Dr. Hridaya Mohan Lal, Hyderabad, Hyderabad V. ITO, Ward 6(2), Hyderabad, Hyderabad

MA 32/HYD/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3009 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-04-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 16-03-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITRA
• Assessee Lawyers: A V RAGHURAM
• Section: 54F; 54; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER M.A. NO. 32/HYD/2015 (IN ITA NO. 351/H/11 ASSESSMENT YEAR: 2005-06) DR. HRIDAYA MOHAN LAL, ...APPLICANT HYDERABAD. VS. INCOME TAX OFFICER, WARD 6(2), ..RESPOND ENT (PAN AABCI 1140 F) APPELLANT BY : SHRI A.V. RAGHURAM RESPONDENT BY : SHRI RAJAT MITRA DATE OF HEARING : 10/04/2015 DATE OF PRONOUNCEMENT : 29/04/2 015 ORDER PER SAKTIJIT DEY, J.M.: THIS MISCELLANEOUS APPLICATION IS FILED BY ASSESSEE PURPORTEDLY U/S 254(2) OF THE ACT, SEEKING CLARIFI CATION OF THE ORDER PASSED BY THE TRIBUNAL IN ITA NO. 351/HYD/201 1 ON 07/01/2014. 2. AS STATED IN THE M.A. AND ALSO SUBMITTED BY LD. AR, IN THE APPEAL FILED BEFORE THE TRIBUNAL, ASSESSEE HAD RAISED TWO ADDITIONAL GROUNDS ONE OF WHICH IS IN RESPECT OF CL AIM OF DEDUCTION U/S 54F OF THE ACT. HOWEVER, IT IS THE CO NTENTION OF ASSESSEE THAT INSTEAD OF MENTIONING SECTION 54, 2 M.A. NO. 32/HYD/2015 DR. HRIDAYA MOHAN LAL INADVERTENTLY, THE SECTION UNDER WHICH DEDUCTION IS SOUGHT TO BE CLAIMED WAS MENTIONED AS 54F AS A RESULT OF WHIC H IN THE ASSESSMENT ORDER PASSED IN PURSUANCE TO THE DIRECTI ON OF THE TRIBUNAL, AO WHILE REJECTING DEDUCTION U/S 54F WAS ALSO DENIED THE BENEFIT U/S 54 TO ASSESSEE. LD. AR SUBMI TTED, THE FACTS AND MATERIALS ON RECORD, SUCH AS AGREEMENT OF SALE- CUM-GPA EXECUTED ON 17/12/2004, CLEARLY INDICATE, T HE PROPERTY TRANSFERRED WAS A RESIDENTIAL HOUSE, HENCE , THE APPROPRIATE SECTION UNDER WHICH ASSESSEE IS ELIGIBL E FOR DEDUCTION IS SECTION 54. LD. AR SUBMITTED, IN FACT, ASSESSEE IN THE RETURN OF INCOME FILED FOR AY 2006-07 HAD ALSO CLAIMED DEDUCTION U/S 54F OF THE ACT, WHICH HAS ALSO BEEN S TATED BY AO IN PARAGRAPH 4 OF THE ASSESSMENT ORDER. THUS, IT WAS SUBMITTED BY LD. AR, IN THE INTEREST OF JUSTICE, CL ARIFICATION MAY BE ISSUED TO THE EFFECT THAT DIRECTION CONTAINE D IN PARAGRAPH 14 OF THE APPELLATE ORDER MAY BE CONSIDER ED AS DIRECTION RELATING TO CLAIM U/S 54 OF THE ACT. 3. LD. DR, ON THE OTHER HAND, SUBMITTED BEFORE US, THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL AS ASSESSEE HIMSELF IN THE ADDITIONAL GROUNDS HAS RAISED THE ISSUE OF CLAI M OF DEDUCTION U/S 54F OF THE ACT. LD. DR SUBMITTED, CON SIDERING SUCH GROUND RAISED BY ASSESSEE, THE TRIBUNAL DIRECT ED THE AO TO CONSIDER ASSESSEES CLAIM OF DEDUCTION U/S 54F. SINCE, IN COMPLIANCE TO THE DIRECTION OF THE TRIBUNAL, AO HAS HELD THAT ASSESSEE IS NOT ELIGIBLE TO DEDUCTION U/S 54F AS TH E PROPERTY SOLD IS A RESIDENTIAL HOUSE, THE DECISION TAKEN BY AO CANNOT BE FAULTED. 4. IN THE REJOINDER, LD. AR SUBMITTED, RECTIFICATIO N OF MISTAKE ENVISAGED U/S 254(2) OF THE ACT RELATES TO MISTAKE 3 M.A. NO. 32/HYD/2015 DR. HRIDAYA MOHAN LAL APPARENT ON RECORD AND NOT MISTAKE IN THE ORDER OF THE TRIBUNAL. IT WAS SUBMITTED, SINCE THE MATERIALS ON RECORD CLEARLY REVEAL THE FACT THAT THE PROPERTY SOLD IS A RESIDENTIAL HOUSE AND ASSESSEE IS ELIGIBLE TO CLAIM DEDUCTION U /S 54, WHICH WAS INADVERTENTLY CLAIMED U/S 54F, THE MISTAK E BEING APPARENT ON THE FACE OF RECORD IS COMING WITH THE P URVIEW OF SECTION 254(2) OF THE ACT. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIE S AND PERUSED THE MATERIALS ON RECORD. AS CAN BE SEEN, FR OM THE AVERMENTS MADE IN THE M.A. AS WELL AS THE SUBMISSIO NS MADE BY ASSESSEES COUNSEL, THERE IS NO ERROR IN THE ORD ER OF THE TRIBUNAL, BUT THE ERROR IS BY ASSESSEE IN RAISING O F ADDITIONAL GROUND CLAIMING DEDUCTION U/S 54F IN STEAD OF U/S 5 4. THEREFORE, THERE BEING NO MISTAKE IN THE ORDER OF T HE TRIBUNAL, M.A. WOULD NOT BE MAINTAINABLE. HOWEVER, IT IS A FACT THAT IN PARAGRAPH 4 OF THE ASSESSMENT ORDER, A O HIMSELF HAS STATED THE FACT THAT ASSESSEE IN THE RETURN OF INCOME FILED FOR AY 2006-07 HAS CLAIMED DEDUCTION U/S 54 OF THE ACT AGAINST CAPITAL GAIN ARISING FROM SALE OF THE PROPE RTY IN QUESTION. MOREOVER, IN PARAGRAPH 14 OF THE IMPUGNE D ORDER OF THE TRIBUNAL, IT HAS BEEN OBSERVED BY THE BENCH THAT WHILE COMPUTING CAPITAL GAIN IN THE ASSESSMENT YEAR UNDER CONSIDERATION, AO IS REQUIRED TO ALLOW ALL DEDUCTIO NS AND BENEFITS PERMISSIBLE UNDER THE PROVISIONS OF THE AC T, WHICH ASSESSEE IS ELIGIBLE TO GET. SINCE, THE ISSUE IN TH E ADDITIONAL GROUND WAS RAISED FOR THE FIRST TIME BEFORE IT, THE TRIBUNAL INSTEAD OF GOING INTO THE MERITS OF THE ISSUE RAISE D THOUGHT IT APPROPRIATE TO DIRECT THE AO TO EXAMINE ASSESSEES CLAIM. THEREFORE, IF ASSESSEE IS OTHERWISE ELIGIBLE FOR DE DUCTION U/S 4 M.A. NO. 32/HYD/2015 DR. HRIDAYA MOHAN LAL 54, AND IT FULFILLS ALL THE CONDITIONS OF THE SAID PROVISON, THEN THERE IS NO BAR ON AO IN CONSIDERING ASSESSEES CLA IM OF DEDUCTION U/S 54 OF THE ACT. WITH THE AFORESAID OBS ERVATIONS, M.A. IS DISMISSED. 6. IN THE RESULT, M.A. FILED BY ASSESSEE IS DISMISS ED. PRONOUNCED IN THE OPEN COURT ON 29 TH APRIL, 2015. SD/- SD/- (P.M. JAGTAP) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED:29 TH APRIL, 2015 KV COPY TO:- 1) DR. HRIDAYA MOHAN LAL, C/O SHRI AV RAGHURAM, ADVOCATE, 610, 6 TH FLOOR, BABUKHAN ESTATE, BASHEERBAGH, HYDERABAD 2) ITO, WARD 6(2), HYDERABAD 3) CIT(A)-IV HYDERABAD 4) CIT-III, HYDERABAD 4) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYD .