Smt. Mona Maheshkumar Bhojani, Ahmedabad V. ITO, Ward-5(3)(4), Ahmedabad

MA 106/AHD/2022

AI Insights

The case involves two Miscellaneous Applications filed by Maheshkumar Ishwarlal Bhojani and Mona Mahesh Bhojani against the order of the Income Tax Appellate Tribunal dated 07-10-2022. The original dispute centered on the application of Section 50C of the Income Tax Act, which pertains to the consideration of property sales. The assessees argued that the Tribunal had not considered various case laws and their submissions during the original hearing, leading to an incorrect application of the law. The Tribunal acknowledged the oversight and amended its original order to include a discussion of the cited cases and a re-evaluation of the issues raised.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 124692 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-01-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Next Hearing Date: 05-01-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 07-12-2022
• Other Referred Cases: Assistant Commissioner of Income Tax vs. Saurashtra Kutch Stock Exchange Limited, Mukesh G. Desai- HUF, Jagannath, Mrs. J. B. Wadia, Pradeep Kumar Chaudhury, Gyanchand Batra, Prakash Karnawat, Subhash Vinayak Supnekar, Shivkumar Rangwani, Smt. Reshma R. Dariyanani, Harsutrai J. Rawal, Chandanben Maganlal, Chandni Bhuchar, Khubsoorat resort, Inventure Growth, Supreme Industries
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Tax effect; Question of law; Tax effect
• Section: 54; 143(3); 50C; 80HHC; 80IA; 208; 254(2); 48; 73; 13; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, AHMEDABAD BEFORE MS. SUCHITRA KAMBLE, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER M. A . N os . 1 0 5 &1 0 6/ A h d /2 02 2 ( I n C .O . N o . 1 2 2/ A hd / 20 1 6 & I TA N o. 1 5 6/ A h d / 20 2 0 ) ( A s se ss m e nt Y e a r : 20 12- 13 ) Ma h e s h k u ma r I sh w a r l al B ho j a ni C / o. K e ta n H . S ha h , A dv oc a t e 51 2 , Ti me s Sq ua r e , O p p . R a m B a ug , T ha lt ej , A h m ed a ba d V s . I T O War d - 5 ( 3) ( 4 ) , A h me da ba d Mo n a M a h e s h B h oj a ni C / o. K e ta n H . S ha h , A dv oc a t e 51 2 , Ti me s Sq a u r e , O p p . R a m B a ug , T ha lt ej , A h m ed a ba d I T O War d - 5 ( 3) ( 4 ) , A h me da ba d [ P AN N o. A A AA T1 9 3 2N /A B WPB 40 0 8 N ] (Appellant) .. (Respondent) Appellant by : Shri Ketan H. Shah, A.R. Respondent by : Shri Urjit Shah, Sr. D.R. D a t e of H ea r i ng 06.01.2023 D a t e of P r o no u n ce me nt 11.01.2023 O R D E R PER Ms. SUCHITRA KAMBLE - JM: These two Miscellaneous Applications are filed by the respective assessees in respect of the order dated 07.10.2022 passed by the Tribunal. 2. The Ld. A.R. submitted that in case of Maheshkumar Ishwarlal Bhojani the original appeal filed by the Revenue was dismissed due to tax effect and the assessee has filed limited Cross Objection which has been taken into account by the Tribunal while deciding the issue. The Miscellaneous Application filed by the assessee are as under: “1. That, originally there was an order passed by the Assessing Officer dated 29- 01-2015 u/s 143(3) wherein, the sales consideration of the property is taken at Rs. M.A Nos.105&106/Ahd/2022 (in C.O. No. 122/Ahd/2016 & ITA No. 156/Ahd/2020) Maheshkumar Ishwarlal Bhojani & Mona Mahesh Bhojani vs. ITO Asst.Year–2012-13 - 2 - 3,37,81,233/- by applying sec. 50C as against the document value of Rs. 2,37,62,400/-. The present assessee is having ½ share of this property along with his wife Mrs. Mona Mahesh Bhojani. 2. Thereafter, there is an order passed by CIT9A0 dated 18-05-2016 wherein, the application of sec. 50C has been confirmed as per finding given by CIT(A) in appeal order page 13 to 15 para 3.3 the copy of the CIT(A) order dated 18-05-2016 is attached as per Anexure – ‘A’, page 1 to 19 to this petition. 3. Then thereafter, being aggrieved, the present appellant has preferred appeal to the ITAT which has been disposed off by CO No. 122/Ahd/2016 dated 07-10-2022 (Paper Book Page 19A to 19E). Here, it may be noted that, this CO was in reference to ITA No. 1947/Ahd/2016 of department wherein, the department has filed appeal to the ITAT against relief granted u/s 54 of the act and thereafter, the present appellant has filed the CO against the same CIT(A) order dated 18-05-2016. The department ITA No. 1947/Ahd/2016 has been disposed off based on low tax effect and therefore, only CO survived. 4. The Hon'ble ITAT in the present order dated 07-10-2022 has given finding. The finding given by the ITAT in para 7 are as under: - "7.1 We have heard both the parties and pursued all the relevant material available on record. The assessee at one point state that sec. 50C is not applicable at the same time saying that it should be applied in consonance to the sec. 48 of the act, which are contrary to the assessee's stand. Therefore, the CIT(A) rightly observed that the assessee filed objection to the sub- registrar, therefore, provision of sec. 50C(2) of the act is not applicable and held that the Assessing Officer has rightly adopted thejantri rate. As regards to the claim of sec. 54 of the act, the CIT(A) has allowed the said claim. Hence, there is no need to interfere with the finding of the CIT(A). the cross objection of the assessee being CO no. 122/Ahd/2016 I dismissed." 5. That, it is relevant to look into the finding given by CIT(A) and more particularly as per appeal order page 15 wherein, it was inter alia held against assessee that, the claim of the assessee regarding reference to be made to the DVO by AO as requested but not made is valid action on the part of the AO is under challenge before ITAT. The case law referred by assessee during the course of appeal hearing before CIT(A) is as per appeal order page 3, sub para 2. Sin reference to the interpretation of the sec. 50-C(2). The ground as additionally raised in reference to sec. 50C and 48, inert alia as per appeal order page 4 last para. Both the grounds are independent to each other but the main ground was regarding reference to be made to the DVO by AO as specifically requested by the assessee before AO as well as before stamp duty authority wherein, the objection to the valuation was also made. 6. During the course of the appeal hearing before ITAT, the assessee has filed the paper book containing page 1 upto 112 and various case laws were also relied M.A Nos.105&106/Ahd/2022 (in C.O. No. 122/Ahd/2016 & ITA No. 156/Ahd/2020) Maheshkumar Ishwarlal Bhojani & Mona Mahesh Bhojani vs. ITO Asst.Year–2012-13 - 3 - upon during the course of the appeal hearing. For sake of convenience the reference was made to the pages starting from 35 to 112 of the paperbook which contains the objections raised before the AO against the stamp duty valuation as well as the objection was raised before stamp duty authority also. Thereafter the reference was given to various case laws from paper book page 54 to 112 wherein, it is said that when the objection is raised by the assessee to the stamp duty valuation, the matter ought to have been referred to the DVO by AO and if not done than no addition is required to be made. It is respectfully prayed that the Hon'ble ITAT has not considered the various case laws enclosed and cited during the course of appeal proceedings since the only issue was regarding interpretation of sec. 50C(2) of the income tax act. 7. It is respectfully prayed that the Hon'ble ITAT has committed an error while giving finding in para 7 of the order dated 07-10-2022 in altogether different finding which is never found place in the order of CIT(A) dated 18-05-2016 and therefore, it is prayed that in absence of any specific ground and appeal by the department in reference to sec. 50C(2), the Hon'ble ITAT has erred in giving adverse finding against the assessee being different which has not been found in place in the order of CIT(A) which is under challenge by the assessee. 8. Hon'ble Supreme Court of India in Assistant Commissioner of Income Tax vs. Saurashtra Kutch Stock Exchange Limited (2008) 219 CTR (SC) 90, decision of Gujarat High Court in 262 ITR 146 is affirmed by Supreme Court. It is settled long ago that non-consideration of the decision of the jurisdictional high court/Supreme Court constitutes mistake apparent from record and is rectifiable within the meaning of section 254(2) of the Income Tax Act, 1961., We believe that undernoted points can still be of paramount importance when practically put to test in order to conclude that rectification petition under section 254(2) will be maintainable and sustainable even in the undernoted circumstances irrespective of the fact that detailed order is passed by the tribunal wherein:- a) The submissions filed by the either party i.e., either the assessee or the revenue have since been considered in narrow perspective by the Hon'ble Tribunal without thoughtfully paying heed to what has since been argued, b) Non-consideration of the detailed written submissions filed by the adverse party to the case likewise by placing heavy reliance upon the documents, corroborative evidence which is material and decisive in determination of question of fact besides question of law or a mixed question of fact and law other than a substantial question of law falling within the competence of the Hon'ble High Court, c) Non-consideration of the decisions of the constitutional/writ court touching upon the issue under consideration and ignored by the Hon'ble tribunal while adjudicating the matter in dispute, M.A Nos.105&106/Ahd/2022 (in C.O. No. 122/Ahd/2016 & ITA No. 156/Ahd/2020) Maheshkumar Ishwarlal Bhojani & Mona Mahesh Bhojani vs. ITO Asst.Year–2012-13 - 4 - d) Non-consideration of the decision of the co-ordinate bench of the tribunal wherein dispute of identical nature has been adjudicated and relied upon by the assessee/revenue, e) Non-consideration of the decision of the Third member bench having force equivalent to that of a special bench or Special Bench decision with respect to identical matter already stood decided by the respective forum, f) Non-consideration of the decisions of the co-ordinate benches which have since met the fate of being approved by the writ courts/constitutional courts in appeal or in writ proceedings, g) Wherein the submissions are considered in part and order so alleged to be detailed have since been encapsulated on the basis of such submissions tendered or argued during the course of hearing, h) Non-adjudication of all grounds wherever exists and duly pressed for while arguing the matter in appeal before the tribunal in due adjudication of the original round of proceedings. i) Partial consideration of the grounds argued by way of written submissions despite the fact that a detailed order has since been extracted out of the same by the Hon'ble Tribunal, j) Incorrect application and appreciation of facts, law point involved besides adopting an adversarial approach to the facts of the case without providing ample and reasonable opportunity to express the issue at length, k) By not-confronting the adversarial pronouncements relied upon by the bench on its own motion and pitted against the interest of the either party to the proceedings, l) By relying upon a pronouncement not in existence at the time of conclusion of the hearing in original round of proceedings even in case of an alleged detailed order, m) By placing reliance upon an unreported pronouncement of a court which has failed to meet the ratio already settled by the jurisdictional High court or Supreme Court even in case of alleged detailed order, n) By thoughtfully considering the impact of a sound and reasoned decision- making process while adjudicating all grounds of appeal specially touching upon the jurisdiction/preliminary issues etc. even in case of a detailed order passed, o) By cherry-picking or ignoring the phrase/expression called evidence, documents, paper book filed in due adjudication of the matter under reference by either party to the proceedings even in case of a detailed order passed, M.A Nos.105&106/Ahd/2022 (in C.O. No. 122/Ahd/2016 & ITA No. 156/Ahd/2020) Maheshkumar Ishwarlal Bhojani & Mona Mahesh Bhojani vs. ITO Asst.Year–2012-13 - 5 - p) Non-consideration of the subsequent amendment introduced to the law either on a prospective basis or retrospective basis even in the face of a detailed order passed, q) For want of extending proper opportunity of hearing as alleged by either of the party concerned to the proceedings even in case of a detailed order passed, r) Non-consideration of the benevolent doctrine of Stare-Decisis or by not adhering /following the settled precedents/dictums with the intent to be an adversary party to the proceedings even in case of a detailed order passed, s) By placing reliance upon the pronouncements on its own motion which have since been overturned even in case of a detailed order being passed, t) By ignoring the spirit of the affidavits filed/statements examined on oath by either party to the proceedings below even on the face of a detailed judgement or pronouncement by the Hon'ble tribunal, u) By placing reliance upon the pronouncement not relied upon by either party to the proceedings even in case of a detailed order being passed etc. can suitably and reasonably offer due assistance to either of the party praying for rectification of proceedings within the scope of section 254(2) and such a petition would be maintainable without any second thought. 9. In S. Nagaraj v. State of Karnataka 1993 Supp. (4) SCC 595, Sahai, J. stated ::- "15. Injustice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law, the scope is still wider. Technicalities apart if the Court is satisfied of the injustice, then it is its constitutional and legal obligation to set it right by recalling its order...." 10. Now, in reference to the facts of our case, we respectfully pray as under:- M.A Nos.105&106/Ahd/2022 (in C.O. No. 122/Ahd/2016 & ITA No. 156/Ahd/2020) Maheshkumar Ishwarlal Bhojani & Mona Mahesh Bhojani vs. ITO Asst.Year–2012-13 - 6 - (i) That, by way of this application, we are not praying for review of the matter but the only prayer is in reference to finding given by ITAT in the order dated 07-10- 2022, para 7 thereof wherein, altogether different finding given on merits which has not been curled out from the order of the CIT[A] nor such an argument taken by Ld. DR during the course of hearing process. (ii) That, during the course of the hearing, petitioner counsel has at length argued the matter in reference to prov. Of sec. 50C(2) and reference was given to the objection raised before stamp authority as per PB page 38 to 43, before AO dated 29-09-2014 page 52 - 53, before AO 08-12-2014 page 35, before AO dated 17-12- 2014 page 37 and therefore, it was argued that the AO ought to have refer the matter to the DVO. In all these submissions, objection before AO, there is no such reference of sec. 48 of the Income Tax Act and therefore, the Hon'ble ITAT has erred in giving such finding in para 7 of the order. (iii) That, during the course of the appeal proceedings before ITAT, strong reference was given to the ITAT Delhi Bench as per PB page 73 to 79 and more particularly page 80 para 4 of the judgment (iv) That, again reference was given to the Bombay ITAT relevant PB Page 84 to 87, relevant page 87 para 8. (v) Reference was also given to the decision of Delhi High Court as per PB page 98 to 100 and also Delhi High Court in the case of Khubsoorat resort as per PB page 101 to 108. (vi) Admittedly, there is no such decision of Gujarat High Court upon interpretation of sec. 50C(2) as per the facts of the present appellant and therefore, the decision of other ITAT as well as Delhi High Court was cited before the bench but not considered. (vii) We also attached herewith the decision of Bombay High Court in Inventure Growth, 324 ITR 319 as enclosed at page 20 to 23, wherein, the Tribunal has decided altogether various judgment which were not cited by other party and therefore, it is held that there is mistake apparent from the record, in our case also the finding in para 7 of the ITAT order has never been argued. (viii) We also rely upon the decision of Bombay High Court in Supreme Industries as enclosed at page 24 to 28, wherein, in para 6 it has been held that the ITAT has not considered the petitioner contention in reference to benefit of 80HHC and 80IA and therefore, there is mistake apparent from record. In our case also the present appellant has never contended in an objection raised before AO regarding claim u/s 48 nor it has been raised before stamp authority and therefore, this finding is perverse on facts and even not discussed and argued by either party. (ix) We also enclosed herewith Mumbai ITAT decision in a group matter of Reliance in MA No. 143/2014 dated 18-11-2016, enclosed herewith at page 29 to 42 M.A Nos.105&106/Ahd/2022 (in C.O. No. 122/Ahd/2016 & ITA No. 156/Ahd/2020) Maheshkumar Ishwarlal Bhojani & Mona Mahesh Bhojani vs. ITO Asst.Year–2012-13 - 7 - wherein, it is held that non-consideration / misread of the judgments is a mistake apparent from record. Therefore, with great respect, we request that the present petition u/s 254(2) may please be allowed and the finding given in para 7 of the ITAT dated 07-10-2022 may please be rectified based on the contention during the course of the hearing on 29-08-2022.” 3. As regards, M. A. No. 106/Ahd/2022 related to Mona Mahesh Bhojani out of ITA No. 156/Ahd/2020. The assessee filed Miscellaneous Application which is reproduced hereinbelow: “1. That, originally there was an order passed by the Assessing Officer dated 07- 11-2017 u/s 143(3) wherein, the sales consideration of the property is taken at Rs. 3,37,81,233/- by applying sec. 50C as against the document value of Rs. 2,37,62,400/-. The present assessee is having ½ share of this property along with my husband Mr. Mahesh Bhojani. 2. Thereafter, there is an order passed by CIT(A) dated 10-07-2018 wherein, the application of sec. 50C has been confirmed as per finding given by CIT(A) in appeal order page 8 wherein, the order in the case of husband dated 18-05-2016 has been followed and addition sustained. The copy of the CIT(A) order dated 10-07- 2018 is attached as per Annexure-‘A’, page 1 to 9 to this petition. 3. Then thereafter, being aggrieved, the present appellant has preferred appeal to the ITAT which has been disposed off in ITA No. 156/Ahd/2020 dated 07-10-2022 as consolidated order passed with the husband in CO No. 122/Ahd/2016 dated 07- 10-2022. Copy if this ITAT order is as per page 10 to 13. 4. The Hon'ble ITAT in the present order dated 07-10-2022 has given finding. The finding given by the ITAT in para 7 are as under: - "7.1 We have heard both the parties and pursued all the relevant material available on record. The assessee at one point state that sec. 50C is not applicable at the same time saying that it should be applied in consonance to the sec. 48 of the act, which are contrary to the assessee's stand. Therefore, the CIT(A) rightly observed that the assessee filed objection to the sub- registrar, therefore, provision of sec. 50C(2) of the act is not applicable and held that the Assessing Officer has rightly adopted thejantri rate. As regards to the claim of sec. 54 of the act, the CIT(A) has allowed the said claim. Hence, there is no need to interfere with the finding of the CIT(A). the cross objection of the assessee being CO no. 122/Ahd/2016 I dismissed." 5. That, it is relevant to look into the finding given by CIT(A), in the case of husband which has been followed here also. The attention is drawn to appeal order M.A Nos.105&106/Ahd/2022 (in C.O. No. 122/Ahd/2016 & ITA No. 156/Ahd/2020) Maheshkumar Ishwarlal Bhojani & Mona Mahesh Bhojani vs. ITO Asst.Year–2012-13 - 8 - page 15 wherein, it was inter alia held against assessee that, the claim of the assessee regarding reference to be made to the DVO by AO as requested but not made is valid action on the part of the AO is under challenge before ITAT. The case law referred by assessee during the course of appeal hearing before CIT(A) is as per appeal order page 8, sub para 2.5 in reference to the interpretation of the se. 50C(2). The ground is additionally raised in reference to sec. 50C and 48, inter alia as per appeal order page 4 last para. Both the grounds are independent to each other but the main ground was regarding reference to be made to the DVO by AO as specifically requested by the assessee before AO as well as before stamp duty authority wherein, the objection to the valuation was also made. 6. During the course of the appeal hearing before ITAT, the assessee has filed the paper book containing page 1 upto 112 and various case laws were also relied upon during the course of the appeal hearing. For sake of convenience the reference was made to the pages starting from 35 to 112 of the paperbook which contains the objections raised before the AO against the stamp duty valuation as well as the objection was raised before stamp duty authority also. Thereafter the reference was given to various case laws from paper book page 54 to 112 wherein, it is said that when the objection is raised by the assessee to the stamp duty valuation, the matter ought to have been referred to the DVO by AO and if not done than no addition is required to be made. It is respectfully prayed that the Hon'ble ITAT has not considered the various case laws enclosed and cited during the course of appeal proceedings since the only issue was regarding interpretation of sec. 50C(2) of the income tax act. 7. It is respectfully prayed that the Hon'ble ITAT has committed an error while giving finding in para 7 of the order dated 07-10-2022 in altogether different finding which is never found place in the order of CIT(A) dated 18-05-2016 and therefore, it is prayed that in absence of any specific ground and appeal by the department in reference to sec. 50C(2), the Hon'ble ITAT has erred in giving adverse finding against the assessee being different which has not been found in place in the order of CIT(A) which is under challenge by the assessee. 8. Hon'ble Supreme Court of India in Assistant Commissioner of Income Tax vs. Saurashtra Kutch Stock Exchange Limited (2008) 219 CTR (SC) 90, decision of Gujarat High Court in 262 ITR 146 is affirmed by Supreme Court. It is settled long ago that non-consideration of the decision of the jurisdictional high court/Supreme Court constitutes mistake apparent from record and is rectifiable within the meaning of section 254(2) of the Income Tax Act, 1961., We believe that undernoted points can still be of paramount importance when practically put to test in order to conclude that rectification petition under section 254(2) will be maintainable and sustainable even in the undernoted circumstances irrespective of the fact that detailed order is passed by the tribunal wherein:- a) The submissions filed by the either party i.e., either the assessee or the revenue have since been considered in narrow perspective by the Hon'ble Tribunal without thoughtfully paying heed to what has since been argued, M.A Nos.105&106/Ahd/2022 (in C.O. No. 122/Ahd/2016 & ITA No. 156/Ahd/2020) Maheshkumar Ishwarlal Bhojani & Mona Mahesh Bhojani vs. ITO Asst.Year–2012-13 - 9 - b) Non-consideration of the detailed written submissions filed by the adverse party to the case likewise by placing heavy reliance upon the documents, corroborative evidence which is material and decisive in determination of question of fact besides question of law or a mixed question of fact and law other than a substantial question of law falling within the competence of the Hon'ble High Court, c) Non-consideration of the decisions of the constitutional/writ court touching upon the issue under consideration and ignored by the Hon'ble tribunal while adjudicating the matter in dispute, d) Non-consideration of the decision of the co-ordinate bench of the tribunal wherein dispute of identical nature has been adjudicated and relied upon by the assessee/revenue, e) Non-consideration of the decision of the Third member bench having force equivalent to that of a special bench or Special Bench decision with respect to identical matter already stood decided by the respective forum, f) Non-consideration of the decisions of the co-ordinate benches which have since met the fate of being approved by the writ courts/constitutional courts in appeal or in writ proceedings, g) Wherein the submissions are considered in part and order so alleged to be detailed have since been encapsulated on the basis of such submissions tendered or argued during the course of hearing, h) Non-adjudication of all grounds wherever exists and duly pressed for while arguing the matter in appeal before the tribunal in due adjudication of the original round of proceedings. i) Partial consideration of the grounds argued by way of written submissions despite the fact that a detailed order has since been extracted out of the same by the Hon'ble Tribunal, j) Incorrect application and appreciation of facts, law point involved besides adopting an adversarial approach to the facts of the case without providing ample and reasonable opportunity to express the issue at length, k) By not-confronting the adversarial pronouncements relied upon by the bench on its own motion and pitted against the interest of the either party to the proceedings, l) By relying upon a pronouncement not in existence at the time of conclusion of the hearing in original round of proceedings even in case of an alleged detailed order, M.A Nos.105&106/Ahd/2022 (in C.O. No. 122/Ahd/2016 & ITA No. 156/Ahd/2020) Maheshkumar Ishwarlal Bhojani & Mona Mahesh Bhojani vs. ITO Asst.Year–2012-13 - 10 - m) By placing reliance upon an unreported pronouncement of a court which has failed to meet the ratio already settled by the jurisdictional High court or Supreme Court even in case of alleged detailed order, n) By thoughtfully considering the impact of a sound and reasoned decision- making process while adjudicating all grounds of appeal specially touching upon the jurisdiction/preliminary issues etc. even in case of a detailed order passed, o) By cherry-picking or ignoring the phrase/expression called evidence, documents, paper book filed in due adjudication of the matter under reference by either party to the proceedings even in case of a detailed order passed, p) Non-consideration of the subsequent amendment introduced to the law either on a prospective basis or retrospective basis even in the face of a detailed order passed, q) For want of extending proper opportunity of hearing as alleged by either of the party concerned to the proceedings even in case of a detailed order passed, r) Non-consideration of the benevolent doctrine of Stare-Decisis or by not adhering /following the settled precedents/dictums with the intent to be an adversary party to the proceedings even in case of a detailed order passed, s) By placing reliance upon the pronouncements on its own motion which have since been overturned even in case of a detailed order being passed, t) By ignoring the spirit of the affidavits filed/statements examined on oath by either party to the proceedings below even on the face of a detailed judgement or pronouncement by the Hon'ble tribunal, u) By placing reliance upon the pronouncement not relied upon by either party to the proceedings even in case of a detailed order being passed etc. can suitably and reasonably offer due assistance to either of the party praying for rectification of proceedings within the scope of section 254(2) and such a petition would be maintainable without any second thought. 9. In S. Nagaraj v. State of Karnataka 1993 Supp. (4) SCC 595, Sahai, J. stated ::- "15. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it M.A Nos.105&106/Ahd/2022 (in C.O. No. 122/Ahd/2016 & ITA No. 156/Ahd/2020) Maheshkumar Ishwarlal Bhojani & Mona Mahesh Bhojani vs. ITO Asst.Year–2012-13 - 11 - cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law, the scope is still wider. Technicalities apart if the Court is satisfied of the injustice, then it is its constitutional and legal obligation to set it right by recalling its order...." 10. Now, in reference to the facts of our case, we respectfully pray as under:- (i) That, by way of this application, we are not praying for review of the matter but the only prayer is in reference to finding given by ITAT in the order dated 07-10- 2022, para 7 thereof wherein, altogether different finding given on merits which has not been curled out from the order of the CIT[A] nor such an argument taken by Ld. DR during the course of hearing process. (ii) That, during the course of the hearing, petitioner counsel has at length argued the matter in reference to prov. Of sec. 50C(2) and reference was given to the objection raised before stamp authority as per PB page 38 to 43, before AO dated 29-09-2014 page 52 - 53, before AO 08-12-2014 page 35, before AO dated 17-12- 2014 page 37 and therefore, it was argued that the AO ought to have refer the matter to the DVO. In all these submissions, objection before AO, there is no such reference of sec. 48 of the Income Tax Act and therefore, the Hon'ble ITAT has erred in giving such finding in para 7 of the order. (iii) That, during the course of the appeal proceedings before ITAT, strong reference was given to the ITAT Delhi Bench as per PB page 73 to 79 and more particularly page 80 para 4 of the judgment (iv) That, again reference was given to the Bombay ITAT relevant PB Page 84 to 87, relevant page 87 para 8. (v) Reference was also given to the decision of Delhi High Court as per PB page 98 to 100 and also Delhi High Court in the case of Khubsoorat resort as per PB page 101 to 108. (vi) Admittedly, there is no such decision of Gujarat High Court upon interpretation of sec. 50C(2) as per the facts of the present appellant and therefore, the decision of other ITAT as well as Delhi High Court was cited before the bench but not considered. (vii) We also attached herewith the decision of Bombay High Court in Inventure Growth, 324 ITR 319, wherein, the Tribunal has decided altogether various judgment which were not cited by other party and therefore, it is held that there is mistake apparent from the record, in our case also the finding in para 7 of the ITAT order has never been argued. M.A Nos.105&106/Ahd/2022 (in C.O. No. 122/Ahd/2016 & ITA No. 156/Ahd/2020) Maheshkumar Ishwarlal Bhojani & Mona Mahesh Bhojani vs. ITO Asst.Year–2012-13 - 12 - (viii) We also rely upon the decision of Bombay High Court in Supreme Industries, wherein, in para 6 it has been held that the ITAT has not considered the petitioner contention in reference to benefit of 80HHC and 80IA and therefore, there is mistake apparent from record. In our case also the present appellant has never contended in an objection raised before AO regarding claim u/s 48 nor it has been raised before stamp authority and therefore, this finding is perverse on facts and even not discussed and argued by either party. (ix) We also enclosed herewith Mumbai ITAT decision in a group matter of Reliance in MA No. 143/2014 dated 18-11-2016, wherein, it is held that non- consideration / misread of the judgments is a mistake apparent from record. The judgments cited hereinabove in the case of Inventure Growth, Supreme Industries, Mumbai ITAT in Reliance Group matter have already been attached in the case of MA filed of my husband namely Mahesh Bhojani and therefore, not attached herewith again. It may be noted that there is consolidated paper book filed during the course of the hearing with my husband containing page 1 to 112 and therefore, the same may please be considered as stated hereinabove. Therefore, with great respect, we request that the present petition u/s 254(2) may please be allowed and the finding given in para 7 of the ITAT dated 07-10-2022 may please be rectified based on the contention during the course of the hearing on 29-08-2022.” The Ld. A.R. submitted that since the issue related to Cross Objection was restricted to Jantri value adopted by the Assessing Officer/CIT(A) as against taken by the assessee in return of income by applying Section 50C the Tribunal has observed beyond the question/issues raised by the assessee in Para 7/8 of the Order. As regards, the appeal filed by the wife of the assessee the Ld. A.R. submitted that the Tribunal has not taken into consideration the decisions which has been cited at the time of hearing. 4. The Ld. D.R. relied upon the decision of the Tribunal as well as submitted that the assessee is seeking review of the order and the same should not be entertained. M.A Nos.105&106/Ahd/2022 (in C.O. No. 122/Ahd/2016 & ITA No. 156/Ahd/2020) Maheshkumar Ishwarlal Bhojani & Mona Mahesh Bhojani vs. ITO Asst.Year–2012-13 - 13 - 5. We have heard both the parties and perused all the relevant material available on record. It is pertinent to note that the finding given by the Tribunal in Para 7 in respect of Cross Objection is not beyond the question referred by the assessee in Cross Objection as the finding of the CIT(A) has been taken as a whole and thereafter the Tribunal has decided accordingly. The Ld. A.R’s. next contention that the decision cited were not taken into consideration appears to be correct and therefore, we are allowing this contentions of the assessee to the limited expenditure and Para 7A of order dated 07.10.2022 read as under: “7A The Ld. A.R. referred following decisions which are as under: 1. 312 ITR (AT) 302 (Mum) in the case of Mukesh G. Desai- HUF 2. 85 TTJ 173 (Jodhpur) – Jagannath 3. 216 ITR 376 (Bom) in the case of Mrs. J. B. Wadia 4. 115 DTR 208 (hyd-Trib) – Pradeep Kumar Chaudhury 5. 133 TTJ 482 (Jaipur) – Gyanchand Batra 6. 49 SOT 160 (Jaipur) in the case of Prakash Karnawat 7. 152 ITD 389 (Pune) in the case of Subhash Vinayak Supnekar 8. 147 ITD 393 (Jodhpur) Shivkumar Rangwani 9. 166 TTJ 22 (Mum) – Smt. Reshma R. Dariyanani 10. 255 ITR 315 (Guj) – Harsutrai J. Rawal M.A Nos.105&106/Ahd/2022 (in C.O. No. 122/Ahd/2016 & ITA No. 156/Ahd/2020) Maheshkumar Ishwarlal Bhojani & Mona Mahesh Bhojani vs. ITO Asst.Year–2012-13 - 14 - 11. Copy of Construction agreement dated 02.02.2007 regarding addition to the old house sold. 12. 245 ITR 182 (Guj) in the case of Chandanben Maganlal 13. 323 ITR 510 (P&H) – Chandni Bhuchar 14. Gist of Gujarat High Court judgemtn regarding amendment in jantri rate in 2011 is invalid. 15. 91 taxmann.com 2 in the case of Mrs. Seema Sabharwal (Chandigarh-Trib) dated 05.02.2018 From the perusal of these decisions the factual implications of each and every case laws submitted before us are distinguishable and cannot be taken into account in the present case as the person has peculiar facts and in fact the CIT(A) has granted the relief to the assessee and the assessee cannot take double benefit under the Act. Thus, the case laws referred by the assessee / Ld. A.R. does not support the case of the assessee. Hence, appeal filed by the assessee is dismissed.” This Para 7A should be read after Para 7 of the order dated 07.10.2022. Thus, present Miscellaneous Application is partly allowed. 6. In the result, both the Miscellaneous Applications are partly allowed. This Order pronounced in Open Court on 11/01/2023 Sd/- Sd/- (WASEEM AHMED) ACCOUNTANT MEMBER (SUCHITRA KAMBLE) JUDICIAL MEMBER Ahmedabad; Dated 11/01/2023 TANMAY, Sr. PS TRUE COPY M.A Nos.105&106/Ahd/2022 (in C.O. No. 122/Ahd/2016 & ITA No. 156/Ahd/2020) Maheshkumar Ishwarlal Bhojani & Mona Mahesh Bhojani vs. ITO Asst.Year–2012-13 - 15 - आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त(अपील) / The CIT(A)- 5. वभागीय त न ध, आयकर अपील!य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड' फाईल / Guard file. आदेशान ु सार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad 1. Date of dictation 06.01.2023 2. Date on which the typed draft is placed before the Dictating Member 09.01.2023 3. Other Member..................... 4. Date on which the approved draft comes to the Sr.P.S./P.S 09.01.2023 5. Date on which the fair order is placed before the Dictating Member for pronouncement .01.2023 6. Date on which the fair order comes back to the Sr.P.S./P.S 11 .01.2023 7. Date on which the file goes to the Bench Clerk 11 .01.2023 8. Date on which the file goes to the Head Clerk.......................................... 9. The date on which the file goes to the Assistant Registrar for signature on the order.......................... 10. Date of Despatch of the Order..........................................