Urvashidevi P.Chauhan, Ahmedabad V. The Income tax Officer, Ward-2(2), Baroda

MA 271/AHD/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6784 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-09-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2001-2002
• Appeal Filed On: 27-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: ANIL R SHAH
• Keywords: Valuation report
• Section: 2

Judgement Text

, , . .. . . .. . , , , , ! ! ! ! ' '' '# ## # $ $ $ $. .. .% %% % . .. .& & & &, , , , ' ' ' ' % ! % ! % ! % ! IN THE INCOME TAX APPELLATE TRIBUNAL : D BENCH : AHMEDABAD (BEFORE HONBLE SHRI G.D.AGRAWAL, V.P. & HONBLE SHR I T.K. SHARMA, J.M.) (( (( (( (( % % % % (M.A.) NOS.270 & 271/A/2010 : ASSESSMENT YEAR 2001-02 (ARISING OUT OF ITA NOS.2612 & 2632/AHD./2007) SMT. VRUSHALIDEVI Y. MAHADIK, BARODA ..,.. ( % / APPLICANT) PAN: AICPM 0240I SMT. URVASHIDEVI P. CHAUHAN, BARODA ..,.. ( % / APPLICANT) PAN: AEDOC 8028C -VS- I.T.O., WARD-2(2), BARODA ..( )*+, / RESPONDENT) % - . % /APPLICANT BY : SHRI ANIL R. SHAH )*+, - . % / RESPONDENT BY : SHRI B.L.YADAV, SR.D.R. /0 - 12 / DATE OF HEARING : 12/08/2011 345 - 12 / DATE OF PRONOUNCEMENT : 09/09/2011 %& %& %& %& / ORDER PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THESE MISCELLANEOUS APPLICATIONS ARE FILED BY THE A SSESSEE FOR RECALLING THE ORDER PASSED BY THE I.T.A.T., B BENCH, AHMEDABAD IN ITA .NO.2612/AHD./2007 DECIDED ON 01.10.2010. 2. BOTH THE MISCELLANEOUS APPLICATIONS ARE IDENTICA L. WE, THEREFORE, REPRODUCE THE MISCELLANEOUS APPLICATION IN THE CASE OF SMT. VRUSH ALIDEVI Y. MAHADIK, WHICH READS AS UNDER: THE MISC. APPLICATION ARISES OUT OF THE ORDER OF TH E HON. TRIBUNAL IN ITA NO.2612/AHD/07 FOR A.Y.01-02 DATED 1-10-10. IN THE GROUND OF APPEAL THE APPELLANT HAD INTERALIA CHALLENGED THE ORDER OF THE ASSESSING OFFICER VALUING THE LAND AS ON 1-4-81 AT RS.14.40 IN PLACE OF RS.60 VALUED BY THE AUTHORIZED AND APPROVED VALUER OF THE APPELLANT IN VIEW OF SEC.55A. 2 M.A.NO. 270&271-AHD-2010 IN REPLY TO THE WRITTEN SUBMISSIONS FILED BY THE SR . DR 'B' BENCH YOUR APPELLANT HAD VERY STRONGLY SUBMITTED THAT SEC.55A IS BINDING ON THE ASSESSING OFFICER AND IN THIS CASE OF THE APPELLANT SINCE SHE HAD PROVIDE D THE REPORT OF THE VALUATION OFFICER APPROVED BY THE GOVERNMENT OF INDIA VALUING THE LAND ON 1-4-81 AT RS.60 THE ASSESSING OFFICER OUGHT TO HAVE ACCEPTED THE SA ID REPORT OR REFERRED THE MATTER TO DVO AS PROVIDED U/S.55A OF THE ACT. DURING COURSE OF HEARING OF THE APPEAL THIS LEGAL I SSUE WAS ARGUED AT THE LENGTH BEFORE THE HON. TRIBUNAL AND IN PARA 14 THE HON. TR IBUNAL HAS STATED AS UNDER: 'AT THE TIME OF HEARING BEFORE US, ON BEHALF OF ASS ESSES SHRI ANIL R. SHAH, ID. COUNSEL APPEARED AND REITERATED THE SUBMISSIONS MADE BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). THE I D. COUNSEL POINTED OUT THAT THE ASSESSEE PRODUCED THE REPORT OF REGIST ERED VALUER FOR VALUING LAND AS ON 1.4.1981. AS PER THIS REPORT, THE ASSESS EE ARRIVED AT COSE OF ACQUISITION AS ON 1.4.1981 AT RS.4,70,000/- @ RS.60 /- PER SQ.FT. THE ASSESSING OFFICER REJECTED THE VALUATION REPORT OF REGISTERED VALUER WITHOUT -MAKING ANY REFERENCE TO THE GOVERNMENT VALUER, THE REFORE, HE BE DIRECTED TO ACCEPT THE VALUATION REPORT OF GOVERNMENT APPROV ED VALUER.' (EMPHASIS SUPPLIED) . IN SUPPORT OF THE ABOVE CONTENTION YOUR APPELLANT H AD RELIED ON CIRCULAR OF CENTRAL BOARD OF DIRECT TAXES BEARING N UMBER 96 DATED 25-11- 1972 AS WELL AS ON JUDGEMENT IN THE CASE OF CWT VS. RAGHUNATH SINGH THAKUR REPORTED IN 216 CTR P.248 (HP) YOUR APPELLANT HAD ALSO REFERRED IN WRITTEN SUBMISS IONS IN REPLY TO THAT OF SR. DR 'B' BENCH RELIED ON THE JUDGEMENT OF AHMEDABAD INCO ME-TAX APPELLATE TRIBUNAL IN THE CASE OF WTO VS. BACHUBHAI HIMATLAL (HUF) 34 ITD PAGE 63 AND HAD SUBMITTED THAT IN ABSENCE OF THE REPORT OF DVO AND REFERENCE BY THE ASSESSING OFFICER U/S.55A TO DVO HIS ADOPTING VALUE AT 14.40 SHOULD BE REJECTED. WITH RESPECTS IT IS SUBMITTED BY YOUR APPELLANT THA T DESPITE THE ABOVE FACTS OF THE CASE AND CLEAR CUT DISCUSSION DURING COURSE OF HEAR ING OF THE APPEAL AND IN WRITTEN SUBMISSIONS IN REPLY TO THE WRITTEN SUBMISS IONS OF SR.DR , THE HON. TRIBUNAL HAVE NOT DEALT WITH THE LEGALITY OF THE PR OVISION OF SEC.55A AND THE LEGAL ISSUE HAVE NOT BEEN DECIDED. WITH RESPECTS IT IS FURTHER SUBMITTED BY YOUR APPEL LANT THAT THE MISTAKE APPARENT ON THE RECORDS HAVE CREPT IN THE ORDER AND THE MIST AKES GOES TO THE ROOT OF DISPUTE AND PURELY ON A LEGAL GROUND, IT IS REQUESTED THAT THE ORDER U/S.254 BE PASSED AND THE ORDER OF THE HON.TRIBUNAL DATED 1-10-2010 BE RE CALLED AND THE LEGAL GROUND BASED ON SEC.55A BE DEALT WITH. IT IS PRAYED THAT T HE MISC. APPLICATION BE ADMITTED 3 M.A.NO. 270&271-AHD-2010 AS IN TIME AND IN ORDER AND A PERSONAL HEARING BE G RANTED BEFORE DISPOSING OFF THE SAME. 3. AT THE TIME OF HEARING OF THIS MISCELLANEOUS APP LICATION, SHRI ANIL R. SHAH, APPEARED ON BEHALF OF THE ASSESSEE AND POINTED OUT THAT THE TRIBUNAL HAS NOT CONSIDERED THE WRITTEN SUBMISSIONS WHEREIN IT WAS CONTENDED TH AT VALUATION OF THE ASSESSEE AS ON 01.04.1981 AT RS.60/- WAS BACKED BY VALUATION REPOR T. THEREFORE, THE AO OUGHT TO HAVE ACCEPTED THE SAID REPORT OR REFERRED THE MATTER TO THE DVO AS PROVIDED UNDER SECTION 55A OF THE I.T. ACT, 1961. HE POINTED OUT THAT SINCE TH E TRIBUNAL HAS NOT DEALT WITH THE LEGALITY OF THE PROVISIONS OF SECTION 55A AND THIS LEGAL ISS UE HAS NOT BEEN DECIDED, THEREFORE, THERE IS A MISTAKE APPARENT ON RECORD WHICH HAS BEEN CREP T IN THE ORDER OF THE TRIBUNAL. THIS MISTAKE GOES TO THE ROOT OF THE DISPUTE AND PURELY IS A LEGAL GROUND. THEREFORE, THE ORDER UNDER SECTION 254 BE PASSED AND THE LEGAL GROUND BA SED ON SECTION 55A BE DEALT WITH. 4. ON THE OTHER HAND, SHRI B.L.YADAV, SR.D.R., APPE ARED ON BEHALF OF THE REVENUE AND DREW THE ATTENTION OF THE BENCH TO PARA 10 OF T HE TRIBUNALS ORDER, WHEREIN THE TRIBUNAL REFERRED TO PARA 5.4 OF THE ASSESSMENT ORD ER AND THE REPLY OF THE ASSESSEE TO SHOW-CAUSE NOTICE, WHICH IS EXTRACTED AT PARA 5.3 ( PAGE 5) OF THE ASSESSMENT ORDER. THE AO NOTICED THAT LAND IN QUESTION WAS SOLD AS AGRICU LTURAL LAND AS PER THE SALE DEED AND NA PERMISSION WAS NOT OBTAINED AT THE TIME OF SALE OF LAND WHEREAS VALUATION REPORT OF THE REGISTERED VALUER DID NOT TREAT THE LAND AS AGR ICULTURAL LAND. THE LD. D.R. POINTED OUT THAT THE REGISTERED VALUER APPOINTED BY THE ASSESSE E VALUED THE LAND IN QUESTION AS NON- AGRICULTURAL LAND @60/- PER SQ.FT. AS ON 01.04.1981 . THIS ALONE INDICATES THAT GOVERNMENT APPROVED VALUERS VALUATION REPORT SUBMITTED BY THE ASSESSEE WAS NOT RELIABLE. HE FURTHER POINTED OUT THAT THE ASSESSEES VALUER VALUED THE L AND IN QUESTION @60/- PER SQ.FT. WITHOUT QUOTING ANY INSTANCES OF COMPARABLE SALES. AS PER C OLUMN NO.40 OF HIS VALUATION REPORT, THE RATE IS BASED ON ENQUIRIES ABOUT PREVAILING PRI CES IN MADHAV BAUG AREA. THERE IS NO DISCUSSION AS TO THE ENQUIRIES MADE BY HIM AND THE PREVAILING RATES ON WHICH HE HAS BASED HIS ESTIMATE. HE FURTHER POINTED OUT THAT THE AO CO NFRONTED THE ASSESSEE WITH THE SALE 4 M.A.NO. 270&271-AHD-2010 INSTANCES OBTAINED FROM TALATI VADODARA, KASBA. THE AO ARRIVED AT AVERAGE RATE OF RS.14.40 PER SQ.FT., AS PER THE SPECIFIC SALE INSTA NCES OBTAINED. THE LD. D.R. FURTHER POINTED OUT THAT IT IS NOT MANDATORY FOR THE AO TO MAKE A REFERENCE TO THE VALUATION OFFICER UNDER SECTION 55A, PARTICULARLY WHEN THE RE GISTERED VALUER IN ASSESSEES VALUATION REPORT HAS VALUED THE LAND IN QUESTION AS NON-AGRIC ULTURAL LAND. THE ASSESSEE HAS SOLD THE LAND IN QUESTION AS AGRICULTURAL LAND WITHOUT OBTAI NING N.A. THEREFORE, THE APPROACH OF THE AO TO COLLECT THE SALE INSTANCES OF THE AREA AN D NEARBY AREA (AS DESCRIBED IN THE ASSESSMENT ORDER) FROM THE CONCERNED TALATI, AO HAS TAKEN THE AVERAGE AND VALUED FOR THE SALES INSTANCES AVAILABLE AND DETERMINED THE VA LUE AS ON 1-4-81 @14.40 PER SQ.FT., WHICH IS MORE NEARER TO THE TRUTH AND RELIABLE BECA USE IT IS THE AVERAGE OF THE RELEVANT TRANSACTIONS FROM THE GOVT. RECORDS OF AN AREA NEAR TO LAND IN QUESTION. NO FAULT CAN BE FOUND OUT IN THIS APPROACH OF AO. THEREFORE, THERE IS NO MISTAKE APPARENT FROM THE RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE I.T. AC T, 1961. 4.1 THE LD. D.R. ALSO POINTED OUT THAT BY THIS MISC ELLANEOUS APPLICATION, THE ASSESSEE IS SEEKING TO REVIEW THE ORDER OF THE TRIBUNAL AND THE TRIBUNAL HAS NO POWER OF REVIEW OF ITS OWN ORDER. HE FURTHER POINTED OUT THAT THE DECI SION OF THE TRIBUNAL CANNOT BE SCRUTINIZED SENTENCE BY SENTENCE MERELY TO FIND OUT WHETHER SOME INCIDENTAL FACTS, WHICH APPEAR ON THE RECORD, HAVE NOT BEEN NOTICED BY THE TRIBUNAL IN ITS JUDGMENT. 5. AFTER HEARING BOTH THE SIDES, WE HAVE CAREFULLY PERUSED THE CONTENTS OF THE MISCELLANEOUS APPLICATION AND THE WRITTEN SUBMISSIO NS FILED BY THE ASSESSEE. AS ON 01.04.1981, LAND IN QUESTION WAS AGRICULTURAL LAND. THE ASSESSEES VALUER VALUED IT AS NON-AGRICULTURAL LAND @ RS.60/- PER SQ.FT. DURING T HE COURSE OF HEARING OF APPEAL, WE HAVE SPECIFICALLY ASKED THE ASSESSEES COUNSEL TO E XPLAIN HOW THE VALUER OF REGISTERED VALUER VALUED THE LAND AS ON 1.4.81 IS RELIABLE WHE N VALUER VALUED IT AS NON-AGRICULTURAL LAND. FURTHER, NO SALES INSTANCES WERE CITED BY THE REGISTERED VALUER IN THE VALUATION REPORT. NO SUITABLE REPLY TO THIS WAS FURNISHED. IN VIEW OF THIS, THE ASSESSEES VALUERS VALUATION REPORT IS NON EST . THE AO COLLECTED THE SALES INSTANCES FROM THE TAL ATI, 5 M.A.NO. 270&271-AHD-2010 CONFRONTED THE SAME TO THE ASSESSEE, DETERMINED THE AVERAGE WHICH WORKS OUT TO 14.40 PER SQ.FT. KEEPING IN VIEW THIS BACKGROUND IN MIND, THE ACTION OF THE AO, VALUING LAND AS ON 1.4.81 @ RS.14.40 PER SQ.FT., WAS UPHELD BY US. SIN CE A CONSCIOUS DECISION WAS TAKEN, THERE IS NO MISTAKE APPARENT FROM THE RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE I.T. ACT, 1961. THEREFORE, WE ARE OF THE VIEW THAT BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS MERELY SEEKING REVIEW OF THE TRIBUNALS ORDER. IT IS PERTINENT TO NOTE THAT, AFTER CONSIDERING EACH AND EVERY CONTENTION, THE TRIBUNAL HAD PASSED THE ORDER AND THERE IS NO MISTAKE APPARENT FROM THE RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE I.T. ACT, 1961. IT IS WELL-SETTLED LAW THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER. 5.1. THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. KARAM CHAND THAPAR AND BROSS P. LTD., REPORTED IN 176 ITR 535 (SC) HELD THAT THE DECISION OF THE TRIBUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENTENCE MERELY TO FIND OUT WHETHER SOME INCIDENTAL FACTS, WHICH APPEAR ON THE RECORD, HAVE NOT BEEN NOTICED BY THE TRIBUNAL IN ITS JUDGMENT. IN OUR OPINION, THERE IS NO MISTAKE APPARENT FROM RECORD W ITHIN THE MEANING OF SECTION 254 (2). HOWEVER, IT IS WELL SETTLED LAW THAT WHAT CAN BE RE CTIFIED U/S. 254 (2) IS A MISTAKE, WHICH IS APPARENT AND PATENT FROM THE RECORD. UNLESS THER E ARE MANIFEST ERRORS, WHICH ARE OBVIOUS, CLEAR AND SELF-EVIDENT, THE TRIBUNAL CANNO T RECALL ITS PREVIOUS ORDER IN AN ATTEMPT TO REVIEW THE ORDER. THE MISTAKE HAS TO BE SUCH FOR WHICH NO ELABORATE REASON OR ENQUIRY IS NECESSARY. THE POWERS SO CONFERRED U/S. 254 (2) DO NOT CONTEMPLATE REHEARING WHICH WOULD HAVE THE EFFECT OF RE-WRITING AN ORDER AFFECT ING THE MERITS OF THE CASE. OTHERWISE THERE WOULD BE NO DISTINCTION BETWEEN THE POWER TO REVIEW AND THE POWER TO RECTIFY A MISTAKE. THE POINT RAISED IN THE MISC. APPLICATION SUBMITTED BY THE ASSESSEE VIRTUALLY SEEKS A REVIEW OF THE ORDER PASSED BY THIS TRIBUNAL , WHICH IS CLEARLY BEYOND THE SCOPE OF SECTION 254 (2). 5. 2 IN VIEW OF THE FOREGOING DISCUSSION, WE ARE CO NVINCED THAT THERE CANNOT BE ANY DISPUTE WITH THE PROPOSITION THAT POWER UNDER SUB-S ECTION (2) OF SECTION 254 IS TO RECTIFY THE MISTAKE APPARENT FROM THE RECORD, BUT THAT POWE R DOES NOT CLOTHE THE TRIBUNAL WITH THE 6 M.A.NO. 270&271-AHD-2010 JURISDICTION TO REVIEW OF ITS EARLIER ORDER OR RE-W RITE A FRESH JUDGMENT. BY PRESENT MISCELLANEOUS APPLICATIONS, THE ASSESSEES ARE VIRTU ALLY SEEKING REVIEW, THEREFORE, THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEES A RE DISMISSED. 6. IN THE RESULT, THIS MISCELLANEOUS APPLICATIONS F ILED BY THE ASSESSEE ARE DISMISSED. 6 %& - 345 7#8 09 / 09 /2011 4 9 - :0 ; THIS ORDER PRONOUNCED IN COURT ON 09/ 0 9/ 2011 . SD/- SD/- (G.D.AGRAWAL) (T.K. SHARMA) VICE PRESIDENT JUDICIAL MEMBER 7# / DATED : 09/09/ 2011 %& %& %& %& - -- - )1( )1( )1( )1( %(51 %(51 %(51 %(51 / COPY OF ORDER FORWARDED TO:- 1. +, / APPELLANT 2. )*+, / RESPONDENT 3. ## 1 /? / CONCERNED CIT 4. /?- / CIT (A) 5. (C: )1 , , / DR, ITAT, AHMEDABAD 6. : E6 / GUARD FILE. BY ORDER/ %& %, / # TALUKDAR/SR.P.S.