TROIKA ESTATE PVT. LTD., MUMBAI V. ACIT RANGE 2(3), MUMBAI

MA 283/MUM/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5457 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2006-2007
• Appeal Filed On: 18-08-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Keywords: Cost of acquisition; Fair market value; Valuation report
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER MA NO.283/M/2016 (ARISING OUT OF ITA NO.5032/M/2012 DATE OF DECISION : 03.02.2016) ASSESSMENT YEAR: 2006-07 M/S. TROIKA ESTATES PVT. LTD., 2 ND FLOOR, CITIMALL, ANDHERI LINK ROAD, ANDHERI (W), MUMBAI-400 053 PAN: AAACT 5759N VS. ASSISTANT COMMISSIONER OF INCOME TAX, RANGE-2(3), MUMBAI (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI NITESH JOSHI, A.R. REVENUE BY : SHRI B.S. BIST, D.R. DATE OF HEARING : 03.02.2017 DATE OF PRONOUNCEMENT : 17.03.2017 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT IS A MISCELLANEOUS APPLICATION MOVED B Y THE ASSESSEE UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 PLEADING THAT A MISTAKE APPARENT ON RECORD HAS OCCURRED IN THE ORDER DATED 03.02.16 PASSED IN ITA NO.5032/M/2012. 2. THE BRIEF FACTS RELEVANT FOR DECIDING THE PRESEN T APPLICATION ARE THAT THE ASSESSEE ENTERED INTO A DEVELOPMENT AGREEMENT DATED 16.09.05 WITH M/S. YOGI DEVELOPERS CORPORATION (THE DEVELOPER). AS PER THE TERMS OF AGREEMENT, THE ASSESSEE HAD GIVEN DEVELOPMENT RIGHTS TO THE DEVELO PER AND TO USE FSI AND IN RETURN THE DEVELOPER AGREED TO PAY TO THE ASSESSEE A SUM OF RS.1,50,00,000/- IN CASH AND TO PROVIDE 25% OF TOTAL SUPER BUILT UP ARE A TO BE CONSTRUCTED BY THE DEVELOPER. THOUGH THE ASSESSEE OFFERED THE AMOUNT RECEIVED IN CASH FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAINS BUT IT DID NOT OFFER ANY CAPITAL GAIN MA NO.283/M/2016 M/S. TROIKA ESTATES PVT. LTD. 2 TOWARDS THE CONSIDERATION RECEIVABLE IN KIND I.E. 2 5% OF THE TOTAL SUPER BUILT UP AREA. 3. THE AGREEMENT ALSO PROVIDED THAT THE DEVELOPER W OULD BE ENTITLED TO DEDUCT FROM THE SAID 25% OF THE SUPER BUILT UP AREA OF THE VALUE PROPORTIONATE AND EQUIVALENT TO THE AMOUNT PAID BY THE DEVELOPER TO THE THIRD PARTY DISCHARGING THE LIABILITIES OF THE ASSESSEE. THE V ALUE OF SUCH DEVELOPED AREA WAS AGREED TO BE CALCULATED AT THE RATE OF RS.1000/ - PER SQ FT. SINCE THE ASSESSEE DID NOT OFFER ANY CAPITAL GAINS TOWARDS TH E CONSTRUCTED AREA RECEIVABLE BY THE ASSESSEE, THE AO TOO THE VALUE OF SUCH AREA @ RS.2000/- PER SQ. FEET. THE AO THEREAFTER PASSED ORDER UNDER SECTION 143(3) OF THE ACT COMPUTING THE CAPITAL GAIN AT RS.3,57,49,051/- AS AGAINST LOSS OF RS.4,33,30,409/- COMPUTED BY THE ASSESSEE BY CONSIDERING FULL VALUE OF CONSID ERATION AT RS.7,67,60,000/- (I.E. 38,380 SQ MT. RS.2000/- PER SQ. MT) AS AGAINS T RS.1,50,00,000/- DECLARED BY THE ASSESSEE AND BY DISALLOWING COST OF IMPROVEM ENT OF RS.70,00,000/- BEING AMOUNT PAID BY THE ASSESSEE TO STATE BANK OF BIKANER & JAIPUR. 4. IN APPEAL, THE LD. CIT(A) PROVIDED PART RELIEF T O THE ASSESSEE BY DIRECTING THE AO AS UNDER: A. TO ADOPT CONSIDERATION IN RESPECT OF CONSTRUCTE D AREA TO BE RECEIVED AT RS.5,70,50,365/- (I.E. 1,14,100 SQ FEET @ RS.500 PE R SQ. FT.) AS DETERMINED BY THE DVO IN ADDITION TO RS.1,50,00,000/- CASH CON SIDERATION RECEIVED BY THE APPELLANT. B. CONFIRMED DISALLOWANCE OF RS.70,00,000/- PAID TO SBBJ FOR CLEARING ITS TITLE AS COST OF IMPROVEMENT. C. TO ADOPT VALUE OF LAND AS ON 1.4.1981 AS GIVEN B Y DVO AT RS.82,51,700/- AS AGAINST RS.1,03,28,050/- ADOPTED BY THE COMPANY. 5. BEING AGGRIEVED BY THE SAID ORDER OF THE LD. CIT (A), THE ASSESSEE PREFERRED APPEAL BEFORE THIS TRIBUNAL. THE FOLLOWI NG GROUNDS WERE TAKEN BEFORE THIS TRIBUNAL: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) {CIT(A)} MA NO.283/M/2016 M/S. TROIKA ESTATES PVT. LTD. 3 HAS ERRED IN NOT ACCEPTING THE APPELLANT'S CONTENTI ON THAT THERE IS NO TRANSFER OF THE PROPERTY AT ULHASHNAGAR (THE PRO PERTY) AS DEFINED U/S 2(47) OF THE INCOME TAX ACT; THERE BEING NO TRA NSFER OF THE PROPERTY, NO CAPITAL GAINS OUGHT TO BE COMPUTED. 2. WITHOUT PREJUDICE TO GROUND NO 1, LEARNED CIT(A) HAS ERRED IN HOLDING THAT FULL VALUE OF CONSIDERATION FOR THE PU RPOSE OF TRANSFER SHOULD BE TAKEN AT RS . 7,20,50,365/- . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LEARNED CIT(A) OUGHT TO HAVE ACCEPTED ALTERNA TIVE SUBMISSION OF THE APPELLANT THAT FULL VALUE OF CONSIDERATION ACCRUING OR ARISING AS A RESULT OF TRANSFER SHOULD BE TAKEN EITHER AT RS. 1,50,00,000/ - OR AT RS. 3,88,71,000/-. 3. WHILE ADOPTING THE FULL VALUE OF CONSIDERATION, LEARNED CIT(A) HAS ERRED IN NOT CONSIDERING AND DEALING WITH THE O BJECTIONS OF THE APPELLANT TO THE VALUATION ADOPTED BY THE DISTR ICT VALUATION OFFICER (DVO) VIDE VALUATION REPORT DATED 20.07.2011 ON THE GROUND THAT NO APPEAL LIES ON THE VALUATION DONE BY THE DVO. ON TH E FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED C IT(A) OUGHT TO HAVE CONSIDERED AND DEALT WITH THE OBJECTIONS FILED BY T HE APPELLANT TO THE VALUATION REPORT SUBMITTED BY THE DVO. 4. LEARNED CIT(A) HAS ERRED IN DIRECTING THE AO TO ADOPT THE VALUE OF THE PROPERTY AS ON 01.04.1981, FOR THE PURPOSE O F COMPUTATION OF COST OF ACQUISITION, AT RS. 82,51,700/- ON THE BASI S OF VALUE DETERMINED BY THE DVO VIDE VALUATION REPORT DATED 20.07.2011 A S AGAINST RS.1,03,28,050/- ADOPTED BY THE APPELLANT. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A) OUGHT TO HAVE HELD THAT: I) THE REFERENCE MADE BY LEARNED AO TO DVO IS WITHO UT JURISDICTION AND OUGHT TO BE IGNORED. II) COST OF ACQUISITION OF RS. 1,03,28,050/- ON THE BASIS OF MARKET VALUE OF THE PROPERTY AS AT 01.04.198 1 OUGHT TO BE ADOPTED. 5 . LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION O F AO IN DISALLOWING THE COST OF IMPROVEMENT OF RS.70,00,000 /- ON THE BASIS THAT THE EXPENSES, SO INCURRED, IS NEITHER TO BE TREATED AS THE COST OF IMPROVEMENT NOR EXPENDITURE IN CONNECTION WITH TRAN SFER. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, TH E SAID PAYMENT OUGHT TO BE ALLOWED AS COST OF IMPROVEMENT OR IN TH E ALTERNATIVE AS EXPENDITURE INCURRED IN CONNECTION WITH THE TRANSFE R. 6. THE APPELLANT CRAVES TO ADD, ALTER, AMEND AND/OR RE SCIND ANY GROUNDS OF APPEAL DURING THE COURSE OF THE HEARING. 6. THE TRIBUNAL WHILE ADJUDICATING GROUND NOS.2 & 3 OF THE APPEAL OBSERVED AS UNDER: MA NO.283/M/2016 M/S. TROIKA ESTATES PVT. LTD. 4 18. THE NEXT ISSUE RAISED BEFORE US IS RELATING TO THE VALUE OF THE CONSIDERATION RECEIVED/RECEIVABLE BY THE ASSESSEE ON TRANSFER OF DEVELOPMENT RIGHTS. THE CONTENTION OF THE ASSESSEE HAS BEEN THAT THE SALE V ALUE SHOULD BE TAKEN EITHER AT RS.1,50,00,000/- WHICH HAS BEEN ACTUALLY RECEIVED B Y THE ASSESSEE OR AT RS.3,88,71,000/- AS COMPUTED BY THE ASSESSEE AS DIS CUSSED AND REPRODUCED IN THE CHART IN THE PARAS ABOVE. THE LD. A.R., IN THIS RE SPECT, HAS RELIED UPON CERTAIN CASE LAWS E.G. (I) CIT VS. PUJA PRINTS 360 ITR 697 WHE REIN IT HAS BEEN HELD THAT IN VIEW OF THE SPECIFIC PROVISIONS OF SECTION 55A(A), AS WERE EXISTENT AND APPLICABLE FOR THE ASSESSMENT YEAR IN QUESTION, A REFERENCE COULD BE MADE TO THE DEPARTMENTAL VALUATION OFFICER ONLY WHEN THE VALUE ADOPTED BY TH E ASSESSEE WAS LESS THAN THE FAIR MARKET VALUE. IT HAS ALSO BEEN HELD THAT THE S UBSEQUENT AMENDMENT TO THE RELEVANT SECTION WHERE THE RELEVANT WORDS IS LESS THAN THE FAIR MARKET VALUE HAVE BEEN SUBSTITUTED BY THE WORDS IS AT VARIANCE WITH ITS FAIR MARKET VALUE IS PROSPECTIVE AND NOT APPLICABLE RETROSPECTIVELY. IT HAS ALSO BEEN HELD THAT EVEN THE REFERENCE TO THE DVO UNDER SECTION 55A(A)(II) WAS N OT ACCEPTABLE FOR THE REASON THAT SECTION 55A(B) OF THE ACT VERY CLEARLY STATES THAT IT WOULD APPLY IN ANY OTHER CASE I.E. A CASE NOT COVERED BY SECTION 55A(A) OF T HE ACT. THEREFORE, RESORT CANNOT BE HAD TO THE RESIDUARY CLAUSE PROVIDED IN SECTION 55A(B)(II) AND THAT THE CBDT CIRCULAR DATED 25.11.72 HAS NO APPLICATION IN VIEW OF ABOVE STATED POSITION OF LAW. THE LD. A.R., THUS, HAS SUBMITTED THAT THE VALUE AS ON 01.04.1981, AS PER THE REPORT OF THE REGISTRED VALUATION OFFICER WHICH HAS BEEN P LACED AND RELIED UPON BY THE ASSESSEE IS TO BE CONSIDERED. HE, THEREFORE, HAS S UBMITTED THAT THE ACTION OF THE AO FOR REFERENCE TO THE DVO WAS WRONG AND ILLEGAL I N VIEW OF THE LAW LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF M/S. P UJA PRINTS (SUPRA). HE HAS FURTHER CONTENDED THAT THE SALE VALUE OF THE PROPER TY SHOULD BE TAKEN AS CALCULATED BY THE ASSESSEE AS REPRODUCED AND DISCUSSED IN PARA S ABOVE OF THIS ORDER. 19. WE HAVE CONSIDERED THE RIVAL CONTENTIONS IN THI S RESPECT ALSO. FIRST OF ALL, WE FIND THAT THE PROPERTY/LAND IN QUESTION HAD COME TO THE ASSESSEE BY WAY OF SCHEME OF ARRANGEMENT AS APPROVED BY THE HONBLE BOMBAY HI GH COURT IN THE COMPANY PETITION VIDE WHICH CERTAIN ASSETS AND LIABILITIES OF THE M/S. BRHM WERE TRANSFERRED TO THE ASSESSEE. THE AO HAS NOT GONE INTO THE QUES TION AS TO THE SAME WAS A CASE OF TRANSFER OR DEVOLUTION OF INTEREST. HOWEVER, SI NCE THIS ISSUE HAS NEITHER BEEN RAISED BEFORE US NOR GONE INTO BY THE AO, HENCE WE RESTRAIN OURSELVES FROM FURTHER DISCUSSION ON THIS ISSUE AND ASSUME THAT THE ASSESS EE WAS ENTITLED TO CLAIM THE COST OF ACQUISITION AS ON 01.04.1981. IN VIEW OF THE LA W LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF M/S. PUJA PRINTS ( SUPRA), WHERE THE VALUATION OF THE PROPERTY AS PER THE REGISTERED VALUER REPORT WA S MORE THAN THE FAIR MARKET VALUE IN THE OPINION OF THE AO, THE REFERENCE CANNO T BE MADE TO THE DVO AS THE SAME, AS PER THE RELEVANT PROVISIONS, COULD BE MADE ONLY IF THE SAME IS LESS THAN THE FAIR MARKET VALUE IN THE OPINION OF THE AO. THE LA W LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT IS BINDING ON THIS TRIBUN AL. RESPECTFULLY FOLLOWING THE SAME, WE HOLD THAT THE ACTION OF THE AO IN REFERRIN G THE ESTIMATION OF THE VALUE OF THE PROPERTY AS ON 01.04.1981 WAS NOT IN ACCORDANCE WITH LAW AND HENCE THE VALUE ASSESSED BY THE DVO OF THE LAND IN QUESTION AS ON 0 1.04.1981 CANNOT BE ADOPTED. THE ONLY EVIDENCE LEFT IN THIS RESPECT WHICH IS AVA ILABLE ON FILE IS THE REPORT OF REGD. VALUER, WE ACCORDINGLY DIRECT THE AO TO ADOPT THE R EPORT OF THE REGISTERED VALUER FOR ARRIVING OUT AT THE VALUE OF THE PROPERTY AS ON 1.4 .1981. MA NO.283/M/2016 M/S. TROIKA ESTATES PVT. LTD. 5 20. SO FAR AS THE SALE VALUE OF THE PROPERTY AS ON THE DATE OF AGREEMENT IS CONCERNED, WE DO NOT AGREE WITH THE CALCULATION OFF ERED BY THE ASSESSEE. WE, EVEN DO NOT FIND IT JUSTIFIED TO ADOPT THE VALUE OF THE DVO REGARDING THE LAND IN QUESTION. FROM THE RECORD, WE FIND THAT THE ASSESSEE HAS TO R ECEIVE RS.1,50,00,000/- AS CASH COMPONENT AND FURTHER 25% OF THE CONSTRUCTED SUPER BUILT UP AREA. THE DEVELOPER HAD AGREED TO OWE AND PAY CERTAIN LIABILITIES OF TH E ASSESSEE FOR WHICH THE DEVELOPER WAS ENTITLED TO DEDUCT FROM THE SAID 25% OF SUPER BUILT UP AREA, SUCH PROPORTIONATE AND EQUIVALENT COST CALCULATED AT THE RATE OF RS.1000/- PER SQR. FEET. FURTHER, A PERUSAL OF THE VARIOUS CLAUSES OF THE AG REEMENT REVEALS THAT IN THIS CASE THE DEVELOPER HAD TO OFFER 25% OF THE SUPER BUILT U P AREA OUT OF THE FSI ALREADY AVAILABLE ON THE LAND IN QUESTION. THE DEVELOPER W AS UNDER NO LIABILITY IN RELATION TO ANY OTHER CONSTRUCTED AREA UPON THE FSI OBTAINED BY THE DEVELOPER FROM THE MARKET OR IN LIEU OF FSI AVAILABLE ON ANY OTHER LAN D. THE ABOVE CLAUSES CLEARLY DEPICT THAT THE RIGHT TO CONSTRUCT AS PER THE FSI A LREADY AVAILABLE ON THE LAND WAS AVAILABLE WITH THE ASSESSEE ITSELF. THE ASSESSEE W AS NOT ENTITLED TO RECEIVE ANY SHARE OF BUILT UP AREA IN RELATION TO ANY FURTHER F SI RECEIVED OR RECEIVABLE BY THE DEVELOPER UPON THE LAND IN QUESTION. UNDER SUCH CI RCUMSTANCES, IT CAN BE SAFELY ASSUMED THAT THE ASSESSEE HAD TRANSFERRED THE DEVEL OPMENT RIGHTS IN RELATION TO 75% OF THE TOTAL FSI AVAILABLE AND THE ASSESSEE HAD RETAINED THE 25% OF THE FSI ALREADY AVAILABLE AND WHAT THE ASSESSEE GOT IN LIEU OF THE 75% TRANSFER OF THE DEVELOPMENT RIGHTS/FSI ON THE LAND WAS THE COST OF CONSTRUCTION IN RELATION TO 25% OF THE SUPER BUILT UP AREA OF THE LAND IN QUESTION PLUS RS. 1,50,00,000/-. THE COST OF CONSTRUCTION OF THE SAID SUPER BUILT UP AREA HAS ALREADY BEEN QUANTIFIED AND ASCERTAINED IN THE SUPPLEMENTARY DEVELOPMENT AGREE MENT, ITSELF, WHICH IS AT THE RATE OF RS.1000/- PER SQR. FEET. THE AVAILABLE FSI ON THE LAND AS DISCUSSED ABOVE HAS ALREADY BEEN MENTIONED BY THE ASSESSEE ITSELF AS 38 380 SQ. MTRS WHICH IS EQUAL TO 412968 SQ. FT. HENCE, THE TOTAL SALE CONSIDERATION RECEIVED/RECEIVABLE BY THE ASSESSEE IS RS.1,50,00,000/- PLUS COST OF 25% OF T HE SUPER BUILT UP AREA AS ATTRIBUTABLE TO THE AVAILABLE FSI ON THE PLOT CALCU LATED AT RS. 1000/- PER SQ. FEET. THE DEVELOPER HAS BEEN GIVEN THE LIBERTY TO DEDUCT THE AMOUNT PAID TOWARDS LIABILITIES OF THE ASSESSEE OUT OF THE SAID AMOUNT, WHICH DOES NOT, IN ANY MANNER, EFFECT THE QUANTUM/ PRICE OF THE SALE CONSIDERATION SETTLED BE TWEEN THE PARTIES. THE AO IS, THEREFORE, DIRECTED TO COMPUTE CAPITAL GAINS/LOSS B Y TAKING THE VALUE AS ON 01.04.1981 AS PROVIDED BY THE REGISTERED VALUER AND THE SALE VALUE AS MAY BE ARRIVED AS DISCUSSED ABOVE. 18. AT THIS STAGE, WE WOULD LIKE TO REFER THE CASE LAW STRONGLY RELIED UPON BY THE LD. A.R. IN THE CASE OF CIT VS. M/S. CHEMOSYN LTD. , MUMBAI ITA NO.361 OF 2013 DECIDED ON 11.02.15 (BOMBAY HIGH COURT). WE FIND T HAT THE FACTS AND CIRCUMSTANCES OF THE ABOVE STATED DECISION ARE NOT APPLICABLE TO THE CASE OF THE ASSESSEE. IN THE SAID CASE, THE ORIGINAL AGREEMENT WAS REPLACED BY ANOTHER AGREEMENT. IN THE ORIGINAL AGREEMENT, THE DEVELOPE R HAD AGREED TO HANDOVER CERTAIN BUILT UP AREA. HOWEVER, VIDE SUBSTITUTED A GREEMENT, THE SAID CONDITION WAS DROPPED AND IN THE SUBSTITUTED TRIPARTITE AGREEMENT , THE PLOTS IN QUESTION WERE TRANSFERRED TO THE NEW BUYER FOR A CASH CONSIDERATI ON AND THE CONDITION OF HANDING OVER OF BUILT UP AREA WAS DROPPED. UNDER SUCH CIRC UMSTANCES, THE HONBLE BOMBAY HIGH COURT HELD THAT THE CONSIDERATION WITH RESPECT TO THE BUILT UP AREA HAD NOT MA NO.283/M/2016 M/S. TROIKA ESTATES PVT. LTD. 6 ACCRUED TO THE ASSESSEE. THE FACTS OF THE SAID CAS E, THUS, ARE NOT APPLICABLE TO THE CASE OF THE ASSESSEE. 7. NOW THE ASSESSEE THROUGH THIS APPLICATION HAS PL EADED THAT THE ABOVE FINDINGS OF THE TRIBUNAL HAS IN FACT RESULTED IN EN HANCEMENT OF THE TAXABLE INCOME OF THE ASSESSEE AS AGAINST THE RELIEF GIVEN BY THE LD. CIT(A) AND THAT THIS ITSELF IS A MISTAKE APPARENT ON RECORD. 8. THE LD. D.R. HAS OBJECTED TO THE SAID APPLICATIO N AND HAS STATED THAT THE TRIBUNAL HAS RIGHTLY ADJUDICATED THE ISSUE AND THAT THERE IS NO MISTAKE APPARENT ON RECORD. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. ADMIT TEDLY, IT IS THE ASSESSEE WHO HAS AGITATED THE VALUATION REPORT OF THE DISTRI CT VALUATION OFFICER REGARDING THE VALUE ADOPTED OF THE CONSTRUCTED AREA RECEIVABL E BY THE ASSESSEE. THE TRIBUNAL, AFTER CONSIDERING THE RELEVANT FACTS ON T HE FILE, NOTICED THAT IN THIS CASE THERE WAS NO QUESTION OF ESTIMATION OF THE VAL UE WHEN A SPECIFIC AGREEMENT WAS EXECUTED BETWEEN THE PARTIES AND THE SAME WAS AVAILABLE ON RECORD VIDE WHICH THE PARTIES HAVE AGREED TO TRANSA CT AS PER CERTAIN VALUE OF THE CONSTRUCTED AREA. THE TRIBUNAL, WHILE ADJUDICATING THE APPEAL, OBSERVED THAT THE ASSESSEE AND THE DEVELOPER HAD AGREED TO ADOPT THE COST OF THE CONSTRUCTED AREA AT THE RATE OF RS.1000/- PER SQ. FT. AS PER TH E SUPPLEMENTARY DEVELOPMENT AGREEMENT. THE TRIBUNAL, WHILE CONSIDERING THE ABO VE DOCUMENTS ON THE FILE, DIRECTED THE AO TO COMPUTE CAPITAL GAINS/LOSS BY TA KING THE CONSIDERATION RECEIVABLE BY THE ASSESSEE TOWARDS SUPER BUILT UP A REA AT RS.1000/- PER SQ. FT. AS HAS BEEN AGREED TO BY THE PARTIES AS AGAINST THE VA LUE ADOPTED BY THE AO @ RS.2000/- PER SQ. FEET AND THAT UNDER THE CIRCUMSTA NCES THERE WAS NO QUESTION OF ANY ESTIMATION OF THE SAME BY THE VALUER. IN TH IS CASE, THE TRIBUNAL HAS NEITHER ON ITS OWN BEHALF HAS OPENED UP ANY ISSUE N OR ADJUDICATED ANY ISSUE WHICH WAS NOT DISPUTED BY THE PARTIES. THE ISSUE B EFORE THE TRIBUNAL WAS REGARDING THE VALUATION TO BE ADOPTED FOR THE CONST RUCTED AREA FOR THE PURPOSE MA NO.283/M/2016 M/S. TROIKA ESTATES PVT. LTD. 7 OF COMPUTATION OF CAPITAL GAINS AND THE TRIBUNAL AD JUDICATED THE ISSUE IN THE LIGHT OF EVIDENCE AVAILABLE ON FILE I.E. THE SUPPLE MENTARY AGREEMENT BETWEEN THE PARTIES WHICH WAS NOT ONLY EXECUTED BUT WAS ALS O ACTED UPON. THE TRIBUNAL HAS GIVEN A FINDING OF FACT ON THE FILE AND EVEN TH E EXISTENCE OF THE SAID AGREEMENT HAS NOT BEEN DISPUTED BY ANY OF THE PARTI ES. WHILE IMPLEMENTING THE ORDER OF THE TRIBUNAL EVEN IF IT HAS RESULTED I NTO ENHANCEMENT OF TAXABLE INCOME OF THE ASSESSEE AS AGAINST THE INCOME ARRIVE D OUT OF THE IMPLEMENTATION OF THE ORDER OF THE CIT(A), THAT ITSELF CANNOT BE S AID TO BE A MISTAKE APPARENT ON RECORD IN THE ORDER DATED 03.02.16. EVEN OTHERW ISE IT CAN NOT BE SAID TO BE CASE OF ENHANCEMENT OF INCOME AT THE HANDS OF THE T RIBUNAL AS AGAINST DETERMINED BY THE AO WHO HAS TAKEN THE VALUE OF THE CONSTRUCTED AREA @ RS.2000/- PER SQ. FEET WHEREAS THE TRIBUNAL HAS DIR ECTED TO ADOPT THE SAME @ RS.1000/- PER SQ. FEET IN THE LIGHT OF THE FACTS AN D EVIDENCES ON THE FILE. THE ASSESSEE HIMSELF SHOULD HAVE BEEN CAREFUL ENOUGH IN FILING THE APPEAL BEFORE THE TRIBUNAL WHILE AGITATING THE VALUE ADOPTED BY T HE LD. CIT(A) OF THE CONSTRUCTED AREA. ONCE THE ASSESSEE HAS BROUGHT TH E ISSUE BEFORE THE TRIBUNAL AND THE TRIBUNAL HAS GIVEN A FINDING OF FACT BY CON SIDERING THE EVIDENCE AVAILABLE ON THE FILE AND THE AUTHENTICITY OR VALID ITY OF THOSE EVIDENCES HAVE NOT BEEN DISPUTED, THEN, UNDER SUCH CIRCUMSTANCES, WE D O NOT THINK THAT THERE IS ANY INFIRMITY IN THE ORDER OF THE TRIBUNAL. THERE IS NO MERIT IN THE PRESENT MISCELLANEOUS PETITION AND THE SAME IS THEREFORE DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17.03.2017. SD/- SD/- (N.K. PRADHAN) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 17.03.2017. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT MA NO.283/M/2016 M/S. TROIKA ESTATES PVT. LTD. 8 THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.