N Padmaja Devi, Hyderabad V. Dy. Commissioner of Income Tax , Circle-2(1), Hyderabad

MA 35/Hyd/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6990 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-08-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-A
• Assessment Year: 2011-2012
• Appeal Filed On: 17-06-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: G KALYAN DAS
• Keywords: Capital asset; Fair market value
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD. BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND SHRI L . P . SAHU, ACCOUNTANT MEMBER (THROUGH VIRTUAL HEARING) M.A. NO.35/HYD/2021 (ARISING OUT OF ITA NO. 2248 /HYD/20 17 (ASSESSMENT YEAR : 20 11 - 12 ) SMT. NANDAMURI PADMAJA DEVI, RAMAKRISHNA 70 MM, NTR ESTATES, ABIDS, HYDERABAD - 500 001 PAN AAXPN 3203B ..APPELLANT. VS. DY. COMMISSIONER OF INCOME TAX, CIRCLE 2(1), HYDERABAD. ..RESPONDENT. APPELLANT BY : SHRI G.KALYAN DAS & SHRI A. HARISH. RESPONDENT BY : SHRI A.P. BABU (D.R.) DATE OF HEARING : 02.07. 2021. DATE OF PRONOUNCEMENT : 17 .0 8 .2021. O R D E R PER SHRI S.S. GODARA, J.M. : THIS ASSESSEE'S MISCELLANEOUS APPLICATION FILED U/S. 254(2) OF THE INCOME TAX ACT (IN SHORT 'THE ACT') SEEKS TO RECALL/RECTIFY THE TRIBUNALS ORDER DT.30.03.2021 ADOPTING FAIR MARKET VALUE (FMV) OF HER CAPITAL ASSET IN ISSUE @ 2 M.A. NO. 35/HYD/2021 RS.400 PER SQ. YARD FO LLOWED BY COST OF CONSTRUCTION TO THE TUNE OF RS.1,60,000; RESPECTIVELY. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. LEARNED COUNSEL VEHEMENTLY CONTENDED DURING THE COURSE OF HEARING THAT THE TRIBUNALS ; INTER ALIA , HAS ERRED IN LAW AN D ON FACTS IN NOT GOING BY THE VARIOUS LEARNED CO - ORDINATE BENCH (ES) DECISION S WHILST ADJUDICATING THE ISSUE OF FMV OF THE CAPITAL ASSET AND ACCEPTING THE SAME @ RS.400 PER SQ. YARD THAN THAT CLAIMED AT RS.1,038 PER SQ. YARD. ; HE INVITED OUR ATTENTION TO ASSESSEE'S REGISTERED VALUERS REVERSE CALCULATION METHOD. LEARNED COUNSEL STATED THAT WE HAVE WRONGLY UPHELD THE ASSESSING OFFICERS ACTI O N MAKING REFERENCE TO THE DEPARTMENT VALUATION OFFICER (DVO) U/S. 55A(A) OF THE ACT DESPITE THE FACT THAT WE ARE IN ASSESSMENT YEAR 2011 - 12 AND HER VALUATION AS PER THE REGISTERED VALUERS REPORT WAS ALREADY MORE THAN THE FMV WHEREAS IT IS LESS THAN ITS FAIR MARKET VALUE A S PER THE AMENDED PROVISION ; RESPECTIVELY. 3 M.A. NO. 35/HYD/2021 3. WE FIND NO MERIT IN EITHER OF THE ASSESSEE'S FOREGOING ARGUMENT S. THIS IS MAINLY FOR THE REASON THAT THE ASSESSEE ACTUAL DATE OF ACQUISITION WAS 1.9.1980, AS PER THE TRIBUNAL ORDER IN PARA 6 WHEREAS WE HA D TO DETERMINE THE FMV THER EON AS ON 1.4.1981. THERE IS HARDLY A NY CONSIDERABLE TIME GAP BETWEEN THE SAID TWO CLINCHING DATES WHICH IS SUFFICIENTLY ENOUGH TO REJECT ASSESSEE'S REVERSE CALCULATION PLEA FROM ASSESSMENT YEAR 2011 - 12 BACKWARDS . COUPLED WITH THIS, THIS TRIBUNAL HAS ALSO RECORDED THAT THERE WAS ANOTHER SALE INSTANCE IN THE VERY TIME SPAN CLAIM ED TO BE ASSESSEE'S RELAT ED PARTY WHICH HAD SUGGESTED THE FMV AS LESS THAN RS.120 ONLY. BE THAT AS IT MAY, OUR ORDER HAS MADE ELABORATE DISCUSSION ON ALL THE RELEVANT FACTS AS WE LL AS JUDICIAL PRECEDEN TS ON VALUATION ASPECT WHILE GRANTING PART RELIEF TO THE ASSESSEE. WE THUS REITERATE THE SETTLED LEGAL PR E POSITION THAT THE SECTION 254(2) RECTIFICATION PROCEEDINGS ARE CONFINED TO ONLY APPARENT MISTAKE THAN THOSE REQUIRING FISHING ENQUIRIES IN LIGHT OF (1993) 203 ITR 497 (BOM) CIT VS. RAMESH ELECTRIC AND TRADING CO. WE 4 M.A. NO. 35/HYD/2021 THUS DECLINE THE ASSESSEES ALL FOREGOING SUBSTANTIVE GROUND S TO THIS EFFECT . 4. LASTLY COMES THE ASSESSEE'S ARGUMENT THAT WE HAVE NOT ADJUDICATED UPON HER IN G ROUND NOS.3.1 TO 3.3 CLAIMING COST OF CONSTRUCTION AMOUNTING TO RS.3.74 LAKHS AS PER WEALTH TAX RETURN IN PAGES 38 TO 42 OF THE PAPER BOOK. LEARNED COUNSEL INVITED OUR ATTENTION TO THE FACT THAT OUR ORDER HAS ALREADY ACCEPTED A SIMILAR CLAIM OF RS.1.68 L AKHS . WE FIND NO MERIT IN THE ASSESSEE'S INSTANT LAST ARGUMENT AS WELL. THERE IS NOT EVEN A SINGLE VOUCHER PLACED IN SUPPORT OF ASSESSEE'S COST OF CONSTRUCTION TO RECEIVE RS.3.74 LAKHS. HER ENDEAVOUR TO COMPARE THE INSTANT ISSUE WITH THAT OF RS.1.60 L AKHS ALSO HAS NO SUBSTANCE SINCE THE ASSESSING OFFICER HA D HIMSELF ACCEPTED THE LATTER HEAD DURING THE COURSE OF ASSESSMENT AND CIT(A) REVERSED THE SAME BY WAY OF ENHANCEMENT U/S. 251(1)(A) OF THE ACT . WE THUS DECLINE THE ASSESSEE'S INSTANT ARGUMENT ON ALL COUNTS. 5 M.A. NO. 35/HYD/2021 5. THIS ASSESSEE'S M.A. NO.35/HYD/2021 IS DISMISSED IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH AUG. , 2021. SD/ - SD/ - (L .P. SAHU) (S.S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DT. 17 .0 8 .2021. * REDDY GP COPY TO : 1. SMT. NANDAMURI PADMAJA DEVI, RAMAKRISHNA 70 MM, NTR ESTATES, ABIDS, HYDERABAD - 500 001 2. DCIT, CIRCLE 2(1), HYDERABAD. 3. PR. C I T - 2 , HYDERABAD. 4. CIT(APPEALS) - 2, HYDERABAD. 5. DR, ITAT, HYDERABAD. 6. GUARD FILE. BY ORDER SR. PVT. SECRETARY, ITAT, HYDERABAD.