Mohd. Abdul Waheed, Hyd., Hyderabad V. ITO,W-7(4),Hyd., Hyderabad

MA 209/HYD/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1420 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-01-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 12-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S RAMA RAO
• Keywords: Cost of acquisition
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER MA NOS. 209, 210 & 211/HYD/2013 (IN ITA NOS. 288, 289 & 290/HYD/2004 A.Y. 1997-98 ) MOHD. ABDUL WAHEED, ABDUP QUADEER, MOHD. ABDUL QUAYYUM, HYDERABAD. VS INCOME TAX OFFICER, WARD 7(4), HYDERABAD APPELLANT RESPONDENT ASSESSEE BY: SHRI S. RAMA RAO REVENUE BY: SMT. K. HARITHA DATE OF HEARING: 03/01/2014 DATE OF PRONOUNCEMENT: 10/01/2014 O R D E R PER CHANDRA POOJARI, A.M.: THESE ABOVE MISCELLANEOUS APPLICATIONS (MAS) FILED BY ASSESSEE ARE SEEKING RECTIFICATION IN THE ORDER OF THE TRIBUNAL DATED 30/09/2009 IN ITA NOS. 288, 289 & 290/HYD/200 4. 2. THE LEARNED AR SUBMITTED THAT ON AN EARLIER OCCA SION, THE REVENUE CAME IN APPEAL BEFORE THE TRIBUNAL RAISING THE FOLLOWING GROUNDS: 1 . THE ORDER OF THE CIT(A) IS ERRONEOUS BOTH IN LAW AND ON THE FACTS OF THE CASE. 2. THE CIT(A) ERRED IN ARRIVING AT THE CONCLUSION T HAT THE CAPITAL GAINS WOULD BE CHARGEABLE TO TAX FOR THE AY 2002- 03 INSTEAD OF ASSESSMENT YEAR 1997-98, AS PROVISION S OF SECTION 2(47)(V)(VI) ARE SATISFIED IN THIS CASE. 3. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME O F HEARING. 3. WHILE ADJUDICATING THE ABOVE GROUND, THE TRIBUNA L HELD THAT CAPITAL GAINS IS TO BE CHARGED FOR AY 1997-98 AND N OT FOR THE AY MA NOS. 209, 210 & 211/ HYD/2013 MHD. ABDUL WAHEED 2 2002-03. HOWEVER, THE ASSESSEE HAS RAISED THE FOLLO WING GROUNDS BEFORE THE CIT(A): 1 . THE ASSESSING OFFICER ERRED IN DETERMINING THE VA LUE OF THE CONSTRUCTED AREA AT RS. 18,64,620/-. THE ASSESS ING OFFICER HAS NO BASIS IN ARRIVING AT SUCH A FIGURE P ARTICULARLY AS ON 31/03/97, AS BY THEN NO CONSTRUCTION ACTIVITY COMMENCED. 2. THE ASSESSING OFFICER ERRED IN ARRIVING AT THE M ARKET VALUE OF THE LAND AS ON 01/04/1981 AT RS. 40/- PER SQ. YARD WITHOUT ACCEPTING THE APPELLANTS WORKING. 3. THE ASSESSING OFFICER ERRED IN DETERMINING THE I NDEXED COST OF ACQUISITION AT RS. 82,570/- 4. THE ASSESSING OFFICER ERRED IN ARRIVING AT THE C APITAL GAIN AT RS. 17,82,050/- WITHOUT CONSIDERING THE FAC T THAT THE INCOME IS EXEMPT U/S 53 OF THE IT ACT. 5. THE ASSESSING OFFICER ERRED IN CHARGING INTEREST U/S 234A OF RS. 3,76,410/-, 234B OF RS. 4,11,652/- AND U/S 234C OF RS. 16,236/-. 4. THE CIT(A) HAS NOT ADJUDICATED THESE GROUNDS AS HE HAS DECIDED THAT CAPITAL GAINS TO BE CHARGED FOR THE A Y 2002-03. THE REVENUE HAS CHALLENGED THE ACTION OF THE CIT(A) WHILE THE ASSESSEE HAS NOT FILED ANY CROSS OBJECTIONS AS THE ISSUE WAS ALREADY DECIDED IN FAVOUR OF THE DEPARTMENT. ACCOR DING TO THE LEARNED AR, THE TRIBUNAL SHOULD HAVE DIRECTED THE C IT(A) TO GIVE A FINDING ON THE GROUNDS WHICH WERE NOT DECIDED BY HIM IN VIEW OF THE REASON THAT HE HELD THAT CAPITAL GAINS TO BE CHARGED FOR AY 2002-03. ACCORDING TO THE LEARNED AR, THOUGH, THE A SSESSEE HAS NOT FILED C.O., THE ASSESSEE PLEADED BEFORE THE TR IBUNAL TO REMIT THE ISSUES WHICH WERE NOT DECIDED BY THE CIT(A) FOR AFRESH ADJUDICATION. ACCORDING TO THE AR, NOT REMITTING TH E GROUNDS BY THE TRIBUNAL TO THE CIT(A) FOR FRESH VERIFICATION I S A MISTAKE APPARENT ON RECORD, WHICH REQUIRES RECTIFICATION OF THE TRIBUNALS ORDER. FOR THIS PROPOSITION, HE RELIED ON THE FOLL OWING CASE LAWS: MA NOS. 209, 210 & 211/ HYD/2013 MHD. ABDUL WAHEED 3 1. PERFETTI VAN MELLE INDIA (P) LTD. VS. CIT, 334 ITR 259 (SC) 2. OIL INDIA LTD. VS. CIT (CAL). 3. MAYUR RECREATIONAL DEV. SERVICES V. CIT, 313 ITR 190 (DELHI) 4. CIT VS. ITAT & ANR., 172 ITR 158 (M.P.) 5. ACCORDING TO THE LEARNED AR, INJUSTICE HAS BEEN DONE TO THE ASSESSEE BY NOT REMITTING THE GROUNDS BACK TO T HE FILE OF THE CIT(A) AND TO AVOID INJUSTICE CAUSED TO THE ASSESSE E, THE TRIBUNAL MAY GIVE SUITABLE DIRECTIONS BY REMITTING THE GROUNDS TO THE CIT(A) TO DECIDE THE GROUNDS, WHICH HAVE NOT BE EN ADJUDICATED BY HIM IN THE EARLIER OCCASION. 6. THE LEARNED DR, ON THE OTHER HAND SUBMITTED THAT THERE IS NO C.O OR ANY OTHER LETTER ON THIS ISSUE FILED BY T HE ASSESSEE BEFORE THE TRIBUNAL THAT THE GROUNDS WHICH WERE NOT ADJUDICATED BY THE CIT(A) MAY BE REMITTED BACK TO HIM FOR FRESH ADJUDICATION. HE CONTENDED THAT PLEADING FOR THE SAID CAUSE BEFOR E THE TRIBUNAL AT THIS JUNCTURE AMOUNTS TO REVIEW OF ITS OWN ORDER BY TRIBUNAL, WHICH IS NOT PERMITTED UNDER THE LAW. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE RECORD. ADMITTEDLY, THE GROUNDS BEFORE THE TRIBUNAL BY THE REVENUE ARE AS FOLLOWS: 1 . THE ORDER OF THE CIT(A) IS ERRONEOUS BOTH IN LAW AND ON THE FACTS OF THE CASE. 2. THE CIT(A) ERRED IN ARRIVING AT THE CONCLUSION T HAT THE CAPITAL GAINS WOULD BE CHARGEABLE TO TAX FOR THE AY 2002- 03 INSTEAD OF ASSESSMENT YEAR 1997-98, AS PROVISION S OF SECTION 2(47)(V)(VI) ARE SATISFIED IN THIS CASE. 3. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME O F HEARING. MA NOS. 209, 210 & 211/ HYD/2013 MHD. ABDUL WAHEED 4 7.1 THE TRIBUNAL HAS CAREFULLY CONSIDERED THE ABOVE GROUNDS AND GIVEN A CATEGORICAL FINDING AGAINST THE ASSESSE E AS THERE IS NO C.O. OR ANY ALTERNATE PLEA BEFORE THE TRIBUNAL T O REMIT THE ISSUES TO THE FILE OF THE CIT(A), WHICH ARE RAISED BEFORE THE TRIBUNAL IN THIS M.A. FOR CONSIDERATION IS NOTHING BUT IT AMOUNTS TO REVIEW OF THE ORDER, FOR WHICH THE TRIBUNAL HAS NOW POWERS. IT IS AN ADMITTED FACT THAT IF THE ASSESSING OFFICER O R THE CIT(A) HAS NOT PASSED THE ORDER IN ACCORDANCE WITH LAW, THE AS SESSEE IS HAVING EVERY RIGHT TO GO IN APPEAL AGAINST THEIR OR DERS IN A HIGHER FORUM. BEING SO, THIS MA FILED BY THE ASSESSEE AT THIS STAGE IS NOTHING BUT IT AMOUNTS TO PREPOSTEROUS, AS THE ASS ESSEE HAS NOT UTILIZED ITS RIGHT AT THE RELEVANT POINT OF TIME BE FORE THE TRIBUNAL BY RAISING THE ISSUES IN PROPER WAY. ACCORDINGLY, WE ARE OF THE OPINION THAT THERE IS NO MERIT IN THE ARGUMENTS OF THE ASSESSEES COUNSEL AND THE DECISIONS RELIED UPON BY THE ASSESS EE HAVE NO APPLICATION TO THE FACTS OF THE CASE OF THE ASSESSE E. HENCE, THE MA FILED BY THE ASSESSEE IS DISMISSED. 8. IN THE RESULT, THE MAS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10/01/20 14. SD/- SAKTIJIT DEY JUDICIAL MEMBER SD/- CHANDRA POOJARI ACCOUNTANT MEMBER SD/-SD/- HYDERABAD, DATED THE 10 TH JANUARY, 2014 KV MA NOS. 209, 210 & 211/ HYD/2013 MHD. ABDUL WAHEED 5 COPY TO:- 1) MHD. ABDUL WAHEED, A. QUADEER AND MOHD. ABDUL QUAYYUM, C/O S. RAMA RAO, ADVOCATE, FLAT NO.102, SHRIYAS RESIDENCY, ROAD NO.9, HIMAYATNAGAR, HYDERA BAD. 2) ITO, WARD 7(4) HYDERABAD. 3) THE CIT(A)-VI, HYDERABAD 4) CIT, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERABAD.