Income Tax Office Ward -1 , Jalna V. Rajendra Kanhiyalal Bhartiya, Jalna

MA 21/PUN/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5305 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 1 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-01-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 08-12-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Cost of acquisition; Valuation report
• Section: 254(2); 55A

Judgement Text

आयकर अपीलीय अिधकरण “एक-सद᭭य मामला” ᭠यायपीठ पुणे मᱶ । IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, PUNE (Through Virtual Court) BEFORE SHRI INTURI RAMA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM M.A. No.21/PUN/2020 (Arising out of ITA No.1424/PUN/2017) िनधाᭅरण वषᭅ / Assessment Year : 2010-11 ITO, Ward-1, Jalna .......अपीलाथᱮ / Appellant बनाम / V/s. Rajendra Kanhiyalal Bhartiya, Kerosene Dealer, Naya Bazar, Shola Chowk, Jalna- 431203. PAN : AMSPB4560E ......ᮧ᭜यथᱮ / Respondent M.A. No.22/PUN/2020 (Arising out of ITA No.1425/PUN/2017) िनधाᭅरण वषᭅ / Assessment Year : 2010-11 ITO, Ward-1, Jalna .......अपीलाथᱮ / Appellant बनाम / V/s. Sanjay Kailashchand Bhartiya, Prop. Dainik Sanj Krushnaniti, Naya Bazar, Shola Chowk, Jalna- 431203. PAN : AFNPB3190E ......ᮧ᭜यथᱮ / Respondent Revenue by : Shri Piyush Kumar Singh Yadav Assessee by : Shri S. N. Puranik सुनवाई कᳱ तारीख / Date of Hearing : 21.01.2022 घोषणा कᳱ तारीख / Date of Pronouncement : 24.01.2022 आदेश / ORDER PER PARTHA SARATHI CHAUDHURY, JM: These Miscellaneous Applications have been filed by the Revenue arising out of ITA Nos.1424 & 1425/PUN/2017 for assessment year 2010-11 2 MA Nos.21 & 22/PUN/2020 u/s. 254(2) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) with a prayer to rectify the order of Tribunal dated 28.08.2018. 2. The Revenue by filing these Miscellaneous Applications commonly dated 26.02.2019 has raised following grounds: “1) The honourable ITAT., Pune Bench, Pune by relying the decision in the case of the Hon’ble Bombay High Court in CIT Vs. Puja Prints (2014) 360 ITR 697 (Bom) had granted the relief to the assessee. In the case of the aforesaid decision it has been categorically held that the AO cannot make reference to the Departmental Valuation Officer under Section 55A of the Act and accordingly the invocation of section 55A of the Income-tax Act, 1961 was treated as untenable. The facts of the decision relied upon by the honourable Tribunal are different from that of the present case in as much as in the present case, absolutely the AO has not made any reference under section 55A of the Income-tax Act, 1961 to the Departmental Valuation Officer for determination of cost of acquisition as on 1.4.1981 by invoking the aforesaid provisions of the Act and hence matter of application of the principles of the decision in the case of CIT Vs. Puja Prints (2014) 360 ITR 697 (Bom) does not apply to the case of the present assessee. Moreover, it is undisputed and crystal fact from the entire appellate order of the honourable Tribunal that the assessee has never furnished the valuation report and also blamed to the AO that the AO has not referred the matter to the DVO. Therefore, under the said set of circumstances the ratio of the decision in the case of CIT Vs. Puja Prints (2014) 360 ITR 697 (Bom) is not applicable in the case of present assessee which appears to have been overlooked or inadvertently applied. 2. In view of the above, inadvertently the facts of the case appears to have been overlooked, therefore, a miscellaneous application is submitted for favour of kind consideration of the honourable ITAT., Pune Bench, Pune. (i) kindly consider whether or not the decision given in the case of the assessee relying on the decision in the case of CIT Vs. Puja Prints (2014) 360 ITR 697 (Bom) is applicable in the instant case as that was a case in which a reference under section 55A of the Act had been made by the AO whereas in the present case, no reference under section 55A of the Act has been made by the AO. 3. In view of the above, it is humbly submitted that there is a mistake apparent from record in the order dated 28.08.2018 in ITA Nos.1424 and 1425/PUN/2017. It is, therefore, requested that the order may be recalled and the above mentioned appeals may be re- adjudicated on merits.” 3. On the other hand, the Ld. Counsel for the assessee submitted that the order of the Tribunal dated 28.08.2018 is well reasoned and the same does 3 MA Nos.21 & 22/PUN/2020 not call for any review or rectification. The Ld. Counsel for the assessee further submitted that there is no ‘mistake apparent from record’ in the order of the Tribunal dated 28.08.2018. 4. The Ld. Counsel for the assessee further submitted that the Revenue has failed to point out any apparent mistake in the order warranting rectification. The Revenue is seeking review of the entire order in the grab of rectification which is basically beyond the scope of Section 254(2) of the Act. The Ld. AR prayed for dismissing the Miscellaneous Applications filed by the Revenue. The Ld. Counsel for the assessee placing strong reliance on the decision of Hon’ble Gujarat High Court in the case Vrundavan Ginning and Oil Mill, 126 taxmann.com 227 submitted that the Hon’ble Gujarat High Court in the said decision (supra) held that section 254(2) is restricted to rectify mistake in the order apparent on the face of it. The power of section 254(2) of the Act is extremely limited, does not extend to correcting errors of law or re-appreciating factual finding and the Tribunal has discussed said issue and recorded a particular finding. 5. We have perused the case records and heard the rival contentions. We have also analyzed the facts and circumstances in this case. Reverting to our order dated 28.08.2018, we are of considered view that in the guise of rectification, the Revenue is seeking review of the order of Tribunal, which is beyond the scope of powers as envisaged u/s. 254(2) of the Act. Accordingly, Miscellaneous Applications filed by Revenue are dismissed being devoid of any merit. 4 MA Nos.21 & 22/PUN/2020 6. In the result, Miscellaneous Applications filed by Revenue are dismissed. Order pronounced on this 24 th day of January, 2022. Sd/- Sd/- (INTURI RAMA RAO) (PARTHA SARATHI CHAUDHURY) लेखा सद᭭य/ACCOUNTANT MEMBER ᭠याियक सद᭭य/JUDICIAL MEMBER पुणे / Pune; ᳰदनांक / Dated : 24 th January, 2022. Sujeet आदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A)-1, Aurangabad. 4. The Pr. CIT-1, Aurangabad. 5. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “एक-सद᭭य मामला” बᱶच, पुणे / DR, ITAT, “SMC” Bench, Pune. 6. गाडᭅ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.