Rm.Muthukaruppan, Coimbatore V. ACIT, Coimbatore

MA 105/CHNY/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3425 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-09-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-09-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 23-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH IRS
• Assessee Lawyers: T VASUDEVAN
• Keywords: Capital asset; Fair market value; Valuation report

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI , ! , ' #$ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER & SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER M.P.NO.105/MDS/2015 IN I.T.A. NO. 2395/MDS/2014 / ASSESSMENT YEAR : 2010-2011 RM. MUTHUKARAUPPAN, 15/21, OPPANAKARA STREET, COIMBATORE 641 001 VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE III, COIMBATORE. [ PAN AHNPM 0941L ] ( PETITIONER ) (RESPONDENT) PETITIONER BY : SHRI. T. VASUDEVAN, ADVOCATE RESPONDENT BY : SHRI. A.V. SREEKANTH, IRS, JCIT. / DATE OF HEARING : 11-09-2015 / DATE OF PRONOUNCEMENT : 16-09-2015 , / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER BY THIS MISCELLANEOUS PETITION, THE ASSESSEE SEEK S TO RECTIFY THE ORDER OF THE TRIBUNAL IN ITA NO.2395/MDS/2014, DATED 19.06.2015. M.P.NO.105/MDS/2015 (IN I.T.A. NO.2395/MDS/2014) :- 2 -: 2. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT T HE ORDER DATED 19.6.2015, THE TRIBUNAL DISPOSED OFF THE APPE AL OF THE ASSESSEE BY DISMISSING THE SAME. THE ISSUE IN APPEA L WAS THE COMPUTATION OF LONG TERM CAPITAL GAINS ON THE RESID ENTIAL BUILDING SOLD BY THE ASSESSEE IN THE COURSE OF THE YEAR. WHILE TH E ASSESSEE IN HIS COMPUTATION TOOK THE 1.4.1981 VALUE OF BUILDING AT ?1,20,000/- @ ?20.06 PER SQ.FT. FOR LAND AND ?8,61,000/- @ RS.300 PER SQ. FT. FOR THE BUILDING WHICH CAME TO ?9,81,000/- (INDEXATION FIGU RE), THE ASSESSING OFFICER REFERRED THE VALUATION TO THE DVO U/S.55A O F THE ACT, WHO ESTIMATED THE FMV OF LAND AT ?,62,213/- AND OF BUIL DING AT ?1,37,717/- AND APPLIED INDEXATION FOR A TOTAL OF ?1,99,930/- . THE TRIBUNAL IN ITS ORDER AT PARA 7 IN PAGES 5 AND 6, DEALT WITH THE RE ASONABLENESS OF THE VALUE ESTIMATED BY THE DVO AND ALSO AFFIRMED THE HI S FINDINGS AS TO OLD BUILDING BEING DISMANTLED AND A NEW BUILDING CO NSTRUCTED IN ITS PLACE. IN THIS REGARD, THE TRIBUNAL IN ITS ORDER AT PAGES 5 AND 6, OBSERVED AND CONCLUDED THUS, 'ALTHOUGH THE DEPARTME NT VALUATION OFFICER PRESUMED THAT THE OLD BUILDING WAS DISMANTL ED, BUT THE VALUATION HAS BEEN MADE BASED ON THE DETAILS AVAILA BLE IN ANNEXURE I- A OF THE SALE DOCUMENT. CONTRARY TO THIS, THE AR WA S NOT ABLE TO PRODUCE ANY EVIDENCE TO SUGGEST THAT THE BUILDING I S NOT A NEW ONE AND IT IS AN OLD BUILDING ONLY SO THAT THE VALUE PR ESCRIBED TO BE FIXED AT M.P.NO.105/MDS/2015 (IN I.T.A. NO.2395/MDS/2014) :- 3 -: ?300 SQ.FT. FURTHER THE LD. AR HAS NOT BROUGHT ON RECORD ANY MATERIAL TO SUPPORT HIS ARGUMENT THAT THERE EXIST OLD BUILDI NG AND THERE IS NO CONSTRUCTION OF NEW BUILDING. BEING SO, CONSIDERING THE QUALITY OF THE BUILDING, HE CONCLUDED THAT OLD BUILDING WAS DISMAN TLED AND CONSTRUCTED NEW BUILDING AFTER DISCUSSION WITH CHIE F ENGINEER (VALUATION ) AS WELL AS WITH THE ASSESSING OFFICER. HENCE, THE ASSESSING OFFICER CONSIDERED THE VALUE OF THE BUILD ING AS PER DETAILS GIVEN IN ANNEXURE 1-A DATED 3.2.2013. HENCE, THE A SSESSING OFFICER IS JUSTIFIED IN VALUING THE PROPERTY, AS THERE IS NO M ATERIAL AGAINST THE VALUATION REPORTED BY THE DVO. THE ASSESSEE SUBMI TS THAT THERE IS MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL FOR T HE FOLLOWING REASONS. 2.1 IT WAS SUBMITTED BY THE LD. AUTHORISED REPRESE NTATIVE FOR ASSESSEE THAT THE TRIBUNAL IN ITS ORDER HAD NOT CON SIDERED THE GROUND NOS.3.1 AND 3.2. THESE TWO GROUNDS WERE TO THE EFFE CT THAT THE ASSESSING OFFICER DID NOT HAVE THE POWER AT THE REL EVANT POINT OF TIME TO REFER FOR VALUATION UNDER SEC.55A, A PROPERTY T O THE DVO AND THAT THE POWER TO REFER A PROPERTY TO THE DVO FOR 'ANY' VARIATION (EITHER HIGHER OR LOWER) WAS AVAILABLE TO THE ASSESSING OFF ICER ONLY BY THE AMENDMENT TO SEC.55A W.E.F. 01/07/2012 AND APPLICABLE FOR AND FROM M.P.NO.105/MDS/2015 (IN I.T.A. NO.2395/MDS/2014) :- 4 -: THE ASST. YEAR 2013-14. EVEN IN THE SHORT NOTES FIL ED AT THE TIME OF HEARING, THE SUBMISSIONS ON THIS ASPECT WERE MADE A S POINT NO.1 AND REFERENCE WAS ALSO MADE TO A FEW HIGH COURT DECISIO NS, INCLUDING THAT OF PUJA PRINTS CASE DECIDED BY THE BOMBAY HIGH COUR T. IT WAS SUBMITTED THAT IN THE ABSENCE OF A POWER VESTED BY THE STATUTE, THE REFERENCE TO DVO WAS VOID AB INITIO AND HENCE THE RELIANCE ON SUCH VALUATION WAS ALSO IMPROPER. IT WAS SUBMITTED THAT THE GROUNDS PERTAINING TO THE ISSUE OF ILLEGAL REFERENCE U/S.55 A HAS NOT BEEN ANSWERED AND HENCE THE ORDER SUFFERS FROM MISTAKE A PPARENT WARRANTING RECTIFICATION. THAT APART, THE TRIBUNAL HAD CONCLUDED THAT THE A.R. HAS NOT BROUGHT ON RECORD ANY MATERIAL TO SUPPORT HIS ARGUMENT THAT THERE EXISTS A OLD BUILDING AND THERE IS NO NEW CONSTRUCTION OF BUILDING. THIS FINDING ALSO SUFFERS FROM A MISTAKE APPARENT ON RECORD IN AS MUCH AS, IN THE COURSE OF HEARING, A SHORT PAPER BOOK CONTAINING 6 PAGES WAS FILED, IN WHICH P AGE NOS.3 AND 4 WERE THE TRANSLATION AND VERNACULAR COPY OF LETTER 1.4.13 ADDRESSED BY THE BUYER OF THE PROPERTY TO THE CIT(A) AFFIRMING T HAT HE HAD NOT PUT ANY NEW CONSTRUCTION AFTER THE PURCHASE. ALSO AT P AGES 5 AND 6, THE COPIES OF PROPERTY TAX RECEIPTS WERE FILED SHOWING THAT THE PROPERTY TAX LEVIED BY MADURAI CORPORATION HAD NOT UNDERGONE ANY CHANGE BEFORE AND AFTER THE TRANSFER OF PROPERTY POINTING TO THE FACT THAT THE STRUCTURE M.P.NO.105/MDS/2015 (IN I.T.A. NO.2395/MDS/2014) :- 5 -: REMAINED THE SAME. ALSO, IN THE SHORT NOTES FILED, AT POINT NO.2, THE FACTUAL FALLACIES IN THE DVOS REPORT WAS HIGHLIGHTE D. IT IS HENCE SUBMITTED THAT THE NON-CONSIDERATION OF THE GROUND NOS.3.1 AND 3.2, IN SO FAR AS THE REFERENCE U/S.55A AND ALSO THE MATERI AL PLACED ON RECORD FOR THE EXISTENCE OF THE OLD BUILDING AMOUNTS TO MI STAKE APPARENT ON THE FACE OF RECORD WARRANTING RECTIFICATION OF THE SAME. THE PETITIONER HEREBY PRAYS THAT THE TRIBUNAL MAY BE PLEASED TO C ONSIDER THE ABOVE SUBMISSIONS, RECTIFY THE MISTAKE APPARENT ON THE FA CE OF RECORD AND PASS SUCH FURTHER OR OTHER ORDER AS IT DEEMS FIT AN D THUS RENDER JUSTICE. 3. THE LD. DEPARTMENTAL REPRESENTATIVE OBJECTED TO TH E CONTENTION OF THE LD. AUTHORISED REPRESENTATIVE AND SUBMITTED THAT THE ASSESSEE WANTED TO REVIEW THE ORDER OF THE TRIB UNAL FOR WHICH THE TRIBUNAL HAS NO POWERS. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. THE TRIBUNAL IN ITS ORDER CITED SUPRA C ONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE WITH REGARD TO DETERM INING THE FAIR MARKET VALUE OF CAPITAL ASSET AS ON 01.04.1981. NO W, THE ASSESSEE COUNSEL WANTED TO REVIEW THE ORDER OF THE TRIBUNAL FOR WHICH THE TRIBUNAL HAS NO POWER. IN OUR OPINION, IT IS WELL- SETTLED THAT THE TRIBUNAL IS THE FINAL FACT-FINDING BODY. THE FIND INGS OF THE TRIBUNAL ON THESE QUESTION ARE NOT LIABLE TO BE INTERFERED W ITH UNLESS THE M.P.NO.105/MDS/2015 (IN I.T.A. NO.2395/MDS/2014) :- 6 -: TRIBUNAL HAS TAKEN INTO CONSIDERATION ANY IRRELEVAN T MATERIAL OR HAS FAILED TO TAKE INTO CONSIDERATION ANY RELEVANT MATE RIAL OR THE CONCLUSION ARRIVED ACT BY THE TRIBUNAL IS PERVERSE IN THE SENSE THAT NO REASONABLE PERSON, ON THE BASIS OF THE FACTS BEFORE THE TRIBUNAL, COULD HAVE COME TO THE CONCLUSION TO WHICH IT HAS C OME. IT IS EQULLAY WELL-SETTLED THAT THE DECISIONS OF THE TRIBUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENTENCE MERELY TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL BY THE TRIBUNAL OR WHET HER SOME INCIDENTAL FACT WHICH APPEARS ON THE RECORD HAS NOT BEEN NOTICED BY THE TRIBUNAL IN ITS JUDGMENT. IF THE COURT, ON A FA IR READING OF THE ORDER OF THE TRIBUNAL, FINDS THAT IT HAS TAKEN INTO ACCOUNT ALL RELEVANT MATERIAL AND HAS NOT TAKEN INTO ACCOUNT ANY IRRELEV ANT MATERIAL IN BASING ITS CONCLUSIONS, THE DECISION OF THE TRIBUNA L IS NOT LIABLE TO BE INTERFERED WITH, UNLESS, OF COURSE, THE CONCLUSIONS ARRIVED AT BY THE TRIBUNAL ARE PER- VERSE. IT IS NOT NECESSARY FOR TH E TRIBUNAL TO STATE IN ITS ORDER SPECIFICALLY OR IN EXPRESS WORDS THAT IT HAS TAKEN INTO ACCOUNT THE CUMULATIVE EFFECT OF THE CIRCUMSTANCES OR HAS CONSIDERED THE TOTALITY OF THE FACTS, AS IF THAT WERE A MAGIC FORMULA; IF THE ORDER OF THE TRIBUNAL SHOWS THAT IT HAS, IN FACT, DONE SO , THERE IS NO REASON TO INTERFERE WITH THE DECISION OF THE TRIBUNAL. THU S, IN ARRIVING AT THE M.P.NO.105/MDS/2015 (IN I.T.A. NO.2395/MDS/2014) :- 7 -: FAIR MARKET VALUE OF THE PROPERTY AS ON 01.04.1981 CONSIDERING THE ENTIRE FACTS AND RECORDED ITS FINDINGS. HENCE, THERE WAS NO REASON TO INTERFERE WITH THE O RDER OF THE TRIBUNAL AND THE ISSUE RAISED BY THE ASSESSEE I N THIS MISCELLANEOUS PETITION DOES NOT HAVE ANY MERIT. 5. IN VIEW OF THIS, WE ARE INCLINED TO DISMISS THE M ISCELLANEOUS PETITION FILED BY THE ASSESSEE. 6. IN THE RESULT, THE MISCELLANEOUS PETITION NO.105/MD S/2015 IS DISMISSED. ORDER PRONOUNCED ON WEDNESDAY THE 16TH DAY OF SEPTE MBER, 2015, AT CHENNAI. SD/- SD/- ( ! ) (CHALLA NAGENDRA PRASAD) ' / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER / CHENNAI / DATED:16.09.2015 KV COPY TO: PETITIONER/RESPONDENT/CIT(A)/CIT/DR