Smt. Vasanti A. Sangale, Satara V. Income-tax Officer,

MA 17/PUN/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4598 (ITAT-PUNE)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 11-01-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

] IQ.KS ] IQ.KS ] IQ.KS ] IQ.KS IQ.KS IQ.KSIQ.KS IQ.KS IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI R.K.PANDA, AM . / MA NO.15/PN/2016 (ARISING OUT OF ITA NO.315/PN/2012) ASSESSMENT YEAR : 2005-06 CHETAN A. SANGALE, SANGALE SADAN, 403, GURUWAR PETH, PALACE STREET, SATARA 415 502 PAN NO.BMPPS2047R . / APPLICANT V/S ITO (HQ) CIB, PUNE . / RESPONDENT . / MA NO.16/PN/2016 (ARISING OUT OF ITA NO.1674/PN/2011) ASSESSMENT YEAR : 2005-06 LATE ARVIND NARHAR SANGALE, SANGALE SADAN, 403, GURUWAR PETH, PALACE STREET, SATARA 415502 PAN NO.BYUPS4768L . / APPLICANT V/S ITO (HQ) CIB, PUNE . / RESPONDENT . / MA NO.17/PN/2016 (ARISING OUT OF ITA NO.1675/PN/2011) ASSESSMENT YEAR : 2005-06 SMT. VASANTI ARVIND SANGALE, SANGALE SADAN, 403, GURUWAR PETH, PALACE STREET, SATARA 415502 PAN NO.BYGPS6420R . / APPLICANT V/S ITO (HQ) CIB, PUNE . / RESPONDENT 2 MA NOS.15 TO 17/PN/2016 / APPLICANTS BY : SHRI SUNIL N. SANGLE / RESPONDENT BY : S SHRI S.K. RASTOGI, CIT / ORDER PER R.K.PANDA, AM : THE ABOVE ASSESSEES THROUGH THEIR RESPECTIVE MISCELLANEO US APPLICATIONS REQUEST THE TRIBUNAL TO RECALL OR RECTIFY THE ORDER OF THE TRIBUNAL ON THE GROUND THAT CERTAIN ERRORS HAVE CREPT IN THE SAID ORDER DUE TO ERRONEOUS TRANSLATION OF THE ORIGINAL DOCUMENTS WH ICH WERE RELIED UPON IN THE SAID PROCEEDINGS. FOR THE SAKE OF CONV ENIENCE THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDE R. 2. FIRST WE TAKE UP M.A.NO.15/PN/2016 IN THE CASE OF SH RI CHETAN ARVIND SANGALE. FACTS OF THE CASE IN BRIEF, ARE THAT IN THI S CASE THE ASSESSEE HAS PURCHASED PROPERTY ON 09-12-2004 FOR A CONSIDERATION OF RS.71,66,500/-. DURING THE COURSE OF ASSESSMENT PROCEED INGS, THE ASSESSEE FURNISHED A COPY OF THE DEED DATED 08-12-2004 AND A RECTIFICATION DEED DATED 04-01-2005 STATING THAT THE PRO PERTY WAS PURCHASED BY 5 PERSONS INCLUDING THE ASSESSEE. IT WAS SUBMITTED THAT THE PROPERTY WAS SOLD BY SMT. KUSUM NAHAR SANGLE TO HE R TWO SONS NAMELY SHRI SUBHASH N. SANGLE, SHRI ARVIND N. SANGLE, ONE GR ANDSON NAMELY CHETAN ARVIND SANGLE (ASSESSEE), DAUGTHERS-IN-LAW, S MT. MADHURI SUBHASH SANGLE AND SMT. VASANTI ARVIND SANGLE. TH E AO NOTED FROM CLAUSE 5 OF THE ORIGINAL DEED DATED 08-12-2004 THAT THE CONSIDERATION SHOWN IN THE DOCUMENT FOR TRANSFER OF THE P ROPERTY TO THE ABOVE 5 PERSONS WAS RS.25 LAKHS. SUBSEQUENTLY, IN THE R ECTIFICATION & / DATE OF HEARING : 08.07.2016 & / DATE OF PRONOUNCEMENT:14.07.2016 3 MA NOS.15 TO 17/PN/2016 DEED EXECUTED ON 04-01-2005 THE SALE CONSIDERATION WAS REVISED TO RS.71,67,000/- STATING THAT THE SALE CONSIDERATION WAS WRO NGLY MENTIONED AT RS.25 LAKHS IN THE ORIGINAL DEED DATED 08-12- 2004. HE FURTHER OBSERVED THAT AS PER CLAUSE 5 OF THE RECTIFICATION DEED, ONLY THE BALANCE CONSIDERATION OF RS.46,67,000/- WAS MENTIONED TO BE PAID BY THE 5 BUYERS INCLUDING THE ASSESSEE AFTER 10 YEARS FROM THE DATE OF EXECUTION OF THE RECTIFICATION DEED AS THE TRANSACTION IS B ETWEEN THE MOTHER AND 2 SONS, GRAND SON AND 2 DAUGHTERS-IN-LAW. IN VIEW OF THE ORIGINAL DEED AS WELL AS THE RECTIFICATION DEED, THE AO INFERR ED THAT THE AMOUNT OF RS.25 LAKHS WHICH WAS THE CONSIDERATION STATED IN THE ORIGINAL DOCUMENTS HAS ALREADY BEEN PAID BY THE 5 BUYERS INCLUDING THE ASSESSEE AS ON THE DATE OF THE RECTIFICATION DEED. SINCE THERE ARE 5 BUYERS, THE SHARE OF EACH BUYER COMES TO RS.5 LAKHS. THE AO, THEREFORE, REJECTING THE EXPLANATION GIVEN BY THE ASSESSE E HELD THAT THE ASSESSEE HAS PAID RS.5 LAKHS TOWARDS PURCHASE OF THE PR OPERTY WHICH HE ADDED TO HIS TOTAL INCOME. WHILE DOING SO, HE HAD REJE CTED THE AFFIDAVIT FILED FROM THE VENDOR THAT SHE HAD RECEIVED ONLY A N AMOUNT OF RS.10 LAKHS OUT OF THE TOTAL CONSIDERATION OF RS.71,67,000/-. 3. IN APPEAL THE LD.CIT(A) UPHELD THE ADDITION OF RS.5 LAKHS MADE BY THE AO AND ON FURTHER APPEAL THE TRIBUNAL AT PARA 10 TO 10.4 OF THE ORDER DISCUSSED THE ISSUE AND UPHELD THE ADDITION MADE B Y THE AO. WHILE DOING SO, THE TRIBUNAL HAS CONSIDERED THE ENGLISH TRAN SLATION OF THE RECTIFICATION DEED FILED BY THE ASSESSEE AND CAME TO T HE CONCLUSION THAT OUT OF THE TOTAL CONSIDERATION OF RS.71,67,000/- AN A MOUNT OF RS.25 LAKHS HAS ALREADY BEEN PAID SINCE AS PER PARA NO.5 ONLY AN AMOUNT OF RS.46,67,000/- IS OUTSTANDING AS ON 04-01-2005 . SINCE THE ASSESSEES SHARE COMES TO RS. 5 LAKHS BEING 1/5 TH OF THE SHARE THE TRIBUNAL CONFIRMED THE ORDER OF THE CIT(A). 4 MA NOS.15 TO 17/PN/2016 4. NOW THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATION SUBMITS THAT ONLY AN AMOUNT OF RS.10 LAKHS WAS PAID AND RS.25 LAKHS WAS NEVER PAID. IT HAS BEEN SUBMITTED THAT A PERUSAL O F THE MARATHI DOCUMENT WOULD MAKE IT ABSOLUTELY CLEAR THAT THIS IS A MISREPRESENTATION OF THE CLAUSE OF THE AGREEMENT BY THE AO AS WELL AS THE CIT(A). IT IS STATED IN THE SAID MISCELLANEOUS APPLICATION THAT THE AMOUNT OF RS.25 LAKHS WAS NEVER PAID BY THE PURCHASER. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT A PERUSAL OF THE ORIGINAL DEED WOULD REVEAL THAT IN THE SCHEDULE OF PAYMENTS, THE BALANCE PAYMENTS WERE TO BE MADE FIRSTLY ON THE COMPLETION OF 15 DAYS, I.E . ON 23-12- 2005 FOR A SUM OF RS. 5 LAKHS ONLY. THE NEXT PAYMENT AS PER SCHEDULE WAS TO BE MADE ON 07-01-2006 AFTER COMPLETION OF 30 DAY S OF THE EXECUTION OF THE ORIGINAL SALE DEED. THE RECTIFICATION DEED W AS EXECUTED ON 04-01-2005. THUS, ON THAT DATE, THE ONLY AMOUNT TH AT WAS PAID WAS THE ORIGINAL AMOUNT MENTIONED IN THE SALE DEED AND A LL FURTHER AMOUNTS WERE TO BE PAID AT A LATER DATE. ALL THE OTHER T ERMS AND CONDITIONS OF THE ORIGINAL SALE DEED HAVE BEEN LEFT INTACT AND HAVE NOT BEEN ALTERED. THE FIGURE OF RS.46,67,000/- WHICH WAS MENTIO NED AS BALANCE TO BE PAID WAS IN ADDITION TO THE TERMS ALREADY A GREED UPON. HENCE, THE ENTIRE PAYMENT WHICH WAS BALANCES WAS TO BE MADE AT A LATER DATE. THEREFORE, IT IS AN ERROR TO HOLD THAT THE PU RCHASERS HAD PAID AN AMOUNT OF RS. 25 LAKHS WITHOUT ACCOUNTING FOR THE SAME AND CONSEQUENTLY IT WAS AN ERROR TO ATTRIBUTE PAYMENT OF R S.5 LAKHS AS PROPORTIONATE SHARE OF THE SAID PAYMENT TO THE ASSESSE E. HE ACCORDINGLY SUBMITTED THAT THE ORDER OF THE TRIBUNAL BE MODIFIED OR RECALLED FOR FRESH HEARING. 5 MA NOS.15 TO 17/PN/2016 5. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND SUBMITTED THAT THE TRIBUNAL HAS PROPERLY APPRECIATED TH E FACTS OF THE CASE AND HAS TAKEN A CONSCIOUS DECISION. NOW THE ASSES SEE IS TRYING TO PERSUADE THE TRIBUNAL TO RECTIFY ITS OWN ORDER WHICH AMO UNTS REVIEW OF ITS OWN ORDER, WHICH IS NOT PERMISSIBLE IN LAW. HE ACCORDIN GLY SUBMITTED THAT THE MISCELLANEOUS APPLICATION FILED BY THE ASS ESSEE SHOULD BE DISMISSED. 6. AFTER HEARING BOTH THE SIDES AND CONSIDERING THE CONT ENTS OF THE MISCELLANEOUS APPLICATION, WE FIND THE ASSESSEE ALONG WITH 4 P ERSONS HAD PURCHASED A PROPERTY FROM SMT. KUSUM NAHAR SANGALE (GRAND MOTHER) FOR A CONSIDERATION OF RS.25 LAKHS AS PER SALE DEED DATED 08- 12-2004 WHICH WAS SUBSEQUENTLY RECTIFIED ON 04-01-2005 WHEREIN THE SALE CONSIDERATION WAS REVISED TO RS.71,67,000/-. AS PER C LAUSE 5 OF THE RECTIFICATION DEED, ONLY THE BALANCE CONSIDERATION OF RS .46,67,000/- WAS MENTIONED TO BE PAID BY THE 5 BUYERS INCLUDING THE A SSESSEE AFTER 10 YEARS FROM THE DATE OF EXECUTION OF THE RECTIFICATION D EED. ACCORDINGLY, IT WAS HELD THAT THE ORIGINAL AMOUNT OF RS.25 LA KHS HAS BEEN PAID BY THE ASSESSEE AND THE OTHER CO-PURCHASER S. SINCE THE ASSESSEES SHARE COMES TO RS.5 LAKHS BEING 1/5 TH OF THE SHARE, THE ADDITION MADE BY THE AO AND UPHELD BY THE CIT(A) WAS CONFIRMED. 7. NOW THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATION REQUESTS THE TRIBUNAL TO MODIFY OR RECALL THE ORDER ON THE GROUND THAT THE OBSERVATIONS THAT RS.25 LAKHS HAS BEEN PAID IS ON AC COUNT OF WRONG APPRECIATION OF FACTS. WE FIND THE TRIBUNAL AFTER CONSIDERING THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE AND THE MATERIAL AVAILA BLE ON RECORD HAD COME TO A CLEAR CUT CONCLUSION THAT THE AMO UNT OF RS.25 LAKHS AS PER THE ORIGINAL DEED WAS PAID BY THE PURCHASER S TO THE 6 MA NOS.15 TO 17/PN/2016 VENDOR. THE REQUEST OF THE ASSESSEE THROUGH THIS MISCE LLANEOUS APPLICATION TO EITHER RECALL THE ORDER OR MODIFY THE ORDE R AMOUNTS TO REVIEW OF ITS OWN ORDER BY THE TRIBUNAL WHICH IS NOT PERMIS SIBLE IN LAW. WE THEREFORE HOLD THAT THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DEVOID OF ANY MERIT AND ACCORDINGLY THE SAME IS DISMISSED. M.A NO.16/PN/2016 LATE SHRI ARVIND N. SANGALE : M.A NO.17/PN/2016 SMT. VASANTI A. SANGALE : 8. IDENTICAL SUBMISSIONS HAVE BEEN MADE IN THE ABOVE TWO MISCELLANEOUS APPLICATIONS BY THE RESPECTIVE ASSESSEES WHO ARE THE CO- PURCHASERS. IN VIEW OF OUR DISCUSSION IN THE PRECEDING PA RAGRAPHS, THE ABOVE 2 MISCELLANEOUS APPLICATIONS FILED BY THE RESPECTIVE ASSESSEES A RE ALSO DISMISSED. 9. IN THE RESULT, ALL THE THREE MISCELLANEOUS APPLICATIONS FILE D BY THE RESPECTIVE ASSESSEES ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14-07-2016. SD/- SD/- ( SUSHMA CHOWLA ) ( R.K. PANDA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER IQ.KS PUNE ; , DATED : 14 TH JULY, 2016. LRH'K ' # / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A) CENTRAL, PUNE 4. THE CI T - I II , PUNE 5. 3 667 , & 7 , IQ.KS / DR, ITAT, A PUNE; 6. : / GUARD FILE. / BY ORDER , 3 6 //TRUE COPY// <= 6 7 / SR. PRIVATE SECRETARY & 7, IQ.KS / ITAT, PUNE