Archanaben Rajendrakumar Patel, Ahmedabad V. ITO Ward-4(2)(1), Ahmedabad

MA 142/AHD/2020

AI Insights

The case involves multiple miscellaneous applications filed by the assessee, Archanaben Rajendrakumar Patel, along with other co-owners, against the order of the ITAT dated 17th December 2019. The applications sought to recall the ITAT's order on the grounds of apparent mistakes concerning the consideration of documentary evidence and contradictory findings regarding the stamp duty valuation date for a land purchase agreement dated 23rd September 2010. The ITAT acknowledged the oversight and the need for a fresh adjudication to address all contentions raised by the assessee, which were not previously considered.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 127177 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-01-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-01-2023
• Assessment Year: 2014-2015
• Appeal Filed On: 20-07-2020
• Other Referred Cases: Hari Vishnu Kamath v. Syed Ahmed Ishaque
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 254(2)

Judgement Text

आयकर अपील य अ धकरण, अहमदाबाद यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, ‘’SMC’’ BENCH, AHMEDABAD BEFORESHRI WASEEM AHMED, ACCOUNTANT MEMBER And Ms. MADHUMITA ROY, JUDICIAL MEMBER M.A No.142 /Ahd/2020 In आयकरअपीलसं./In ITA No.2102 /Ahd/2017 नधा रणवष /Asstt. Year:(2014-2015) ArchanabenRajendrakumar Patel, “SHAN Bungalow”, Nr. Meghalaya Flats, Navrangpura, Ahmedabad PAN:ACMPP2067J Vs. ITO Ward-4(2)(1), Ahmedabad M.A No.143 /Ahd/2020 In आयकरअपीलसं./In ITA No.2101/Ahd/2017 नधा रणवष /Asstt. Year:(2014-2015) AnandRajendrakumar Patel “SHAN Bungalow”, Nr. Meghalaya Flats, Navrangpura, Ahmedabad PAN:AMNPP1486A Vs. ITO Ward-4(2)(1), Ahmedabad M.A No.144 /Ahd/2020 In आयकरअपीलसं./In ITA No.2103/Ahd/2017 नधा रणवष /Asstt. Year:(2014-2015) Shardaben Natwarlal Patel “SHAN Bungalow”, Nr. Meghalaya Flats, Navrangpura, Ahmedabad PAN:ACMPP2064N Vs. ITO Ward-4(2)(5), Ahmedabad M.A Nos.142 to 145/AHD/2020 In ITA Nos.2101 to 2104/Ahd/2017 Asstt. Year 2014-15 2 M.A No.145 /Ahd/2020 In आयकरअपीलसं./In ITA No.2104/Ahd/2017 नधा रणवष /Asstt. Year:(2014-2015) Natwarlal Prabhudas Patel “SHAN Bungalow”, Nr. Meghalaya Flats, Navrangpura, Ahmedabad PAN:ACMPP2063N Vs. DCIT Circle-4(2), Ahmedabad (Applicant) (Respondent) Assessee by : Shri Mehul Thakkar, A.R. Revenue by : Shri Urjit Shah, Sr. D.R. स ु नवाईक तार ख/Date of Hearing : 06/01/2023 घोषणाक तार ख/Date of Pronouncement: 31/01/2023 PER WASEEM AHMED, ACCOUNTANT MEMBER: The issue involved in all the MA’s is common. For the purpose of the adjudication, the facts mentioned in MA No. 142/AHD/2020 are adopted. 2. The assessee by way of this miscellaneous application is seeking to recall the order of the ITAT bearing ITA Nos. 2101 to 2104/Ahd/2017 dated 17 th December 2019on the reasoning that there is a mistake apparent from record. 3. The assessee in the miscellaneous application has pointed out two errors which are apparent from record in the order of the ITAT. The first mistake is as follows. As per the learned AR for the assessee, there were series of documents, brought to the notice of the members of the ITAT the time of hearing, which were sufficient enough to establish the fact that the land bearing Survey No. 140 was part and parcel of the lands purchase agreement dated 23 rd September 2010. For M.A Nos.142 to 145/AHD/2020 In ITA Nos.2101 to 2104/Ahd/2017 Asstt. Year 2014-15 3 this purpose, the learned counsel for the assessee drew our attention on various details, available on record in the paper book. However, the ITAT has not considered all these documentary evidences and decided the issue against the assessee in paragraph number 9 of its order. 4. The 2 nd mistake in the order of the ITAT is this that the ITAT has also admitted the fact that there were various contentions raised by the assessee before the learned CIT (A) which were not considered by him (the ld. CIT-A) at the time of adjudication of the dispute. These contentions were relating to the fact that the assessee has entered into an agreement for the purchase of the land bearing survey No. 140 dated 23 rd September 2010. Accordingly, the ITAT was pleased to set aside the issue the file of the learned CIT (A) for fresh adjudication as per the provisions of law. 5. The learned AR with respect to the 2 nd mistake as discussed above, contended that 2 nd finding of the ITAT is contrary to its 1 st finding. As such the ITAT in the 1 st finding in paragraph number 9 has given the judgement by holding that there was no agreement for purchase dated 23 rd September 2010 for land bearing survey No. 140 and therefore the stamp value as applicable on the date of agreement cannot be adopted. But the ITAT, simultaneously has restored the issue to the file of the learned CIT (A) for fresh adjudication as discussed above vide paragraph number 9.2 of the order. Thus, the learned AR contended that the finding of the ITAT in paragraph number 9 is contrary to the finding of the ITAT in paragraph number 9.2 of the order. Thus, the learned AR requested to re-call the order of the ITAT for fresh adjudication as per the provision of law. 6. On the contrary, the learned DR before us did not raise the objection if the matter is recalled for fresh adjudication as per the provision of law. 7. Heard the rival contentions of both the parties and perused the materials available on record. The facts of the case are like this. The assessee along with M.A Nos.142 to 145/AHD/2020 In ITA Nos.2101 to 2104/Ahd/2017 Asstt. Year 2014-15 4 other parties has jointly purchased different pieces of lands bearingdifferent survey numbers. One of the survey No. 140 was also purchased by the assessee along with other co-owners at Rs. 45 Lacsvide registration number 63694 dated 8 th May 2013 whereas the value of such survey number for the purpose of the stamp duty was determined at Rs. 55,91,840/- only. Thus, there was the difference of Rs. 10,91,840/- in the purchases shown by the assessee viz a viz the amount determined for the purpose of the Stamp duty. In other words, the assessee has purchased the survey No. 140 at a price less than the stamp value. The assessee claimed that the land was purchased through banakhat/purchase agreement dated 23 rd September 2010 which was executed as on 8 th May 2013. Accordingly, it was contended that the stamp value should be taken as applicable on the date of purchase agreement i.e. 23 rd September 2010 and thus there is no difference between the purchase value and stamp value. 8. However, the AO held that there was no mentioned of land bearing survey No. 140 in the agreement dated 23 rd September 2010 and the difference between the purchase price and stamp value was exceeding Rs. 50000/-. Accordingly, the AO invoked the provisions of section 56(2)(vii)(b)(ii) of the Act and treated the difference amount as income from other sources by adding to the total income of the assessee along with other joint purchasers in their sharing proportion. The view was also subsequently confirmed by the learned CIT (A). 9. The tribunal vide order dated 17 th December 2019 has given a finding in paragraph number 9 against the assessee by observing that there was no mention of agreement dated 23 rd of September 2010 with respect to the purchase of land bearing survey No. 140 and therefore the stamp value as applicable as on the date of agreement i.e. 23 rd September 2010 cannot be adopted. As such, the agreement dated 23 rd September 2010 was with respect to other lands bearing survey numbers 139, 141 and 142 which is not in dispute. The relevant finding of the ITAT is reproduced as under: M.A Nos.142 to 145/AHD/2020 In ITA Nos.2101 to 2104/Ahd/2017 Asstt. Year 2014-15 5 “9. We have heard the rival contentions of both the parties and perused the materials available on record. From the preceding discussion, we note that the title of the land bearing survey No. 140 was not clear and therefore it was not possible for the vendor to enter the legal agreement with the buyer. AS such there was no description in the Banakhat dated 23 September 2010 about the land bearing survey No. 140. Therefore we are not in agreement with the arguments of the learned counsel for the assessee. Accordingly, we hold that there is no reason to take the stamp duty valuation relating to the period 2010 when the Banakhat was executed. As such the value of the date of registration of such land i.e. 8-5-2013 was correctly valued by the authorities below. Accordingly, we donfirm the order of the authorities below.” 10. However, the ITAT in the subsequent paragraph bearing numbers 9.1 and 9.2 has set aside the issue to the file of the learned CIT (A) for fresh adjudication by observing that there were many more contentions raised by the assessee before the learned CIT (A) which were for not adjudicated. The relevant finding of the ITAT reads as under: “9.1 However, before parting, we find that there were many more contentions raised by the assessee before the learned CITA which have not been adjudicated by him. These contentions are very much recorded in the order of the learned CIT-A. 9.2 Accordingly we find that the order passed by the learned CIT (A) is non-speaking as it does not cover all the contentions raised by the assessee. Therefore, we are of the view that the matter needs to be re-examined by the learned CIT(A) after considering the submission of the assessee as per the provisions of law. Therefore we are restoring the issue to the file of the learned CIT-A for fresh adjudication as per the provisions of law. Hence the ground of appeal of the assessee is allowed for the statistical purposes.” 11. The scope of the provisions of section 254(2) of the Act is limited to the extent of the mistakes which are apparent from record. The question arise what should be called as mistake apparent from record. In this regard we note that various Hon’ble Courts including the Hon’ble Supreme Court in number of cases, particularly, in the landmark judgment of Hari Vishnu Kamath v. Syed Ahmed Ishaque AIR 1955 SC 233has defined the term the mistake apparent from record as a patent, manifest and self-evident error which does not require elaborate discussion of evidence or arguments to establish it. These kind of mistakes can be said to be an error apparent on the face of the record which can be corrected while exercising jurisdiction. Thus an error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the face of the record means an M.A Nos.142 to 145/AHD/2020 In ITA Nos.2101 to 2104/Ahd/2017 Asstt. Year 2014-15 6 error which strikes on mere looking and does not need longdrawn out process of reasoning on points where there may conceivably be two opinions. 12. Coming to the case on hand. From the preceding discussion we note that the ITAT on one hand has directed authorities below not to adopt the stamp duty applicable as on the date 23 rd of September 2010 and on the other hand the ITAT set aside the issue to the file of the learned CIT (A) for fresh adjudication. Thus, there seems to be apparent mistake in the order of the ITAT which has crept in inadvertently. Accordingly, we are inclined to re-call the order passed by the ITAT and direct the registry to fix the same for fresh hearing under intimation to both the parties. All the MA’s filed by the assessee are allowed. 13. In the result, all the MA’s filed by the assessee are allowed. Order pronounced in the Court on 31/01/2023 at Ahmedabad. Sd/- Sd/- (MADHUMITA ROY) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (True Copy) Ahmedabad; Dated 31/01/2023 Tanmay, Sr. PS