Shri. Antony Parakal Kurian , Bangalore V. Assistant Commissioner of Income TAx Circle-5(3)(1), Bangalore

MA 163/BANG/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2562 (ITAT-BANGALORE)
• Duration Of Justice: 6 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-06-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 11-12-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R PREMI J
• Assessee Lawyers: B R SUDHEENDRA
• Keywords: Capital Gains
• Section: 54F; 254(2); 22; 54

Judgement Text

PAGE 1 OF 5 MP NO.163/BANG/2020 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI. B.R BASKARAN, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER MP NO.163/BANG/2020 (IN ITA 1576/BANG/2018) ASSESSMENT YEAR : 2013-14 SRI. ANTONY PARAKAL KURIAN, 3E, ORCHARD GREEN, OFF INNER RING ROAD, BENGALURU-560 071. PAN AFMPK3991B VS. ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-5(3)(1), BENGALURU. APPELLANT RESPONDENT A SSESSEE BY : SHRI B.R. SUDHEENDRA, CA RE VENUE BY : SMT R.PREMI, JCIT(DR) DATE OF HEARING : 19 - 02 - 202 1 DATE OF PRONOUNCEMENT : 22 - 06 - 202 1 ORDER PER BEENA PILLAI, JUDICIAL MEMBER PRESENT MISCELLANEOUS PETITION HAS BEEN F ILED BY ASSESSEE SEEKING MISTAKE APPARENT ON RECORD THAT IS ARISEN I N THE ORDER PASSED BY THIS TRIBUNAL DATED 06/11/2020. PAGE 2 OF 5 MP NO.163/BANG/2020 2. THE LD.SR.DR SUBMITTED THAT THIS TRIBUNAL WHILE CONSIDERING ISSUE NO. 2 IN PARAGRAPH 5.3.2.2 REMANDED THE ELIG IBILITY OF RS.60 LAKH BACK TO THE FILE OF LD.CIT (A) UNDER SECTION 5 4 OF THE ACT. IT HAS BEEN SUBMITTED THAT THE BALANCE AMOUNT OF RS. 90 LA KH REMAINED TO BE DECIDED FOR WHICH NO DIRECTION IS IVEN BY THIS TRIBUNAL IN THE IMPUGNED ORDER. 3. WE HAVE PERUSED THE SUBMISSIONS ADVANCED BY LD.A R IN THE LIGHT OF THE ORDER PASSED BY THIS TRIBUNAL DATED 06/11/2020. 4. WE NOTE THAT ASSESSEE HAD EARNED CAPITAL GAINS O F RS.1,90,00,000/-ON 08/12/2011. ASSESSEE TOOK LOAN T OWARDS PURCHASE OF NEW HOUSE IN THE NAME OF HIS WIFE ON 18 /04/2012 IN WHICH RS.60,00,000/- WAS PAID ON BEHALF OF HIS WIF E TOWARDS PURCHASE OF THE NEW ASSET IN BANGALORE. 5. WE NOTE THAT ON THIS ISSUE IN PARA 5.3.2.1 THIS TRIBUNAL OBSERVED THAT, BENEFIT IN RESPECT OF RS.40 LACS PAI D AS ADVANCE HAS BEEN GIVEN BY THE LD.CIT(A) IN ITS ORDER DATED 01/0 3/2018. THIS TRIBUNAL REMANDED THE ELIGIBILITY OF RS.60 LAKH TO BE DECID ED BY THE LD.CIT(A), WE NOTE THAT BALANCE AMOUNT OF RS. 90 LA KHS WAS NOT REMANDED TO THE LD.CIT(A). 6. ACCORDINGLY WE DIRECT THE LD. CIT (A) TO DECIDE REGARDING ELIGIBILITY OF RS. 90 LAKHS ALSO UNDER SECTION 54 O F THE ACT. ACCORDINGLY THE 1 ST & 2 ND ISSUE RAISED BY THE LD.AR IN THE MISCELLANEOUS PETITION STANDS ALLOWED. 7. THE 3 RD ISSUE ALLEGED BY THE LD.AR IS REGARDING THE DISALLOWANCE OF CLAIM UNDER SECTION 54F WHICH HAS B EEN STATED TO BE AN INCORRECT PROVISION OF LAW CONSIDERED. PAGE 3 OF 5 MP NO.163/BANG/2020 8. WE NOTE THAT THIS ISSUE HAS BEEN REMANDED TO THE LD.CIT(A) AND NO PREJUDICE IS CAUSED TO THE ASSESSEE AND THER EFORE THAT DOES NOT AMOUNT TO MISTAKE APPARENT ON RECORD. ACCORDINGLY THIS ISSUE RAISED BY ASSESSEE STANDS DI SMISSED. 9. THE NEXT ISSUE RAISED BY ASSESSEE IS IN RESPECT OF DISALLOWANCE OF EXEMPTION UNDER SECTION 54F. 10. WE NOTE THAT THIS TRIBUNAL DENIED THE EXEMPTION UNDER SECTION 54F BY FOLLOWING DECISION OF HONBLE KARNATAKA HIGH COURT IN CASE OF CIT VS MJ SIWANI REPORTED IN (2014) 46 TAXMANN.COM 170 . 11. THE HONBLE KARNATAKA HIGH COURT IN CASE OF CIT VS MCDOWELL AND CO LTD. REPORTED IN (2009) 310 ITR 215 FOLLOWING THE DECISION OF HONBLE SUPREME COURT IN CASE OF HONDA SIEL POWER PRODUCTS LTD. VS CIT REPORTED IN (2007) 295 ITR 466 HAS HELD THAT THE POWER UNDER SECTION 254 (2) OF THE ACT CANNOT BE EXERCISED SO A S TO REVIEW ORDER PASSED BY THE TRIBUNAL . HONBLE COURT HELD THAT APPLICATION OF PRINCIPLES LAID DOWN BY THE SUPERIOR COURTS TO THE FACTS OF THE CASE EVEN ON AN ERRONEOUS UNDERSTANDING OF SUCH PRINCIPL ES, ON RECORDING OF AN ERRONEOUS FINDING BY THE TRIBUNAL BASED ON FACTS ON RECORD OR FORMATION OF A CONCLUSION ON ERRONEOUS AP PLICATION OF PROVISION OF LAW TO THE FACTS OF A CASE, ETC., CANN OT BE HELD TO BE A MISTAKE APPARENT FROM RECORD WARRANTING RECTIFICATI ON BY THE TRIBUNAL IN EXERCISE OF ITS POWER UNDER SECTION 254 (2) OF THE ACT. THE ISSUES HAS BEEN DECIDED ON MERITS BY FOLLOWING THE VIEW OF HONBLE KARNATAKA HIGH COURT BEING THE JURISDICTION AL HIGH COURT. TO RECONSIDER THIS ISSUE FALLS OUT OF THE PURVIEW O F PROVISIONS U/S 254(2) OF THE ACT AND IS BEYOND THE SCOPE OF SECTIO N 254(2). PAGE 4 OF 5 MP NO.163/BANG/2020 ACCORDINGLY THIS ISSUE RAISED BY ASSESSEE STANDS DI SMISSED. IN THE RESULT MISCELLANEOUS PETITION FILED BY ASSES SEE STANDS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 22 ND JUNE 2021 SD/- SD/- (B.R BASKARAN) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL MEM BER BANGALORE, DATED, THE 22 ND JUNE, 2021. /VMS/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE PAGE 5 OF 5 MP NO.163/BANG/2020 DATE INITIAL 1. DRAFT DICTATED ON ON DRAGON SR.PS 2. DRAFT PLACED BEFORE AUTHOR -6-2021 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER -6-2021 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. -6-2021 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS -6-2021 SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON -6-2021 SR.PS 7. DATE OF UPLOADING THE ORDER ON WEBSITE -6-2021 SR.PS 8. IF NOT UPLOADED, FURNISH THE REASON -- SR.PS 9. FILE SENT TO THE BENCH CLERK -6-2021 SR.PS 10. DATE ON WHICH FILE GOES TO THE AR 11. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 12. DATE OF DISPATCH OF ORDER. 13. DRAFT DICTATION SHEETS ARE ATTACHED NO SR.PS