Smt. Beena Shammi Chaudhari, Pune V. Income-tax Officer, Ward - 6(4), Pune

MA 04/PUN/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 6960 (ITAT-PUNE)
• Duration Of Justice: 7 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 27-05-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital Gains
• Section: 254(2)

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE (THROUGH VIRTUAL COURT) BEFORE SHRI INTURI RAMA RAO, AM AND SHRI S. S. VISWANETHRA RAVI, JM . / MA NO.04/PUN/2020 (ARISING OUT OF ITA NO.1849/PUN/2018) / ASSESSMENT YEAR : 2009-10 SMT. BEENA SHAMMI CHAUDHARI, B/3-302, SILVER OAK, FLORIEN ESTATES, KALYANI NAGAR, PUNE-411014. PAN : ADYPC5109R ....... / APPELLANT / V/S. ITO, WARD- 6(4), PUNE. / RESPONDENT ASSESSEE BY : SHRI VARDHAMAN L. JAIN REVENUE BY : SHRI SUDHENDU DAS / DATE OF HEARING : 15.01.2021 / DATE OF PRONOUNCEMENT : 15.01.2021 / ORDER PER INTURI RAMA RAO, AM: THE ASSESSEE THROUGH THIS MISCELLANEOUS PETITION SEEKS RECALL OF AN ORDER DATED 16.04.2019 OF THIS TRIBUNAL IN ITA NO.1849/PUN/2018 FOR THE ASSESSMENT YEAR 2009-10. 2. IN THE PRESENT MISCELLANEOUS PETITION IT IS AVERRED THE CONTENTION RAISED BY THE APPELLANT DURING THE COURSE OF HEARING OF THE APPEAL BEFORE THIS TRIBUNAL RECORDED VIDE PARA 4 OF THE ORDER DATED 16.04.2019 (SUPRA) THE SALE DEED WAS EXECUTED ON 15.12.2007 BUT REGISTERED UNDER THE INDIAN REGISTRATION ACT ON 17.04.2008 AND, THEREFORE, THE CAPITAL GAINS, IF ANY, WOULD ARISE AND IN THE ASSESSMENT YEAR 2008-09 NOT IN THE ASSESSMENT YEAR 2009- 10 REMAINS UNADJUDICATED. IN THE CIRCUMSTANCES, THE LD. AR FOR THE APPELLANT 2 MA NO.04/PUN/2020 PRAYED THAT THE IMPUGNED ORDER MAY BE RECALLED FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. IN SUPPORT OF THIS, HE RELIED UPON THE FOLLOWING DECISIONS :- (I) ROLLS-ROYCE MARINE INDIA PVT. LTD. VS. ITAT (WRIT PETITION NO.755 OF 2019) (BOM-HC); (II) AMORE JEWELS PRIVATE LTD. VS. DCIT (WRIT PETITION NO.1833 OF 2018) (BOM-HC); (III) JAI MARWAR CO. (P) LTD. VS. ACIT, 79 TTJ 178; (IV) SONY PICTURES NETWORKS INDIA PVT. LTD. VS. ITAT (WRIT PETITION NO.3508 OF 2018) (BOM-HC); AND, (V) GURBAX SINGH VS. KARTAR SINGH AND ORS., SLP (CIVIL) 1969 OF 2002 DATED 11.02.2002 (SC). 3. ON THE OTHER HAND, LD. DR FOR THE REVENUE CONTESTED THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD AND THE PRESENT MISCELLANEOUS PETITION IS NOT MAINTAINABLE. 4. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ON READING PARA 4 OF THE IMPUGNED ORDER IT IS CLEAR THAT THE TRIBUNAL WHILE PASSING THE IMPUGNED ORDER HAD RECORDED THE CONTENTION RAISED BY THE APPELLANT IN THE FOLLOWING WORDS :- ............................................ 4. ..... HE FURTHER SUBMITTED THAT SINCE THE SALE DEED WAS EXECUTED ON 15.12.2007, IF AT ALL THE TRANSFER IS CONSIDERED TO HAVE TAKEN PLACE, IT HAS TAKEN PLACE IN A.Y. 2008-09 AND NOT IN A.Y. 2009-10 THOUGH THE REGISTRATION WAS DONE ON 17.04.2008. .. ............................................... 5. HOWEVER, ON READING OF THE OPERATIVE PART OF THE IMPUGNED ORDER, IT IS CLEAR THAT THE TRIBUNAL HAD FAILED TO ADJUDICATE THIS CONTENTION RAISED BY THE APPELLANT DURING THE COURSE OF HEARING OF THE APPEAL. FAILURE OF THE TRIBUNAL TO ADJUDICATE A PARTICULAR CONTENTION RAISED BY THE APPELLANT DURING THE 3 MA NO.04/PUN/2020 COURSE OF HEARING OF APPEAL CONSTITUTES A MISTAKE APPARENT FROM THE RECORD, CAPABLE OF BEING RECTIFIED U/S 254(2) OF THE ACT AS HELD BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF (I) ROLLS-ROYCE MARINE INDIA PVT. LTD. (SUPRA) AND (II) AMORE JEWELS PRIVATE LTD. (SUPRA). THEREFORE, WE ARE OF THE CONSIDERED OPINION IT IS A FIT CASE TO RECALL THE IMPUGNED ORDER FOR LIMITED PURPOSE OF ADJUDICATING THE CONTENTION RAISED THAT THE SALE DEED WAS EXECUTED ON 15.12.2007 BUT REGISTERED ON 17.04.2008, THEREFORE, SALE OF THE PROPERTY TOOK PLACE IN THE ASSESSMENT YEAR 2008-09 NOT IN THE ASSESSMENT YEAR 2009-10. ACCORDINGLY, WE RECALL THE IMPUGNED ORDER OF THE TRIBUNAL DATED 16.04.2019 (SUPRA) AND DIRECT THE REGISTRY TO POST THE CASE FOR HEARING ON 16.03.2021. THERE SHALL BE NO SEPARATE NOTICE OF HEARING TO THE PARTIES SINCE THE DATE OF HEARING IS ANNOUNCED IN THE OPEN COURT. 6. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE APPELLANT STANDS ALLOWED. ORDER PRONOUNCED ON THIS 15 TH DAY OF JANUARY, 2021. SD/- SD/- (S. S. VISWANETHRA RAVI) (INTURI RAMA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 15 TH JANUARY, 2021. SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-5, PUNE; 4. THE PR. CIT-4, PUNE; 5. , , - / DR SMC, ITAT, PUNE; 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.