Naga Padmaja Vangara , Hyderabad V. Income Tax Officer, Ward-11(3) , Hyderabad

MA 148/Hyd/2022

AI Insights

The case revolves around a Miscellaneous Application filed by the assessee, Smt. Naga Padmaja Vangara, seeking rectification of what she claimed was a computational error in the Tribunal's earlier decision regarding the valuation of land surrendered under a Development Agreement for the Assessment Year 2016-17. The Tribunal had previously dismissed her appeal, accepting the valuation proposed by the Assessing Officer (AO). The assessee argued that the Tribunal had not considered her submissions and that the valuation adopted by the AO included both land and structure values, which was incorrect. The Departmental Representative opposed the application, citing that the Tribunal's order was not subject to review by itself but could only be challenged in the High Court. The Tribunal, referencing a Supreme Court decision, dismissed the application, emphasizing that the Tribunal cannot review its own orders and any perceived errors must be addressed through an appeal to the High Court.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 122402 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-01-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-A
• Next Hearing Date: 19-01-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 14-11-2022
• Other Referred Cases: CIT vs. Reliance Telecommunication Ltd. reported in 440 ITR 1 (SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Cost of acquisition; Capital Gains

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘A’ Bench, Hyderabad Before Shri Rama Kanta Panda, Accountant Member AND Shri Laliet Kumar, Judicial Member O R D E R Per Shri Rama Kanta Panda, A.M. The assessee through this Miscellaneous Application has requested the Tribunal to give appropriate direction by rectifying the apparent computational error or pass appropriate order as it deems proper. 2. The ld. Counsel for the assessee referring to the contents of the Miscellaneous Application drew the attention of the Bench to the same which read as under:- 1. The Hon'ble Tribunal vide order dated 29.07.2022 was pleased to dismiss the appeal of the Assessee in ITA.No.34/Hyd/2020 for AY.2016-17. With respect to the value of land surrendered in the Development Agreement, the Hon'ble Tribunal held that the value of Rs.47,46,000/- suggested by the Appellant/ Assessee, is without any basis and therefore cannot be accepted. It is submitted that M.A No.148/Hyd/2022 (in ITA No.34/Hyd/2020) Assessment Year: 2016-17 Smt. Naga Padmaja Vangara C/o. Shri A.V.Raghuram Advocate, Flat No.610 6 th Floor,Babukhan Estate Basheerbagh Hyderabad-500 001 PAN : AFVPV8238F Vs. ITO, Ward-11(3) Hyderabad (Appellant) (Respondent) Assessee by: Shri A.V.Raghuram, Advocate Revenue by : Shri A.G.V.Prasad, Sr.AR Date of hearing: 20.01.2023 Date of pronouncement: 30.01.2023 2 MA.No.148/Hyd/2022 the basis for arriving at the above amount is pleaded in the written submission filed before CIT(A) and placed as page 3 & 4 in paper book. In the course of hearing oral submission to this effect was made, but was not referred to by the Hon'ble Tribunal in the order. Therefore, the finding of the Hon'ble Tribunal is apparently incorrect. 2. It is submitted that the AO has arrived at the consideration of land surrendered by adopting the value of 40% of value adopted by the SRO for registering the Development Agreement, as the Appellant in lieu of 60% of land is getting 40% of constructed area in the proposed structure. However, the value adopted by the AO i.e., Rs.l,08,20,000 consists of value of land as well as value of structure. It is submitted that what the AO should do is to adopt 40% of total value of construction only, as the Appellant is receiving that in exchange for its land surrendered. The same is worked out for the convenience of the Hon'ble Tribunal: COMPUTATION OF LTCG Value of proposed structure as per SRO Rs. 1,91,40,000 Less: 40% of the above allotted to the Appellant Rs. 76,56,000 Value of 60% of land surrendered in the Dev. Agreement Rs. 76,56,000 Less:Indexed: Cost of acquisition of 60% of land surrendered Rs. 7,030 [Rs. 10,000 per acre* (791/4840) *(711/100)* (60%)] Long Term Capital Gains Rs.76,48,970 2. It is submitted that adoption of Rs.1,08,08,283 as long term capital gains as against LTCG of Rs.76,56,970 is apparent and computational error, which deserves to be rectified. It is prayed that the Hon'ble Tribunal may kindly consider the above facts and consider giving appropriate direction to rectify the apparent computational error, and pass such other order as the Hon'ble Tribunal deems fit and proper in the interest of justice. 3. Referring to para 15 of the order of the Tribunal, he submitted that the Tribunal has mentioned that the value of Rs.47,46,000/- argued by the ld.counsel for the assessee is without any basis and cannot be accepted. However, the same is incorrect and therefore, appropriate order be passed. 3 MA.No.148/Hyd/2022 4. The ld.DR on the other hand strongly opposed the Miscellaneous Application filed by the assessee. He submitted that there is absolutely no apparent error in the order of the Tribunal. The assessee through this Miscellaneous Application is requesting the Tribunal to modify/rectify its order which amounts to review of its own order by the Tribunal, which is not permissible in law. Referring to the decision of Hon’ble Supreme Court in the case of CIT vs. Reliance Telecommunication Ltd. reported in 440 ITR 1 (SC), he Submitted that any error in the order of the Tribunal either factual or legal can be set right only by the Hon’ble High Court and the assessee cannot take this plea in a Miscellaneous Application to rectify the same. 5. We have heard the rival arguments made by both the sides and perused the record. A perusal of the order of the Tribunal shows that as per the Development Agreement cum GPA, the builder share is 60% and the assessee being the land owner, his share is 40%. The AO had accordingly calculated the assessee’s share in the project at Rs.1,08,20,000/-. After reducing the indexed cost of acquisition at Rs. 11,717/-, the long term capital gain was computed at Rs. 1,08,08,283/-. When the ld.CIT(A) upheld the action of the AO, the assessee preferred an appeal before the Tribunal and after considering the arguments advanced by the assessee that the Development Agreement itself is for transfer of 60% of land and the assessee received 40% constructed area, came to the conclusion that the argument advanced by the assessee that the value comes to Rs.47,46,000/- is without any basis and cannot be accepted. Thus, there is absolutely no apparent error in the order of the Tribunal. The argument of the ld.counsel for the assessee, if accepted, will amount to review of its own order by the Tribunal, which is not permissible in law. 4 MA.No.148/Hyd/2022 6. We find the Hon’ble Supreme Court in the case of Reliance Telecommunication Ltd. (supra) has held that if the assessee is of the opinion that the order passed by the Tribunal is erroneous, either on facts or in law, in that case the only remedy available to the assessee is to prefer an appeal before the Hon’ble High Court. Since the Tribunal in the instant case has passed a detailed order, therefore, relying on the decision of Hon’ble Supreme Court cited (supra) and in absence of any apparent error being pointed out by the ld.counsel for the assessee in the order of the Tribunal, we do not find any merit in the Miscellaneous application filed by the assessee. Accordingly, the Miscellaneous Application filed by the assessee is dismissed. 7. In the result, the Miscellaneous Application filed by the assessee is dismissed. Order pronounced in the Open Court on 30 th January, 2023 Sd/- Sd/- (LALIET KUMAR) JUDICIAL MEMBER (RAMA KANTA PANDA) ACCOUNTANT MEMBER Hyderabad, dated 30 th January, 2023 Thirumalesh/sps Copy to: S.No Addresses 1 Smt. Naga Padmaja Vangara C/o. Shri A.V.Raghuram Advocate, Flat No.610, 6 th Floor,Babukhan Estate, Basheerbagh Hyderabad-500 001 2 ITO, Ward-11(3),Hyderabad 3 CIT(A)-5 Hyderabad 4 Pr.CIT-5, Hyderabad 4 DR, ITAT Hyderabad Benches 5 Guard File By Order