INCOME TAX OFFICER 23(2)(3), MUMBAI V. SHRI MOHD. ILYAS ANSARI, MUMBAI

MA 1/MUM/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4061 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-06-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 02-01-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order; Valuation report; Tax effect
• Section: 143(3); 56(2); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “B”, MUMBAI BEFORE SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER AND SHRI RAHUL CHAUDHARY, HON'BLE JUDICIAL MEMBER MA.No. 1/MUM/2022 [ARISING OUT OF ITA No. 6174/MUM/2017 (A.Y: 2014-15)] Income Tax Officer - 23(2)(3) Room No. 110 Matru Mandir, Tardev Road Mumbai – 400 007 v. Shri Mohd. Ilyas Ansari Room No. 22, 1 st Floor Building No. 41, Bootwala Manzil Navpada, Bandra(E) Mumbai - 400051 PAN: AEXPA7459N (Appellant) (Respondent) Assessee by : Shri Hariom Tulsyan Department by : Shri S.N. Kabra Date of Hearing : 04.03.2022 Date of Pronouncement : 06.06.2022 O R D E R PER S. RIFAUR RAHMAN (AM) 1. Through this Miscellaneous Application revenue is seeking for recall of the order passed by the Tribunal in ITA.No. 6174/Mum/2017 dated 06.11.2020. 2 MA.No. 1/MUM/2022 Shri Mohd. Ilyas Ansari 2. Revenue filed Miscellaneous Application with the following submissions: - “1. In this case, the assessee is an individual and had declared total income of 2,67,260/- and filed the return of income. The case was selected for scrutiny and during the course of assessment proceedings it was noticed that assessee had purchased immovable property at Rs.40,00,000. However after going through the Index-II of the said transaction the market rate as per stamp authority was Rs. 2,20,49,999/-. The assessee had submitted the value as per some Govt Registered valuer which was not accepted by the AO. hence in view of provisions of section 56(2)(vii) the value of property was taken at Rs.1,80,49,999/- being difference between stamp value and purchase value. Subsequently, assessment u/s 143(3) was completed on 30.11.2016 determining the total income at Rs.1,83,17,261/- wherein addition u/s. 56(2)(vii) of the It Act, 1961 of Rs.1,80,49,999/- was made. 2. The Ld.CIT(A) dismissed the appeal filed by the assessee. 3. However, the appeal of the assessee in ITA No. 6174/Mum/2017 dtd. 06/11/2020 for the A.Y. 2014-15 has been allowed by the Hon’ble ITAT relying on various judicial pronouncements and directed the AO to delete the addition made u/s. 56(2) of the IT Act, 1961. 4. With due regards, it is to bring to kind notice of the Hon’ble ITAT that though the tax effect of Rs. 55,77,448/- is below the limit prescribed by the Board for filing appeal before the High court as per Circular No.17/2019 dated 08.08.2019, However, filing of the Miscellaneous application is recommended for adopting the values as per the valuation report submitted by the assessee’s own valuation report. 5. In light of the above, the Hon'ble ITAT is requested to recall its order dtd. 06.11.2020 in the instant case to consider the issue raised by the Department and rectification order may be passed u/s 254(2) of the I.T.Act. 6. This Application is moved with the prior approval of the Pr.CIT-19, Mumbai.” 3 MA.No. 1/MUM/2022 Shri Mohd. Ilyas Ansari 3. At the time of hearing, Ld. DR brought to our notice Para No. 8, 9 and 10 of the Tribunal order and Para No. 27 of the order with the prayer that the assessee has filed a valuation report before the Assessing Officer and no doubt Assessing Officer has rejected the above said valuation report. However, the ITAT has given relief to the assessee on the technical ground that the Assessing Officer failed to refer the issue of valuation to the District Valuation Officer though he was legally required to do so. Since the Assessing Officer failed to refer the matter to the Valuation Officer the ITAT gave relief to the assessee and treated this transaction as distress sale. Ld. DR prayed that since assessee itself filed valuation report before the Assessing Officer atleast that value should be considered for valuation of the property. Accordingly, he prayed that the issue maybe recalled to adjudicate afresh. 4. On the other hand, Ld. AR objected to the above request of the department to recall the order and he submitted that when this issue is recalled it clearly indicates towards the review of the order passed by the bench. Further, he submitted that the department did not agitate the order of the Ld.CIT(A) and accepted the same, therefore, it is not proper for them to make any prayer of relief in Miscellaneous Application. 4 MA.No. 1/MUM/2022 Shri Mohd. Ilyas Ansari Therefore, he objected to the filing of the above Miscellaneous Application by the department. 5. Considered the rival submissions and material placed on record, we observe from the record that no doubt assessee has filed valuation report from the valuer and the same was rejected by the Assessing Officer without considering any merit on such valuation. We observe that even Ld.CIT(A) has not made any reference to any such valuation report and the revenue has not made any objection by filing any appeal before ITAT and it accepted the order of the First Appellate Authority. Further, we observe that even during submissions before the bench Ld. DR has not made any plea or any reference to above such report. Since the bench has given relief to the assessee based on the fact that Assessing Officer failed to refer the matter to the District Valuation Officer which he is supposed to make, now before us department has come up on Miscellaneous Application with a plea to recall this issue so that atleast the valuation report submitted before the Assessing Officer should be considered and adopted in valuation of the property u/s. 56(2) of the Act. After considering the facts on record we observe that the plea raised by the department once accepted will lead to review of our own order and department has not pointed out any mistake apparent on record. 5 MA.No. 1/MUM/2022 Shri Mohd. Ilyas Ansari Therefore, the plea raised by the department will not fall u/s. 254(2) of the Act. Therefore, we are constrained to dismiss the Miscellaneous Application filed by the Revenue. Therefore, the Miscellaneous Application filed by the Revenue is dismissed. 6. In the result, Miscellaneous Application filed by the Revenue is dismissed. Order pronounced in the open court on 06 th June, 2022. Sd/- Sd/- (RAHUL CHAUDHARY) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 06/06/2022 Giridhar, Sr.PS Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER (Asstt. Registrar) ITAT, Mum