BINA B. RAMCHANDANI, MUMBAI V. ADDL CIT 21(3), MUMBAI

MA 349/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6935 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-07-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 12-07-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SSH SAURABH KUMAR; RAM TIWARI D RS
• Assessee Lawyers: NEHA PARANJPE A RS
• Section: 54

Judgement Text

P A G E | 1 M.A. NO. 349/MUM/2017 (ARISING OUT OF ITA NO. 7208/MUM/2011) MRS. NIHARIKA M. JHANGIANI VS. ADDL. CIT - 21(3) IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI R.C.SHARMA , AM AND SHRI RAVISH SOOD, JM M. A. NO.349 /MUM/2017 (ARISING OUT OF ITA NO.7208/MUM/2011 ) (ASST. YEAR : 200 8 - 09 ) MRS. NIHARIKA M. JHANGIANI (LEGAL HEIR OF LATE BINA B. RAMCHANDANI) 1508/1509, MADLE LEAF, RAHEJA VIHAR, POWAI, ANDHERI (EAST), MUMBAI - 400 072 V S. ADD. COMMISSIONER OF INCOME TAX - 21(3), MUMBAI PAN NO. AABFL2160M (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. K. GOPAL & MS. NEHA PARANJPE, ARS DEPARTMENT BY : S/SH. SAURABH KUMAR, & RAM TIWARI D RS DATE OF HEARING : 29/06 /2018 DATE OF PRONOUNCEMENT : 2 4 /0 7 /2018 O R D E R PER RAVISH SOOD , JUDICIAL MEMBER THE APPLICANT WHO IS THE L EGAL HEIR OF THE DECEASED ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION UNDER SEC.254(2) OF THE INCOME TAX ACT, 1961 (FOR SHORT ACT), SEEKING RECTIFICATION OF CERTAIN MISTAKES WHICH AS PER HER HAD CREPT IN THE ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING OF F THE APPEAL OF THE ASSESSEE VIZ. MS. NIHARIKA M. JHANGIANI (LEGAL HEIR OF LATE V. RAMCHANDANI) VS. ADDL.CIT - 21(3), MUMBAI (ITA NO. 7208/MUM/2011, DATED 13.01.2017) FOR A.Y 2008 - 09. 2. BRIEFLY STATED, THE FACTS TO THE EXTENT RELE VANT FOR DISPOSAL OF THE PRESENT APPLICATION ARE THAT THE ASSESSEE HAD SOLD A F LAT NO. 62/B IN P A G E | 2 M.A. NO. 349/MUM/2017 (ARISING OUT OF ITA NO. 7208/MUM/2011) MRS. NIHARIKA M. JHANGIANI VS. ADDL. CIT - 21(3) GRANT PARADI CO - OP . HOUSING SOCIETY LTD., SITUATED AT 572, DADYSETH HILL, AUGUST K RANTI MARG, MUMBAI, VIDE A TRANSFER DEED DATED 24.08.2007, FOR A CONSIDERATION OF RS. 4,25,00,000/ - . THE ASSESSEE AFTER SELLING THE AFORESAID PROPERTY HAD INVESTED IN P URCHASE OF T W O FLATS VIZ. F LAT NO. 1508 AND 1509, MAPLE LEAF, TUNGWA VILLAGE, KURLA TALUKA (BSD) , ANDHERI (E), MUMBAI. THE RESPECTIVE INVESTMENTS WERE NOT MADE IN THE NAME OF THE ASSESSEE, BUT RATHER JOINTLY ALONG WITH HER DAUGHTER. IN THE PURCHASE DEED OF FLAT NO. 1508 THE ASSESSE WAS THE FIRST NAME HOLDER, WHILE FOR IN THE PURCHASE DEED OF FLAT NO. 1509 THE DAUGHTER OF THE ASSESSEE SMT. NIHARIKA M. JHANGIANI WAS THE F IRST NAME HOLDER. ON THE BASIS OF THE AFORESAID INVESTMENTS MADE TOWARDS PURCHASE OF NEW RESIDENTIAL PROPERTY THE ASSESSEE HAD CLAIMED THE ENTIRE INVESTMENT AS EXEMPT UNDER SEC. 54 OF THE ACT. 3. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS THE A.O R ESTRICTED THE ENTITLEMENT OF THE ASSESSEE TOWARDS EXEMPTION UNDER SEC. 54 AT RS.41,54,125/ - I.E TO THE EXTENT OF 50% OF THE INVESTMENT MADE BY THE ASSESSEE IN FLAT NO. 1508 (WHEREIN THE ASSESSEE WAS THE FIRST NAME HOLDER). HO WEVER, ON FURTHER APPEAL THOUGH T HE CIT(A) HELD THAT THE ASSESSEE WAS ENTITLED FOR EXEMPTION UNDER SEC.54 IN RESPECT OF BOTH OF T HE F LATS VIZ. FLAT S NO. 1508 AND 1509, BUT KEEPING IN VIEW THE FACT THAT THE INVEST MENT IN THE RESPECTIVE FLATS WERE MADE IN THE JOINT NAME S OF THE ASSESSEE A ND HER DAUGHTER , RELYING ON THE JUDGMENT OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF PRAKASH VS. ITO (2009) 312 ITR 40 (BOM) RESTRICTED THE ENTITLEMENT TOWARDS EXEMPTION UNDER SEC. 54 IN THE HANDS OF THE ASSESSEE TO THE EXTENT OF 50% OF THE TOTA L IN VESTMENT. ON THE BASIS OF HIS AFORESAID DELIBERATIONS THE CIT(A) ALLOWED EXEMPTION UNDER SEC.54 OF RS.83,08,250/ - ONLY (50% OF RS.1,66,16,500/ - ) TO THE ASSESSEE. 4. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE TRIBUNAL. THE TRIBUNAL AFTER DELIBERA TING AT LENGTH ON THE ISSUE UNDER CONSIDERATION OBSERVED THAT THOUGH THE ENTIR E INVESTMENT TOWARDS PURCHASE OF FLAT S P A G E | 3 M.A. NO. 349/MUM/2017 (ARISING OUT OF ITA NO. 7208/MUM/2011) MRS. NIHARIKA M. JHANGIANI VS. ADDL. CIT - 21(3) NO. 1508 AND 1509 WERE MADE BY THE ASSESSEE, BUT BY VIRTUE OF THE DAUGHTER BEING MADE A JOINT OWNER IN BOTH OF THE FLATS SHE BECAME OWNER OF THE 50% OF THE SAME , AND AS SUCH THE OWNERSHIP OF THE ASSESSEE STOOD RESTRICTED TO THE REMAINING 50% ONLY. ON THE BASIS OF THE AFORESAID OBSERVATIONS THE TRIBUNAL RELYING ON THE JUDGMENT OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF P RAKASH VS. ITO (2009) 312 ITR 40 (BOM) CONCLUDED THAT IN LIGHT OF THE FACT THAT THE NEW RESIDENTI AL F LAT S NO. 1508 AND 1509 HAD BEEN PURCHASED JOINTLY IN THE NAME OF THE ASSESSEE AND HER DAUGHTER, THEREFORE, THE CIT(A) HAD RIGHTLY RESTRICTED THE CLAIM OF T HE ASSESSEE TOWARDS EXEMPTION UNDER SEC. 54 TO THE EXTENT OF 50% OF THE TOTAL INVESTMENT AT RS.83,08,250/ - (I.E 50% OF RS.1,66,16,500/ - ). 5. THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE SHRI K. GOPAL AT THE VERY OUTSET OF THE HEAR ING OF THE APPEAL, SUBMITTED THAT THE FACTS OF THE CASE BEFORE THE HONBLE HIGH COURT OF BOMBAY WERE DISTINGUISHABLE AS AGAINST THOSE INVOLVED IN THE CASE OF THE ASSESSEE APPLICANT. THE LD. A.R TRIED TO IMPRESS UPON US THAT AS IN THE CASE BEFORE THE HONBL E HIG H COURT OF BOMBAY THE INVESTMEN T IN THE NEW PROPERTY WAS EXCLUSIVELY MADE IN THE NAME OF THE ADOPTED SON OF THE ASSESSEE, THEREFORE, THE FACTS WERE DISTINGUISHABLE AS AGAINST THOSE INVOLVED IN THE PRESENT CASE. IT WAS SUBMITTED BY THE LD. A.R THAT IN THE PRESENT CASE THE ASSESSEE BEING AN AGED LADY HAD ONLY FOR THE SAKE OF CONVENIENCE PURCHASE D THE PROPERTY JOINTLY ALONG WIT H HER DAUGHTER. IT WAS FURTHER AVERRE D BY MR. GOPAL THAT THE ENTIRE INVESTMENT T OWARDS RESIDENTIAL PROPERTY WAS MADE BY THE ASSESS EE AND NOT BY HER DAUGHTER. THE LD. A.R IN ORDER TO DRIVE HOME HIS CONTENTION THAT THE CLAIM OF THE ASSESSEE TOWARDS EXEMPTION UNDER SEC.54 WAS IN ORDER, TOOK SUPPORT OF HOST OF JUDICIAL PRONOUNCEMENTS. THE LD. A.R TOOK US THROUGH THE JUDGMENT OF THE HONBLE HIGH COURT OF DELHI IN THE CASE OF (I) CIT VS. RAVINDER KUMAR ARORA (2012) 342 ITR 38 (DEL); AND (II) CIT VS. KAMAL WAHAL (2013) 351 ITR 4 (DEL). STILL FURTHER, RELIANCE WAS PLACED BY HIM ON AN ORDER OF THE P A G E | 4 M.A. NO. 349/MUM/2017 (ARISING OUT OF ITA NO. 7208/MUM/2011) MRS. NIHARIKA M. JHANGIANI VS. ADDL. CIT - 21(3) COORDINATE BENCH OF THE TRIBUNAL IN THE C ASE OF JITENDRA V. FARIA VS. ITO (2017) 164 ITD 443 (MUM). THE LD. A.R TO BUTTRESS HIS CONTENTION THAT THE CLAIM OF THE ASSESSEE WAS IN ORDER, ALSO REFERRED TO THE PROVISIONS OF THE T RANSFER OF P ROPERTY ACT, 1882. ON THE BASIS OF THE AFORESAID SUBMISSIONS , IT WAS THE CLAIM OF THE LD. A.R THAT AS THE ORDER OF THE TRIBUNAL PASSED UNDER SEC. 254(1) OF THE ACT SUFFERED FROM A MISTAKE APPARENT FROM RECORD, THEREFORE, THE SAME MAY BE RECALLED . PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) SUBM ITTED THAT AS THE ORDER PASSED BY THE TRIBUNAL WAS IN CONFORMITY WITH THE JUDGMENT OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF PRAKASH VS. ITO (2009) 312 ITR 40 (BOM), THEREFORE, THE SAME DID NOT SUFFER FROM ANY MISTAKE. 6. WE HAVE HEARD THE AUTHORI ZED REPRESENTATIVES FOR BOTH THE PARTIES, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE ORDER PASSE D BY THE TRIBUNAL UNDER SEC.254 (1) OF THE ACT. WE HAVE DELIBERATED AT LENGTH ON THE CONTENTION S ADVANCED BY THE LD. A.R AND ARE UNABLE TO PERSUADE OURSELVES TO SUBSCRIBE TO HIS CLAIM THAT THE ORDER PASSED BY THE TRIBUNAL SUFFERS FROM A MISTAKE WHI CH BEING GLARING, PA TENT, OBVIOUS AND APPAR ENT FROM RECORD, THUS RENDERED THE SAME AMENABLE FOR RECTIFIC ATION UNDER SEC.254(2) OF THE ACT. WE ARE OF THE CONSIDERED VIEW THAT THE TRIBUNAL WHILE DISPOSING OF F THE APPEAL HAD RESTRICTED THE ENTITLEMENT OF THE ASSESSEE TOWARDS CLAIM OF EXEMPTION UNDER SEC.54 OF THE ACT BY RELYING ON THE BINDING JUDGMENT OF THE HO NBLE HIGH COURT OF BOMBAY IN THE CASE OF PRAKASH VS. ITO (2009) 312 ITR 40 (BOM) . WE ARE NOT IMPRESSED WITH THE CONTENTION OF THE LD. A.R THAT THE FACTS INVOLVED IN THE CASE BEFORE THE HONBLE JURISDICTIONAL HIGH COURT WERE DISTINGUISHABLE AS AGAINST THOS E INVOLVED IN THE CASE BEFORE US. WE ARE ALSO NOT PERSUADED TO SUBSCRIBE TO THE RELIANCE PLACED BY THE LD. A.R ON THE JUDGMENTS OF THE HONBLE HIGH COURT OF DELH I IN THE CASE OF CIT VS. KAMAL W AHAL (2013) 351 ITR 4 (DEL) AND THE ORDERS OF THE COORDINATE BE NCHES OF THE TRIBUNAL, HOLDING THAT AS LONG AS THE INVESTMENT IN THE NEW RESIDENTIAL HOUSE IS MADE BY THE ASSESSEE, THE FACT THAT THE SAME HAD BEEN PURCHASED IN THE NAME OF A THIRD PARTY WILL HAVE NO BEARING ON THE ENTITLEMENT OF THE P A G E | 5 M.A. NO. 349/MUM/2017 (ARISING OUT OF ITA NO. 7208/MUM/2011) MRS. NIHARIKA M. JHANGIANI VS. ADDL. CIT - 21(3) ASS ESSEE TOWARDS CLAIM OF EXEMPTION UNDER SEC. 54/54F OF THE ACT . WE ARE OF THE CONSIDERED VIEW THAT AS OBSERVED BY US HEREINABOVE, THE ISSUE UNDER CONSIDERATION IS SQUARELY COVE RED BY THE JUDGMENT OF THE HONBLE H IGH COURT OF JURISDICTION, WHICH AS PER THE JUDICIAL DISCIPLINE HAS TO BE STRICTLY FOLLOWED AS IN PREFERENCE TO THE JUDGMENTS OF NON - JURISDICTIONAL HIGH COURTS OR ORDERS OF COORDINATE BENCHES OF THE TRIBUNAL. WE MAY FURTHER OBSERVE THAT THE LD. A.R BY DRAWING SUPPORT FROM THE PROVISIONS OF THE TRANSFER OF PROPERTY ACT, 1882, HAD AS A MATTER OF FACT TRAVERSED BEYOND THE LIMITED SCOPE AND GAMUT OF RECTIFICATION PROCEEDINGS CONTEMPLATED UNDER SEC. 254(2) OF THE ACT, WHICH STANDS RESTRICTED TO RECTIFICATION OF A MISTAKE WHICH IS GLARING, PATENT, APPARENT AND OBVIOUS FROM RECORD. 7. WE THUS , ARE OF THE CONSIDERED VIEW THAT IN THE BACKDRO P OF OUR AFORESAID OBSERVATIONS THE ORDER PASSED BY THE TRIBUNAL WHILE D ISPOSING OFF THE APPEAL FILED BY THE ASSESSEE, BEING IN CONFORMITY WITH TH E JUDGMENT OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF PRAKASH VS. ITO (2009) 312 ITR 40 (BOM ) , THUS CANNOT BE HELD TO BE SUFFERING FROM A MISTAKE APPARENT FROM RECORD. WE THUS , IN TERMS OF OUR AFORESAID OBSERVATIONS NOT BEING ABLE TO PERSUADE OURSE LVES TO SUBSCRIBE TO THE CLAIM OF THE ASSESSEE THAT T HE ORDER PASSED BY THE TRIBUNAL UNDER SEC. 254(1) SUFFERS FROM A MISTAKE, WHICH THEREIN RENDERS THE SAME AMENABLE FOR RECTIFICAT ION UNDER SEC.254(2) OF THE ACT, DISMISS THE MISCELLANEOUS APPLICATION FILE D BY HER . 8 . THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. O RDER PRONOUNCED ON 2 4 .07 .2018 S D / - S D / - (R.C.SHARMA) (RAVISH SOOD) A CCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; 24 .07 .2018 PS. ROHIT P A G E | 6 M.A. NO. 349/MUM/2017 (ARISING OUT OF ITA NO. 7208/MUM/2011) MRS. NIHARIKA M. JHANGIANI VS. ADDL. CIT - 21(3) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI