M/s Griham Construction, Kolkata V. ITO, WD-41(2), KOLKATA, Kolkata

MA 30/KOL/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3625 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-10-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 22-04-2015
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI M. BALAGANES H, AM] M. A. NO. 30/KOL/2015 IN I.T.A NO. 1769/KOL/2013 ASSESSMENT YEAR: 2009-10 M/S. GRIHAM CONSTRUCTION VS. INCOME-TAX OFFICE R, WD-41(2), KOLKATA (PAN:AAGFG5840G) ( APPLICANT ) ( RESPONDENT ) DATE OF HEARING : 16.10.2015 DATE OF PRONOUNCEMENT: 29.10.2015 FOR THE APPLICANT: S/SHRI MAHADEV GHOSH & T. N. KU NDU, ADVOCATES FOR THE RESPONDENT: MD. GHAYAS UDDIN, JCIT ORDER PER MAHAVIR SINGH, JM: BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE/APP LICANT HAS SOUGHT FOR RECALLING OF ORDER OF TRIBUNAL DATED 03.03.2015. 2. BRIEF FACTS ARE THAT THE TRIBUNAL HAS CONFIRMED THE ADDITION MADE BY AO AND CONFIRMED BY CIT(A) IN RESPECT TO SALE VALUE OF PRO PERTIES AS PER THE GUIDELINE FIXED BY STAMP VALUATION AUTHORITY FOR ASCERTAINING THE TRUE COST OF FLATS SOLD BY ASSESSEE. THE ASSESSEE IS A BUILDER AND ASSET OF THE ASSESSEE WAS A BUSINESS ASSET AND NOT A CAPITAL ASSET. BEFORE US, LD. COUNSEL FOR THE ASSESSEE SHRI MAHADE V GHOSH ONLY DREW OUR ATTENTION TO THE FOLLOWING FEW CASE LAWS, WHICH WERE REFERRED BEFORE THE TRIBUNAL DURING THE COURSE OF HEARING: I) DHAKESWARI COTTON MILLS VS. CIT 26 ITR 775 (SC) , II) LALCHAND BHAGAT AMBICA RAM VS. CIT 37 ITR 288 (SC), III) SAT PAL PANDIT & CO. VS. ACIT 244 ITR 160 (IT AT, AMRITSAR)& IV) OMAR SALAY MAHAMED SAIT VS. CIT 37 ITR 151 (SC ) LD. COUNSEL FOR THE ASSESSEE STATED THAT NONE OF TH E CASE LAWS REFERRED TO ABOVE DURING THE COURSE OF HEARING WAS CONSIDERED BY THE BENCH AND W ITHOUT CONSIDERING THESE CASE LAWS THE ORDER WAS PASSED. IN VIEW OF THE ABOVE, LD. CO UNSEL FOR THE ASSESSEE MADE HIS SUBMISSION THAT NON-CONSIDERATION OF JUDGMENT OF HO NBLE SUPREME COURT AND OF COORDINATE BENCH IS A MISTAKE APPARENT FROM RECORD AND HENCE, THE ORDER BE RECALLED. ON 2 MA NO.30/K/2015 M/S.M/S. GRIHAM CONSTRUCTION A. Y 2009-10 QUERY FROM THE BENCH, LD. SR. DR STATED THAT THE OR DER OF THE TRIBUNAL CARRIES NO MISTAKE APPARENT FROM RECORD AND NEEDS NO RECALLING. 3. WE FIND THAT THE TRIBUNAL HAS NOT CONSIDERED THE CASE LAWS REFERRED BY THE LD. COUNSEL FOR THE ASSESSEE DURING THE COURSE OF HEARI NG. AT THE TIME OF HEARING BEFORE US, LD. COUNSEL FOR THE ASSESSEE NOW REFERRED TO THE CA SE LAW OF HONBLE SUPREME COURT IN THE CASE OF DHAKESWARI COTTON MILLS, SUPRA AND STATED T HAT THE ASSESSEE IS IN THE BUSINESS OF REAL ESTATE DEVELOPER AND THE AO HAS NOT REJECTED T HE BOOKS OF ACCOUNT AND WITHOUT REJECTION OF BOOKS OF ACCOUNT ESTIMATED THE INCOME ON THE BASIS OF VALUE AS ESTIMATED AS PER GUIDELINES FIXED BY STAMP VALUATION AUTHORITY I N TERM OF SECTION 50C OF THE ACT. THE PROVISIONS OF SECTION 50C OF THE ACT APPLIES ONLY T O CAPITAL ASSET, NO DOUBT THE AO OR THE CIT(A) OR THE TRIBUNAL HAS NOT STRICTLY APPLIED THE PROVISIONS OF SECTION 50C OF THE ACT. BUT NON-CONSIDERATION OF JUDGMENT OF HONBLE SUPREM E COURT IS A CLEAR MISTAKE APPARENT FROM RECORD. HENCE, WE RECALL THE TRIBUNALS ORDER DATED 03.03.2015 AND DIRECT THE REGISTRY TO FIX THIS APPEAL IN NORMAL COURSE. MISC . APPLICATION OF ASSESSEE IS ALLOWED. 4. IN THE RESULT, MISC. APPLICATION OF ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 29.10.2015 SD/- SD/- (M. BALAGANESH) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 29TH OCTOBER, 2015 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPLICANT : M/S. GRIHAM CONSTRUCTION, 19, D. P. NAG AR COLONY, BARANAGAR, KOLKATA-700 050. 2 RESPONDENT ITO, WARD-41(2), KOLKATA. 3 . THE CIT(A) , KOLKATA 4. ACIT, KOLKATA 5 . DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, ASSTT. REGISTRAR .