NITIN RAMCHANDRAT TANDEL, V. ITO 22(3)(1),

MA 240/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3887 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-01-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 19-10-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition; Valuation report
• Section: 50C

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI JOGINDER SINGH, JM AND SHRI N.K. BILLAI YA, AM M.A. NO. 240/MUM/2015 (ARISING OUT OF I.T.A. NO. 1837/MUM/2012, A.Y .2008 -09) S HRI NITIN RAMCHANDRA TANDEL, 49, KARAVE DHARAVE, NERUL (W), NAVI MUMBAI 400 706 / VS. INCOME TAX OFFICER -22(3)(1), ROOM NO.306, 3 RD FLOOR, TOWER NO.6, VASHI RAILWAY STATION BLDG., VASHI, NAVI MUMBAI. ./ ./PAN/GIR NO. AEBPT0014L APPLICANT .. RESPONDENT M.A. NO. 241/MUM/2015 (ARISING OUT OF I.T.A. NO. 1934/MUM/2012, A.Y .2008 -09) SHRI HEMANT RAMCHANDRA TANDEL, 49, KARAVE DHARAVE, NERUL (W), NAVI MUMBAI 400 706 / VS. INCOME TAX OFFICER -22(3)(1), ROOM NO.306, 3 RD FLOOR, TOWER NO.6, VASHI RAILWAY STATION BLDG., VASHI, NAVI MUMBAI. ./ ./PAN/GIR NO. AEBPT0013P APPLICANT .. RESPONDENT M.A. NO. 242/MUM/2015 (ARISING OUT OF I.T.A. NO. 1935/MUM/2012, A.Y .200 8-09) SHRI GANESH RAMCHANDRA TANDEL, 49, KARAVE DHARAVE, NERUL (W), NAVI MUMBAI 400 706 / VS. INCOME TAX OFFICER -22(3)(1), ROOM NO.306, 3 RD FLOOR, TOWER NO.6, VASHI RAILWAY STATION BLDG., VASHI, NAVI MUMBAI. M.A. NO240,241&242/MUM/2015 2 ./ ./PAN/GIR NO. AEBPT0012N APPLICANT .. RESPONDENT APPLICANTS BY : SHRI K.GOPAL RESPONDENT BY : SHRI MANOJ KUMAR / DATE OF HEARING : 01/01/2016 /DATE OF PRONOUNCEMENT : 06./01/2016 / O R D E R PER N.K. BILLAIYA, AM: THESE MISCELLANEOUS APPLICATIONS BY THE ASSESSEE A RE DIRECTED AGAINST THE VERY SAME ORDER OF THE TRIBUNAL DATED 22/04/2015, BY WHICH THE TRIBUNAL HAS DISPOSED OFF THE APPEALS OF THREE DIFFERENT ASSESSES BY A CONSOLIDATED ORDER IN ITA NOS.1934, 1835 AND 1935 /MUM/2012 AND 1836, 1941 & 1837/MUM/2012. 2. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE STA TED THAT AN ERROR HAS CREPT IN THE IMPUGNED ORDER OF THE TRIBUNAL ON TWO COUNTS, FIRSTLY, IN RESPECT OF DETERMINATION OF COST OF ACQUISITION AND SECONDLY, ON APPLICATION OF SECTION 50C OF THE ACT. LD. COUNSEL TOOK US THROUGH THE VARIOUS CLAIMS MADE IN THE MISCELLANEOUS APPLICATIO N STATING THAT THE MISTAKE IS APPARENT FROM RECORD AND NEEDS TO BE REC TIFIED. 3. LD. D.R STRONGLY SUPPORTED THE ORDER OF THE TRIB UNAL STATING THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD AND WHAT LD. COUNSEL IS STATING IS NOTHING BUT REVIEW OF THE ORDER OF THE T RIBUNAL. 4. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE CO NTENTS OF THE MISCELLANEOUS APPLICATION AND THE SUBMISSIONS MADE BY THE LD. COUNSEL FOR THE ASSESSEE. WE FIND THAT AT PARA-6 OF ITS OR DER, THE TRIBUNAL HAS M.A. NO240,241&242/MUM/2015 3 REFERRED TO THE FINDING OF THE CIT(A), WHICH IS BAS ED ON THE DECISION OF THE TRIBUNAL IN THE CASE OF SHRI ATUL G. PURANIK I N ITA NO.3051/MUM/10. WHILE DECIDING THE ISSUE RELATING TO THE CASE OF ACQUISITION, ON PAGE-8, PARA(II), THE TRIBUNAL HAS STATED THAT THIS VIEW IS WELL SUPPORTED BY THE DECISION IN THE CASE OF SHRI ATUL G. PURANIK (SUPRA) AND CONFIRMED THE FINDINGS OF THE LD. CIT(A). 5. IN SO FAR AS, THE ISSUE RELATING TO SALE CONSID ERATION IS CONCERNED, THE TRIBUNAL ON PAGE-9 AT PARA(III) OF ITS ORDER HAS STATED THAT THE LD. CIT(A) HAS ACCEPTED THE ASSESSES VALUATION REPORT O N THIS ISSUE, THEREFORE, NO INTERFERENCE IS CALLED FOR. 6. WE FAIL TO UNDERSTAND HOW THE FINDINGS OF THE TR IBUNAL CAN BE RECTIFIED UNDER SECTION 254(2) OF THE ACT. ANY INT ERFERENCE WOULD AMOUNT TO REVIEW OF THE ORDER. 7. IT WOULD BE PERTINENT HERE TO MENTION THE OBSER VATIONS OF THE HONBLE JURISIDICTIONAL HIGH COURT OF BOMBAY IN THE CASE OF CIT VS. RAMESH ELECTRIC & TRADING CO., 203 ITR 497 (BOM)( P .P.502), WHICH READS AS UNDER:- IN OUR VIEW, THE POWER OF RECTIFICATION UNDER SECT ION 254(2) OF THE INCOME-TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FOR M THE RECORD, AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMEN TS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY C ONCEIVABLY BE TWO OPINIONS, AS HAS BEEN SHOWN IN THE PRESENT CASE. FA ILURE BY THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR A RRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MA Y BE AN ERROR OF JUDGEMENT. IN THE PRESENT CASE, THE ALLEGED FAILURE , AT LEAST ON ONE COUNT, IS ATTRIBUTED BY THE ASSESSEE TO THE INCOME-TAX OFFICE R AND NOT THE TRIBUNAL. IN OUR VIEW, THE TRIBUNAL HAS NO JURISDICTION UNDER SE CTION 254(2) TO PASS THE SECOND ORDER. DRAWING SUPPORT FROM THE ABOVE FINDINGS OF THE HON BLE JURISDICTIONAL HIGH COURT, WE DECLINE TO INTERFERE WITH THE ORDER OF THE TRIBUNAL. ALL M.A. NO240,241&242/MUM/2015 4 THESE MISCELLANEOUS APPLICATIONS OF THE ASSESSES AR E ACCORDINGLY DISMISSED. 8. IN THE RESULT, ALL THE MISCELLANEOUS APPLICATION S ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/01/2016 SD/- SD/- (JOGINDER SINGH) (N.K. BILLAIYA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; ! DATED 06./01/2016 . . ./ VM , SR. PS '#$% &'$ /COPY OF THE ORDER FORWARDED TO : 1. &%( / THE APPELLANT 2. ')( / THE RESPONDENT. 3. * ( &% ) / THE CIT(A)- 4. * / CIT 5. $+, '-. , &% &-. , / DR, ITAT, MUMBAI 6. ,/0 / GUARD FILE. / BY ORDER, )$% ' //TRUE COPY// % / % DY./ASSTT. REGISTRAR) &% &-. , / ITAT, MUMBAI