The ITO, Ward 4(1), Ahmedabad V. Ganesh Plantation Ltd., Ahmedabad

MA 115/AHD/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1404 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 2 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 18-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Assessee Lawyers: NUPUR SHAH AR
• Section: 254(2)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD [CONDUCTED THROUGH VIRTUAL COURT] BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER MISC. APPLICATION NO.115/AHD/2017 IN ITA NO.1520/AHD/2017 : ASSTT.YEAR 2008-09 DCIT, CENT.CIR.1(3) AHMEDABAD. VS. GANESH PLANTATION LTD. GANESH CORPORATE HOUSE BEHATAPUR-THALTEJ ROAD NR.SOLA BRIDGE OFF. S.G. HIGHWAY AHMEDABAD 380054. PAN : AAACG 7004 G / APPLICANTS BY : SHRI L.P. JAIN, SR.DR / RESPONDENTS BY : NUPUR SHAH, AR ! '#$ %&' / DATE OF HEARING 02/07/2021 ()*+ %&' / DATE OF PRONOUNCEMENT 06/07/2021 -. / O R D E R PER RAJPAL YADAV, VICE PRESIDENT: PRESENT MISCELLANEOUS APPLICATION IS DIRECTED AT TH E INSTANCE OF THE REVENUE POINTING OUT AN APPARENT ERROR IN THE ORDER OF THE TRIBUNAL DATED 6.12.2016 IN ITA NO.1520/AHD/2013. REVENUE SEEKS TO RECALL OF THE IMPUGNED ORDER. 2. MISC. APPLICATION IS RUNNING INTO ONE-AND-HALF P AGES, WHICH READS AS UNDER: MA NO. 11 5 /AHD/20 17 - 2 - 2. IN THIS CONNECTION, IT IS STATED THAT ABOVE AP PEAL FILED BY ASSESSEE HAS BEEN HEARD BY HON'BLE ITAT, 'C' BENCH, AHMEDABA D AND ORDER OF THE SAME PRONOUNCED ON 06.12.2016 IN FAVOUR OF ASSESSEE . THE ITAT VIDE ORDER IN ITA NO. 1520/AHD/20L3 HAS ALLOWED THE APPE AL FILED BY THE ASSESSEE HOLDING THAT JAY CONSTRUCTION WAS NOT OWNE R OF THE LAND THOUGH ASSESSEE NEVER PROVED ITS OWNERSHIP. THE SAID ORDER OF ITAT CONTAIN FOLLOWING ERRORS:-IN PARA 16 OF THE ORDER, THE ITAT HAS WRONGLY MENTIONED AS UNDER; 'THE ID. CIT(A) HAS ERRED IN NOT APPRECIATING DISTI NCTION BETWEEN HOLDING OF DEVELOPMENT RIGHT ALONGWITH POSSESSION V IS-A-VIS OWNERSHIP OF THE LAND. IT APPEARS THAT IN THE FINDI NG EXTRACTED SUPRA, THE ID. REVENUE AUTHORITIES HAS INTERMINGLED THESE TWO DIFFERENT RIGHTS AND MADE OBSERVATION THAT CLAIM OF THE FIRST PARTY I.E. JAY CORPORATION ABOUT THE POSSESSION AND SEIZU RE OF LAND IS FACTUALLY INCORRECT. A PERSON CAN BE IN POSSESSION OF A LAND AND CAN BE HAVING DEVELOPMENT RIGHT WITHOUT THERE BEING OWNERSHIP. THUS FACTS HAVE NOT BEEN APPRECIATED IN RIGHT PERSP ECTIVE BY THE LD. REVENUE AUTHORITIES.' THE ABOVE FINDINGS OF THE ITAT CONTRADICTS THE FACT ACCEPTED BY JAY CONSTRUCTION (PROPRIETOR: NARESH M SHAH) DURING ASS ESSMENT PROCEEDINGS. FROM THE SUBMISSION MADE BY JAY CONSTR UCTION (PROPRIETOR: NARESH M SHAH) BEFORE ASSESSING OFFICER, IT IS CLEA R THAT HE CLAIMED TO BE OWNER OF LAND AND THUS PROVIDED WRONG FACTS TO THE ASSESSING OFFICER. SO, THE ONUS IS ON THE ASSESSEE TO PROVE HIS-CLAIM OF O WNERSHIP. 3. HENCE, THE ORDER OF THE HOBBLE ITAT DATED 06.12. 2016 IN ITA NO. 1520/AHD/2013 REQUIRED CORRECTION AND REQUESTED TO BE RECALLED AND CORRECTED. THE MEMORANDUM OF PR. CIT(C), AHMEDABAD IS ENCLOSED HEREWITH FOR READY REFERENCE AND NECESSARY CONSIDER ATION. 3. THE STAND OF THE REVENUE IS THAT IN PARA-16 OF T HE TRIBUNALS ORDER, THE TRIBUNAL HAS OBSERVED THAT M/S.JAY CORPORATION WAS NOT THE OWNER OF THE LAND FOR WHICH DEVELOPMENT AGREEMENT WAS EXECUTED. THIS FINDING IS CONTRADICTORY TO THE FACT NARRATED IN THE CONFIRMAT ION LETTER DATED 2.12.2010 WRITTEN BY SHRI NARESH M. SHAH, PROPRIETOR OF JAY C ONSTRUCTION. COPY OF THIS LETTER IS AVAILABLE ON PAGE NO.129 OF PAPER BOOK FI LED AT THE TIME OF HEARING. THUS, ACCORDING TO THE REVENUE, AN ERROR HAS CREPT IN THE ORDER OF THE TRIBUNAL ABOUT THIS FACT, AND THEREFORE, THIS ERROR IS REQUIRED TO BE RECTIFIED. MA NO. 11 5 /AHD/20 17 - 3 - ON THE OTHER HAND, THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE IS NO ERROR IN THE ORDER OF THE TRIBUNAL. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND GONE TH ROUGH THE RECORD CAREFULLY. THE POWER OF RECTIFICATION UNDER SECTION 254(2) OF THE INCOME TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTA KE, WHICH IS SOUGHT TO BE RECTIFIED, IS AN OBVIOUS PATENT MISTAK E, WHICH IS APPARENT FROM THE RECORD AND NOT A MISTAKE, WHICH I S REQUIRED TO BE ESTABLISHED BY ARGUMENTS AND LONG DRAWN PROCESS OF REASONING ON POINTS, ON WHICH THERE MAY CONCEIVABLY BE TWO OPINI ONS. IN VIEW OF THIS POSITION OF LAW, A PERUSAL OF THE RECORD WOULD INDICATE THAT THE TRIBUNAL HAS APPRECIATED A LARGE NUMBER OF DOCUMENT S INCLUDING LETTER DATED 23.12.2010 WRITTEN BY JAY CONSTRUCTION TO THE AO. THE AFFIDAVIT OF SHRI NARESH MUKTILAL SHAH DATED 23.12.2010 AND COPY OF A GREEMENT DATED 27.6.2007 ENTERED INTO BETWEEN THE ASSESSEE AND JAY CONSTRUCTION. ON OVERALL APPRECIATION OF ALL THE DOCUMENTS IN THEIR SETTING AS A WHOLE, THE TRIBUNAL HAS RECORDED A FINDING THAT JAY CORPORATIO N WAS HAVING DEVELOPMENT RIGHTS. AS FAR AS THE LETTER REFERRED BY THE REVEN UE DATED 2.12.2010 IS CONCERNED, IN THIS LETTER, IN PARA-1 THE FOLLOWING NARRATIONS IS AVAILABLE WE HAD ENTERED INTO AN AGREEMENT WITH THE GANESH PLANA TATION LTD FOR CONSTRUCTION OF BUILDING ON THE LAND SPACE OWNED BY US . THE SAID AGREEMENT WAS ENTERED INTO ON 26.6.2007 ASSIGNING T HEM CONSTRUCTION WORK. ON THE STRENGTH OF THIS PARAGRAPH, REVENUE IS PLEAD ING THAT THERE IS A CONTRADICTION IN THE FINDING OF THE TRIBUNAL WHILE TAKING NOTE OF THE FACT. TO OUR MIND, THERE IS NO CONTRADICTION. EXPRESSION US ED IN THIS LETTER IS ALSO OF BUILDING ON THE LAND SPACE OWNED BY US I.E. JAY CORPORATION. THIS WOULD TALK OF SPACE I.E. DEVELOPMENT RIGHT ON THE LAND. IT DOES NOT SAY ABSOLUTE OWNERSHIP OF THE LAND, AND THE TRIBUNAL HAS APPRECI ATED THIS FACTUAL POSITION ULTIMATELY IN THE ORDER. THEREFORE, THERE IS NO AP PARENT ERROR IN THIS ORDER OF MA NO. 11 5 /AHD/20 17 - 4 - THE TRIBUNAL. MISC. APPLICATION OF THE REVENUE IS DEVOID OF ANY MERIT, HENCE DISMISSED. 5. IN THE RESULT, THE MISC. APPLICATION OF THE REVE NUE IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 6/07/2021 SD/- SD/- (PRADIP KUMAR KEDIA) ( RAJPAL YADAV ) ACCOUNTANT MEMBER VICE PRESIDENT