The Income Tax Officer, Bathinda V. Sh. Nirmal singh Kahlon, Bathinda

MA 07/ASR/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9926 (ITAT-AMRITSAR)
• Duration Of Justice: 9 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-12-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-09-2018
• Assessment Year: 2007-2008
• Appeal Filed On: 13-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J S BHASIN LD
• Keywords: Capital asset; Rectification of order; Revised return
• Section: 271(1)(c); 139(5); 148; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER M.A NO.07(ASR)/2018 (ARISING OUT OF ITA NO.556(ASR)/2015) ASSESSMENT YEAR:2007- 08 INCOME TAX OFFICER, BATHINDA VS. SH. NIRMAL SINGH KAHLON, S/O SH. KARAN SINGH KAHLON, B-5, CIVIL LINES, BATHINDA PAN:AEHPK 8331F (APPELLANT) (RESPONDENT) APPLICANT BY: SH. CHARAN DASS (LD. D.R.) RESPONDENT BY: SH. J.S. BHASIN (LD. ADV.) DATE OF HEARING: 07.09.2018 DATE OF PRONOUNCEMENT: 05.12.2018 ORDER PER N.K.CHOUDHRY, JM: THE INSTANT MISCELLANEOUS APPLICATION HAS BEEN PREFERRED BY THE REVENUE DEPARTMENT, ON FEELING AGGRIEVED AGAINST THE ORDER DATED 04.10.2017 PASSED BY THE CO-ORDINATE BENCH AT AMRITSAR IN ITA NO.556(ASR)/2015 FOR ASST. YEAR:2007-08, WHEREBY, THE APPEAL FILED BY THE REVENUE DEPARTMENT AGAINST THE DELETION OF PENA LTY BY THE LD. CIT(A) WAS DISMISSED. 2. THE LD. DR MAINLY FOCUSED ON THE POINT THAT ALTHOUGH THE ASSESSEE RECEIVED RS.30,00,000/- DURING THE YEAR ON ACCOUNT OF A CTUAL PROPORTIONATE TRANSFER OF LAND TO THE DEVELOPER BUT FAILED TO DECLARE THE AMOUNT IN HIS RETURN OF INCOME FILED ON 31 ST MARCH, 2018. FURTHER IT WAS M.A.NO.07(ASR)/2018 (A.Y.2007-08) (ARISING OUT OF ITA NO.556(ASR)/2015) ITO VS. SH. NIRMAL SINGH KAHLON, BATHINDA 2 STATED THAT ALTHOUGH THE ASSESSEE HAS SHOWN THE AMOUNT RECE IVED DURING THE YEAR IN ITS REVISED RETURN, HOWEVER, THE ASSESSEE WA S NOT ELIGIBLE TO FILE REVISED RETURN U/S 139(5) OF THE ACT. FURTHER, THE LD. DR ALSO SUBMITTED THAT THE ITAT BENCH DID NOT APPRECIATE THE ORDER OF MADRAS HIGH COURT IN THE CASE OF CIT VS. J.K.A SUBRAMANIA CHETTIAR, 110 ITR 602 , AS FOLLOWED BY THE PUNJAB & HARYANA HIGH COURT IN THE CASE OF RAJESH CHAWALA, 154 TAXMAN 364 WHEREIN, IT WAS HELD BY THE HONBLE COURT THAT SEC. 139(5) APPLIE D ONLY TO A 'LIMITED CATEGORY OF CASES' WHERE IN THE ORIGINAL RETURN, THERE WAS ANY WRONG STATEMENT AND NOT TO CASES OF CONCEALMENT OF FALSE STATEMEN T AND FINALLY, IT WAS SUBMITTED THAT THE REVISED RETURN FILED BY THE ASSESSEE WAS NON-EST AND IN VIEW OF THE OBSERVATION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF RAJESH CHAWLA (SUPRA) A MISTAKE OF LAW IS APPARENT FROM RECORD WITHIN THE MEANING OF SEC.254(2) OF THE ACT, THEREFORE, THE INSTANT MISC. APPLICATION HAS BEEN FILED U/S 254(2) OF THE ACT. 3. ON THE CONTRARY, THE LD. AR SH. J.S. BHASIN SUBMITTED THAT THE ORDER UNDER CHALLENGE DOES NOT REQUIRES TO BE INTERFE RED WITH BECAUSE THE SAME HAS BEEN PASSED ON MERIT WHILE ANALYZING THE P ECULIAR FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS DECISIONS RENDERED BY THE JURISDICTIONAL HIGH COURT AND CO-ORDINATE BENCHES. 4. WE HAVE HEARD THE ARGUMENT AND PERUSED THE MATERI AL AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSEE WAS A MEMBER OF THE PUNJABI CO-OPERATIVE HOUSING BUILDING SOCIETY LTD. (IN SHORT SO CIETY) AND THE SOCIETY BEING THE OWNER OF 2.12 ACRES OF LAND, ALLOTTED PLOTS ADMEASURING 500 SQ. YARDS TO 65 MEMBERS AND 1000 SQ. YARDS TO 30 MEM BERS AND RETAINED 4 PLOTS OF 500 SQ. YARDS IN THE NAME OF THE SO CIETY ITSELF. THE ASSESSEE WAS ALLOTTED 1000 SQ. YARDS. ON 25.02.2007, THE SOCIETY ENTERED INTO A TRIPARTITE JOINT DEVELOPMENT AGREEMENT (JDA ) WITH HASH BUILDERS M.A.NO.07(ASR)/2018 (A.Y.2007-08) (ARISING OUT OF ITA NO.556(ASR)/2015) ITO VS. SH. NIRMAL SINGH KAHLON, BATHINDA 3 PVT. LTD. (HBPL), CHANDIGARH AND TATA HOUSING DEVELOP MENT COMPANY LTD. (THPC), MUMBAI. IN VIEW OF GRANT OF DEVELOPMENT RIGHTS, THE DEVELOPER AGREED TO PAY THE FOLLOWING CONSIDERATION T O EACH INDIVIDUAL MEMBER OF THE SOCIETY HOLDING PLOT SIZE OF 1000 SQ. YA RDS IN THE LAND OWNED BY THE SOCIETY. (A) MONETARY CONSIDERATION OF RS.1.65 CRORES TO BE PAID IN INSTALLMENTS AS PER TIME SCHEDULE PRESCRIBED IN CLAUSE 4 OF THE JDA. (B) TWO BUILT UP FLAT ADMEASURING 2250 SQ. FT. EACH I N THE PROJECT TO BE DEVELOPED. THEREFORE, THE TOTAL CONSIDERATION WAS WORKED OUT TO BE RS.3,67,50,000/-. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE ONLY RECEIVED A PART OF SALE CONSIDERATION AND THEREFORE, D ID NOT DECLARE CAPITAL GAIN ON THE SALE OF SUCH LAND IN THE ORIGINAL RETURN O F INCOME FILED ON DATED 31 ST MARCH, 2008 AND THEREAFTER, AT HIS OWN HAD FILED THE REVISED RETURN OF INCOME ON 9.11.2009 DECLARING THEREIN THE CA PITAL GAINS CALCULATED ON THE BASIS OF PROPORTIONATE AMOUNT OF SALE CONSIDERATION RECEIVED DURING THE YEAR, HOWEVER, SUBSEQUENTLY, THE N OTICE U/S 148 WAS ISSUED TO THE ASSESSEE ON 04.01.2010 AND FINALLY THE ASSESSME NT OF THE ASSESSEE WAS COMPLETED ON 24 TH DEC., 2010 BY MAKING ADDITION OF RS.3,54,20,685/- ON ACCOUNT OF LONG TERM CAPITAL GAINS QUA SALE OF LAND MEASURING 1000 SQ. YARDS. THE SAID ADDITION WAS MADE BY ASSESSING OFFICER AFTER TAKING INTO ACCOUNT THE ENTIRE SALE CONSIDE RATION IN CASH AND KIND, INCLUDING RECEIVABLE IN FUTURE. 5. ON APPEAL, THE ADDITION WAS CONFIRMED NOT ONLY BY THE CIT(A), BUT ALSO BY THE HONBLE ITAT BENCH, AMRITSAR AND THEREA FTER, THE SHOW CAUSE WAS ALSO ISSUED AGAINST THE ASSESSEE U/S 271(1)(C) OF THE ACT WHICH WAS CONTESTED BY THE ASSESSEE, HOWEVER, THE ASSESSING OFFICER I MPOSED THE PENALTY TO THE TUNE OF RS.79,43,267/- BY HOLDING THAT THE LAND M.A.NO.07(ASR)/2018 (A.Y.2007-08) (ARISING OUT OF ITA NO.556(ASR)/2015) ITO VS. SH. NIRMAL SINGH KAHLON, BATHINDA 4 DEVELOPMENT AGREEMENT HAD ALREADY BEEN SIGNED ON 25. 02.2007, THEREFORE, THE SAME IS TO BE TREATED AS TRANSFER AS PER THE PROVISION OF SEC.247(V) OF THE ACT. IT IS RELEVANT TO MENTION HEREI N THAT THE JURISDICTIONAL HIGH COURT IN THE CASE OF C.S. ATWAL VS. CIT, LUDHIANA IN ITA NO.200/2013 (O&M) DATED 22.07.2015 HAD DELETED THE SIMILAR ADDITIONS BY HOLDING THAT THE CAPITAL GAIN UNDER THESE CIRCUMSTAN CES OF THE CASE CAN BE WORKED OUT ONLY ON THE BASIS OF SALE CONSIDERATI ON RECEIVED BY THE ASSESSEE. IT WAS FURTHER OBSERVED BY THE JURISDICTIONAL HIG H COURT IN THE AFORESAID CASES THAT TRIBUNAL AND AUTHORITIES BELOW WERE NOT RIGHT IN HOLDING THAT THE ASSESSEE/APPELLANT TO BE LIABLE TO CAPI TAL GAINS TAX IN RESPECT OF REMAINING LAND MEASURING 13.5 ACRES FOR WHICH NO CONSIDERATION HAD BEEN RECEIVED AND WHICH STOOD CANCELLED AND INCAPABLE OF PERFORMANCE AT PRESENT DUE TO VARIOUS ORDERS PASSED BY THE SUPREME COURT AND THE HIGH COURT IN PUBLIC INTEREST LITIGATION S. IT IS NOT IN CONTROVERSY THAT THE DEVELOPMENT PROJECT BASED ON THE J DA, SINCE BEGINNING ITSELF WAS IN DOLDRUMS AND CONTROVERSY WHICH R ESULTED INTO VARIOUS MULTI ROUNDS OF LITIGATIONS UP TO THE HONBLE A PEX COURT WHO FINALLY DID NOT RECOGNIZE THE JDA. THE CO-ORDINATE B ENCH AT AMRITSAR WHILE DISPOSING OF ITA NO.556(ASR)/2015 FOR ASST. YEAR2007-08 NOT ONLY RELIED UPON THE ORDER PASSED BY THE JURISDICTIONAL HIGH COUR T IN THE CASES OF ADDITIONS BUT ALSO FOLLOWED THE JUDGMENT OF JURISDICTIO NAL HIGH COURT IN THE CASE OF RANJIT SINGH BRAHAMPURA, IN ITA NO.250 OF 2017, ORDER DT.18.07.2017, WHERE IN THE SIMILAR FACTS AND CIRCUMSTAN CES, THE JURISDICTIONAL HIGH COURT DELETED THE PENALTY. THE ORD ER IMPUGNED HEREIN WAS PASSED ON MERIT, WHILE FOLLOWING THE DICTUM OF THE CO-ORDINATE BENCH AS WELL AS TAKING INTO CONSIDERATION THE PECULIAR FACTS A ND CIRCUMSTANCES OF THE CASE. M.A.NO.07(ASR)/2018 (A.Y.2007-08) (ARISING OUT OF ITA NO.556(ASR)/2015) ITO VS. SH. NIRMAL SINGH KAHLON, BATHINDA 5 6. EVEN OTHERWISE, THE JURISDICTIONAL HIGH COURT IN THE CASE OF RAJESH CHAWLA (SUPRA) CITED THE OBSERVATION OF THE TRIBUNAL I N PARA NO.3 WHICH IS UNDER : 3. . 17. AS PER SETTLED LAW, THE QUESTION OF CONCEA LMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME FOR PROPOSITION OF SECTION 271(1)(C) OF THE ACT IS TO BE DETERMINED WI TH REFERENCE TO THE ORIGINAL RETURN. EVEN IF INCOME IS SURRENDERED IN T HE REVISED RETURN, THE ASSESSEE STILL HAVE TO EXPLAIN WHY THE INCOME WAS NOT SHOWN AND WHY INACCURATE PARTICULARS OF INCOME WERE FURNI SHED IN THE ORIGINAL RETURN. IN CASE OF BONAFIDE ERROR OR A CAS E OF TECHNICAL OR VENIAL BREACH OF STATUTORY PROVISIONS, THE ASSESSEE MIGHT NOT BE HELD GUILTY OF DEFAULT UNDER SECTION 271(1)(C) WHER E THE ASSESSEE FULLY CO-OPERATED, WITH THE REVENUE AUTHORITIES. ON THE OTHER HAND, WHEN FROM THE VERY BEGINNING, THE ASSESSEE INTENTIO NALLY CONCEALED SOME INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME, THERE IS NO QUESTION OF ASSESSEES ESCAPING PENALTY ON ACCOU NT OF FILING OF REVISED RETURN. IN THIS CONNECTION, APART FROM THE DECISION RELIED UPON BY THE REVENUE AUTHORITIES, I WOULD LIKE TO DRA W ATTENTION TO THE FOLLOWING DECISIONS: (I) VADILAL ICHHACHAND V. CIT (II) AYYASAMI NADAR & BROS. VS. CIT BLAMEWORTHINESS ATTACHED TO THE ASSESSEE WITH REFERENCE TO THE ORIG INAL RETURN CANNOT BE AVOIDED BY FILING A FRESH RETURN A FTER CONCEALMENT WAS DETECTED BY THE AO. (III) BACHUMAL UTTAM MAL. V. CIT TAXATION 424 (RAJ). 7. FURTHER IN PARA NO.3 , QUOTED AS UNDER: 3. . 18. FURTHER IN THE CASE OF CIT V. J.K.A SUBRAMA NIA CHETTIAR, THEIR LORDSHIPS OF MADRAS HIGH COURT HELD AS UNDER: SECTION 139(5) APPLIES ONLY TO A LIMITED CATEGORY O F CASES WHERE IN THE ORIGINAL RETURN THERE WAS ANY OMISSION OR AN Y WRONG STATEMENT AND NOT TO CASES OF CONCEALMENT OF FALSE STATEMENTS . IF A CASE DOES NOT FALL UNDER SECTION 139(5), THE FACT THAT THE REVISE D RETURN WAS FILED BEFORE ANY INVESTIGATION WAS STARTED BY THE IT DEPA RTMENT WILL BE OF NO CONSEQUENCE. THE FACT THAT THE ASSESSEE FURNISHED T HE PARTICULARS BEFORE ANY DETECTION WAS MADE BY THE DEPARTMENT OR NOT WILL BE RELEVANT ONLY WHEN THE CIT IS CONSIDERING THE QUEST ION WHETHER THE MINIMUM PENALTY IMPOSABLE UNDER SECTION 271(1) SHOU LD BE WAIVED OR REDUCED, ON AN APPLICATION MADE BY THE ASSESSEE UND ER SECTION 271(4A), BUT THEY ARE FOREIGN TO THE SCOPE OF SECTI ON 271(I)(C). M.A.NO.07(ASR)/2018 (A.Y.2007-08) (ARISING OUT OF ITA NO.556(ASR)/2015) ITO VS. SH. NIRMAL SINGH KAHLON, BATHINDA 6 8. HOWEVER IN THE CONCLUSION IN PARA NO. 4, THE JURIS DICTIONAL HIGH COURT HELD AS UNDER: 4. THE ABOVE DISCUSSION BY THE TRIBUNAL CLEARLY SH OWS THAT IT WAS NOT A CASE OF BONAFIDE VOLUNTARY DISCLOSURE BUT ONLY TO A VOID CONSEQUENCES OF LAW. IT IS NOT POSSIBLE TO HOLD THAT IN EVERY CA SE, MERE SURRENDER OF INCOME WILL FORECLOSE ANY ACTION FOR CONCEALMENT OF INCOME. JUDGMENTS OF THE HONBLE SUPREME COURT IN SIR SHADI LAL (SUPR A) AND CIT V. SURESH CHANDRA MITTAL HAVE RIGHTLY BEEN DISTINGUISH ED BY THE TRIBUNAL. FINDINGS RECORDED BY THE TRIBUNAL CANNOT BE HELD TO BE PERVERSE IN ANY MANNER, THE SAME BEING BASED ON REL EVANT MATERIAL. THE ASSESSEE HAVE BEEN HELD TO BE MEMBERS OF THE SA ME FAMILY AND IT HAS ALSO BEEN FOUND THAT REVISED RETURNS WERE FILED ON COMING TO KNOW ABOUT DETECTION OF CONCEALMENT. A DIVISION BENCH OF THIS COURT IN PADAM KUMAR GARG V. ITO AND ANOR. (2005) 26 IT REP 26 (P&H), HELD THAT ASSESSEE COULD NOT ESCAPE PENALTY MERELY ON TH E GROUND THAT HE HAD SURRENDERED THE AMOUNT. SIMILAR VIEW HAS BEEN T AKEN IN P.O. JOSEPH & BROS. V. CIT (2000) 158 CTR (KER) 104: (200 0) 240 ITR 818 (KER) AND CIT V. SUDHARSHAN SILKS & SAREES. 9. FROM THE CONCLUSION, IT REFLECTS THAT THE JURISDICTIO NAL HIGH COURT AFFIRMED THE VIEW OF THE TRIBUNAL BY HOLDING THAT I T WAS NOT A CASE OF BONAFIDE VOLUNTARY DISCLOSURE BUT ONLY TO AVOID CONSEQU ENCES OF LAW. WHILE COMING TO THE INSTANT CASE, THE ASSESSEE FILED ITS ORI GINAL RETURN OF INCOME ON DATED 31 ST MARCH, 2008 AND IN THE COMPUTATION OF INCOME, THE ASSESSEE HAD PUT A NOTE WHICH SPEAKS AS UNDER: DURING THE YEAR ABOVE SAID ASSESSEE HAS ALSO INCOM E FROM AGRICULTURE ACTIVITIES TO THE TUNE OF RS.4,50, 000/- UNDER HUF CAPACITY AND ALSO BANK INTEREST INCOME BELOW TA XABLE LIMIT EXEMPT AS PER LAW. DURING THE YEAR THE ASSESSEE HAS RECEIVED THIRTY LACS AS A MEMBER OF PUNJAB CO-OPERATIVE HOUS E BUILDING SOCIETY, MOHALI AS ADVANCE SALE PROCEED OF AGRICULT URE LAND BY THE SOCIETY. FROM THE ABOVE NOTE, IT APPEARS THAT THE ASSESSEE HAS DE CLARED THAT DURING THE YEAR, THE ASSESSEE HAS RECEIVED 30 LACS AS A MEM BER OF PUNJAB CO-OPERATIVE HOUSE BUILDING SOCIETY, MOHALI AS A DVANCE ON SALE OF AGRICULTURE LAND BY THE SOCIETY. HOWEVER, LATER ON THE ASSESSEE FILED THE M.A.NO.07(ASR)/2018 (A.Y.2007-08) (ARISING OUT OF ITA NO.556(ASR)/2015) ITO VS. SH. NIRMAL SINGH KAHLON, BATHINDA 7 REVISED RETURN ON DATED 9.11.2009 WHICH ADMITTEDLY WA S BEFORE ISSUANCE OF NOTICE U/S 148 OF THE ACT. DUE TO MANY CONTROVERSIES WITH REGARD TO THE DEVELOPM ENT AGREEMENT AND VARIOUS LITIGATIONS, NOT ONLY THE ASSESSEE BUT ALSO OTHER MEMBERS OF THE SOCIETY WERE IN DOUBTS AND DOLDRUMS AND EVEN OTHERWISE, THE REVENUE DEPARTMENT WAS ALSO IN DOLDRUMS AND CONFUSI ONS WITH REGARD TO THE CONSIDERATION OF AMOUNT RECEIVED AND TO BE RECEIVED AS CAPITAL GAINS BECAUSE IN THE CASES OF ASSESSEE AS WELL AS OTHER MEMBERS OF THE SOCIETY, THE REVENUE DEPARTMENT CALCULATED THE CA PITAL GAIN NOT ONLY ON THE REALIZED AMOUNT BUT ALSO ON THE UNREALIZ ED AMOUNT TO BE RECEIVABLE IN FUTURE AND THE CONSIDERATION IN KIND I. E., THE FLATS WITHOUT BEING HANDING OUT THE POSSESSION TO THE ASSESSEE AND OTHER MEMBERS OF THE SOCIETY. THE SAID ADDITION AS DETERMINED BY THE ASSES SING OFFICER ON THE REALIZED AND UNREALIZED CONSIDERATION ALTHOUGH STA NDS AFFIRMATION FROM THE FIRST APPELLANT AUTHORITY I.E., CIT(A) AS WE LL AS FROM THE SECOND APPELLATE AUTHORITY I.E., ITAT, HOWEVER, THE SAME WA S DISTURBED AND THE TAX ON THE CAPITAL GAIN ON THE UNREALIZED CONSIDERATIO N WAS DELETED BY THE JURISDICTIONAL HIGH COURT AND EVEN THEREAFTER, THE MA TTER WENT UPTO THE APEX COURT, THEREFORE, REMAINED UNDER CONTROVERSY. 10. THE APEX COURT WHILE DEALING WITH RECTIFICATION OF OR DER, IN THE CASE OF MASTER CONSTRUCTION CO. (P) LTD. V. STATE OF ORISSA [19 66] 17 STC 360, HELD AS UNDER 'AN ERROR SHALL BE APPARENT ON THE FACE OF THE RECO RD, THAT IS TO SAY IT IS NOT AN ERROR WHICH DEPENDS FOR ITS DISCOV ERY ON ELABORATE ARGUMENTS ON QUESTIONS OF FACT OR LAW. 11. A SIMILAR VIEW WAS ALSO EXPRESSED IN SATYANARAYAN LAXMINARAYAN HEDGE V. MALLIKARJUN BHAVANAPPA TIRUMALE AIR 1960 S C 137. M.A.NO.07(ASR)/2018 (A.Y.2007-08) (ARISING OUT OF ITA NO.556(ASR)/2015) ITO VS. SH. NIRMAL SINGH KAHLON, BATHINDA 8 IT IS TO BE NOTED THAT THE LANGUAGE USED IN ORDER 4 7, RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908 IS DIFF ERENT FROM THE LANGUAGE USED IN SECTION 254(2) OF THE ACT. POW ER IS GIVEN TO VARIOUS AUTHORITIES TO RECTIFY ANY MISTAK E APPARENT FROM THE RECORD IS UNDOUBTEDLY NOT MORE T HAN THAT OF THE HIGH COURT TO ENTERTAIN A WRIT PETITION ON THE BASIS OF AN ERROR APPARENT ON THE FACE OF THE RECO RD. MISTAKE IS AN ORDINARY WORD, BUT IN TAXATION LAWS, IT HAS A SPECIAL SIGNIFICANCE. IT IS NOT AN ARITHMETICAL OR CLERICAL ERROR ALONE THAT COMES WITHIN ITS PURVIEW. IT COMPREHENDS ERRORS WHICH, AFTER A JUDICIOUS PROBE INTO THE RECORD FROM WHICH IT IS SUPPOSED TO EMANATE, ARE DISCERNED. THE WORD MI STAKE IS INHERENTLY INDEFINITE IN SCOPE, AS WHAT MAY BE A MISTAKE FOR ONE MAY NOT BE ONE FOR ANOTHER. IT IS MOSTLY SU BJECTIVE AND THE DIVIDING LINE IN BORDER AREAS IS THIN AND INDISCERNIBLE. IT IS SOMETHING WHICH A DULY AND JUD ICIOUSLY INSTRUCTED MIND CAN FIND OUT FROM THE RECORD. IN OR DER TO ATTRACT THE POWER TO RECTIFY UNDER SECTION 254(2) I T IS NOT SUFFICIENT IF THERE IS MERELY A MISTAKE IN THE ORDE RS SOUGHT TO BE RECTIFIED. THE MISTAKE TO BE RECTIFIED MUST B E ONE APPARENT FROM THE RECORD. A DECISION ON THE DEBATAB LE POINT OF LAW OR UNDISPUTED QUESTION OF FACT IS NOT A MIST AKE APPARENT FROM THE RECORD. THE PLAIN MEANING OF THE WORD APPARENT IS THAT IT MUST BE SOMETHING WHICH APPEA RS TO BE SO EX FACIE AND IT IS IN CAPABLE OF ARGUMENT OR DEBATE. IT IS THEREFORE, FOLLOWS THAT A DECISION ON A DEBATABL E POINT OF LAW OR FACT OR FAILURE TO APPLY THE LAW TO A SET OF FACTS WHICH REMAINS TO BE INVESTIGATED CANNOT BE CORRECTE D BY WAY OF RECTIFICATION. 12. THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. K ARAN CHAND THAPAR & BR. P. LTD., 176 ITR 535 HAS HELD AS UNDER : IT IS EQUALLY WELL SETTLED THAT THE DECISION OF TH E TRIBUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENTENCE MERE LY TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL BY TH E TRIBUNAL OR WHETHER SOME INCIDENTAL FACT WHICH APPEARS ON THE R ECORD HAS NOT BEEN NOTICED BY THE TRIBUNAL IN ITS JUDGMENT. I F THE COURT, ON A FAIR READING OF THE JUDGMENT OF THE TRIBUNAL, FIN DS THAT IT HAS TAKEN INTO ACCOUNT ALL RELEVANT MATERIAL AND HAS NO T TAKEN INTO ACCOUNT ANY IRRELEVANT MATERIAL IN BASING ITS CONCL USIONS, THE DECISION OF THE TRIBUNAL IS NOT LIABLE TO BE INTERF ERED WITH, UNLESS, OF COURSE, THE CONCLUSIONS ARRIVED AT BY THE TRIBUN AL ARE PERVERSE. M.A.NO.07(ASR)/2018 (A.Y.2007-08) (ARISING OUT OF ITA NO.556(ASR)/2015) ITO VS. SH. NIRMAL SINGH KAHLON, BATHINDA 9 IT IS NOT NECESSARY FOR THE TRIBUNAL TO STATE IN IT S JUDGMENT SPECIFICALLY OR IN EXPRESS WORDS THAT IT HAS TAKEN INTO ACCOUNT THE CUMULATIVE EFFECT OF THE CIRCUMSTANCES OR HAS C ONSIDERED THE TOTALITY OF THE FACTS, AS IF THAT WERE A MAGIC FORM ULA; IF THE JUDGMENT OF THE TRIBUNAL SHOWS THAT IT HAS, IN FACT , DONE SO, THERE IS NO REASON TO INTERFERE WITH THE DECISION O F THE TRIBUNAL. 13. SIMILARLY, THE HON'BLE MADRAS HIGH COURT IN T.C.(A ) NO. 156 OF 2006 DATED 21.08.2007 IN THE CASE OF CIT VS. TAMIL NADU SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD. HELD AS UNDER: THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER. WHE N THE TRIBUNAL HAS ALREADY DECIDED AN ISSUE BY APPLYING I TS MIND AGAINST THE ASSESSEE, THE SAME CANNOT BE RECTIFIED UNDER SECTION 254 (2) OF THE ACT. THERE WAS NO NECESSITY WHATSOEV ER ON THE PART OF THE TRIBUNAL TO REVIEW ITS OWN ORDER. EVEN AFTER THE EXAMINATION OF THE JUDGMENTS OF THE TRIBUNAL, WE CO ULD NOT FIND A SINGLE REASON IN THE WHOLE ORDER AS TO HOW THE TR IBUNAL IS JUSTIFIED AND FOR WHAT REASONS. THERE IS NO APPAREN T ERROR ON THE FACE OF THE RECORD AND THEREBY THE TRIBUNAL SAT AS AN APPELLATE AUTHORITY OVER ITS OWN ORDER. IT IS COMPLETELY IMPE RMISSIBLE AND THE TRIBUNAL HAS TRAVELED OUT OF ITS JURISDICTION T O ALLOW A MISCELLANEOUS PETITION IN THE NAKE OF REVIEWING ITS OWN ORDER. IN THE PRESENT CASE, IN THE GUISE OF RECTIFICATION , THE TRIBUNAL REVIEWED ITS EARLIER ORDER AND ALLOWED THE MISCELLANEOUS PETITION WHICH IS NOT IN ACCORDANCE W ITH LAW. SECTION 254(2) OF THE ACT DOES NOT CONTEMPLATE REHE ARING OF THE APPEAL FOR A FRESH DISPOSAL AND DOING SO, WOULD OBL ITERATE THE DISTINCTION BETWEEN THE POWER TO RECTIFY MISTAKES A ND POWER TO REVIEW THE ORDER MADE BY THE TRIBUNAL. THE SCOPE AN D AMBIT OF THE APPLICATION OF SECTION 254(2) IS LIMITED AND NA RROW. IT IS RESTRICTED TO RECTIFICATION OF MISTAKES APPARENT FR OM THE RECORD. RECALLING THE ORDER OBVIOUSLY WOULD MEAN PASSING OF A FRESH ORDER. RECALLING OF THE ORDER IS NOT PERMISSIBLE UNDER SEC . 254(2) OF THE ACT. ONLY GLARING AND ANY MISTAKE APPARENT O N THE FACE OF THE RECORD ALONE CAN BE RECTIFIED AND HENCE ANYTHIN G DEBATABLE CANNOT BE A SUBJECT MATTER OF RECTIFICATION. 14. FURTHER, THE HON'BLE DELHI HIGH COURT ON THE SC OPE OF RECTIFICATION U/S 254(2) AS REPORTED IN THE CASE OF RAS BIHARI BA NSAL VS. CIT 293 ITR 365 HAS HELD AS UNDER: M.A.NO.07(ASR)/2018 (A.Y.2007-08) (ARISING OUT OF ITA NO.556(ASR)/2015) ITO VS. SH. NIRMAL SINGH KAHLON, BATHINDA 10 SECTION 254 OF THE INCOME TAX ACT, 1961, ENABLES T HE CONCERNED AUTHORITY TO RECTIFY ANY MISTAKE APPAREN T FROM THE RECORD. IT IS WELL SETTLED THAT AN OVERSIGHT OF A FACT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER TH IS SECTION. SIMILARLY, FAILURE OF THE TRIBUNAL TO CONSIDER AN A RGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSI ON IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE MERE FACT THAT THE TRIBUNAL HAD NOT A LLOWED A DEDUCTION, EVEN IF THE CONCLUSION IS WRONG, WILL BE NO GROUND FOR MOVING AN APPLICATION UNDER SECTION 254(2) OF THE A CT. FURTHER, IN THE GARB OF AN APPLICATION FOR RECTIFICATION, THE A SSESSEE CANNOT BE PERMITTED TO REOPEN AND RE-ARGUE THE WHOLE MATTE R, WHICH IS BEYOND THE SCOPE OF THE SECTION. 15. IN CONCLUSION, ON THE AFORESAID ANALYZATIONS, CONSIDERA TIONS AND OBSERVATIONS, WE ARE OF THE VIEW THAT FROM THE FINDIN GS OF THE CO-ORDINATE BENCH, IT IS APPARENT THAT THE HON'BLE BENCH HAS GIVEN I TS FINDING AFTER DUE APPLICATION OF MIND, WHILE CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, THEREFORE IN VIEW OF DICTUM OF THE AFORESAID JUDGMENTS AS REFERRED ABOVE, WE DO NOT FIND ANY MERI T IN APPLICATION OF THE REVENUE AND HENCE THE SAME IS LIABLE TO BE DISMISSED . 16. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY T HE REVENUE DEPARTMENT STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 05.12.2018. SD/- (N.K.CHOUDHRY) JUDICIAL MEMBER PER SANJAY ARORA, AM: 1. I HAVE PERUSED THE ORDER PROPOSED BY MY LD. BROT HER, JM IN THE MATTER, AND ALSO DISCUSSED THE SAME WITH HIM. I AM IN AGREE MENT WITH THE FINAL DECISION THAT NO RECALL OF THE IMPUGNED ORDER, AS PRAYED BY THE REVENUE, IS CALLED FOR IN THE FACTS AND CIRCUMSTANCES OF THE CASE. HOWEVER, I WRITE MY SEPARATE, ASSENT M.A.NO.07(ASR)/2018 (A.Y.2007-08) (ARISING OUT OF ITA NO.556(ASR)/2015) ITO VS. SH. NIRMAL SINGH KAHLON, BATHINDA 11 ORDER IN VIEW OF MY REASONS FOR THE SAME BEING DIFF ERENT. IT IS NOT NECESSARY FOR ME TO RECOUNT THE FACTS OF THE CASE. THE REVENUES MISCELLANEOUS PETITION IS PREMISED ON THE FACT THAT THE SECOND RETURN FILED B Y THE ASSESSEE, THOUGH IS PRIOR TO THE ISSUE OF NOTICE U/S. 148 ON 01.01.2010, I.E. , ON 09.11.2009, IS NOT A VOLUNTARY RETURN, SO THAT PENALTY, WHICH IS EVEN OT HERWISE TO BE RECKONED WITH REFERENCE TO THE ORIGINAL RETURN, WOULD NOT BE SAVE D ON ACCOUNT OF THE SAID RETURN, WHICH IS ALSO BEYOND THE TIME FOR A REVISED RETURN U/S. 139(5) OF THE ACT AND, THUS, NOT A VALID RETURN THERE-UNDER. 2. THE TRIBUNAL PER THE IMPUGNED ORDER HAS OPINED O THERWISE, I.E., HOLDING IT TO BE A VOLUNTARY RETURN, BEING FILED PRIOR TO T HE ISSUE OF NOTICE U/S. 148. IN FACT THE REVENUE PER ITS INSTANT APPLICATION RELIE S FOR THIS PRECISE ISSUE ON THE DECISION IN THE CASE OF RAJESH CHAWLA V. CIT [2006] 203 CTR 209 (P&H) [154 TAXMAN 364], RENDERED RELYING ON SEVERAL DECISIONS, INCLUDING CIT V. J.K.A. SUBRAMANIA CHETTIAR [1977] 110 ITR 602 (MAD), ALSO QUOTING THERE-FROM. 3. THE ISSUE IS THUS LIMITED TO THE ADMITTED CAPITA L GAIN, IN FACT, REALIZED PER DULY EXECUTED REGISTERED SALE DEED BY THE ASSESSEE AS AN OWNER, RECEIVING THE SALE CONSIDERATION IN HIS OWN RIGHT. IT IS IN FACT NOT IN DISPUTE THAT THE MATTER WAS IN THE KNOWLEDGE OF THE REVENUE AND THE ASSESSEE, A LONG WITH OTHER ASSESSEE- MEMBERS OF THE PUNJABI COOPERATIVE HOUSING BUILDING SOCIETY LTD., WHO HAD BEEN SIMILARLY ALLOTTED PLOTS OF LAND, AND HAD AUTH ORIZED THE SAID SOCIETY TO ENTER INTO AN AGREEMENT ON THEIR BEHALF WITH THE DEVELOPE RS, WERE APPREHENDING REMEDIAL ACTION BY THE DEPARTMENT, I.E., TO BRING T HE UNDISCLOSED CAPITAL GAINS TO TAX. IN FACT, THE ASSESSEES MET THE CHIEF COMMISSIO NER, NW REGION, WHO ADVISED THEM TO PAY TAX. THIS IS CLEAR FROM PARA 4 OF THE PENALTY ORDER DATED 12.03.2014 WHICH RECORDS THE ASSESSEES REPLY TO TH E SHOW CAUSE NOTICE, AT PGS. 6 TO 9 THEREOF. NOW THIS FACT CAN BE INTERPRETED BO TH WAYS. THAT IS, THAT THE M.A.NO.07(ASR)/2018 (A.Y.2007-08) (ARISING OUT OF ITA NO.556(ASR)/2015) ITO VS. SH. NIRMAL SINGH KAHLON, BATHINDA 12 ASSESSEES BECAME CONSCIOUS OF THEIR TAX LIABILITY I N THE MATTER UPON IT BEING ACTIVELY CONSIDERED BY THE REVENUE, WHICH SHALL NOT SAVE PENALTY. ALTERNATIVELY, THAT THE APPELLANT/S APPROACHED THE REVENUE AUTHORI TIES ONLY TO BE ON THE RIGHT SIDE OF LAW, AS CONTENDED IN THE SAID REPLY, SO THA T HIS ACTION IN FILING THE REVISED RETURN IS TO BE REGARDED AS VOLUNTARY. WH ETHER THE LATTER INFERENCE IS A VALID ONE IN LAW IS ARGUABLE. WHAT IS MEANT BY BEIN G ON THE RIGHT SIDE OF LAW, WHICH ANY PERSON IS EVEN OTHERWISE SUPPOSED TO, AND NOT WHEN THE MATTER IS IN THE ACTIVE CONSIDERATION OF THE REVENUE? THE LD. CC IT, IN FACT, HAS ONLY ADVISED THE ASSESSEES WHO APPROACHED HIM TO OBSERVE THE LAW , PAYING THE TAX DUE. NOTHING MORE AND, NOTHING LESS, SO THAT PERHAPS NOT HING TURNS ON THE ASSESSEES APPROACHING HIM. THIS INFERENCE, HOWEVER, CANNOT BE CHALLENGED IN RECTIFICATION PROCEEDINGS, THE SCOPE OF WHICH IS SEVERELY LIMITED TO RECTIFYING MISTAKES APPARENT FROM RECORD. IF, THEREFORE, THE TRIBUNAL, TAKING THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES INTO ACCOUNT, INCLUDING THE DISCL OSURE OF THE AMOUNT UNDER THE SALE DEED, REGARDING IT AS AN ADVANCE (REPRODUC ED AT PARA 9 OF MY BROTHERS ORDER), TAKEN A VIEW THAT THE ASSESSEES REVISED RETURN, BEING ALSO PRIOR TO THE ISSUE OF NOTICE U/S. 148, WAS A VOLUNTARY RETURN AN D, THEREFORE, NOT LIABLE TO PENALTY, THE SAME IN MY VIEW CANNOT BE REGARDED AS A MISTAKE APPARENT FROM RECORD. EXAMINING THE SAME WOULD AMOUNT TO A REVIEW OF THE ORDER, WHICH COULD BE CHALLENGED IN APPEAL, CLAIMING THAT THE VI EW TAKEN IS IN THE FACTS AND CIRCUMSTANCES OF THE CASE NOT SUSTAINABLE AND, RATH ER, CONTRARY/INCONSISTENT WITH THE LAW AS EXPLAINED BY THE HONBLE COURTS. FURTHER , I AM CONSCIOUS THAT THE VIEW THAT THE SALE OF LAND PER A REGISTERED SALE DE ED, RECEIVING FULL CONSIDERATION THERE-AGAINST, INCLUDING BY ADJUSTING THE ADVANCE T O THE EXTENT STIPULATED IN THE AGREEMENT, I.E., IN PRAESENTI , AND, FURTHER, NOT SUBJECT TO ANY CONDITION, IS A TRANSFER U/S. 2(47)(I) OF THE ACT, EXIGIBLE TO CAPI TAL GAINS, HAS FOUND M.A.NO.07(ASR)/2018 (A.Y.2007-08) (ARISING OUT OF ITA NO.556(ASR)/2015) ITO VS. SH. NIRMAL SINGH KAHLON, BATHINDA 13 CONFIRMATION BY THE TRIBUNAL AS WELL AS THE HONBLE JURISDICTIONAL HIGH COURT (IN C.S. ATWAL V. CIT [2013] 378 ITR 244 (P&H)), WITH THIS MATTER IN FACT HAVING NOT BEING CARRIED FURTHER BEFORE THE HONBLE APEX C OURT (I.E., IN CIT V. BALBIR SINGH MAINI [2017] 398 ITR 531 (SC), AFFIRMING C.S. ATWAL (SUPRA)). THAT, HOWEVER, WOULD BE A DIFFERENT MATTER, AND NOT DETRA CT FROM THE ASSESSEES CASE THAT HIS SUBSEQUENT (TO THE ORIGINAL) RETURN IS A V OLUNTARY RETURN AND, THUS, NOT LIABLE TO PENALTY, A VIEW WHICH HAS FOUND FAVOUR WI TH THE TRIBUNAL. 4. THE REVENUES INSTANT MISCELLANEOUS APPLICATION, FOR THE REASONS AFORE- STATED, CANNOT, IN MY VIEW, BE ACCEPTED, AND IS ACC ORDINGLY DISMISSED. I DECIDE ACCORDINGLY. SD/ - (SANJAY AROR A) DATE: 05.12.2018 AM, AMRITSAR BENCH, AMRITSAR /PK/ PS & GP SR. PS COPY OF THE ORDER FORWARDED TO: (1) SH. SH. NIRMAL SINGH KAHLON, S/O SH. KARAN SINGH KAHLON, B-5, CIVIL LINES, BATHINDA (2) THE INCOME TAX OFFICER, BATHINDA (3) THE CIT(A), BATHINDA (4) THE CIT, CONCERNED (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER