ROHAN AGARWAL, Jaipur V. ACIT, Ajmer

MA 117/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3737 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 29-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 29-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P P MEENA ACIT
• Keywords: Rectification of order
• Section: 54F; 54

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH JESK LH0 KEKZ] YS[KK LNL; ,OA JH FOT; IKY JKO] U;KF;D LNL; DS LE{K BEFORE: SHRI RAMESH. C. SHARMA, AM & SHRI VIJAY PA L RAO, JM MA NO. 117/JP/2018 (ARSING OUT OF ITA NO. 51/J P/2016) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 SHRI ROHAN AGARWAL M-79,ANA SAGAR LINK ROAD, AJMER. CUKE VS. THE ACIT, CIRCLE-1, AJMER. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AFCPA 5095 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI P.P. MEENA (ACIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 03/05/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 07/05/2019 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSESS EE IS SEEKING RECALLING OF ORDER OF TRIBUNAL DATED 13.02.2018 FOR THE ASSESSMENT YEAR 2009-10. 2. THE ASSESSEE HAS CLAIMED VARIOUS MISSTATE IN THE IMPUGNED ORDER OF THE TRIBUNAL IN RESPECT OF THE CLAIM OF DEDUCTIO N U/S 54F OF THE I.T. MA NO. 117/JP/2018 SHRI ROHAN AGARWAL VS. ACIT 2 ACT. THE MISTAKES POINTED OUT BY THE ASSESSEE IN TH E MISCELLANEOUS APPLICATION ARE AS UNDER:- 3.1 MISTAKE1 :NON CONSIDERATION OF THE CITED DECISION AND THE WRITTEN SUBMISSION ETC.:AT THE OUTSET, IT IS SUBMIT TED, THE APPELLANT FILED A DETAIL DECISION PAPER BOOK DURING THE COURSE OF HEARING ON 9 TH FEB. 2018 WHICH, INCLUDED THE DECISION OF VARIOUS COURTS AND COORDINATE BENCHES OF ITAT, INCLUDING TH E HONBLE JAIPUR BENCH OF ITAT AS ALSO A CBDT CIRCULAR NO. 6 DATED 18/10/1993. HOWEVER, THE SAME, CLEARLY APPEARS TO H AVE ESCAPED THE KIND ATTENTION OF THE HONBLE ITAT IN AS MUCH A S THERE IS NO WHISPER OF ANY OF THE DECISIONS CITED BY THE ASSESS E THROUGH THE SAID DECISION PAPER BOOK, THE WRITTEN SUBMISSION AN D ALSO DURING THE COURSE OF THE APPELLATE PROCEEDINGS ALTHOUGH SO ME OF THEM WERE DIRECTLY APPLICABLE ON THE ISSUE IN HAND. HAD THESE DECISIONS BEEN CONSIDERED, PERHAPS THE SUBJECTED ORDER MIGHT HAVE BEEN DIFFERENT. 3.1.1MISTAKE 1.1: THE DECISION IN THE CASE OF ACIT VS. NARENDRA MOHAN UNIYAL (2009) 34 SOT 152 (DEL) (DPB 13-17), W AS DIRECTLY RELEVANT AND APPLICABLE ON THE FACTS OF THE PRESENT CASE. PARTICULARLY IN THE CONTEXT OF THE FACT OF THE ADJA CENT PLOTS AND THE LAND OF ONE PLOT BEING OPPORTUNENT TO THE LAND OF T HE OTHER PLOT NO. 4 WHERE CONSTRUCTION IS ADMITTED. A BARE READIN G OF THIS SAID DECISION SUGGEST THAT THE FACT OF THE CASE IN HAND WERE RATHER ON A STRONGER FOOTING. 3.1.2MISTAKE1.2 : FURTHER THE CASE OF CIT VS. SARDARMAL KOTHARI (2008) 217 CTR 414 (MAD) WAS ALSO RELIED UPON WHERE IN, THE ENTIRE MINIMUM REQUISITE INVESTMENT WAS MADE IN THE LAND ITSELF AND ONLY THEREAFTER, HOUSE WAS CONSTRUCTED BUT EVEN THEN, THE ASSESSEE WAS HELD ENTITLED TO THE EXEMPTION U/S 54F OF THE ACT. MA NO. 117/JP/2018 SHRI ROHAN AGARWAL VS. ACIT 3 HOWEVER, NONE OF THESE DECISIONS& CIRCULAR FIND PLA CED IN THE SUBJECTED ITAT ORDER ALTHOUGH THE ASSESSEE HAD ALSO CITED VARIOUS OTHER DECISIONS AS MENTIONED IN THE DECISIO N PAPER BOOK. 3.1.3.MISTAKE 1.3 : SIMILARLY, SUPPORT FROM ACBDT CIRCULAR NO.667 DATED 18.10.1993 [115 CTR 1 (STATUTE)] (DPB-23) WAS ALSO TAKEN THROUGH THE FOLLOWING SUBMISSIONS: 7.1. ON THE ASPECT OF DIFFERENT PLOTS, THE CBDT CI RCULAR NO.667 DATED 18.10.1993 [115 CTR 1 (STATUTE)] (DPB-23) DIR ECTLY SUPPORT THE CASE OF THE ASSESSE WHICH PROVIDES THAT COST OF LAND IS AN INTEGRAL PART OF THE COST OF THE NEW HOUSE PURCHASED/CONSTRUCTED. THUS, ONCE THE COST OF THE E NTIRE LAND HAS ALSO BEEN TREATED TO A PART OF THE NEW HOUSE, THERE WAS NO REASON WHY THE AO SHOULD HAVE SEEN THE OTHER PLOTS AS DETACHED, AND DIFFERENT. 3.2 MISTAKE 2 : THE HONBLE ITAT AT PAGE 5 PARA 2.4 HAS ALSO RECORDED A FINDING REFERRING TO THE AO THAT A SMALL BUILDING WAS CONSTRUCTED ON PLOT NO. 4 WHICH AMOUNTED TO ONLY 18 % PART OF THE PLOT. ON THIS ASPECT FOLLOWING SUBMISSIONS WERE MADE: 9.1.3COVERED MATTER:- THIS ASPECT OF THE ABOVE MAT TER WAS DIRECTLY COVERED IN FAVOUR OF THE ASSESSEE BY A DEC ISION OF HONBLE ITAT JAIPUR BENCH IN THE CASE OF SEEMA SINGH BENIWA L VS. DCIT IN ITA NO. 135/JP/2012, VIDE ITS ORDER DATED 09/10/ 2015 (DPB 1- 12) WHEREIN, THE HONBLE ITAT HAS HELD EVEN A 6%CON STRUCTION ON A BIG SIZED PLOT, TO BE ELIGIBLE FOR A DEDUCTION U/S 54 OF THE ACT HOLDING THAT THE LAW DOESNT PRESCRIBE ANY PART ICULAR MANNER OR THE QUANTUM OF THE CONSTRUCTION BUT IT SHOULD BE A RESIDENTIAL HOUSE. HOWEVER, THERE IS ABSOLUTELY NO WHISPER OF SUCH CON TENTION AND THE ITAT JAIPUR DECISION IN THE ENTIRE SUBJECTED OR DER. MA NO. 117/JP/2018 SHRI ROHAN AGARWAL VS. ACIT 4 3.3. MISTAKE 3 :- THE HONBLE ITAT AT PAGE 5 PARA 2.4 HAS OBSERVED THAT: THE OTHER THREE SEPARATE ADJACENT PLOTS NO. 1,2 AN D 3 MEASURING 492.75 SQ. YARDS, 486 SQ. YARDS AND 480.33. SQ. YAR DS (TOTALLING TO 1459.08 SQ. YARDS) RESPECTIVELY ARE VACANT AND T HESE ARE NOT BEING USED BY THE ASSESSEE. HOWEVER, THERE WAS NOTHING ON RECORD TO SUPPORT SUC H A FACTUAL FINDING AND ON THE CONTRARY, WHEN ADMITTEDLY, ALL T HE 4 PLOTS WAS COVERED BY COMMON BOUNDARY WALL AND ONE COMMON ENTR Y GATE, IT IS NOT ONLY PLOT NO. 4 BUT ALL THE FOUR PLOTS WE RE BEING USED JOINTLY AND THEREFORE, SUCH A FINDING OF FACT IS CO MPLETELY CONTRARY TO THE FACTS ON RECORD. 3.4MISTAKE 4 : THE HONBLE ITAT AT PAGE 5 PARA 2.4 HAS OBSERVED THAT: THE AO FURTHER NOTED THAT ASSESSEE HAS COVERED ALL THE FOUR PLOTS BY A COMMON BOUNDARY WALL HAVING ONE COMMON G ATE BUT IT DOES NOT SEEM TO BE THE EXPEDIENCY OF THE GROUND PO SITION AND GROUND REALITY AND THE SAME IS DONE BY THE ASSESSEE TO PROTECT HIS LAND ONLY. AGAIN THIS IS ALSO AN INCORRECT FINDING OF THE FACT BEING CONTRARY TO THE FACT AND SUBMISSION ALREADY AVAILABLE ON RECORD .THE ASSESSEE WAS NEVER CONFRONTED ON THE ASPECT OF THE USER BY A NY OF THE AUTHORITIES BELOW I.E. NEITHER BY THE AO AND CIT(A) NOR BY THE HONBLE ITAT. ON THE CONTRARY, THE APPELLANT ITSELF MADE A DETAILED SUBMISSION BEFORE THE LD. CIT(A) IN PARA 8 (PB-70) WHEREIN, IT IS SUBMITTED AS UNDER: THE ASSESSEE, IN THE PRESENT CASE, WAS ALREADY LOO KING FOR A LARGE SIZED PLOT SO AS TO HAVE A OUTHOUSE/FARMHOUSE THEREON, WITH A PLANNING THAT MAXIMUM PART OF THE LAND SHALL REMAIN MA NO. 117/JP/2018 SHRI ROHAN AGARWAL VS. ACIT 5 VACANT FOR THE PURPOSE OF CULTIVATION/FARMING/LAWN ETC. AND ONLY A SMALL PART SHALL BE HAVING CONSTRUCTION SO THAT SUC H PROPERTY COULD BE USED FOR SPARING WEEKENDS OR CAN BE USED B Y THE ASSESSEE HIMSELF FOR THE PURPOSES OF FUNCTIONS (OR EVEN OTHERS). THUS, THE HONBLE ITAT HAS RECORDED AN INCORRECT FI NDING OF THE FACT AND IGNORED THE SUBMISSION MADE BEFORE IT.THE SUBMISSION MADE BEFORE THE LD. CIT (A) WERE ALSO RELIED UPON B EFORE THE HONBLE ITAT. 3.5MISTAKE 5 : LASTLY, DECISIONS WERE CITED ALSO ON THE POINT OF A LIBERAL INTERPRETATION OF INCENTIVE POSITION BECAUS E IN THIS CASE, THE ELIGIBILITY OF THE ASSESSEE STOOD PROVED THEREF ORE, THE INCENTIVE PROVISIONS WERE TO BE INTERPRETED LIBERAL LY WHILE APPLYING THE SAME. HOWEVER, THERE IS NO WHISPER ON THIS ASPE CT AND APPEARS HAVE COMPLETELY ESCAPED THE KIND INTENTION OF THE HONBLE ITAT. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE DOES IS NOT PRESS THE MISCELLANEOUS AP PLICATION IN RESPECT OF MISTAKES NO. 3 TO 5. 3. WE HAVE HEARD THE LD. AR AS WELL AS LD. DR AND C ONSIDERED THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE CLAIMED D EDUCTION U/S 54F OF THE ACT OF RS. 46,93,353/- IN RESPECT OF PURCHASE O F 4 PLOT OF LAND AND CONSTRUCTION OF HOUSE. THE AO RESTRICTED THE DEDUCT ION U/S 54F OF THE ACT TO RS. 17,18,127/- BEING COST OF ONE PLOT AND C ONSTRUCTION OF HOUSE MA NO. 117/JP/2018 SHRI ROHAN AGARWAL VS. ACIT 6 ON THE PLOT NO. 4. THE ASSESSEE CARRIED THE MATTER TO THIS TRIBUNAL AND VIDE IMPUGNED ORDER DATED 13.02.2018THE TRUBUNAL UP HELD THE ORDER OF THE LD. CIT(A). NOW THE LD. AR HAS SUBMITTED THAT W HILE PASSING THE IMPUGNED ORDER THE TRIBUNAL HAS NOT CONSIDERED THE DECISIONS RELIED UPON BY THE ASSESSEE WHICH ARE DIRECTLY ON THE POIN T THAT THE ASSESSEE HAS PURCHASED 4 ADJOINING PLOTS AND AFTER COVERING OF ALL THE 4 PLOTS WITH THE BOUNDARY WALL HAS CONSTRUCTED A HOUSE, THE REFORE, THE DEDUCTION U/S 54F OF THE ACT IS ALLOWABLE IN RESPEC T OF COST OF ALL THE 4 PLOTS AND CONSTRUCTION OF HOUSE. FURTHER SIZE OF HO USE CONSTRUCTED BY THE ASSESSEE IS NOT RELEVANT PART ALLOWING THE DEDU CTION U/S 54F OF THE ACT, THEREFORE, THE OBSERVATION OF THE TRIBUNAL IN PARA 5 THAT THE ASSESSEE HAS CONSTRUCTED ONLY 18% OF THE LAND IS AL SO AGAINST THE PRECEDENT CITED BY THE ASSESSEE. THUS, THE LD. AR H AS SUBMITTED THAT THERE IS APPARENT MISTAKE IN THE IMPUGNED ORDER SO FAR AS THE DECISIONS CITED BY THE ASSESSEE ARE NOT CONSIDERED BY THE TRI BUNAL AND THEREFORE, THE IMPUGNED ORDER MAY BE RECALLED FOR DECIDING THE APPEAL AFRESH AFTER CONSIDERING THE DECISIONS RELIED UPON BY THE ASSESS EE. 4. ON THE OTHER HAND, THE LD. DR HAS SUBMITTED THAT THE RELIED SOUGHT BY THE ASSESSEE IN THE MISCELLANEOUS APPLICA TION DOES NOT FALL IN THE CATEGORY OF RECTIFICATION OF MISTAKE APPARENT O N RECORD U/S 245(2) MA NO. 117/JP/2018 SHRI ROHAN AGARWAL VS. ACIT 7 OF THE ACT. THE ASSESSEE IS SEEKING REVIEW OF THE D ECISION TAKEN BY THE TRIBUNAL ON MERITS WHICH IS NOT PERMISSIBLE. 5. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD WE NOTE THAT THE ASSESSEE HAS RE LIED UPON BY THE VARIOUS DECISIONS AS REITERATED IN THE MISCELLANEOU S APPLICATION. AS REGARD MISTAKE NO. 1 THE COPIES OF THE DECISIONS R ELIED UPON BY ASSESSEE ARE ALSO ON RECORD OF THE APPEAL FILE AND THOSE DECISIONS HAVE SOME RELEVANCE ON THE ISSUE OF ALLOWING THE DEDUCTI ON U/S 54F OF THE ACT IN RESPECT OF MORE THAN ONE PLOT OF LAND AND CO NSTRUCTION OF A HOUSE. SINCE, THE TRIBUNAL WHILE PASSING THE IMPUGN ED ORDER HAS NOT CONSIDERED THOSE DECISIONS AND THE IMPUGNED ORDER I S COMPLETELY SILENT ABOUT THE DECISION RELIED UPON BY THE ASSESSEE. THE REFORE, IN OUR CONSIDERED VIEW THERE IS A MISTAKE IN THE IMPUGNED ORDER TO THE EXTENT OF NOT CONSIDERING THE DECISIONS RELIED UPON BY THE ASSESSEE. SO FAR AS THE CONSTRUCTED AREA IS CONCERNED WE FIND THAT THE FINDING OF THE TRIBUNAL IS NOT BASED ON THE CONSTRUCTED AREA BUT O NLY FOR RECORDING THE COMPLETE FACTS THE PERCENTAGE OF THE CONSTRUCTION W AS MENTIONED IN THE IMPUGNED ORDER. EVEN THE AO AS WELL AS LD. CIT(A) W HILE ALLOWING THE DEDUCTION IN RESPECT OF COST OF ONE PLOT OF LAND AN D CONSTRUCTION OF HOUSE HAS NOT TAKEN THE PERCENTAGE OF COVERED AREA AS GROUND FOR MA NO. 117/JP/2018 SHRI ROHAN AGARWAL VS. ACIT 8 DISALLOWANCE. HOWEVER SINCE THE DECISION RELIED UPO N BY THE ASSESSEE HAVING RELEVANCE ON THE ISSUE ARE NOT CONSIDERED BY THE TRIBUNAL, THEREFORE, THE SAID MISTAKE IS REQUIRED TO BE RECTI FIED. ACCORDINGLY, THE IMPUGNED ORDER DATED 13.02.2018 IS RECALLED AND THE APPEAL OF THE ASSESSEE IS DIRECTED TO BE LISTED FOR FRESH HEARING AND ADJUDICATION AFTER CONSIDERATION OF THE DECISIONS RELIED UPON BY THE A SSESSEE. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 07/05/2019. SD/- SD/- JESK LH0 KEKZ FOT; IKY JKO (RAMESH. C. SHARMA) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 07/05/2019. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI ROHAN AGARWAL, AJMER. 2. IZR;FKHZ@ THE RESPONDENT- ACIT, CIRCLE-1, AJMER. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {MA NO. 117/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR