OF RAW AND UNCUT DIAMOND AS ON 1.4.1981 FURNISHED BY THE ASSESSEES PURSUANT TO THE DIRECTION OF THE TRIBUNAL AND RECOMPUTE THE CAPITAL GAIN TO BE TAXED IN THE HANDS OF THE RESPECTIVE ASSESSE ES IN ACCORDANCE WITH LAW. IN VIEW OF THE ABOVE JUDICIAL PRONOUNCEMENTS, IT IS SUBMITTED THAT THE ASSESSING OFFICER IN THE PRESENT CASES OUGHT TO HAVE FOLLOWED THE DIRECTION OF THE TRIBUNAL WHILE COMPLETING THE ASSESSMENTS PURSUANT TO IT AND SO ALSO THE LE ARNED CIT(A) IN APPEAL. BUT HAVING NOT DONE SO, THE ASSESSING OFFICER AS WELL AS THE LEARNED CIT(A) HAVE COMMITTED MISTAKE APPARENT ON THE FACE OF RECORD, A MISTAKE WITHIN THE AMBIT OF SECTION 154 AND THE LEARNED CIT(A) OUGHT NOT TO HAVE REJECTED THE 10 PETITIONS FILED BY THE ASSESSEES U/S.154 SEEKING RECTIFICATION OF THE SAID ORDERS. THE LEARNED CIT(A) SHOULD HAVE CONSIDERED THIS ASPECT OF THE CASE WHEN SPECIFICALLY THE ORDERS OF THIS BENCH OF THE TRIBUNAL (SUPRA) WERE BROUGHT TO HIS NOTICE AND FOR THAT MATTER HE SHOULD HAVE DIRECTED THE ASSESSING OFFICER TO RECTIFY THE ASSESSMENT ORDERS AS PRAYED FOR BY THE ASSESSEES IN THEIR 154 PETITIONS. ON VERY MUCH SIMILAR FACTS AS IN THE PRESENT CASES, HON'BLE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF LATE TARAMANI DEVI V. ITO IN ITA NO.249/CTK/2013 DT.12.06.2013 AND IN GROUP CASES IN ITANO.153 TO 160/CTK/2012 DT.9. 11.2012 (COPY ATTACHED), HAS HELD SO. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, IT IS HUMBLY PRAYED THAT THE IMPUGNED ORDERS OF LEARNED C IT(A) IN CASE OF THE PRESENT ASSESSEES MAY KINDLY BE SET ASIDE AND IN ORDER TO SAVE THE ASSESSEES FROM UNNECESSARY MULTIPLICITY OF LITIGATIONS, THE CASES MAY KINDLY BE RESTORED TO THE ASSESSING OFFICER FOR MAKING ASSESSMENTS AFRESH BY ADOPTING THE VALUE AS PER THE VALUATION REPORT STATING THEREIN THE FAIR MARKET VALUE OF THE RAW AD UNCUT DIAMOND AS ON 1.4.1981 FURNISHED BY THE RESPECTIVE ASSESSEES PURSUANT TO THE DIRECTION OF THE TRIBUNAL AND RECOMPUTE THE CAPITAL GAINS TO BE TAXED IN THE HANDS OF THE ASSES SEES. 7. ON THE OTHER HAND, LEARNED DR RELIED UPON THE ORDERS OF THE REVENUE AUTHORITIES. 8. WE HAVE HEARD LD. DR AND CONSIDERED THE SUBMISSIONS OF THE ASSESSEE . LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT IN A SIMILAR GROUP OF CASES FOR A.Y. 1998 - 99 & 1999 - 2000 , A SIMILAR APPLICATION WAS FILED BEFORE THE TRIBUNAL IN I.T.A.NOS. 153 - 160/CTK/2012 , WHEREIN T HE TRIBUNAL HAS DECIDED THIS ISSUE AND RESTORED TH E MATTER BACK TO THE FILE OF ASSESSING OFFICER B Y OBSERVING AS UNDER: - 11 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE INCLINED TO FIND FORCE IN THE CONTENTION OF THE LEARNED COUNSEL OF THE ASSESSEE. IT IS NOT DISPUTED THAT THE MATTER WA S RESTORED TO THE ASSESSING OFFICER BY THE TRIBUNAL WITH A DIRECTION TO PASS FRESH ASSESSMENT ORDER IN THE LIGHT OF THE DECISION OF ITAT, SPECIAL BENCH IN THE CASE OF HIRALAL LOKCHANDANI V. ITO IN ITA NO.555/CTK/2002 DT.17.11.2006. THE SPECIAL BENCH HAS CA TEGORICALLY OBSERVED IN PARAGRAPH 21 THAT THE ASSESSING OFFICER HAVE TO RECOMPUTE THE CAPITAL GAIN AFTER CONSIDERING THE VALUATION REPORT AS BASIS FOR DETERMINING FAIR MARKET VALUE OF RAW AND UNCUT DIAMOND AS ON 1.4.1981. PERUSAL OF THE ASSESSMENT ORDERS R EVEALS THAT THE ASSESSING OFFICER HAS NOT FOLLOWED THE DIRECTION OF THE TRIBUNAL BUT RECOMPUTED THE CAPITAL GAIN AGAIN ON ITS OWN FINDING OF FACTS PROPORTIONATELY AGAINST THE VERY DIRECTION OF THE TRIBUNAL, WHICH FACT HAS ALREADY BEEN CONSIDERED BY THE SPE CIAL BENCH OF ITAT WAS NOT TO BE DISTURBED. THIS CLEARLY INDICATES THAT THE ASSESSING OFFICER HAS SUPERIMPOSED HIS JUDGMENT/OPINION ON IMPORTING NEW FACTS ARITHMETICALLY AND NOT FOLLOWED THE DIRECTION OF THE TRIBUNAL, WHEREBY HE WAS ONLY TO TAKE THE VALUAT ION REPORT FROM THE ASSESSEE AND DETERMINE THE FAIR MARKET VALUE OF THE RAW AND UNCUT DIAMONDS AFTER CONSIDERING SUCH VALUATION REPORT AS BASIS FOR DETERMINING FAIR MARKET VALUE OF RAW AND UNCUT DIAMOND AS ON 1.4.1981 AND COMPUTE THE CAPITAL GAINS THAT IS TAXABLE IN THE HANDS OF THE ASSESSEES. THEREFORE IN VIEW OF THE CASE LAWS RELIED ON BY THE LEARNED COUNSEL OF THE ASSESSEE REFERRED TO IN PARAGRAPH 4 ABOVE INCLUDING THE DECISION OF THIS BENCH OF THE TRIBUNAL IN OTHER GROUP CASES, THERE BEING CLEAR VIOLATI ON OF THE DIRECTION OF THE TRIBUNAL BY THE ASSESSING OFFICER IN THE PRESENT CASES, THE ASSESSMENT ORDERS MUST BE HELD TO BE ERRONEOUS, WHICH GIVE RISE TO THE SCOPE OF RECTIFICATION U/S.154. IN SUCH VIEW OF THE MATTER, WHEN THE ASSESSEES MOVED APPLICATIONS U/S.154 FOR RECTIFICATION OF THE SAID ASSESSMENT ORDERS, THE LEARNED ASSESSING OFFICER IS NOT JUSTIFIED IN REJECTING THE SAME. THE LEARNED CIT(A) WITHOUT CONSIDERING THIS VITAL ASPECT OF THE CASE WAS NOT JUSTIFIED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN REJECTING THE APPLICATIONS FILED BY THE ASSESSEES U/S.154. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE ORDERS PASSED BY THE DEPARTMENTAL AUTHORITIES ARE NOT SUSTAINABLE FOR LEGAL SCRUTINY AND HENCE, THEY ARE HEREBY SET ASIDE BY ALLOWING TH E APPEALS OF THE ASSESSEES. THE LEARNED ASSESSING OFFICER IS HEREBY DIRECTED TO RECTIFY THE ASSESSMENT ORDERS PASSED IN THE CASE OF RESPECTIVE ASSESSEES BY ADOPTING THE VALUE AS PER THE VALUATION REPORT STATING THEREIN THE FAIR MARKET VALUE OF RAW AND UNCU T DIAMOND AS ON 1.4.1981 FURNISHED BY THE 12 ASSESSEE PURSUANT TO THE DIRECTION OF THE TRIBUNAL AND RECOMPUTE THE CAPITAL GAIN TO BE TAXED IN THE HANDS OF THE RESPECTIVE ASSESSEES IN ACCORDANCE WITH LAW. NEEDLESS TO SAY THAT THE ASSESSING OFFICER WILL EXTEND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEES. 9. W E FIND THAT THE FACTS OF THE AFORESAID C ASE ARE SIMILAR TO THE FACTS OF TH IS CASE , WHICH RELAT ES TO DETERMINE THE FAIR MARKET VALUE OF RAW AND UNCUT DIAMOND AS ON 01/04/1981. WE , THEREFORE , RESPECTFULLY FOLLOWING THE ABOVE DECISION, RESTORE ALL THESE APPEALS TO THE FILE OF ASSESSING OFFICER TO DECIDE THE CLAIM OF THE ASSESSEE AS PER THE DIRECTION GIVEN IN THE ABOVE CASE S I.E. I.T.A.NOS. 153 - 160/CTK/2012 AND PASS APPROPRIATE ORDER AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 10. IN THE RESULT, APPEAL S OF THE ASSESSEES ARE S T A T I S T I C A L L Y ALLOWED. ( ORDER PRONOUNCED IN THE OPEN COURT ON 6 T H FEBRUARY , 201 5 ). S D / - S D / - (P.K. BANSAL) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 0 6 T H FEBRUARY , 201 5 . VR/ - COPY TO: 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE LD. CIT 4 . THE CIT(A) 5 . THE D.R . 6 . GUARD FILE. BY ORDER