Shri Sureshchandra Mohanlal Shah, Gandhinagar V. The ACIT.,GNR Circle, Gandhinagar

MA 21/AHD/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0143 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-04-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 11-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Capital asset
• Section: 2

Judgement Text

IN THIS CASE, ASSESSEE HAS FILED MISCELLANEOUS APPL ICATION DATED 10 TH FEBRUARY, 2013 ARISING OUT OF APPEAL OF ASSESSEE IN I.T.A. NO. 1431/AHD/2010 ORDER DATED 12-10-2012 FOR ASSESSMENT YEAR 2007-08. 2. IN THE MISCELLANEOUS APPLICATION THE ASSESSEE HA S STATED AS UNDER:- I BEG YOUR HONOR TO KINDLY CONSIDER MY SUBMISSION I N THE CAUSE OF JUSTICE. (1) I AM DEPRIVED OF JUSTICE DUE TO ERROR AT PARA 6 OF YOUR ORDER WHERE KVP IS EQUATED WITH IVP DUE TO REASONS (A) THE COMPARISON RELIED ON FOR DECIDING ON MY APP EAL WAS NOT BROUGHT TO MY NOTICE AT THE TIME OF HEARING. (B) KVP AND IVP ARE DISTINCTLY DIFFERENT FINANCIAL INSTRUMENTS ACCORDING TO GOVERNMENT SAVING CERTIFICATE ACT 1959 (ACT NO. 46 OF 1959). FUNDAMENTAL DIFFERENCE BETWEEN THE TW O INSTRUMENTS IS IN THE MATTER OF TRANSFER OF MONEY. (I) TRANSFER OF MONEY IN THE CASE OF KVP IS TRANSFE R INTERVIVOS ACCORDING TO SEC.2(D) OF THE ACT NO. 46 OF 1959. T HUS KVP IS A DEBT INSTRUMENT, A BOND HAVING TITLE. (II) TRANSFER OF MONEY IN THE CASE OF IVP IS SIMPLE TRANSFER ACCORDING TO IVP RULES SEC. 6(4) OVERRIDING SEC. 2( D) OF ACT NO. 46 OF 1959. THUS IVP IS A DEPOSIT INSTRUMENT, A BEARER BOND WITH NO TITLE. IVP IS LIKE A RUPEE NOTE . (2) CIRCULAR NO. 687 AT 19-9-1994 RELIED ON AND SIG HTED AT PARA 5 OF YOUR ORDER IS INCONSISTENT AND CONTRADICTS INCOME TAX ACT 1961 AND THE KVP RULES READS ALONG WITH ACT NO. 46 OF 1959. (A) BY DEFINITION AT SEC. 2 (14) OF I. TAX ACT 1961, KVP IS A CAPITAL ASSET AS IT IS NOT INCLUDED IN THE NEGATIVE LIST. (B) TRANSFER OF MONEY AT THE TIME OF PURCHASE AS WELL AS AT THE TIME OF ENCASHMENT IS TRANSFER INTERVIVOS AND HENCE THE INCOME ARISING ON ENCASHMENT OF KVP (AMOUNT PAYABLE WITH INTEREST IN RUPEES) IS CAPITAL GAIN. (3). IN THE CIRCUMSTANCE I REQUEST YOUR HONOUR TO R ECTIFY YOUR ORDER QUASHING THE ASSESSMENT ORDER AND AWARD THE COST OF APPEAL. 3. IT WAS THUS SUBMITTED THAT IN THE ORDER THE MIST AKES POINTED OUT RECTIFICATION AND, THEREFORE, THE ORDER BE RECALLED /QUASHED D.R. VEHEMENTLY OPPOSED THE M.A. AND SUBMITTED THAT THE APPEAL OF THE ASSESSEE WAS DISMISSED BY HON. TRIBUNAL AND THE RE WAS NO APPARENT MISTAKE ON RECORD WHICH REQUIRES RECALLING OR AMENDMENT TO THE ORDER. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO GON E THROUGH THE ORDER DATED 12-10-2012. THE ASSESSEE COULD NOT POINT OUT ANY APPARENT MISTAKE IN THE ORDER THAT REQUIRES CORRECTION WE DO NOT AGREE WITH THE CONTENTION OF THE LEARNED A.R. FOR THE REASONS THAT HE IS NOT POINTED ANY APPARENT MISTAKE IN THE ORDER WHICH REQUIRES RECTIF ICATION. 5. IN THE CASE OF PERFETTI VAN MELLE INDIA LTD. VS. COMMISSIONER OF INCOME-TAX (2008) 296 ITR 595 (DEL) THE HON. HIGH C OURT HAS HELD AS UNDER:- 6. SECTION 254 OF THE INCOME TAX ACT, 1961, ENABLES THE CONCERNED AUTHORITIES TO RECTIFY ANY MISTAKE APPARENT FROM T HE RECORD. AN OVERSIGHT OF A FACT CANNOT CONSTITUTE AN APPARENT M ISTAKE RECTIFIABLE UNDER THIS SECTION. SIMILARLY FAILURE OF THE TRIBUN AL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE MERE FACT THAT THE TRIBUNAL HAS NOT ALLOWED A D EDUCTION, EVEN IF THE CONCLUSION IS WRONG, WILL BE NO GROUND FROM MOVING AN APPLICATION FOR RECTIFICATION, THE ASSESSEE CANNOT BE PERMITTED TO REOPEN AND REARGUE THE WHOLE MATTER, WHICH IS BEYOND THE SCOPE OF THIS SECTION. 7. IN THE CASE OF COMMISSIONER OF INCOME-TAX VS. M ALWA TEXTURISING P. LTD (2007) 292 ITR 488 (MP) THE HON. HIGH COURT HEL D AS UNDER:- UNDER SUB-SECTION (2) OF SECTION 254 OF THE INCOM E-TAX ACT, 1961, THE APPELLATE TRIBUNAL CAN ONLY RECTIFY ANY MISTAKE APPARENT FROM THE RECORD AND CANNOT REHEAR AN APPEAL AND REVERSE ITS FINDINGS ON THE CONTENTIONS RAISED BY THE PARTIES AT THE TIME OF HE ARING THE APPEAL. FURTHERMORE, MISTAKES APPARENT FROM THE RECORD WOUL D MEAN PALPABLE MISTAKES ON THE FACE OF THE RECORD AND NOT MISTAKES WHICH THE TRIBUNAL WILL COME TO LEARN FROM LONG-DRAWN ARGUMENTS. 8. IN VIEW OF THE AFORESAID FACTS, SEEN IN THE LIG HT OF THE DECISIONS CITED ABOVE WE REJECT THE M.A. FILED BY THE ASSESSEE. 9. THUS THE M.A. IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 26 - 4 - 2013. SR- SR- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER TRUE COPY AHMEDABAD. RAJ COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITA T,AHMEDABAD