Shri. Aditya Waghray, Hyderabad V. ACIT, Range-5, Hyderabad

MA 215/HYD/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9819 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-01-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 27-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V V RAMANA RAO
• Assessee Lawyers: G KALYAN DAS
• Keywords: Cost of acquisition; Difference of opinion; Valuation report; Change of opinion

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER MISC. APPLN. NO.215/HYD/2012 (IN ITA NO.178/HYD/2012) : ASSESSMENT YEAR 2007 -08 SHRI ADITYA WAGHRAY, HYDERABAD ( PAN - AAGPW 9376 D ) V/S ADDL. COMMISSIONER OF INCOME-TAX RANGE-5, HYDERABAD (APPLICANT) (RESPONDENT) MISC. APPLN. NO.216/HYD/2012 (IN ITA NO.179/HYD/2012) : ASSESSMENT YEAR 2007 -08 SHRI ARPAN WAGHRAY, HYDERABAD ( PAN - AAGPW 9375 A ) V/S ADDL. COMMISSIONER OF INCOME-TAX RANGE-5, HYDERABAD (APPL IC ANT) (RESPONDENT) APP LIC ANTS BY : SHRI G.KALYANDAS RESPONDENT BY : SHRI V.V.RAMANA RAO DATE OF HEARING 4.1.2013 DATE OF PRONOUNCEMENT 24.1.2013 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER: BY THESE APPLICATIONS, THE APPLICANT-ASSESSEES SE EK RECTIFICATION/RECALL OF THE COMMON ORDER OF THIS TR IBUNAL DATED 17.7.2012 IN ITA NOS.178 AND 1769/HYD/2012 FOR ASSESSMENT YEA R 2007-08 ON THE GROUND THAT CERTAIN MISTAKES APPARENT FROM RECORD H AVE CREPT INTO THE SAME. 2 MA 215-216/HYD/2012 SHRI ADITYA WAGHRAY HYDERABAD AND ANR. 2. THE LEARNED AUTHORISED REPRESENTATIVE FOR THE A SSESSEES, REITERATING THE AVERMENTS MADE IN THE PRESENT APPLI CATIONS, SUBMITTED THAT THE TRIBUNAL, THOUGH CONSIDERED AT LENGTH THE WRITTEN SUBMISSIONS MADE AND SOME OF THE CONTENTIONS URGED DURING THE H EARING OF THE APPEALS, SOME OF THE CONTENTIONS URGED AT THE TIME OF HEARING ON THE APPEALS, WERE OMITTED TO BE CONSIDERED. ELABORATIN G THIS POINT, IT WAS SUBMITTED THAT ONE OF THE CONTENTIONS OF THE ASSESS EES DURING HEARING ON THE APPEALS WAS THAT WHILE THE SCRUTINY HEARING PRO CEEDINGS THROUGH NOTICES U/S. 143(2) OF THE ACT WERE IN PROGRESS, TH E ASSESSING OFFICER DROPPED AND CLOSED THE ASSESSMENT PROCEEDINGS ON 9. 9.2009 AND ON THE VERY NEXT DAY, VIZ. 10.9.2009 REOPENED THE ASSESSME NT BY ISSUE OF NOTICE UNDER S.148 OF THE ACT. IT WAS THEREFORE, CONTENDE D THAT WHILE THE RETURN OF INCOME FILED BY THE ASSESSEE-PETITIONERS WERE PE NDING DISPOSAL, ISSUE OF NOTICE UNDER S.148 OF THE ACT IMMEDIATELY ON THE VERY NEXT DAY WAS INVALID, PARTICULARLY WHEN THE TIME LIMIT FOR COMPL ETION OF REGULAR ASSESSMENT WAS AVAILABLE UPTO 31.12.2009. IN SUPPO RT OF THIS CONTENTION, RELIANCE WAS PLACED ON AS MANY AS FIVE DECISIONS OF THE SUPREME COURT, WHICH ARE AS FOLLOWS- (A) SHAPURJI BROACHA MILLS LTD. V/S. CIT(789 ITR 69(SC (B) CST V/S. RAMAN CHATTIAR (S) (55 ITR 630)-SC (C) ESTATE OF LATE AMKM KARUPPAN CHETTIAR V/S./ CIT (72 ITR 403)- SC (D) GHANSHYAM DAS V/S. REGIONAL ASSISTANT CST (51 ITR 557)-SC (E) INDUSTRIAL TRUST LTD. V/S. CIUT (91 ITR 550)-SC IT IS POINTED OUT BY THE LEARNED AUTHORISED REPRESE NTATIVE FOR THE ASSESSEES THAT RELIANCE WAS ALSO PLACED ON THE DECI SION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE ASSESSEE OF FATEH INTE RNATIONAL V/S. DCIT (290 ITR (AT)61), WHEREIN CONSIDERING IDENTICAL FA CTS, IT WAS HELD THAT WHERE NOTICE UNDER S.143(2) HAVING BEEN ISSUED, AND THE ASSESSMENT WAS PENDING, RE-ASSESSMENT ORDER WAS INVALID. 3 MA 215-216/HYD/2012 SHRI ADITYA WAGHRAY HYDERABAD AND ANR. 3. IT IS SUBMITTED, DRAWING OUR SPECIFIC ATTENTION TO THE RATIOS LAID DOWN IN THE ABOVE DECISIONS, THAT THE TRIBUNAL WHILE PASSING THE IMPUGNED ORDER HAS NEITHER CONSIDERED THE CONTENTIO NS OF THE ASSESSEE BASED ON THE ABOVE DECISIONS, NOR EXPRESSED ANY OPI NION. 4. LEARNED AUTHORISED REPRESENTATIVE FURTHER SUBMI TTED THAT IN THE CONTEXT OF THE SUGGESTION OF THE REVENUE TO SET ASIDE THE ASSESSMENT ORDER TO OBTAIN VALUATION REPORT, ETC., THE ASSESSE ES SUBMITTED THAT SINCE THE ASSESSEES HAD FILED VALUATION REPORT ALON GWITH THE RETURN OF INCOME, HAVING REGARD TO THE SETTLED PRINCIPLES OF LAW, THE TRIBUNAL SHOULD ADJUDICATE THE ISSUE ON THE BASIS OF THE FACTS AND EVIDENCE AVAILABLE ON RECORD AND IN SUPPORT OF THE SAID CONTENTION, THE A SSESSEES RELIED ON THE THIRD MEMBER DECISION OF THE TRIBUNAL IN RAJKUMAR J AIN V/S. ACIT(50 ITD 1(ALL). HOWEVER, IT IS PLEADED THAT THE TRIBUNAL H AS NOT DEALT WITH THIS CONTENTION OF THE ASSESSEE IN THE IMPUGNED ORDER DA TED 17.7.2012. 5. IT IS SUBMITTED THAT WHILE IN THE INSTANT CASE , THE TRIBUNAL HAS SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING O FFICER, IN SIMILAR CIRCUMSTANCES IN THE CASE OF ASHVEN DATLE IN ITA NO .07/HYD/2010, THE TRIBUNAL BY FOLLOWING THE DECISIONS OF THE HONBLE JURISDICTIONAL HIGH COURT AND SUPREME COURT, IN THE ABSENCE OF ANY COMPARABLE CASES AVAILABLE ON RECORD, DETERMINED THE COST OF ACQUISITION FOR CAPI TAL GAINS, BASED ON THE VALUATION REPORT AVAILABLE ON RECORD. 6. IN THE CIRCUMSTANCES, LEARNED AUTHORISED REPRE SENTATIVE FOR THE ASSESSEES SUBMITTED THAT THE MISTAKES APPARENT FROM RECORD HAVE CREPT INTO THE ORDER OF THE TRIBUNAL, AND HENCE THE ORDER OF THE TRIBUNAL DATED 17.7.2012, MAY BE RECTIFIED/RECALLED. 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND, STRONGLY SUPPORTING THE ORDER OF THIS TRIBUNAL DATE D 17.7.2012, SUBMITTED 4 MA 215-216/HYD/2012 SHRI ADITYA WAGHRAY HYDERABAD AND ANR. THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN TH AT ORDER AND ALL THAT THE ASSESSEES ARE SEEKING BY THE PRESENT APPLICATIO NS IS A MERE REVIEW OF THE SAID ORDER, WHICH IS NOT PERMISSIBLE IN TERMS O F S.254(2) OF THE ACT. 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE ORDER OF THIS TRIBUNAL DATED 17.7.2012 IN THE LIGHT OF THE AVERMENTS MADE BY THE ASSESSEES IN THE PRESENT APPLICATIONS, AND O THER MATERIAL ON RECORD. IT IS EVIDENT FROM A READING OF THE TOTALI TY OF THE ORDER OF THIS TRIBUNAL DATED 17.7.2012 THAT ALL THE CONTENTIONS O F THE ASSESSEE, INCLUDING THE ONES SPECIFICALLY POINTED OUT BY THE ASSESSEES IN THE PRESENT APPLICATIONS, HAVE BEEN DULY CONSIDERED BY THE TRIB UNAL BEFORE DECIDING TO SET ASIDE THE MATTER TO THE FILE OF THE ASSESSIN G OFFICER FOR FRESH DETERMINATION OF THE ISSUE IN DISPUTE. IN THE CONT EXT OF VALIDITY OF REOPENING OF THE ASSESSMENT UNDER S.148 OF THE ACT, IT HAS BEEN SPECIFICALLY OBSERVED IN PARA 12 OF THE ORDER OF TH E TRIBUNAL DATED 17.7.2012, THE CASE LAW RELIED UPON BY THE ASSESSE E IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE, AS THIS IS A CASE OF DROPPING OF THE PROCEEDINGS CONTEMPLATED BY ISSUANCE OF NOTICE UNDE R S.143(2) OF THE ACT. THESE OBSERVATIONS, CLEARLY REVEAL THAT THE CASE-LAW RELIED UPON BY THE ASSESSEE HAS BEEN DULY CONSIDERED, AND CONSIDER ING THE PECULIAR FACTUAL POSITION OF DROPPING OF THE PROCEEDINGS INI TIATED BY ISSUANCE OF NOTICE UNDER S.143(2) IN THE INSTANT CASES, THE DEC ISIONS RELIED UPON BY THE ASSESSEE HAVE BEEN HELD TO BE DISTINGUISHABLE. IT IS THEREFORE, NOT CORRECT TO SAY THAT THE TRIBUNAL HAS NOT CONSIDERED THE CASE-LAW RELIED UPON BY THE ASSESSEES. EVEN IN THE CONTEXT OF THE D ECISION OF THE TRIBUNAL ON MERITS, IT HAS BEEN SPECIFICALLY MENTIONED IN PA RA 25 OF THE ORDER DATED 17.7.2012 THAT THE CASE-LAW RELIED UPON BY THE PART IES HAS BEEN PERUSED. THAT BEING SO, EVEN ON MERITS, IT IS NOT CORRECT TO SAY THAT THE CASE-LAW RELIED UPON OR SOME OF THE CONTENTIONS URGED HAVE N OT BEEN CONSIDERED. IT IS CLEAR FROM A CLOSE READING OF THE ORDER OF TH E TRIBUNAL DATED 17.7.2012 THAT THE TRIBUNAL HAS CONSIDERED THE OVER ALL PERSPECTIVE OF THE 5 MA 215-216/HYD/2012 SHRI ADITYA WAGHRAY HYDERABAD AND ANR. MATTER AND THE PLEA OF THE REVENUE, WHILE RESTORING THE MATTER TO THE FILE OF THE ASSESSING OFFICER. MERELY BECAUSE SIMILAR C OURSE WAS NOT ADOPTED IN A DIFFERENT MATTER, ALBEIT INVOLVING SIMILAR FAC TS AND CIRCUMSTANCES OF THE CASE AS POINTED OUT BY THE ASSESSEES IN THE PRE SENT APPLICATIONS, IT CANNOT BE SAID THAT THERE WAS ANY MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL. IN A WAY, ALL THAT THE ASSE SSEES ARE PLEADING BY THE PRESENT APPLICATIONS IS THAT THE TRIBUNAL SHOULD NO T HAVE SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER, BUT OU GHT TO HAVE ITSELF DETERMINED THE COST OF ACQUISITION BASED ON THE VAL UATION REPORT AVAILABLE ON RECORD. IN THIS PROCESS, THE ASSESSEES ARE MERE LY DISPUTING THE FINDINGS OF THE TRIBUNAL, AND SEEKING A REVIEW OF O UR ORDER BY REAPPRAISAL OF THE MATERIAL AVAILABLE ON RECORD. SUCH A COURSE OF REVIEW IS NOT PERMISSIBLE IN THESE PROCEEDINGS UNDER S.254(2), TH E SCOPE OF WHICH IS CONFINED TO MERE RECTIFICATION OF THE MISTAKES APPA RENT FROM RECORD. 9. IN ARRIVING AT THE ABOVE CONCLUSION, WE ARE SU PPORTED IN THIS BEHALF BY THE DECISION OF THE JURISDICTIONAL HIGH C OURT IN THE CASE OF CIT V/S. VED PRAKASH (209 ITR 448)-AP, WHEREIN IT WAS H ELD AS FOLLOWS- 'IF TWO VIEWS ARE POSSIBLE ON A POINT OF LAW, AND O NE OF THE ALTERNATIVES IS ACCEPTED BY THE TRIBUNAL, IT CANNOT BE HELD THAT THE MISTAKE IS APPARENT FROM THE RECORD, UNLESS THERE A RE MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SELF-EVIDENT, T HE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER IN AN ATTEMPT TO R EWRITE THE ORDER. A CHANGE OF OPINION BY THE TRIBUNAL CONSISTING OF T HE SAME MEMBERS SHALL NOT JUSTIFY RECTIFICATION, NOR CAN FR ESH THINKING BROUGHT IN BY NEW MEMBERS OF THE TRIBUNAL JUSTIFY R EWRITING OF THE ORDER UNDER THE GUISE OF RECTIFICATION. THE ONLY FA CT THAT HAD THE SECOND SET OF MEMBERS HEARD THE APPEAL, THEY WOULD HAVE DECIDED IN FAVOUR OF THE ASSESSEE IS NOT A REASON FOR THEM TO RECALL AN ORDER ALLEGEDLY FOR THE PURPOSE OF RECTIFICATION OF A MISTAKE. SIMILARLY, IN THE CASE OF CIT V/S. ITAT & ANR. (206 ITR 126) HONBLE HIGH COURT OF ANDHRA PRADESH HELD AS UNDER: 'THE APPELLATE TRIBUNAL, BEING A CREATURE OF THE ST ATUTE, HAS TO CONFINE ITSELF IN THE EXERCISE OF ITS JURISDICTION TO THE ENABLING OR EMPOWERING TERMS OF THE STATUTE. IT HAS NO INHERENT POWER. EVEN OTHERWISE, IN CASES WHERE SPECIFIC PROVISION DELINE ATES THE POWERS OF THE COURT OR TRIBUNAL, IT CANNOT DRAW UPON ITS A SSUMED INHERENT 6 MA 215-216/HYD/2012 SHRI ADITYA WAGHRAY HYDERABAD AND ANR. JURISDICTION AND PASS ORDERS AS IT PLEASES. THE POW ER OF RECTIFICATION WHICH IS SPECIFICALLY CONFERRED ON TH E TRIBUNAL HAS TO BE EXERCISED IN TERMS OF THAT PROVISION. IT CANNOT BE ENLARGED ON ANY ASSUMPTION THAT THE TRIBUNAL HAS GOT AN INHEREN T POWER OF RECTIFICATION OR REVIEW OR REVISION. IT IS AXIOMATI C THAT SUCH POWER OF REVIEW OR REVISION HAS TO BE SPECIFICALLY CONFER RED; IT CANNOT BE INFERRED. UNLESS THERE IS A MISTAKE APPARENT FROM THE RECORD IN THE SENSE OF PATENT, OBVIOUS AND CLEAR ERROR OR MISTAKE , THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER. IF THE ERROR OR M ISTAKE IS ONE WHICH COULD BE ESTABLISHED ONLY BY LONG-DRAWN ARGUM ENTS OR BY A PROCESS OF INVESTIGATION AND RESEARCH, IT IS NOT A MISTAKE APPARENT FROM THE RECORD. IF TWO VIEWS ARE POSSIBLE ON A POI NT OF LAW, AND ONE OF THE ALTERNATIVES IS ACCEPTED IN ITS PREVIOUS ORDER, IT CANNOT BE HELD THAT THE MISTAKE IS APPARENT FROM THE RECO RD. UNLESS THERE ARE MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SE LF- EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER IN AN ATT EMPT TO REWRITE THE ORDER. 10. AT THE COST OF REPETITION, WE WOULD LIKE TO R EITERATE THAT ON GOING THROUGH THE ORDER PASSED BY THE TRIBUNAL, WE ARE CONVINCED THAT THE TRIBUNAL PASSED THE ORDER DATED 17.7.2012, AFTE R MARSHALLING ALL THE FACTS CONSIDERING THE SUBMISSIONS MADE BEFORE IT AN D APPLYING ITS MIND TO THE DECISIONS CITED BEFORE IT. WE DO NOT FIND ANY M ISTAKE IN THE ORDER OF THE TRIBUNAL OF THE NATURE AS ENVISAGED UNDER S.254 (2) OF THE ACT. PERMITTING THE ASSESSEE TO RAISE THE SAME ISSUES OV ER AGAIN IN THE GUISE OF RECTIFICATION WILL AMOUNT TO RECALLING THE APPEA L ORDER IN ITS ENTIRETY AND RE-HEARING IT AFRESH, WHICH IS NOT WITHIN THE SCOPE AND AMBIT OF S.254(2) OF THE ACT. CONSEQUENTLY, THE PRESENT APPLICATIONS OF THE ASSESSEES ARE DEVOID OF MERIT, AND AS SUCH THEY ARE LIABLE TO BE REJECTED. WE REJECT THE SAME ACCORDINGLY. 11. IN THE RESULT, BOTH THESE APPLICATIONS OF THE ASSESSEES ARE REJECTED ORDER PRONOUNCED IN THE COURT ON 24.1.2013 SD/- SD/- ( CHANDRA POOJARI ) (SAKTIJIT DEY) ACCOUNTANT MEMBER. JUDICIAL MEMBER. DT/- 24 TH JANUARY, 2013 7 MA 215-216/HYD/2012 SHRI ADITYA WAGHRAY HYDERABAD AND ANR. COPY FORWARDED TO: 1. 2. 3. 4. 5 6 SHRI ADITYA WAGHRAY, C/O. M/S. G.KALYANDAS & CO., C HARTERED ACCOUNTANTS, 15, VENKATESHWARA COLONY, NARAYANAGUDA , HYD SHRI ARPAN WAGHRAY, C/O. M/S. KALYANDAS & CO., CHAR TERED ACCOUNTANTS, 15, VENKATESHWARA COLONY, NARAYANAGUDA ,. HYDERABAD ADDITIONAL COMMISSIONER OF INCOME-TAX RANGE 5, HYD ERABAD COMMISSIONER OF INCOME-TAX(APPEALS) V HYDERABAD COMMISSIONER OF INCOME-TAX III, HYDERABAD DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD B.V.S.