BONY ELIES DEMELLO, V. ASST CIT CIR 2,

MA 291/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1271 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 02-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HITESH M SHAH
• Keywords: Fair market value

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B, MUMBAI BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER M.A. NO. 291/MUM/2013 (ARISING OUT OF ITA NO. 7870/MUM/2010) ASSESSMENT YEAR: 2006-07 MR. BONY ELIES DIMELLO ROSY VILLA, 2 ND FLOOR, CROSS GARDEN ROAD, BAKUL STREET, BHAYANDER (WEST), DISTRICT THANE PAN:-AKBPD 0919 J VS. ACIT CIR-2 MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI HITESH M. SHAH RESPONDENT BY : SHRI SANJEEV JAIN DATE OF HEARING : 06.12.2013 DATE OF PRONOUNCEMENT : 06.12.2013 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSE SSEE ON 01.08.2013 U/S 254 CLAUSE 2 OF THE INCOME TAX ACT SEEKING RECTIFICATIO N WITH REFERENCE TO THE GROUND 3 RAISED IN THE APPEAL ITA NO. 7870/MUM/2010 FOR THE ASSESSMENT YEAR 2006-07, WHICH HAS BEEN ADJUDICATED BY THE TRIBUNAL VIDE ORD ER DATED 05.04.2013. M.A. NO. 291/MUM/2013 (ARISING OUT OF ITA NO. 7870/MUM/2010) MR. BONY ELIES DIMELLO ASSESSMENT YEAR: 2006-07 2 2. DURING THE PROCEEDING BEFORE US, THE LD.AR FOR T HE ASSESSEE HAS BROUGHT OUR ATTENTION TO THE MISCELLANEOUS APPLICATION AND STAT ED THAT THERE IS NEED FOR MAKING A RECTIFICATION IN THE SAID ORDER OF THE TRIBUNAL DAT ED 05.04.2013. THE IMPUGNED RECTIFICATION IS REQUIRED TO BE DONE QUA THE GROUND NO 3 OF THE APPEAL PERTAINING TO THE TAXABILITY OF CAPITAL GAINS AND ALLOWABILITY OF INDEXATION. IN THIS REGARD, IT IS THE SUBMISSION OF THE ASSESSEE THAT THE FIGURE OF FAIR MARKET VALUE AS ON 01.04.1981 APPEARING AS RS.6,25,590/- IN THE ENTIRE ORDER HAS TO BE REPLACED WITH RS.6,25,590/- BEING 38% OF THE FAIR MARKET VALUE A S ON 01.04.1981 RS.16,91,025 AS CERTIFIED BY THE APPROVED VALUERS . ACCORDING TO THE ASSESSEE, THERE IS A MISTAKE IN THE FIGURES OF THE FAIR MARKET VALUE AS ON 01.04.1981 APPEARING AT RS. 6,25,590/- IN THE SAID ORDER OF TH E TRIBUNAL AGAINST THE FAIR MARKET VALUE OF RS.16,91,025/- AS CERTIFIED BY THE APPROVE D VALUERS. THE SAID AMOUNT OF RS. 6,25,590/- MENTIONED IN THE ORDER OF THE TRIBUNAL I S 38% OF THE FAIR MARKET VALUE ADOPTED BY FOUR CO-OWNERS JOINTLY PERTAINING TO THE ASSESSEE ONLY. IN SUPPORT OF THE SAID SUBMISSIONS, THE LD.AR HAS FILED AN AFFIDAVIT DATED 14.08.2013 SWORN BY THE ASSESSEE. 3. WE HAVE HEARD BOTH THE PARTIES AND CONSIDERED TH E CONTENTS OF THE AFFIDAVITS FILED BEFORE US. IT IS PERTINENT TO MENTION THAT T HE PERUSAL OF THE ORDER OF THE TRIBUNAL DATED 05.04.2013, WITH SPECIFIC REFERENCE TO PARAS 2 AND 7, CONSIDERING THE CONTEXT OF ADJUDICATION, INDICATES THAT RS.6,25,59 0/- REFERS TO THE ASSESSEES SHARE OF 38% OF THE FAIR MARKET VALUE AS ON 01.04.1981 CE RTIFIED BY THE APPROVED VALUERS. IN THIS CONNECTION, WE ARE OF THE CONSIDERED VIEW T HAT THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATION FOR SEEKING CLARIFICATION RATHER THAN RECTIFYING ANY MISTAKE. CONSIDERING THE FACTS IN TOTO, IT IS CLARIFIED THAT THE FIGURE RS.6,25,590/- MENTIONED IN THE ORDER OF THE TRIBUNAL DATED 05.04.2013 REFER S ONLY TO THE ASSESSEES SHARE OF 38% OF THE FAIR MARKET VALUE AS ON 01.04.1981 AS CE RTIFIED BY THE APPROVED VALUERS. ACCORDINGLY, THE AO IS DIRECTED TO TAKE INTO CONSID ERATION THIS CLARIFICATION WHILE FOLLOWING THE DIRECTION OF THE TRIBUNAL DATED 05.04 .2013 FOR ADOPTING THE FMV FOR THE M.A. NO. 291/MUM/2013 (ARISING OUT OF ITA NO. 7870/MUM/2010) MR. BONY ELIES DIMELLO ASSESSMENT YEAR: 2006-07 3 PURPOSE OF REWORKING THE CAPITAL GAIN AND NECESSARY INDEXATION. WE ORDER AND DIRECT ACCORDINGLY. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 06 TH DAY OF DECEMBER, 2013. SD/- SD/- (SANJAY ARORA) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 06.12.2013. *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR B BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.