Viswanathan Singaram, CHENNAI V. ITO, CHENNAI

ITA 562/CHNY/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9186 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 10-03-2016
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN
• Assessee Lawyers: K GOPAL RAO
• Section: 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI , . !' BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G.PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A.NO.562/MDS./2016 / ASSESSMENT YEAR :2009-10 SHRI VISWANATHAN SINGARAM , OLD NO.418,NEW NO.7,18 TH STREET, TNHB COLONY, KORATTUR, CHENNAI 600 080. VS. THE INCOME TAX OFFICER, BUSINESS WARD XIV(2), CHENNAI-34. [PAN BPQPS 8102 F ] ( #$ / APPELLANT) ( %&#$ /RESPONDENT) / APPELLANT BY : MR.K.GOPAL RAO, FCA, /RESPONDENT BY : MR.P.RADHA KRISHNAN, JCIT, DR / DATE OF HEARING : 31 - 05 - 201 6 !' / DATE OF PRONOUNCEMENT : 06 - 0 6 - 2016 ' / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX(A)-7,CHENNAI DATED 28.01.2016 WHICH WAS PASSED CONSEQUENT TO THE ORDER OF AO U/S. 154 R.W.S143(3) OF THE ACT DATED 20.06.2012. ITA NO.562/MDS./16 :- 2 -: 2. IN THIS APPEAL, THE ASSESSEE CHALLENGED THE ORD ER OF CIT(A) DATED 28.01.2016 WHEREIN HE CONFIRMED THE ORDER OF AO PASSED U/S.154 OF THE ACT. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL, FILED HIS RETURN OF INCOME ON 9 TH JULY, 2009 ADMITTING TOTAL INCOME OF ` 92,010/- DISCLOSING INCOME FROM OTHER SOURCES AND C APITAL GAINS. SUBSEQUENTLY THE CASE WAS SELECTED FOR SCRUTINY UND ER CASS AND THE ASSESSMENT U/S.143(3) OF THE ACT DATED 29.12.2011 WAS COMPLETED ASSESSING THE TOTAL INCOME AT 30,18,260/-, DISALLOW ING THE CLAIM OF DEDUCTION U/S.54B ON THE PROPERTY SOLD BY THE ASSES SEE AT PLOT NO.102,RAM NAGAR SOUTH EXTENSION, PALLIKARANAI VILA LGE, TAMBARAM TALUK FOR A CONSIDERATION OF ` 43,20,000/- ON 23.05.2008. THE ASSESSEE UTILIZED THE SALE PROCEEDS TO PURCHASE THE FOLLOWING TWO PROPERTIES. LAND AT MAMBAKKAM ` 22,02,500/- RESIDENTIAL HOUSE AT TIRUPUR ` 8,85,500/- IN THE ASSESSMENT ORDER, THE AO ALLOWED DEDUCTION U /S.54F TO THE EXTENT OF ` 8,85,500/-. AGGRIEVED, THE ASSESSEE FILED A PETITI ON U/S.154 OF THE ACT ON 18.01.2012. THE AO DISPOSED THE PETIT ION U/S.154 VIDE ORDER DATED 20.06.2012 WITH THE FOLLOWING FINDINGS: - ITA NO.562/MDS./16 :- 3 -: I) REJECTED THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S.54F FOR THE LAND AT MAMBAKKAM INSTEAD OF RESIDENTIAL HOUSE AT TIRUPU R ON THE GROUND THAT THIS WAS NOT A RECTIFIABLE MISTAKE APPARENT FR OM RECORD. II) REJECTED THE CLAIM OF ` 86,400/- ON ACCOUNT OF BROKERAGE EXPENSES ON THE GROUND THAT THE VERACITY OF THE CLAIM MADE W AS QUESTIONABLE. III) REJECTED THE CLAIM OF DEDUCTION U/S.80C ON TH E GROUND THAT THERE WAS NO MISTAKE APPARENT FROM RECORD. AGGRIEVED BY THE ORDER OF RECTIFICATION U/S.154, TH E ASSESSEE CARRIED THE APPEAL BEFORE THE LD.CIT(A). 3.1 ON APPEAL, LD.CIT(A) CONFIRMED THE DENIAL OF A LTERNATIVE CLAIM OF EXEMPTION U/S.54F OF THE ACT, PAYMENT OF BROKERAGE OF ` 86,400/- WHILE COMPUTING CAPITAL GAINS AND ALSO DEDUCTION U/ S.80C AT ` 92,008/-. AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE MAIN PLEA OF ASSESSEE IS THAT ON MERIT, THE ASSESSEE IS ENTITLED FOR ABOVE CLAIM OF DEDUCTIONS AND THE SAME MAY BE GRANTED IN THE PROCEEDINGS U/S.154 OF THE ACT. SEC.154 EMPOWER S THE AO TO RECTIFY ANY MISTAKE APPARENT FROM RECORD. THE MIST AKE APPARENT FROM RECORD IS NOT CONFINED TO MERELY CLERICAL OR ARITHM ETICAL MISTAKE OF COURSE, CLERICAL OR ARITHMETICAL MISTAKE WOULD BE O NE APPARENT FROM RECORD AND AS SUCH WOULD BE LIABLE TO BE RECTIFIED IN EXERCISE OF POWER CONFERRED BY THIS SECTION. HOWEVER, CLERICAL OR AR ITHMETICAL MISTAKE IS ITA NO.562/MDS./16 :- 4 -: NOT THE ONLY CATEGORY OF MISTAKE WHICH IS LIABLE TO BE RECTIFIED UNDER THIS SECTION. THE MISTAKE OTHER THAN CLERICAL OR A RITHMETICAL MISTAKE ARE ALSO LIABLE TO RECTIFIED UNDER THIS SECTION PRO VIDED THEY COME IN THIS CATEGORY OF MISTAKE APPARENT FROM RECORD. THE MIST AKE APPARENT ON RECORD MUST BE OBVIOUS AND PATENT MISTAKE AND NOT S OMETHING WHICH CAN BE ESTABLISHED BY A LONG PROCESS OF REASONING A ND POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS AND HENCE THE DECISION ON A DEBATABLE POINT OF LAW OR FACT WAS NOT MISTAKE APPA RENT FROM RECORD AS STATED BY THE SUPREME COURT IN THE CASE OF ITO VS. VOLKART BROTHERS AND OTHERS REPORTED IN [1971] 82 ITR 50 (SC). FURT HER, IT WAS HELD BY THE SUPREME COURT IN THE CASE OF CIT VS. HERO CYCLE S (P) LTD. REPORTED IN (1997) 228 ITR 463(SC) THAT THE RECTIFICATION U/ S.154 CAN ONLY BE MADE WHEN GLARING MISTAKE OF FACT OR LAW HAS BEEN C OMMITTED BY THE OFFICER PASSING THE ORDER BECOMES APPARENT FROM REC ORD. RECTIFICATION IS NOT POSSIBLE, IF THE QUESTION IS DEBATABLE. MOR EOVER, THE POINT WHICH WAS NOT EXAMINED ON FACT OR LAW, IT CANNOT BE DEALT AS MISTAKE APPARENT FROM RECORD. IT WAS HELD THAT WHEN CLAIM FOR DEDUCTION WAS NOT ALLOWED ORIGINALLY AND THE ITO WAS NOT JUSTIFIE D IN ALLOWING THE SAME BY WAY OF RECTIFICATION. WE APPLY THE ABOVE PR OPOSITION OF LAW LAID DOWN BY SUPREME COURT AND FIND THAT THE ISSUES RAISED BY THE ASSESSEE IN ITS PETITION U/S.154 OF THE ACT CANNOT BE DEALT THROUGH RECTIFICATION PROCEEDINGS. AS SUCH, THE LOWER AUTHO RITIES HAVE TAKEN THE ITA NO.562/MDS./16 :- 5 -: CORRECT VIEW IN REJECTION THE CLAIM OF ASSESSEE IN PROCEEDINGS U/S.154 OF THE ACT. WE DO NOT FIND ANY INFIRMITY IN THE OR DER OF LOWER AUTHORITIES AND THE SAME IS CONFIRMED. THE REMEDY L IES WITH THE ASSESSEE AT ELSEWHERE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 06 TH JUNE, 2016, AT CHENNAI. SD/ - SD/ - ( . ) ( G.PAVAN KUMAR ) / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER #$ / CHENNAI %& / DATED: 06 TH JUNE, 2016. K S SUNDARAM &'(()*( +* / COPY TO: ( 1 . / APPELLANT 3. ( ,(- . / CIT(A) 5. */0 (1 / DR 2. / RESPONDENT 4. ( , / CIT 6. 02(3 / GF