Jubliee Plot and Housing Pvt. Ltd., CHENNAI V. ACIT, CHENNAI

MA 139/CHNY/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2266 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 14-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: N DEVANATHAN
• Section: 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI BEFORE DR. O.K. NARAYANAN, VICE PRESIDENT & SHRI VIKAS AWASTHY, JUDICIAL MEMBER M.P. NO S . 13 9 & 1 40 /MDS/201 4 ( IN ITA NOS. 1315 & 1241/MDS/2011 ) ASSESSMENT YEAR : 2008-09 M/S.JUBILEE PLOT AND HOUSING PVT. LTD., 1379, 6 TH STREET, I BLOCK, VALLALARKUDIYERUPPU, 18 TH MAIN ROAD, ANNA NAGAR, CHENNAI-40 [PAN:AABCJ 3938 J] (PETITIONER) VS THE ASST./DEPUTY COMMISSIONER OF INCOME TAX, COMPANY CIRCLE-II(3), CHENNAI-34 (RESPONDENT) PETITIONER BY : SHRI N.DEVANATHAN , ADVOCATE RESPONDENT BY : SHRI S.DAS GUPTA , J CIT DATE OF HEARING : 12-09-2014 DATE OF PRONOUNCEMENT : 22-09-2014 O R D E R PER VIKAS AWASTHY, J.M: THE MISCELLANEOUS PETITIONS HAVE BEEN FILED BY THE ASSESSEE U/S.254(2) OF THE INCOME TAX ACT, 1961 (HE REIN AFTER REFERRED TO AS THE ACT) FOR RECTIFICATION OF MIST AKE IN THE ORDER OF TRIBUNAL DT.21-06-2013. M.P. NOS. 139 & 140/MDS/14 :- 2 -: 2. THE ASSESSEE VIDE MISCELLANEOUS PETITION NO.139/ 2014 IS SEEKING RECTIFICATION OF THE DEVELOPMENT EXPENSES A MOUNT MENTIONED IN PARA NO.5 AT PAGE NO.3 OF THE ORDER. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AMOU NT MENTIONED IN THE ORDER ` 9,84,19,432/- IS IN RESPECT OF PRECEDING AY. THE AMOUNT ALLOWED DURING THE AY UNDER CONSIDERATION IS ` 12,13,61,729/-. 3. IN MISCELLANEOUS PETITION NO.140/2014, THE ASSES SEE IS SEEKING CLARIFICATION WITH RESPECT TO THE FINDINGS OF THE TRIBUNAL ON DIS-ALLOWANCE MADE U/S.40(A)(3). THE SUBMISSIONS M ADE BY THE LD.COUNSEL IN THE MISCELLANEOUS PETITIONS ARE AS UN DER: THE ONLY ISSUE BY THE ASSESSEE IS WITH REFERENCE TO DISALLOWANCE U/S.40A(3) CONSIDERED AND SET ASIDE TH E DISALLOWANCES BY REMITTING THE MATTER BACK TO THE ASSESSING OFFIC ER FOR FRESH DISPOSAL ACCORDING TO LAW. HOWEVER THE REVENUE IS LIKELY TO FEEL THAT WHILE CONSIDERING THE ISSUE, THE ITAT HAS REMARKED BY WAY OF ILLUSTRATION THE TERM LAND DEVELOPMENT EXPENSES AT PAGE 5 OF THE ORD ER WHICH READS AS FOLLOWS. HE WILL VERIFY THE NATURE OF THE PAYMENTS MADE BY THE ASSESSEE UNDER DIFFERENT HEADS OF EXPENDITURE. HE SHOULD EXAMINE ALL THE SURROUNDING CIRCUMSTANCES INCLUDING THE AREA WHERE THE OPERATION WERE CARRIED OUT, TO WHOM THE M.P. NOS. 139 & 140/MDS/14 :- 3 -: PAYMENTS WERE MADE AND WHETHER ANY OTHER EXIGENCIES EXISTED AT THE TIME OF PAYMENTS. THIS GIVES AN IMPRESSION THAT THE ISSUE OF LAND DEV ELOPMENT EXPENSES IS OUGHT TO REVISITED AGAIN. HOWEVER WITH A VIEW TO RENDER COMPLETE JUSTICE, THE ORDER BE CLARIFIED THAT THE ISSUE IS ONE WITH REFERENCE TO SECTION 40A (3) AND NOT WITH REFERENCE TO LAND DEVELOPMENT EXPENSES WHICH HAS BE EN ALLOWED BY THE CIT(A) AND THE SAME HAS BEEN CONFIRMED BY THE I TAT. THE LD.COUNSEL PRAYS THAT CLARIFICATION IS NECESSAR Y SO THAT THE ASSESSING OFFICER CAN GIVE EFFECT TO THE ORDER OF T RIBUNAL IN RIGHT PERSPECTIVE. 4. SHRI DAS GUPTA, APPEARING ON BEHALF OF THE REVEN UE STATED THAT THERE SEEMS TO BE ERROR IN MENTIONING THE CORR ECT FIGURE WITH REGARD TO DEVELOPMENT EXPENSES IN PARA NO.5 AT PAGE NO.3 OF THE ORDER. WITH REGARD TO CLARIFICATION SOUGHT BY THE ASSESSEE, IN REFERENCE TO DIS-ALLOWANCE U/S.40(A)(3), THE LD.DR CONTENDED THAT THE ORDER OF THE TRIBUNAL IS SELF-EXPLANATORY AND R EQUIRES NO FURTHER CLARIFICATION. M.P. NOS. 139 & 140/MDS/14 :- 4 -: 5. BOTH SIDES HEARD. A PERUSAL OF THE ORDER OF CIT (APPEALS) SHOWS THAT DEVELOPMENT EXPENSES OF ` 9,84,19,432/- RELATES TO PRECEDING AY I.E., AY.2007-08. AS FAR AS THE AY UN DER CONSIDERATION, THE AMOUNT ALLOWED IS ` 12,13,61,729/-. TO RECTIFY THIS MISTAKE, THE AMOUNT OF ` 9,84,19,432/- IS SUBSTITUTED WITH ` 12,13,61,729/- IN PARA NO.5 AT PAGE NO.3 OF THE ORD ER. 6. WITH REGARD TO THE ISSUE OF DIS-ALLOWANCE U/S.40 (A)(3), THE TRIBUNAL HAS GIVEN ITS FINDINGS AT PAGE NO.5 IN PAR A NO.10 OF THE ORDER. ALTHOUGH THE FINDINGS OF THE TRIBUNAL ARE U NAMBIGUOUSLY CLEAR AND INTENDS TO CONVEY THE MEANING AS THEY OUG HT TO HAVE BEEN. HOWEVER, FOR THE PURPOSE OF GIVING EFFECT TO THE ORDER OF TRIBUNAL IN LETTER AND SPIRIT, IT IS CLARIFIED THAT THE ASSESSING OFFICER IS DIRECTED TO VERIFY THE NATURE OF PAYMENTS MADE B Y THE ASSESSEE, UNDER DIFFERENT HEADS OF EXPENDITURE OTHE R THAN LAND DEVELOPMENT. 7. IT IS MADE CLEAR THAT WITH THE CORRECTION OF MIS TAKE IN PARA NO.5 OF THE ORDER WITH RESPECT TO DEVELOPMENT EXPEN SES AMOUNT M.P. NOS. 139 & 140/MDS/14 :- 5 -: AND CLARIFICATION OF THE ISSUE U/S.40(A)(3), THERE WILL BE NO CHANGE IN THE RESULT OF THE APPEALS. 8. THE MISCELLANEOUS PETITIONS OF THE ASSESSEE/PETI TIONER ARE ALLOWED IN AFORESAID TERMS. ORDER PRONOUNCED ON MONDAY, THE 22 ND SEPTEMBER, 2014 AT CHENNAI. SD/- SD/- (DR. O.K. NARAYANAN) (VIK AS AWASTHY) VICE PRESIDENT JUDICIAL MEMBER DATED: 22 ND SEPTEMBER, 2014 TNMM COPY TO: (1) PETITIONER (4) CIT(A) (2) RESPONDENT (5) D.R. (3) CIT (6) G.F.