Manish Dharsibhai Parmar, Aurangabad V. Addl.Commissioner of Income tax, Aurangabad

MA 13/PUN/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5810 (ITAT-PUNE)
• Duration Of Justice: 5 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-09-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 07-03-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR VIVEK AGGARWAL
• Assessee Lawyers: HARSH M KAPADIA
• Keywords: Sale consideration of property below Jantri Value; Revenue expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE , , , BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWASTHY, JM . / MA NO. 13 /P U N/201 7 (ARISING OUT OF ITA NO. 302 /P U N/20 1 4 ) / ASSESSMENT YEAR : 20 10 - 11 MANISH DHARSIBHAI PARMAR, PLOT NO. 127, VAISHNAVI, N 3, CIDCO, AURANGABAD, PAN : ABVPP6750C ....... / APPELLANT / V/S. ADDL. COMMISSIONER OF INCOME TAX, RANGE 2, AURANGABAD / RESPONDENT ASSESSEE BY : SHRI HARSH M. KAPADIA REVENUE BY : DR. VIVEK AGGARWAL / DATE OF HEARING : 0 7 - 07 - 2017 / DATE OF PRONOUNCEMENT : 04 - 0 9 - 2017 / ORDER PER VIKAS AWASTHY, JM : TH IS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE SEEKING RECTIFICATION IN THE ORDER OF TRIBUNAL IN ITA NO. 302/PUN/2014 FOR THE ASSESSMENT YEAR 2010 - 11 DECIDED ON 15 - 12 - 2016. 2. SHRI HARSH M. KAPADIA APPEARING ON BEHALF OF THE ASSESSEE SUBMITTE D THAT WHILE DECIDING GROUND NO. 2 RAISED IN THE APPEAL 2 MA NO. 13/PUN/2017, A.Y. 2010 - 11 RELATING TO DISALLOWING CLAIM OF RS.16,64,716/ - INTEREST PAID ON LOAN AND RS.3,12,107/ - TOWARDS PRE - PAYMENT CHARGES , T HE TRIBUNAL OBSERVED THAT THE COMPLETION CERTIFICATE DATED 23 - 08 - 2003 PLACED ON RECORD BY THE ASSESSEE AT PAGE 34 OF THE PAPER BOOK DOES NOT SUPPORT THE CASE OF ASSESSEE TO SHOW THAT THE BUILDING WAS COMPLETE IN THE FINANCIAL YEAR 2008 - 09. THE DATE OF ISSUE OF BUILDING COMPLETION CERTIFICATE WAS WRONGLY MENTIONED AS 23 - 08 - 2003 IN COM PLETION CERTIFICATE. THE ASSESSEE HAS NOW OBTAINED CORRECTED COPY OF COMPLETION CERTIFICATE FROM THE OFFICE OF MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION (MIDC). ACCORDING TO THE CORRECTED COPY , THE DATE OF COMPLETION CERTIFICATE IS 23 - 08 - 2008. THE LD. AR OF THE ASSESSEE PLACED ON RECORD FRESH COPY OF BUILDING COMPLETION CERTIFICATE ALONG WITH THE FORWARDING LETTER DATED 15 - 02 - 2017 FROM THE OFFICE OF EXECUTIVE ENGINEER, MIDC, AURANGABAD. THE LD. AR SUBMITTED THAT IN THE LIGHT OF AMENDED / CORRECTED CO PY OF COMPLETION CERTIFICATE , THE ORDER OF TRIBUNAL BE RECALLED AND AMEND ORDER HOLDING THE BUILDING WAS COMPLETED AND WAS READY TO USE IN THE FINANCIAL YEAR 2007 - 08 MAY BE PASSED. THE LD. AR FURTHER PRAYED THAT THE EXPENSES ON ACCOUNT OF INTEREST PAYMENT AND PRE - PAYMENT CHARGES BE ALSO ALLOWED AS REVENUE EXPENDITURE. 3. ON THE OTHER HAND DR. VIVEK AGGARWAL REPRESENTING THE DEPARTMENT VEHEMENTLY OPPOSED THE MISCELLANEOUS APPLICATION FILED BY ASSESSEE. THE LD. DR SUBMITTED FRESH BUILDING COMPLETION CERT IFICATE PLACED ON RECORD BY THE ASSESSEE IS A FRESH PIECE OF EVIDENCE OBTAINED AFTER ADJUDICATION OF APPEAL BY THE TRIBUNAL. THE TRIBUNAL IN PROCEEDINGS U/S. 254(2) OF THE ACT CANNOT CONSIDER NEW EVIDENCE. THE LD. DR PRAYED FOR DISMISSING THE MISCELLANEO US APPLICATION FILED BY THE ASSESSEE. 3 MA NO. 13/PUN/2017, A.Y. 2010 - 11 4. W E HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESENTATIVES OF RIVAL SIDES AND HAVE EXAMINED THE FRESH BUILDING COMPLETION CERTIFICATE PLACED ON RECORD ALONG WITH FORWARDING LETTER DATED 15 - 02 - 2017 ISSUED BY MIDC. THE TRIBUNAL REJECTED GROUND NO. 2 RAISED IN APPEAL BY OBSERVING AS UNDER : 10. THE SECOND GROUND IN APPEAL IS WITH RESPECT TO DISALLOWANCE OF INTEREST ON LOAN RS.16,64,716/ - AND PRE - PAYMENT CHARGES TO BANK RS.3,21,107/ - . THE CONTENTION OF THE ASSESSEE IS THAT PAYMENT OF INTEREST AND PRE - PAYMENT CHARGES ARE REVENUE IN NATURE AS THE HOTEL WAS READY TO USE BEFORE ACCRUAL OF INTEREST AND PRE - PAYMENT CHARGES. THE LD. A.R. HAS DRAWN OUR ATTENTION TO THE BUILDING COMPLETION CERTIFICATE AT PAGE 34 OF THE PAP ER TO SHOW THAT THE HOTEL BUILDING WAS COMPLETE IN EVERY RESPECT AND WAS READY TO USE DURING THE PERIOD RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL. THE LD. A.R. AT THE TIME OF MAKING SUBMISSIONS AND EVEN IN WRITTEN SUBMISSIONS HAS STATED THAT THE COMPLE TION CERTIFICATE IS DATED 25.07.2008. HOWEVER A CLOSE SCRUTINY OF BUILDING COMPLETION CERTIFICATE AT PAGE 34 OF THE PAPER BOOK SHOWS THAT THE SAME IS DT.23.08.2003. THE SAID DATE IS MENTIONED AT PAGE 2 OF THE CERTIFICATE. IN ALL CERTAINTY THE DATE IS IN CORRECT. ON PAGE 1 OF THE CERTIFICATE, IT HAS BEEN STATED THAT THE BUILDING PLANS WERE APPROVED VIDE OFFICE LETTER NO/DB/1334/08 DT.25.07.2008. IF THE BUILDING PLANS WERE APPROVED ON 25.07.2008 THEN CERTAINLY BUILDING COMPLETION CERTIFICATE WOULD BE SUBS EQUENT TO THE SAID DATE. THE LD. A.R. COULD NOT PLACE ANY OTHER DOCUMENT TO SHOW THAT THE BUILDING WAS COMPLETE IN EVERY RESPECT AND WAS READY TO USE DURING THE PERIOD RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL. THE ONLY DOCUMENT I.E., BUILDING COMPLET ION CERTIFICATE ON WHICH THE LD. A.R. HAS PLACED HEAVY RELIANCE COULD NOT SUPPORT THE CASE OF ASSESSEE. THE MATTER HAS TRAVELLED THREE STAGES. THE ASSESSEE COULD NOT OBTAIN THE RECTIFIED OR THE CORRECT BUILDING COMPLETION CERTIFICATE EITHER AT THE TIME O F ASSESSMENT OR AT THE TIME OF FIRST APPEAL PROCEEDINGS. EVEN DURING THE SECOND APPEAL STAGE, THE ASSESSEE HAS FILED THE SAME DOCUMENT. THERE IS NO OTHER DOCUMENT ON RECORD TO SUBSTANTIATE THE CLAIM OF ASSESSEE. THUS, WE ARE OF CONSIDERED VIEW THAT THE BUILDING WAS NOT READY DURING THE PERIOD UNDER CONSIDERATION. UNDER SUCH CIRCUMSTANCES, THE INTEREST PAID AND PRE - PAYMENT CHARGES PAID BY THE ASSESSEE CANNOT BE ALLOWED AS REVENUE EXPENDITURE. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD. CIT(A) IN RE JECTING THE CLAIM OF THE ASSESSEE AND TO TREAT THE EXPENDITURE AS REVENUE IN NATURE. ACCORDINGLY GROUND NO.2 RAISED IN THE APPEAL BY ASSESSEE IS DISMISSED. 5. THE ASSESSEE HAS NOW FILED BUILDING COMPLETION CERTIFICATE DATED 23 - 08 - 2008 ISSUED BY MIDC. THE FRESH COMPLETION CERTIFICATE ISSUED BY MIDC IS ACCOMPANIED BY LETTER DATED 15 - 02 - 2017 . THE TRANSLATED COPY OF SAID LETTER FURNISHED BY ASSESSEE IS REPRODUCED HERE - IN - BELOW : 4 MA NO. 13/PUN/2017, A.Y. 2010 - 11 MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION (GOVERNMENT OF MAHARASHTRA U NDERTAKING) O.NO./ESTD/A60907/YEAR 2017. DATE: 15/02/2017. TO, APPLICANT, SHRI MANISH DHARSIBHAI PARMAR, AURANGABAD. SUBJECT : - REGARDING BUILDING CONSTRUCTION COMPLETION CERTIFICATE. REFERENCE : - YOUR LETTER DATED 14.02.2017 SIR, AS PER YOUR DATED REFERENCE LETTER, THIS OFFICE HAS CARRIED OUT THOROUGH ENQUIRY OF THE DOCUMENTS IN THE FILE AVAILABLE IN THIS OFFICE IN RESPECT OF PLOT BEARING NO.P - 1/2, M/S. HOTEL SUMAN IN CHIKALTHANA INDUSTRIAL AREA. THE BUILDING CONSTRUCTION COMPLETION CERTIFICATE GIVEN TO M/S. HOTEL SUMAN IN RESPECT OF PLOT NO. P - 1/2 UNDER OUTWARD NO.1477 IS DATED 23.08.2008. THEREFORE, SAID LETTER IS ISSUED. ENCL: TRUE COPY OF CONSTRUCTION CERTIFICATE. SD/XX EXECUTIVE ENGINEER & D.C.A M.I.D.C. CIVIL DEPT., AURANGABAD. THE AFORESAID LETTER DOES NOT MENTION THAT FRESH BUILDING COMPLETION CERTIFICATE IS ISSUED AFTER CORRECTION OF DATE FROM 23 - 08 - 2003 TO 23 - 08 - 2008 OR THE DATE 23 - 08 - 2003 WAS WRONGLY MENTIONED IN THE ORIGINAL COMPLETION CERTIFICATE ISSUED BY MIDC. BUILDING COMPLETION CERTIFICATE DATED 23 - 08 - 2008 AND LETTER DATED 15 - 02 - 2017 PLACED ON RECORD BY THE ASSESSEE ARE FRESH DOCUMENTS OBTAINED BY ASSESSEE AFTER ADJUDICATION OF APPEAL. UNDER THE PROVISIONS OF SECTION 254(2), THE TRIBUNAL HAS LIMITED POWER TO RECTIFY MISTAKE APPARENT ON RECORD. THE TRIBUNAL HAS NO POWER TO CONSIDER FRESH EVIDENCE IN PROCEEDINGS U/S. 254(2) OF THE ACT. A DMISSION OF FRESH EVIDENCE FILED BY ASSESSEE IN MISCELLANEOUS APPLICATION FOR 5 MA NO. 13/PUN/2017, A.Y. 2010 - 11 RE - ADJUDICATING GROUND NO. 2 RAISED IN THE APPEAL WOULD AMOUNT TO REVIEW OF ORDER , WHICH IS BEYOND THE SCOPE OF PROVISIONS OF SECTION 254(2) OF THE ACT. THE TRIBUNAL HAS RECORDED FINDING OF FACT ON THE BASIS OF DOCUMENTS ON RECORD. IT IS NOT THE CASE OF ASSESSEE THAT THE TRIBUNAL IS GIVEN FINDING OF FACT THAT IS CONTRARY TO THE FACTS/DOCUMENTS AVAILABLE BEFORE THE AUTHORITIES BELOW OR THE TRIBUNAL. THE ASSESSEE HAS FAILED TO POINT OUT AN Y MISTAKE, MUCH LESS ANY APPARENT MISTAKE IN THE ORDER OF TRIBUNAL. ACCORDINGLY, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED BEING DEVOID OF ANY MERIT. 6 . IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMIS SED . ORDER PRONOUNCED ON MONDAY, THE 04 TH DAY OF SEPTEMBER, 2017 . SD/ - SD/ - ( / ANIL CHATURVEDI ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 04 TH SEPTEMBER, 2017 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT . 2. / THE RESPONDENT . 3. ( ) / THE CIT (A) , AURANGABAD 4. / THE CIT , AURANGABAD 5 . , , , / DR, ITAT, B BENCH, PUNE . 6 . / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE