Shri K.Gopal Raj,Hyd., V. Dy. CIT,CC-6,Hyd.,

MA 222/HYD/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1395 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-01-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 19-09-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: K C DEVADAS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBE R MA NO.222/HYD/2013 (IN ITA NO.28/HYD/12) : ASSESSMENT YEAR 2008-09 SHRI K.GOPAL RAJ, HYDERABAD (PAN AJBPK 1167 E) V/S. DY. COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE 6, HYDERABAD (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI K.C.DEVADAS RESPONDENT BY : SMT. K.HARITHA DR DATE OF HEARING 29 . 1 1 .2013 DATE OF PRONOUNCEMENT 27.01.2014 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER: BY THIS APPLICATION UNDER S.254(2) OF THE INCOME-TAX ACT, 1961, THE ASSESSEE SEEKS RECTIFICATION/RECALL OF THE ORDER O F THIS TRIBUNAL DATED 30.08.2013 IN SO FAR AS IT RELATED TO ASSESSEES APP EAL, ITA NO.28/HYD/2012 FOR THE ASSESSMENT YEAR 2008-09, ON THE G ROUND THAT CERTAIN MISTAKES APPARENT FROM RECORD HAVE CREPT INTO TH E SAME. 2. LEARNED COUNSEL FOR THE ASSESSEE, REITERATING THE AVE RMENTS MADE IN THE PRESENT APPLICATION, SUBMITTED THAT ONE OF THE GROUNDS OF THE ASSESSEE IN ITS APPEAL WAS THAT THE CIT(A) ERRED IN HOLD ING THAT THE INCOME WAS ASSESSABLE FOR THE ASSESSMENT YEAR 2009-10. IN THIS CONTE XT, IT WAS SUBMITTED THAT RELIANCE WAS PLACED DURING THE APPEAL HE ARING, ON THE DECISION OF THE SUPREME COURT IN RAJINDERNATH V/S. CIT (120 ITR 14) IN SUPPORT OF THE CONTENTION THAT A DIRECTION TO ASSESS INCO ME IN 2009-10 CANNOT BE MADE, WHILE DISPOSING OF THE APPEAL FOR THE ASSESSMENT YEAR 008-09, AS SUCH A DIRECTION WAS NOT NECESSARY FOR THE DISPOSA L OF APPEAL. TAKING US THROUGH PARAS 22 TO 26 OF THE ORDER OF THE TRIBUNAL DATED MA NO.222/HYD/2013 (IN ITA NO.28/HYD/2012) SHRI K.GOPAL RAJ, HYDERABAD. 2 30.8.2013, IT IS SUBMITTED THAT THERE IS A MISTAKE AP PARENT FROM RECORD IN THAT ORDER IN TERMS OF THE DECISION OF THE SUPREME COU RT IN THE CASE OF RAJINDERNATH (SUPRA), SINCE THE DIRECTION GIVEN BY THE CIT(A) TO ASSESS THE CAPITAL GAINS IN THE ASSESSMENT YEAR 2009-10 WAS NOT A FIN DING NECESSARY FOR THE DISPOSAL OF THE APPEAL BY HIM FOR THE ASSESSMENT YEAR 2008-09. IT IS FURTHER SUBMITTED THAT THE DECISION OF THE TRIBUNAL IN UPHOLDING THE FINDING OF THE CIT(A) IS ALSO NOT IN CONSONANCE WITH T HE RATIO LAID DOWN BY THE APEX COURT IN THE CASE OF K.M.SHARMA VS. ITO (254 ITR 772) AND IN ITO V/S. MURALIDHAR BHAGWANDAS (52 ITR 338). LEARNED COUNSEL SUBMITTED IN THIS BEHALF THAT NON-CONSIDERATION OF THE DECISIONS OF THE APEX COURT ON A PARTICULAR ASPECT, CONSTITUTES A MISTAKE APPARENT FROM R ECORD. IN THIS BEHALF, RELIANCE IS PLACED ON THE DECISION OF PUNJAB AN D HARYANA HIGH COURT IN THE CASE OF R.M. EXPORTS V/S. CIT(2013) 95 DTR (P&H) 67. IN THIS VIEW OF THE MATTER, IT IS SUBMITTED THAT THE FACTS AND CIRCUMSTANCES OF THE PRESET N CASE CALL FOR RECTIFICATION OF THE ORDER OF THE TRIBUNAL. 3. LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND, STRONGLY SUPPORTED THE ORDER OF THE TRIBUNAL AND SUBM ITTED THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIB UNAL DATED 30.8.2013 4. WE HAVE HEARD BOTH SIDES AND PERUSED THE MATERIAL ON RECORD, IN THE LIGHT OF THE ORDER OF THE TRIBUNAL DATED 30. 8.2013. WE FIND THAT THE MAIN DISPUTE BEFORE THE TRIBUNAL IN THE CONTEXT OF T HE ORDER OF THE CIT(A) WAS WHETHER THERE WAS A TRANSFER WITHIN THE MEANING O F S.53A READ WITH S.2(47)(V) OF THE ACT. IT WAS ALSO THE GRIEVANCE OF TH E ASSESSEE THAT THE CIT(A) HAVING HELD THAT A TRANSFER HAS TAKEN PLACE WI THIN THE MEANING OF S.53A READ WITH S.2(47)(V) OF THE ACT, WAS NOT JUSTI FIED IN OBSERVING THAT THE ASSESSABILITY OF CAPITAL GAINS SHOULD BE EXAMINED IN T HE ASSESSMENT YEAR 2009-10, AS IT IS NOT RELEVANT FOR ASSESSMENT YEAR 2008-09, VIZ. THE YEAR UNDER APPEAL. THE CONTENTION OF THE ASSESSEE WAS THA T THE FINDING OF THE CIT(A) ON THE LATTER ASPECT WAS REDUNDANT AND NOT CALLED FOR, WHILE MA NO.222/HYD/2013 (IN ITA NO.28/HYD/2012) SHRI K.GOPAL RAJ, HYDERABAD. 3 DISPOSING THE APPEAL FOR THE ASSESSMENT YEAR 2008-09. O N GOING THROUGH THE LATER PART OF PARA 26 OF THE ORDER OF THE TRIBU NAL, WE FIND THAT THE TRIBUNAL, AFTER ELABORATE DISCUSSION ON THE POWERS OF TH E CIT(A) WHICH ARE COTERMINOUS WITH THOSE OF THE ASSESSING OFFICER, HAS UPHELD THE ORDER OF THE CIT(A) EVEN ON THE ASPECT OF HOLDING THAT THE ASSE SSABILITY OF CAPITAL GAINS MAY BE EXAMINED IN THE ASSESSMENT YEAR 2009-10. THE TRIBUNAL HAS TAKEN A CONSCIOUS VIEW OF THE MATTER AFTER EXAMINING THE STATUTORY POSITION AS TO THE POWERS OF THE CIT(A), AND ALSO FINDI NG THE DECISIONS RELIED UPON BY THE ASSESSEE BEFORE IT TO BE DISTINGUISHAB LE. ULTIMATELY, WE FIND THAT THE TRIBUNAL HAS NOT GIVEN EITHER ANY SPECIF IC FINDING AS TO THE ASSESSABILITY OR ANY SPECIFIC DIRECTION TO THE ASSESSING OFFICE R TO ASSESS THE RESULTANT CAPITAL GAINS IN ASSESSMENT YEAR 2009-10, BUT M ERELY DIRECTED THE EXAMINATION OF THE ISSUE IN THAT YEAR. ASSESSEE COU LD NOT HAVE ANY SPECIFIC GRIEVANCE AGAINST SUCH A DIRECTION OF THE CIT(A ). WHEN THE CIT(A) IS CALLED UPON TO EXAMINE THE ASSESSABILITY OF AN AMOUNT IN THE YEAR UNDER APPEAL, EVEN A FINDING GIVEN WITH REGARD TO ASSESSABILI TY OF A SUM IN A PARTICULAR YEAR OTHER THAN THE YEAR UNDER APPEAL, CAN NOT BE STATED TO BE BESIDE THE POINT OF DISPUTE OR BEYOND THE SCOPE OF ADJU DICATION. IN ANY EVENT, A PLAIN AND OVERALL READING OF THE ORDER OF THE TRIBUNAL SHOWS THAT ALL THE CONTENTIONS URGED AND DECISIONS RELIED UPON BY THE PARTIES HAVE BEEN CONSIDERED BY THE TRIBUNAL BEFORE ARRIVING AT IT S CONCLUSIONS. HOWEVER, IT IS THE CONTENTION OF THE ASSESSEE THAT THE TR IBUNAL COMMITTED MISTAKE IN NOT CONSIDERING THE DECISION OF THE HONBLE SU PREME COURT IN THE CASE OF RAJINDER NATH V/S. CIT (120 ITR 14). AFT ER GOING THROUGH THE AFORESAID DECISION, WE ARE OF THE VIEW THAT THE SAID DE CISION OF THE HONBLE APEX COURT IN NO WAY WOULD HAVE HELPED IN DECIDING T HE ISSUE IN FAVOUR OF THE ASSESSEE. THE REASON BEING, THE HONBLE APEX COURT IN THAT CASE WAS INTERPRETING THE MEANING OF THE EXPRESSIONS FINDING AND DIRECTION AS APPEARING IN S.153(3) OF THE ACT AS IT STOOD THEN. A S AGAINST THIS, THERE IS NO SUCH REQUIREMENT OF INTERPRETATION TO BE DONE IN T HE PRESENT CASE. THAT APART, THE HONBLE APEX COURT CATEGORICALLY HELD THAT THE OBSERVATION BY MA NO.222/HYD/2013 (IN ITA NO.28/HYD/2012) SHRI K.GOPAL RAJ, HYDERABAD. 4 THE AAC CANNOT AMOUNT TO DIRECTION IN CONSEQUENCE WHEREO F ASSESSMENT PROCEEDINGS CAN BE SAID TO HAVE TAKEN PLACE. THE HONBLE APEX COURT NEVER SAID THAT THE AAC WAS NOT COMPETENT TO MAKE SUCH O BSERVATION. THAT APART, S.254(1) EMPOWERS THE TRIBUNAL TO PASS SUCH ORDERS AS IT THINKS FIT IN DECIDING THE APPEAL. THEREFORE, THERE CANNOT BE ANY RESTRICTION IN THE POWERS TO BE EXERCISED BY THE TRIBUNA L WHICH CAN IMPLIEDLY BE READ INTO THE PROVISION. A PERUSAL OF PARAGRAPH 26 OF THE ORDER PASSED BY THE TRIBUNAL SHOULD MAKE IT CLEAR THAT NO DIRECTION WAS GIVEN TO THE ASSESSING OFFICER TO ASSESS THE CAPITAL GAINS I N ASSESSMENT YEAR 2009-10. THE ASSESSING OFFICER WAS ONLY ASKED TO EX AMINE THE ISSUE. IT IS OPEN TO THE ASSESSEE TO CONTEND BEFORE THE A SSESSING OFFICER THAT CAPITAL GAIN IS NOT ASSESSABLE EVEN IN THE ASSESSMENT YE AR 2009-10. IF SUCH A PLEA IS TAKEN BY THE ASSESSEE, THE ASSESSING OFFICER WILL BE DUTY BOUND TO DEAL WITH THE ASSESSEES CONTENTION AND TAKE A D ECISION INDEPENDENTLY, SOLELY CONSIDERING THE MERITS OF THE ISS UE WITHOUT BEING INFLUENCED BY ANY OBSERVATIONS MADE BY ANY AUTHORITIES . IN THIS VIEW OF THE MATTER, WE FIND NO MISTAKE APPARENT FROM RECORD I N THE ORDER OF THE TRIBUNAL, WHICH IS RECTIFIABLE WITHIN THE MEANING OF S.254(2) OF THE ACT, AND ALL THAT THE ASSESSEE IS SEEKING BY THE PRESENT APPLI CATION IS A MERE REVIEW OF OUR ORDER DATED 30.8.2013, BY DISPUTING TH E FINDINGS RENDERED THEREIN, WHICH IS NOT PERMISSIBLE WITHIN THE SCOPE OF TH E PROVISIONS OF S.254(2) OF THE ACT. CONSEQUENTLY, PRESENT APPLICATION OF THE ASSESSEE IS DEVOID OF MERIT AND IS ACCORDINGLY LIABLE TO BE REJECTE D. WE DO SO ACCORDINGLY. 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSE E IS REJECTED. MA NO.222/HYD/2013 (IN ITA NO.28/HYD/2012) SHRI K.GOPAL RAJ, HYDERABAD. 5 ORDER PRONOUNCED IN THE COURT ON 27.1.2014 SD/- SD/- (CHANDRA POOJARI) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED/- 27 TH JANUARY, 2014 COPY FORWARDED TO: 1 SHRI K.GOPAL RAJ, 15-09-612, SIDDIAMBER BAZAR, HYDER ABAD 2 ASST. COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE 6, HYDE RABAD 3 COMMISSIONER OF INCOME-TAX(A) I, HYDERABAD 4 COMMISSIONER OF INCOME-TAX (CENTRAL) , HYDERABAD 5 DEPARTMENTAL REPRESENTATIVE ITAT, HYDERABAD B.V.S