R.Jayabharathi, CHENNAI V. ITO, CHENNAI

MA 318/CHNY/2017

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2886 (ITAT-CHENNAI)
• Duration Of Justice: 4 year(s) 9 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-09-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-09-2022
• Assessment Year: 2010-2011
• Appeal Filed On: 16-11-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 139

Judgement Text

आयकर अपील य अ धकरण, ‘ए’ यायपीठ, चे नई IN THE INCOME TAX APPELLATE TRIBUNAL , ‘A’ BENCH, CHENNAI ी वी.द ु गा राव, या यक सद य एवं ी जी.मंज ु नाथ, लेखास द य के सम$ BEFORE SHRI V.DURGA RAO, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER Misc. Petition N o. 3 1 8/ Ch ny / 2 0 1 7 (In ITA No.1369/Chny/2016) ( नधा रणवष / As s e s s m en t Ye a r : 20 10 - 1 1) Smt. R.Jayabharathi Propx: M/s. Jeya Timber Mart 40, L.B.Road,Thiruvanmiyur Chennai-600 041. V s Income Tax Officer, Business Ward-III(3) Chennai-34. P AN: A A HP J 1 6 5 6 Q ( ाथ क /Petitioner) ( यथ"/Respondent) ाथ क क$ ओरसे/ Petitioner by : Mr. D.Anand, Advocate यथ"क$ओरसे/Respondent by : Mr. D.Hema Bhupal, JCIT स ु नवाईक$तार+ख/D a t e o f h e a r i n g : 09.09.2022 घोषणाक$तार+ख /D a t e o f P r o n o u n c e m e n t : 09.09.2022 आदेश / O R D E R PER G.MANJUNATHA, AM: The assessee has filed present Miscellaneous Application u/s.254(2) of the Income Tax Act, 1961, against order of the Tribunal in ITA No.1369/Chny/2016 dated 31.03.2017 relevant to the assessment year 2010-11. 2. The assessee has narrated facts and mistakes stated to be apparent on record from the order of the Tribunal and relevant contents of the Miscellaneous Application filed by the assessee are reproduced as under:- 2 Misc. Application No. 318/Chny/2017 “1. The Petitioner most respectfully submits that the order dt.31.03.2017 and Received by the petitioner on 19/5/2017 suffers the following mistakes. a) The Bench has not taken in to consideration that the construction plan, prepared and approved by Madras Metropolitan Authority in Jan 2008 for new residential house, earlier to sale of old residential house. - (Page 120 of Paper book). b) The Bench has not followed the decision of co-ordinate Bench in MAC Khaleali case. (Page No.1 - 16 of Paper Book) c) The Bench has failed to note the fact that the amount not utilized for purchase or construction before the due date for furnishing the return of income under section 139 alone shall be required to be deposited before the due date for furnishing the return under section 139(1). d) The Bench failed to follow the principle that when two views are possible, the views favourable to the Assessee is to be followed (Vegetable Product- SC) Therefore, the Petitioner pray her appeal be allowed” 3. We have heard both the parties and considered relevant contents of the Miscellaneous Application filed by the assessee. The learned DR has raised preliminary objection on the issue of limitation and argued that Miscellaneous Application filed by the assessee is beyond six months from date of order and hence, not maintainable for which, the learned counsel for the assessee replied that if you consider 3 Misc. Application No. 318/Chny/2017 date of receipt of order of the Tribunal by the assessee on 19.05.2017, Misc. Application filed by the assessee is within six months from the date of receipt of order of the Tribunal and thus, it is well within time prescribed under the Act and is maintainable. We find that although, the order of the Tribunal is dated 31.03.2017, but there is an endorsement in the order by the counsel of the assessee for receipt of order on 19.05.2017 and if you consider said date, Misc. Application filed by the assessee is well within the time and thus, we reject arguments of the learned DR for the Revenue on the issue of limitation. 4. Having said so, let us come back to issue on hand. The assessee has filed Misc. Application on the ground that there is apparent mistake in the order of the Tribunal in not considering relevant facts of the case while deciding issue of deduction claimed u/s.54 of the Income Tax Act, 1961, towards sale consideration received from transfer of original asset. The learned AR for the assessee referring to petition filed by the assessee submitted that the assessee has received sale 4 Misc. Application No. 318/Chny/2017 consideration of Rs.58.50 lakhs for transfer of property on 04.12.2009 and has paid advance of Rs.40.41 lakhs to proprietary concern of the assessee for purchase of timber and tiles to be used in residential house constructed by the assessee, which is evident from fact that the assessee has obtained necessary permission for construction of building from the municipal office where much before transfer of original assets. If you consider said date and reasons for giving advance to said proprietary concern, then the Assessing Officer ought to have allowed deduction towards amount invested for construction of house property amounting to Rs.40.51 lakhs. However, the Assessing Officer observed that the assessee has given consideration received for transfer of property to proprietary concern for business purpose and which is not available for construction house property and is not eligible for deduction u/s.54 of the Income Tax Act, 1961. The Tribunal, on the basis of findings of the Assessing Officer has concurred with the findings recorded by the authorities below without considering relevant facts, including date of obtaining plan sanction from the authority and purpose of giving advance 5 Misc. Application No. 318/Chny/2017 to proprietary concern and such findings constitute mistake apparent on record, which can be rectified u/s.254(2) of the Income Tax Act, 1961. 5. Having heard both the sides and considered material on record, we find that the Tribunal has given findings on the basis of material available on record, including stated purpose of paying amount to proprietary concern of the assessee and after considering relevant facts has recorded categorical finding that the assessee has utilized sale consideration received from transfer of original asset for the purpose of business which is not available for construction and thus, to that extent an amount of Rs.40.51 lakhs given to proprietary concern is not eligible for deduction u/s.54 of the Income Tax Act, 1961. In our considered view, findings recorded by the Tribunal is on the basis of materials available on record and thus, we are of the considered view that what was sought through the Misc. Application filed by the assessee is to review decision rendered by the Tribunal in the given facts & circumstances of the case and thus, in our considered view which is not permissible 6 Misc. Application No. 318/Chny/2017 u/s.254(2) of the Income Tax Act, 1961. Hence, we dismiss Misc.Application filed by the assessee. 6. In the result, Misc. Application filed by the assessee is dismissed. Order pronounced in the open court on 9 th September, 2022 Sd/- Sd/- ( वी.द ु गा राव) ( जी. मंज ु नाथ) (V.Durga Rao) ( G.Manjunatha ) /या यक सद1य /Judicial Member लेखा सद1य / Accountant Member चे/नई/Chennai, 4दनांक/Dated 9 th September, 2022 DS आ देश क$ त8ल9प अ<े9षत/Copy to: 1. Appellant 2. Respondent 3. आ यकर आ य ु =त (अपील)/CIT(A) 4. आ यकर आ य ु =त/CIT 5. 9वभागीय त नBध/DR 6. गाड फाईल/GF.app