Income TAx officer Ward-5(3)(2), Bangalore V. Sri Mahesh Suryanarayanan Lingam , Bangalore

MA 172/BANG/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6850 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-07-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 26-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: LOKESH JAIN
• Section: 54F

Judgement Text

MP.172/BANG/2018 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BENGALURU BENCH 'A', BENGALURU BEFORE SHRI. JASON P BOAZ, ACCOUNTANT MEMBER AND SHRI. LALIET KUMAR, JUDICIAL MEMBER MISC.PETITION NO.172/BANG/2018 (IN I.T.A NO.2092/BANG/2017) (ASSESSMENT YEAR : 2013-14) INCOME-TAX OFFICER, WARD -5(3)(2), BENGALURU .. APPLICANT V. SHRI. MAHESH SURYANARAYANA LINGAM, NO.53, PRAGATHI, 6 TH CROSS, PAI LAYOUT, HULIMAVU MAIN ROAD, BENGALURU 560 076 .. RESPONDENT PAN : ADJPM3492N ASSESSEE BY : SHRI. LOKESH JAIN, CA REVENUE BY : SHRI. B. R. RAMESH, JCIT HEARD ON : 20.07.2018 PRONOUNCED ON : 31.07.2018 O R D E R PER LALIET KUMAR, JUDICIAL MEMBER : THE PRESENT MISCELLANEOUS APPLICATION IS FILED BY THE REVENUE SEEKING RECTIFICATION OF THE ORDER OF THE TRIBUNAL IN ITA.2092/BANG/2017, DT.16.03.2018, FOR THE ASSESSME NT YEAR 2013- 14. MP.172/BANG/2018 PAGE - 2 02. THE LD. DR HAS SUBMITTED THAT THE CONSISTS OF A FACTUAL ERROR IN THE ORDER AS UNDER : I) THE RETURN OF INCOME OF THE ASSESSEES WIFE, NAM ELY SUDHA MAHESH WAS NOT BEFORE THE TRIBUNAL. HOWEVER THE SA ME WAS FORMING PART OF THE ORDER PASSED BY THE LOWER AUTHO RITIES. THEREFORE THIS ERROR WAS THE BASIS OF PASSING THE ORDER. MOR E PARTICULARLY, PARA 12 OF THE IMPUGNED ORDER OF THE TRIBUNAL. II) IT WAS SUBMITTED THAT THE TRIBUNAL HAD NOT ADJU DICATED THE ISSUE OF INVESTMENT MADE BY THE ASSESSEE IN COMMERC IAL PROPERTY. 03. ON THE OTHER HAND THE LD. AR HAS SUBMITTED THAT THE ORDER PASSED BY THE TRIBUNAL IS CORRECT AND THERE IS NO F ACTUAL ERROR. 04. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE PRINCIPLE OF RECTIFICATION APPLICATION U/S.254( 2) OF THE ACT HAS BEEN SUCCINCTLY EXPLAINED BY THE HONBLE SUPREME CO URT IN THE MATTER OF ACIT V. SAURASHTRA KUTCH STOCK EXCHANGE L TD [173 TAXMANN.COM 322], WHEREIN IT IS HELD AS UNDER : 37. IN OUR JUDGMENT, THEREFORE, A PATENT, MANIFEST AND SELF-EVIDENT ERROR WHICH DOES NOT REQUIRE ELABORATE DISCUSSION O F EVIDENCE OR ARGUMENT TO ESTABLISH IT, CAN BE SAID TO BE AN ERRO R APPARENT ON THE FACE OF THE RECORD AND CAN BE CORRECTED WHILE EXERCISING CERTIORARI JURISDICTION. AN ERROR CANNOT BE SAID TO BE APPARENT ON THE FACE OF THE RECORD IF ONE HAS TO TR AVEL BEYOND THE RECORD TO SEE WHETHER THE JUDGMENT IS CORRECT OR NO T. AN ERROR APPARENT ON THE FACE OF THE RECORD MEANS AN ERROR W HICH STRIKES ON MERE LOOKING AND DOES NOT NEED LONG-DRAWN-OUT PROCE SS OF REASONING ON POINTS WHERE THERE MAY CONCEIVABLY BE TWO OPINIONS. SUCH ERROR SHOULD NOT REQUIRE ANY EXTRANEOUS MATTER TO SHOW ITS INCORRECTNESS. TO PUT IT DIFFERENTLY, IT SHOULD BE SO MANIFEST AND CLEAR THAT NO COURT WOULD PERMIT IT TO REMAIN ON RECORD. IF THE VIEW ACCEPTED BY THE COURT IN THE ORIGINAL JUDGMENT IS O NE OF THE POSSIBLE MP.172/BANG/2018 PAGE - 3 VIEWS, THE CASE CANNOT BE SAID TO BE COVERED BY AN ERROR APPARENT ON THE FACE OF THE RECORD. 38. THOUGH THE LEARNED COUNSEL FOR THE ASSESSEE SUBMIT TED THAT THE PHRASE 'TO RECTIFY ANY MISTAKE APPARENT FROM THE RE CORD' USED IN SECTION 254(2) (AS ALSO IN SECTION 154) IS WIDER IN ITS CONTENT THAN THE EXPRESSION 'MISTAKE OR ERROR APPARENT ON THE FACE O F THE RECORD' OCCURRING IN RULE 1 OF ORDER 47 OF THE CODE OF CIVI L PROCEDURE, 1908 [VIDE KIL KOTAGIRI TEA & COFFEE ESTATES CO. LTD. V. ITAT [1988] 174 ITR 579 (KER.)] , IT IS NOT NECESSARY FOR US TO ENTER INTO THE SAID QUESTION IN THE PRESENT CASE. 39. AS STATED EARLIER, THE DECISION WAS RENDERED IN AP PEAL BY THE INCOME-TAX APPELLATE TRIBUNAL, RAJKOT. MISCELLANEOU S APPLICATION CAME TO BE FILED BY THE ASSESSEE UNDER SUB-SECTION (2) OF SECTION 254 OF THE ACT STATING THEREIN THAT A DECISION OF THE ' JURISDICTIONAL COURT', I.E., THE HIGH COURT OF GUJARAT IN HIRALAL BHAGWATI'S CASE (SUPRA) WAS NOT BROUGHT TO THE NOTICE OF THE TRIBUN AL AND THUS THERE WAS A 'MISTAKE APPARENT FROM RECORD' WHICH REQUIRED RECTIFICATION. IF WE LOOK INTO THE APPLICATION FILED BY THE REVENU E, THOUGH THERE IS A REFERENCE OF FILING OF RETURN OF INCOME OF THE AS SESSEES WIFE, BUT THE REVENUE HAS NOT BROUGHT ON RECORD COPY OF THE R ETURN OF INCOME FILED BY THE ASSESSEES WIFE. FURTHER IN THE DECIS ION, THE TRIBUNAL HAS GIVEN IN DETAILS OF TRAILS OF THE INVESTMENT MA DE BY THE ASSESSEE BY ROUTING IT FROM THE ACCOUNT OF HIS WIFE, WHICH I S MENTIONED IN PARA 10 AND 11 OF THE ORDER. THE TRIBUNAL AT VARIO US PLACES HAD MENTIONED THAT IT IS NOT THE SAME AMOUNT FOR WHICH THE ASSESSEES WIFE HAD CLAIMED THE EXEMPTION U/S.54F. ADMITTEDLY THE ASSESSEE, HIS WIFE AND OTHERS HAD A SHARE IN THE RESIDENTIAL AND COMMERCIAL PROPERTY, SOLD BY THEM. THEREFORE IN LAW HUSBAND A S WELL AS THE WIFE AND OTHERS WERE ENTITLED TO CLAIM THE BENEFIT U/S.54F, EVEN IN CASES WHEN WIFE INVESTS IN THE HOUSING PROPERTY BY TAKING LOAN FROM THE FINANCIAL INSTITUTION. IN THE PRESENT CASE, TH E WIFE HAD INVESTED MORE THAN RS.75 LAKHS IN BUYING THE HOUSEHOLD PROPE RTY ALONG WITH MP.172/BANG/2018 PAGE - 4 HER HUSBAND IN THE JOINT NAMES BY TAKING LOAN FROM THE FINANCIAL INSTITUTION, BESIDES INVESTMENT OF AFORESAID SUM B Y HUSBAND . THEREFORE THE WIFE WAS EQUALLY ENTITLE TO CLAIM 54F SEPARATELY ALONG WITH HER HUSBAND (ASSESSEE) HENCE THERE IS NO ERROR IN THE ORDER PASSED BY THE TRIBUNAL. 05. SECONDLY, THE GRIEVANCE OF THE REVENUE, THAT TH E TRIBUNAL HAS NOT DEALT WITH THE INVESTMENT MADE IN THE COMMERCIA L PROPERTY, IS ALSO NOT CORRECT. 06. IN THIS REGARD, IT WILL BE SUFFICE TO STATE THA T ONCE THE ASSESSEE IS ENTITLED TO THE BENEFIT U/S.54 AND 54F OF THE AC T, THEN THERE IS NO NECESSITY FOR ADJUDICATING THIS ISSUE SEPARATELY AS IT WAS SUBSUMED IN THE ADJUDICATION OF CLAIM OF HUSBAND IN RESIDENT IAL PROPERTY. HOWEVER, NONETHELESS, ONCE THE TRIBUNAL HAD HELD TH AT THE ASSESSEE HAD MADE AN INVESTMENT OF RS.21,96,025/- OUT OF THE TOTAL SUM RECEIVED BY THE ASSESSEE AFTER SELLING THE PROPERTY FOR A SUM OF RS.64,99,999/- AND IT IS NOT THE CLAIM OF THE ASSES SEE THAT ANY OTHER AMOUNT WAS MADE BY HIM IN THE RESIDENTIAL PROPERTY AND THEREFORE SEQUETOR OF THIS WOULD BE THAT REMAINING AMOUNT W AS INVESTED IN THE COMMERCIAL PROPERTY. HENCE THERE IS NO ERROR IN THE DECISION 07. IN THE RESULT MP FILED BY THE REVENUE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST DAY OF JULY, 2018. SD/- SD/- (JASON P. BOAZ) ( LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER BENGALURU DATED : 31.07.2018 MP.172/BANG/2018 PAGE - 5 MCN* COPY TO: 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE COMMISSIONER OF INCOME-TAX 4. COMMISSIONER OF INCOME-TAX(A) 5. DR 6. GF, ITAT, BANGALORE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.