Shri Ajay Thakordas Bansal, Surat V. The ACIT.,Circle-3, Surat

MA 34/AHD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9224 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-10-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 17-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PBB
• Assessee Lawyers: K K SHAH AR SHRI RAHUL KUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, AHMEDABAD BEFORE SHRI G. C. GUPTA, HONBLE VICE PRESIDENT AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER M.A.NOS.34 & 35/AHD/2012 IN I.T.A. NO.2160 / AHD/2009 & I.T.A.NO. 1754/AHD/2010 (ASSESSMENT YEARS 2006-07 & 2005-06 RESPECTIVELY) AJAY THAKORDAS BANSAL, 25, SAMARPAN SOCIETY, NEAR RANDER ROAD, ADAJAN, SURAT-395009 VS. ACIT, CIRCLE 3, SURAT PAN/GIR NO. : ABYPB6061B (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI K K SHAH, AR RESPONDENT BY: SHRI RAHUL KUMAR, SR. DR DATE OF HEARING: 21.09.2012 DATE OF PRONOUNCEMENT: 05.10.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THESE MISCELLANEOUS APPLICATIONS ARE FILED BY THE ASSESSEE WHEREIN IT HAS BEEN CONTENDED THAT THE ASSESSEE COU LD NOT FILE THE COPY OF JUDGEMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF RADHE DEVELOPERS BECAUSE THE SAME WAS RECEIVED LATE AND, THEREFORE, THIS TRIBUNAL ORDER SHOULD BE RECALLED. 2. ONE MORE CONTENTION WAS RAISED BY THE ASSESSEE I N THESE MISCELLANEOUS APPLICATIONS THAT IN THESE TWO YEARS PARTICULARLY IN ASSESSMENT YEAR 2005-06, THERE WAS NO ISSUE RAISED BY THE A.O. REGARDING M.A.NO.34,35 /AHD/2012 2 BUILT UP AREA OF ANY UNIT BEING OF MORE THAN 1500 S Q. FT AND, THEREFORE, THIS DIRECTION OF THE TRIBUNAL IN THE IMPUGNED ORDER IS NOT CORRECT THAT LD. CIT(A) SHOULD EXAMINE THIS ASPECT ALSO. 3. IN THE COURSE OF HEARING BEFORE US, LD. A.R. REI TERATED THE SAME CONTENTIONS, WHICH ARE RAISED IN THE MISCELLANEOUS APPLICATIONS. AS AGAINST THIS, IT WAS SUBMITTED BY THE LD. D.R. THAT THERE IS NO MISTAKE IN THE TRIBUNAL ORDER. 4. WE HAVE GONE THROUGH THESE MISCELLANEOUS APPLICA TIONS AND CONSIDERED THE RIVAL SUBMISSIONS. REGARDING THE FIR ST OBJECTION OF THE ASSESSEE THAT THE JUDGEMENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF RADHE DEVELOPERS (SUPRA) COULD NOT BE M ADE AVAILABLE BEFORE THE TRIBUNAL BECAUSE THE SAME WAS RECEIVED LATE, WE WOULD LIKE TO OBSERVE THAT WE HAVE NOT DECIDED THE ISSUE BY IGNORING THE JUDGEMENT OF HONBLE GUJARAT HIGH COURT BUT IN FACT, WE HAVE RESTORED BA CK THE MATTER TO THE FILE OF LD. CIT(A) TO DECIDE THE MATTER AFRESH IN T HE LIGHT OF THIS JUDGEMENT OF HONBLE GUJARAT HIGH COURT BECAUSE THE SAME WAS NOT MADE AVAILABLE BEFORE US TILL THE ORDER WAS DICTATE D ON 19.01.2012. UNDER THESE FACTS, WE FEEL THAT THERE IS NO APPARENT MIST AKE IN THE TRIBUNAL ORDER ON THIS ACCOUNT BECAUSE WE HAVE DIRECTED THE LD. CI T(A) TO CONSIDER THIS JUDGMENT OF HONBLE GUJARAT HIGH COURT AND THEN DEC IDE THE ISSUE AFRESH. 5. THE SECOND MISTAKE POINTED OUT BY THE ASSESSEE I N THE MISCELLANEOUS APPLICATIONS IS THIS THAT THERE WAS N O SALE OF ANY FLAT WITH TERRACE ALLEGED AREA OF 1700 SQ. FT IN THESE TWO YE ARS UNDER CONSIDERATION AND, THEREFORE, NO VERIFICATION IS CALLED FOR ON TH IS ISSUE AS HAS BEEN DIRECTED BY THE TRIBUNAL, PARTICULARLY IN ASSESSMEN T YEAR 2005-06 6. ON THIS ASPECT, WE FIND THAT IN ASSESSMENT YEAR 2006-07, THIS ISSUE WAS VERY MUCH BEFORE THE LD. CIT(A) AS TO WHETHER I F ONE OF THE FLATS IS HAVING BUILT UP AREA OF 1700 SQ. FT AND 1480 SQ. FT OR HAS BEEN NOTED BY M.A.NO.34,35 /AHD/2012 3 LD. CIT(A) IN PARA 7.3 OF HIS ORDER AND HE DIRECTED THE A.O. TO VERIFY THIS ASPECT AND TO DECIDE THE ISSUE AS PER LAW. WE HAVE ASKED LD. CIT(A) TO VERIFY THIS FACTUAL ASPECT HIMSELF AND THEREFORE, T HERE IS NO APPAENT MISTAKE IN THE TRIBUNAL ORDER ON THIS ASPECT ALSO I N ASSESSMENT YEAR 2006- 07. 7. IN ASSESSMENT YEAR 2005-06 ALSO, WE FIND THAT AS PER THE STATEMENT OF FACTS SUBMITTED BEFORE US, IT HAS BEEN POINTED O UT THAT FLAT CONSTRUCTED ON THE TOP FLOOR (1700 SQ. FT) EXCEEDS THIS MANDATO RY LIMIT (1500 SQ. FT) PUT BY THE STATUTE. IN ASSESSMENT YEAR 2005-06 ALS O, IT IS NOTED BY LD. CIT(A) IN PARA 7.3 OF HIS ORDER THAT THE NEXT GROUN D WHICH HAS BEEN STRESSED BY THE A.O. IS THAT THERE WERE 2 FLATS WIT H BUILT UP AREA OF 1700 SQ. FT. EACH WHICH DISENTITLED THE ASSESSEE FOR DED UCTION. IN THE LIGHT OF THIS, WE DO NOT FIND ANY MERIT IN THE CONTENTION OF THE ASSESSEE IN THE MISCELLANEOUS APPLICATION THAT THERE WAS NO ISSUE I N DISPUTE REGARDING BUILT UP AREA OF THE FLATS IN ASSESSMENT YEAR 2005- 06 AND WE HAVE SIMPLY ASKED THE LD. CIT(A) TO VERIFY THE FACTUAL ASPECT A ND DECIDE THE MATTER AS PER LAW AND HENCE, THERE IS NO APPARENT MISTAKE IN THE TRIBUNAL ORDER IN ASSESSMENT YEAR 2005-06 ALSO ON THIS ASPECT. 8. IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY APPARENT MISTAKE IN THE TRIBUNAL ORDER. WE ORDER ACCORDING LY. 9. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIO NS OF THE ASSESSEE ARE DISMISSED. 10. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD./- SD./- (G. C. GUPTA) (A. K. GARODIA) VICE PRESIDENT ACCOUNTANT MEMBER SP M.A.NO.34,35 /AHD/2012 4 COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 24/09/12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 26/09/2012. OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 05/10/12 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.5/10/12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 09/10/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .