LAKEWOOD CONSTRUCTION CO. PVT. LTD., V. ITO 9(2)(2),

MA 115/MUM/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5794 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 24-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Assessee Lawyers: N M PORWAL
• Section: 43CA; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI MAHAVIR SINGH , JM M A NO. 115 / MUM/20 1 6 (OUT OF ITA NO.8341/MUM/2010 ( ASSESSMENT YEAR : 2007 - 08 ) M/S. LAKEWOOD CONSTRUCTION CO. PVT. LTD., 361/363, VEDANAND, 2 1 ST ROAD, 3 RD FLOOR, TPS ROAD, BANDRA (W), MUMBAI 400 050 VS. ITO 9(2)(2), R.NO.225, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020 PAN/GIR NO. AAACL1210G APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI. N.M. PORWAL REVENUE BY SHRI B.S. BIST DATE OF HEARING 05 / 05/2 01 7 DATE OF PRONOUNCEME NT 04 / 08 /201 7 / O R D E R PER R.C.SHARMA (A.M) : THIS M.A AROSE OUT OF THE ORDER PASSED BY THE TRIBUNAL IN ITA NO.8341/MUM/2016 DATED 15/05/2013. 2. IT WAS SUBMITTED BY LE ARNED AR THAT ASSESSEE IS A DEVEL OPER. PROFIT ON SALE OF FLATS WAS ADDED BY THE AO BY TAKING THE SALE CONSIDERATION OTHER THAN THE AMOUNT ACTUALLY RECEIVED ON ITS SALES . THE CIT(A) HAS DELETED THE ADDITION BY RELYING ON THE DECISION OF HONBLE SUPREME COUR T IN THE CASE OF K.P. VARGHESE 131 ITR 597. HOWEVER, WITHOUT GIVING THE FINDING AS TO HOW THE HONBLE SUPREME COURT JUDGMENT IN THE CASE OF K.P. VARGHESE WAS NOT APPLICABLE TO THE FACTS OF THE ASSESSEES COMPANY CASE M.A.NO.115/MUM/2016 M/S. LAKEWOOD CONSTRUCTION CO. PVT. LTD., 2 AND THE ORDER PA SSED BY THE CIT(A) IS I NCORRECT , T HE TRIBUNAL HAS RESTORED THE MATTER BACK TO THE FILE OF THE AO 3. IT WAS ALSO PLEADED THAT PROVISIONS OF SECTION 43CA OF THE INCOME TAX ACT 1961 WHICH IS DIRECTLY APPLICABLE TO THE FACTS OF THE ASSESSEES CASE HAVE NOT BEEN CONSIDERED WHICH AMOU NTS TO MISTAKE APPARENT FROM RECORD. 4. ON THE OTHER HAND, LEARNED DR CONTENDED THAT THERE IS NO MISTAKE MUCH LESS AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. 5. WE HAVE CONSIDERED RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE ORDER OF THE TRIBUNA L AND FOUND THAT WHILE RESTORING THE MATTER IN RESPECT OF THREE FLATS, TRIBUNAL HAVE NOT CONSIDERED THE DECISION OF THE HONBLE SUPREME COURT IN CASE OF K.P. VARGHESE AND ALSO NOT CONSIDERED THE PROVISIONS OF SECTION 43CA WHICH WAS APPLICABLE ONLY FROM A.Y . 2014 - 15, WHEREAS ASSESSMENT YEAR UNDER CONSIDERATION IS 2007 - 08, WHICH AMOUNTS TO MISTAKE APPARENT FROM RECORD. ACCORDINGLY, WE RECALL THE ORDER PASSED BY THE TRIBUNAL FOR DECIDING AFRESH AFTER CONSIDERING THE DECISION OF THE SUPREME COURT AS WELL AS PRO VISIONS OF SECTION 43CA OF THE IT ACT. 6. IN THE RESULT, MA IS ALLOWED IN TERMS INDICATED HEREINABOVE. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 04 / 08 /2017 S D/ - ( MAHAVIR SINGH ) S D/ - ( R.C.SHARMA ) JUDIC IAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 04 / 08 /201 7 KARUNA SR. PS M.A.NO.115/MUM/2016 M/S. LAKEWOOD CONSTRUCTION CO. PVT. LTD., 3 COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//