SANJAY BALKRISHNA SHETTY, V. ITO WD 5(1)(4),

MA 193/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0898 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 20-09-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 29-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Keywords: Source of fund
• Section: 80C

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND RAJENDRA (AM) . . , , M.A NO.193/MUM/2013 (ARISING OUT OF ITA NO.7326/MUM/2011) ASSESSMENT YEAR: 2008-09 SANJAY BALKRISHNA SHETTY FLAT NO.1702, A-WING, ROYAL RESIDENCY, CHIVDA GALLY, PAREL, MUMBAI-400012. / VS. INCOME TAX OFFICER WARD 5(1)(4), ROOM NO.569, 5 TH FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 ./ ./PAN/GIR NO. : AMLPS5393K ( # / APPLICANT ) .. ( $ # / RESPONDENT) # / APPLICANT BY : SHRI VIJAY MEHTA $ # & /RESPONDENT BY : SHRI SURENDRA KUMAR & ) / DATE OF HEARING : 20.9.2013 & ) /DATE OF PRONOUNCEMENT : 25.9.2013 / O R D E R PER B.R.MITTAL,JM: BY THIS MISCELLANEOUS APPLICATION THE ASSESSEE HAS STATED THAT THE TRIBUNAL MAY MODIFY PARAS 11 AND 12 OF THE ORDER DATED 5.4.2013 PASSED BY THE TRIBUNAL IN ITA NO.7326/MUM/2011 FOR ASSESSMENT YEAR 2008-09. 2. IN THE APPLICATION, THE ASSESSEE HAS STATED FACT S OF THE CASE AND THEREAFTER, THE ASSESSEE HAS STATED THAT THE TRIBUNAL HAS PROCEEDED ON WRONG FACTS WHICH AMOUNTS TO A MISTAKE APPARENT FROM THE RECORD AND IN THIS RESPEC T, THE ASSESSEE HAS STATED A PART OF PARA 11 IN PARAS 7 AND 8 OF THE APPLICATION. THAT THE ASSESSEE HAS STATED THAT THE CASES RELIED UPON BY THE ASSESSEE AT THE TIME OF HE ARING, THE REFERENCE OF WHICH HAVE BEEN GIVEN BY THE TRIBUNAL IN PARA 5 AT PAGE 4 OF THE IMPUGNED ORDER HAVE NOT BEEN CONSIDERED PROPERLY. IT HAS RESULTED INTO CONTRAD ICTORY FINDINGS BY THE TRIBUNAL. APART FROM IT, THE ASSESSEE HAS ALSO MENTIONED SOME TYPOG RAPHICAL MISTAKES IN THE ORDER VIZ. IN LINE 8 AT PAGE 8 OF PARA 11 I.E. THE WORD HAS BE EN MENTIONED IS USE INSTEAD OF US. SIMILARLY, IN LINE 18 AT PAGE 8 THE WORD USED AS HOUSE INSTEAD OF STATING HOUSING LOAN. M.A NO.213/MUM/2013 2 3. AT THE TIME OF HEARING, LD. AR READ CONTENTS OF THE MISCELLANEOUS APPLICATION AND SUBMITTED THAT THE FINDINGS OF THE TRIBUNAL IS NOT BASED ON CORRECT APPRECIATION OF FACTS AND THEREFORE THE SAID ORDER BE RE-CALLED. LD. A R MADE HIS SUBMISSIONS AT LENGTH BY READING THE ORDER OF THE TRIBUNAL AND ALSO REFERRED THE CASES VIZ. MRS. PREMA P.SHAH V/S ITO (100 ITD 60) (MUM), LALIT MARDA V/S ACIT (23 SO T 250) (KOL) AND BOMBAY HOUSING CORPORATION V/S ACIT (81 ITD 545) (MUM) AND STATED THAT THE SAID CASES ARE REFERRED TO BY THE TRIBUNAL IN THE ORDER BUT THEY HAVE NOT B EEN DISTINGUISHED CORRECTLY AND HAVE ALSO NOT BEEN APPLIED BY APPRECIATION OF CORRECT FACTS. HE SUBMITTED THAT THE TRIBUNAL HAS MENTIONED THAT IT AGREES WITH THE PROPOSITION LAID DOWN IN THE ABOVE CASES THAT SOURCE OF FUNDS IS IRRELEVANT BUT WHILE GIVING ITS FINDINGS, THE TRIBUNAL HAS NOT APPLIED THE SAID PROPOSITION AND IN THE PENULTIMATE SENTEN CE IT IS STATED THAT THE SOURCE OF FUND WAS IRRELEVANT WAS NOT ACCEPTABLE. AT THE TIME OF HEARING, THE ATTENTION OF LD. AR WAS DRAWN THAT IF THE PROPOSITION LAID DOWN IN THE GIVE N SAID CASES, CITED IN THE ORDER AS WELL AS APPLICATION ARE CONSIDERED ON THE BASIS OF THE FACTS OF THE CASE OF THE ASSESSEE BEFORE US, THERE IS NO CONTRADICTION AND THE ASSESS EE HAS PICKED UP SOME SENTENCES FROM THE ORDER OF THE TRIBUNAL TO POINT OUT THAT T HERE IS A CONTRADICTION BUT THE TRIBUNAL HAS GIVEN FINDINGS STATING THAT THE ARGUMENTS OF TH E LD. REPRESENTATIVE OF THE ASSESSEE THAT SOURCE OF FUND WAS IRRELEVANT WAS NOT ACCEPTAB LE ON THE BASIS OF FACTS OF THE ASSESSEE BEFORE IT. THEREFORE, THERE IS NO CONTRADICTION AS FAR AS FI NDINGS ON MERITS ARE CONCERNED. 4. LD. DR SUBMITTED THAT THE ASSESSEE BY THIS APPLI CATION WANTS TO REVIEW OF THE ORDER WHICH IS OUTSIDE THE PURVIEW OF SECTION 254 (2) OF THE ACT. 5. ON CAREFUL CONSIDERATION OF THE SUBMISSIONS OF T HE LD. AR AND THE CONTENTS OF THE MISCELLANEOUS APPLICATION FILED IN THE LIGHT OF TH E ORDER PASSED BY THE TRIBUNAL, WE AGREE WITH LD. DR THAT THERE IS NO MISTAKE IN THE O RDER OF TRIBUNAL (EXCEPT SOME TYPOGRAPHICAL MISTAKES, BUT THEY HAVE NO BEARING O N THE ISSUE ADJUDICATED AND THE CONCLUSION/FINDINGS GIVEN BY THE TRIBUNAL) AND THE ASSESSEE BY THIS APPLICATION WANTS REVIEW OF THE ORDER OF THE TRIBUNAL DATED 5.4.2013 WHICH IS OUTSIDE THE PURVIEW OF SECTION 254(2) OF THE ACT. WE OBSERVE THAT THE TR IBUNAL HAS GIVEN CATEGORICAL FINDINGS IN PARAS 11 AND 12 THAT AFTER CONSIDERING THE FAC TS OF THE CASE OF THE ASSESSEE BEFORE US, THE SOURCE OF FUND UTILIZED BY THE ASSESSEE FOR PURCHASE OF NEW HOUSE IS NOT ACCEPTABLE CONSIDERING THE FACTS THAT THE ASSESSEE HAD TAKEN HOUSING LOAN SPECIFICALLY FOR PURCHASE/RENOVATING/CONSTRUCTION OF A NEW HOUS E AND THE ASSESSEE WAS BOUND TO USE THE SAID HOUSING LOAN FOR THE SAID PURPOSE ONLY . THAT THE ASSESSEE HAD ALSO AVAILED THE BENEFIT IN RESPECT OF SAID HOUSING LO AN BY WAY OF DEDUCTION OF INTEREST U/S M.A NO.213/MUM/2013 3 24 AND DEDUCTION U/S 80C ON THE PAYMENT OF PRINCIP AL AMOUNT AND THEREFORE, THE SAID HOUSING LOAN HAD TO BE CONSIDERED AS PART OF CONS IDERATION FOR PURCHASE OF NEW HOUSE AND ONLY BALANCE PURCHASE PRICE OF THE HOUSE IS TO BE CONSIDERED TO BE UTILIZED FOR PURCHASE OF NEW HOUSE OUT OF THE LONG TERM CAPITAL GAIN. HENCE AFTER SUCH ADJUSTMENT BALANCE AMOUNT OF LONG TERM CAPITAL GAIN WILL B E CHARGEABLE TO TAX UNDER THE HEAD CAPITAL GAIN. THUS, THE TRIBUNAL HAS GIVEN A SP ECIFIC FINDING EVEN BY STATING THE AMOUNTS WHICH ARE TO BE SET OF OUT OF LONG TERM CA PITAL GAIN FOR PURCHASE OF NEW HOUSE AND THE AMOUNT WHICH IS TO BE CHARGED UNDER T HE HEAD CAPITAL GAIN IN PARA 12 OF THE IMPUGNED ORDER. THE SAID APPLICATION HAS B EEN FILED BY THE ASSESSEE JUST BECAUSE THE ISSUE HAS BEEN DECIDED AGAINST THE ASSE SSEE AND ASSESSEE WANTS TO REVIEW THE ORDER PASSED BY THE TRIBUNAL. 6. IN VIEW OF ABOVE, THE MISCELLANEOUS APPLICATIO N OF THE ASSESSEE IS REJECTED WITH COST OF RS.2,000/- (RS.TWO THOUSAND ONLY). 7. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED WITH COST OF RS.2000/-. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH DAY OF SEPTEMBER, 2013. & / 0 25 TH SEPTEMBER, 2013 & SD SD ( / RAJENDRA) ( . . /B.R.MITTAL) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI: ON THIS 25 TH DAY OF SEPTEMBER, 20 13 . . ./ SRL , SR. PS ! / COPY OF THE ORDER FORWARDED TO : 1. # / THE APPELLANT 2. $ # / THE RESPONDENT. 3. 5 ( ) / THE CIT(A)- 4. 5 / CIT 5. 6 $8 , ) 8 , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) ) 8 , /ITAT, MUMBAI