Chandrasinh Ramsinh Parmar, Dadra & Nagar Haveli V. The Income tax Officer, Silvassa Ward, Vapi

MA 36/SRT/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0020 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 7 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-12-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 22-04-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Assessee Lawyers: HIREN VEPARIAR
• Keywords: Fair market value; Capital Gains
• Section: 254(2); 73

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM MA NO.36/SRT/2019 [ARISING OUT OF ITA NO.1222/AHD/2016] ASSESSMENT YEAR: (2004-05) (VIRTUAL COURT HEARING) CHANDRASINH RAMSINH PARMAR, PARMAR WADI, SAYLI ROAD, SILVASSA, DADRA & NAGAR HAVELI, 396230. VS. THE INCOME TAX OFFICER, SILVASSA WARD, SILVASSA. ./ ./ PAN/GIR NO.: AIYPP9167F (ASSESSEE) (RESPONDENT) ASSESSEE BY: SHRI HIREN VEPARI-AR REVENUE BY: MS. ANUPAMA SINGLA - SR. DR / DATE OF HEARING : 11/12/2020 /DATE OF PRONOUNCEMENT : 21/12/2020 / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: BY WAY OF THE CAPTIONED APPLICATION, THE ASSESSEE HAS SOUGHT TO POINT OUT THAT A MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE INCOME TAX ACT, 1961( IN SHORT THE ACT) HAS CREPT IN THE ORDER OF THE TRIBUNAL DATED 12.02.2019. 2. THE CASE OF THE ASSESSEE IN THIS MISCELLANEOUS APPLICATION IS THAT THE TRIBUNAL IN ITS ORDER DATED 12.02.2019 HAS NOT DEALT WITH THE FOLLOWING ISSUES: (2)A. GROUNDS ON 'REAPPRAISAL OF THE SAME INFORMATION ON THE RECORDS' (PAGE NO.14 AND 15 OF THE PAPER BOOK). THE HON'BLE TRIBUNAL HAS DISMISSED THE GROUND ON THE SCORE OF 'UNDER REPORTING' IN PARAGRAPH 10 OF THE APPELLATE ORDER RATHER THAN DEALING WITH THE QUESTION OF 'REAPPRAISAL OF THE SAME INFORMATION BY THE AO.' B. THE HON'BLE TRIBUNAL DID NOT DEAL WITH THE ISSUE ON SECTION 45(3) OF THE ACT PARTICULARLY THAT WAS FORMING PART OF THE GROUNDS WITH RESPECT TO GROUND NO. (L)(I), GROUND NO. (LL)(1)(II), GROUND NO.(LL)(2) AND GROUND NO.(LL)(3). AS A MATTER OF FACT, THERE IS NOT EVEN WHISPER ON APPLICABILITY OF SECTION 45(3) PARTICULARLY WHEN IT FORMED THE VERY BASIS OF THE ADDITION. C. IN THE SECOND ROUND BEFORE THE ITAT, ONE OF THE KEY ISSUES BEFORE THE TRIBUNAL WAS THAT THE AO DID NOT DISPOSE THE OBJECTION RAISED BY THE APPELLANT ON THE ISSUE OF SECTION 45(3) (PAGE NO.31 OF THE PAPER BOOK) IN THE ORDER DISPOSING OF OBJECTIONS PAGE | 2 MA NO.36/SRT/2019 ASSESSMENT YEAR.2004-05 CHANDRASINH RAMSINH PARMAR (PAGE NO.88 TO 94 OF THE PAPER BOOK). THIS WAS DIRECTED BY THE HON'BLE TRIBUNAL IN THE FIRST ROUND IN PARAGRAPH 3 (PAGE NO.85 TO 87 OF THE PAPER BOOK). DESPITE GIVEN SECOND CHANCE, THE AO ALSO DID NOT FOLLOW DIRECTION OF THE HON'BLE TRIBUNAL IN THE SECOND ROUND. HENCE, ORDER OF THE AO WAS REQUIRED TO BE QUASHED IN VIEW OF THE DECISION OF AHMEDABAD TRIBUNAL IN CASE OF JAYABEN BHOLABHAI PATEL (2867/A/2011) (PAGE NO.102 TO 106 OF THE PAPER BOOK). UNFORTUNATELY, THE HON'BLE TRIBUNAL WHILE DISPOSING THE APPEAL HAS NOT ONLY DEALT WITH THE ISSUE BUT HAS ALSO TAKEN INTO CONSIDERATION THIS PARTICULAR DECISION. D. IN THE MATTER FOLLOWING DECISIONS (PAGE NO.144 TO 210 OF THE PAPER BOOK) QUOTED IN PARAGRAPH (6) B. VI. BY THE APPELLANT HAVE NOT BEEN CONSIDERED BY THE BENCH AT ALL WHERE IT HAS BEEN CLEARLY HELD THAT NOT DISPOSING OF OBJECTIONS LEAD TO ASSESSMENT ORDER BEING QUASHED. IT IS STRANGE THAT THE AO DID NOT DISPOSE OF THE OBJECTION ON THE ISSUE OF SECTION 45(3) IN BOTH THE ROUNDS, WHICH THE TRIBUNAL DID NOT DEAL WITH IT AT ALL. SR. NO. CITATION NAME PAGE NO. 1 259-ITR-19 (SC) GKN DRIVESHAFTS (INDIA) LTD 144-45 2 270-ITR-469 (GUJARAT) ARVIND MILLS LTD 146-154 3 354-ITR-244 (GUJARAT) GENERAL MOTORS INDIA (P) LTD. 155-178 4 354-ITR-211 (GUJARAT) VISHWANATH ENGINEERS 179-187 5 80-TAXMANN.COM-77 (KARNATAKA) DEEPAK EXTRUSIONS P. LTD 188-192 6 81-TAXMANN.COM- 73 (MADRAS) MARTECH PERIPHERALS P. LTD 193-203 7 81-ITR-(TRIB)-669 (DELHI) VEER VARDHAMAN FINANCE INVESTMENT P. LTD 204-210 E. IN PARAGRAPH 11 OF THE TRIBUNAL ORDER, THE TRIBUNAL HAS ACKNOWLEDGED AS UNDER. '11. REGARDING 2 ND AND 3 RD GROUNDS OF APPEAL OF THE ASSESSEE, THE ASSESSING OFFICER HAS HELD THAT NON-AGRICULTURAL OF 4960 KG MTRS HELD AS STOCK IN TRADE BY THE ASSESSEE WAS BROUGHT AS CAPITAL CONTRIBUTION TO THE FIRM M/S. C. N. BUILDERS AND DEVELOPER ON 18-10-2003.' AFTER PUTTING THE OBSERVED FACTS IN CLAUSES (A) TO (D) IN PARA (11), THE TRIBUNAL HAS ACKNOWLEDGED THE AO'S FINDING THAT WHAT WAS INTRODUCED BY THE APPELLANT INTO M/S. C. N. BUILDERS WAS STOCK-IN- TRADE AND THAT LOGICALLY IT SHOULD HAVE BEEN TAXED UNDER THE HEAD 'PROFITS AND GAINS FROM BUSINESS'. IF THAT BE, THE TRIBUNAL SHOULD HAVE ALLOWED THE APPEAL ENTIRELY BECAUSE THE POSITION OF THE AO WAS ON INCOME FROM 'CAPITAL GAINS' AND NOT 'PROFITS AND GAINS FROM BUSINESS'. F. THE HON'BLE TRIBUNAL ON PAGE 10 IN LAST BUT ONE PARAGRAPH, TREATED FAIR MARKET VALUE OF THE ASSET AT RS.900 PER SQ. MT., WHICH HAS NO BASIS EXCEPT FOR THE ESTIMATE BY PAGE | 3 MA NO.36/SRT/2019 ASSESSMENT YEAR.2004-05 CHANDRASINH RAMSINH PARMAR THE CIT(A). HON'BLE TRIBUNAL OUGHT TO HAVE ADOPTED THE FAIR VALUE MEASUREMENT OF RS.600 PER SQ. MT. GIVEN ON PAGE NO.101 OF THE PAPER BOOK SUPPORTED WITH THE CERTIFICATE PARTICULARLY WHEN THE AO HAD NOT MADE ANY REFERENCE TO THE VALUATION OFFICER U/S.55A OF THE ACT. 3. SHRI HIREN VEPARI, LD COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE THE BENCH THAT ALL THE ABOVE ISSUES, AS STATED IN THE MISCELLANEOUS APPLICATION, HAVE NOT BEEN CONSIDERED BY THE TRIBUNAL IN ITS ORDER DATED 12.02.2019, WHILE DECIDING THE APPEAL, THEREFORE HE PRAYED THE BENCH THAT ORDER OF THE TRIBUNAL MAY BE RECALLED TO DEAL WITH THE ABOVE ISSUES. 4. MS. ANUPAMA SINGLA, LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE SUBMITTED THAT TRIBUNAL HAS CONSIDERED ALL THE ISSUES, AS STATED IN THE MISCELLANEOUS APPLICATION OF THE ASSESSEE. SHE ALSO POINTED OUT THAT FAIR MARKET VALUATION OF THE ASSET AT RS.900 PER SQUIRE METER IS BASED ON ESTIMATION AND SUCH ESTIMATION CANNOT BE TREATED MISTAKE APPARENT IN THE TRIBUNAL ORDER. THE ASSESSEE, IN HIS MISCELLANEOUS APPLICATION, IS REQUESTING THE TRIBUNAL TO ADOPT THE FAIR MARKET VALUE AT RS.600 PER SQUARE METER, INSTEAD OF RS.900 PER SQUARE METER, WHICH IS NOT PERMITTED UNDER SECTION 254(2) OF THE ACT, AS IT WOULD BE TANTAMOUNT TO RE-WRITE THE ORDER AGAIN. WHILE DECIDING THE APPEAL, THE TRIBUNAL HAS CONSIDERED ALL THE ISSUES OF THE ASSESSEE, HENCE THERE IS NO MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL AND THEREFORE ASSESSEE`S MISCELLANEOUS APPLICATION SHOULD BE DISMISSED. 5. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE SUBMISSIONS PUT FORTH ON BEHALF OF THE ASSESSEE. WE FIND MERIT IN THE SUBMISSIONS OF MS. ANUPAMA SINGLA, LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE, AS SHE HAS RIGHTLY POINTED OUT THAT TO ADOPT THE FAIR MARKET VALUE AT RS.900 PER SQUARE METER, INSTEAD OF RS. 600 PER SQUARE METER (SUGGESTED BY ASSESSEE) IS THE MATTER OF JUDICIAL SCRUTINY/DECISION OF THE TRIBUNAL AND THE ASSESSEE CANNOT DICTATE THE TRIBUNAL TO TAKE A PARTICULAR FAIR MARKET VALUE IN ITS DECISION. MOREOVER, WE HAVE GONE THROUGH THE CONTENTS OF THE MISCELLANEOUS APPLICATION, AS NARRATED IN PARA 2 OF THIS ORDER AND WE FIND THAT TRIBUNAL HAS CONSIDERED IN PARA 10 OF ITS ORDER ALL THE ISSUES AND REACHED ON THE CONCLUSION THAT ASSESSING OFFICER HAD REOPENED THE ASSESSMENT WITH VALID REASON. THE ASSESSEE HAS PAGE | 4 MA NO.36/SRT/2019 ASSESSMENT YEAR.2004-05 CHANDRASINH RAMSINH PARMAR ALSO POINTED OUT IN THIS MISCELLANEOUS APPLICATION THAT TRIBUNAL HAS NOT CONSIDERED THE FOLLOWING DECISIONS (PAGE NO.144 TO 210 OF THE PAPER BOOK): SR. NO. CITATION NAME PAGE NO. 1 259-ITR-19 (SC) GKN DRIVESHAFTS (INDIA) LTD 144-45 2 270-ITR-469 (GUJARAT) ARVIND MILLS LTD 146-154 3 354-ITR-244 (GUJARAT) GENERAL MOTORS INDIA (P) LTD. 155-178 4 354-ITR-211 (GUJARAT) VISHWANATH ENGINEERS 179-187 5 80-TAXMANN.COM-77 (KARNATAKA) DEEPAK EXTRUSIONS P. LTD 188-192 6 81-TAXMANN.COM- 73 (MADRAS) MARTECH PERIPHERALS P. LTD 193-203 7 81-ITR-(TRIB)-669 (DELHI) VEER VARDHAMAN FINANCE INVESTMENT P. LTD 204-210 WE NOTE THAT TRIBUNAL HAS CONSIDERED THE PAPER BOOK OF THE ASSESSEE. IT IS NOT NECESSARY THAT TRIBUNAL SHOULD CONSIDER IN ITS CONCLUDING PARA EACH AND EVERY JUDGMENT CITED BY THE ASSESSEE. IT IS NOT A CASE OF THE ASSESSEE THAT TRIBUNAL HAS NOT CONSIDERED THE PAPER BOOK OF THE ASSESSEE, FOR INSTANCE, THE TRIBUNAL HAS GIVEN A PASSING REFERENCE OF THE JUDGMENT OF THE HON`BLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA) LTD, 259-ITR-19 (SC), IN PARA NO.6 OF ITS ORDER, IT MEANS THE TRIBUNAL WAS AWARE ABOUT THE JUDGMENT CITED BY THE ASSESSEE IN ITS PAPER BOOK, HOWEVER IT IS NOT NECESSARY THAT THE SAID JUDGMENT SHOULD BE USED BY THE TRIBUNAL IN ITS CONCLUSION( RATIO). 6. WE NOTE THAT IN THIS MISCELLANEOUS APPLICATION, LD COUNSEL HAS ARGUED THE VARIOUS LEGAL ISSUES WHICH WERE ALREADY CONSIDERED BY THE TRIBUNAL IN ITS ORDER DATED 12.02.2019. WHEN AN ARGUMENT AND DEBATE IS MADE BY LD COUNSEL FOR A PARTICULAR ISSUE THEN IT WOULD NOT A MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL. THE POWER TO RECTIFY AN ORDER, UNDER SECTION 254(2) OF THE ACT IS EXTREMELY LIMITED AND IT DOES NOT EXTEND TO CORRECTING ERRORS OF LAW, OR RE-APPRECIATING FACTUAL FINDINGS. THE PLAIN PAGE | 5 MA NO.36/SRT/2019 ASSESSMENT YEAR.2004-05 CHANDRASINH RAMSINH PARMAR MEANING OF THE WORD 'APPARENT' IS THAT IT MUST BE SOMETHING WHICH APPEARS TO BE EX- FACIE AND INCAPABLE OF ARGUMENT AND DEBATE. THE RECALLING THE ENTIRE ORDER OF THE TRIBUNAL WOULD MEAN PASSING OF A FRESH ORDER. THAT DOES NOT APPEAR TO BE THE LEGISLATIVE INTENT. THEREFORE, TAKING INTO ACCOUNT THE CONTENTS OF THE MISCELLANEOUS APPLICATION (SUPRA), WE DO NOT FIND MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL DATED 12.02.2019, HENCE WE DISMISS THE MISCELLANEOUS APPLICATION OF THE ASSESSEE. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION (IN MA NO.36/SRT/2019 FOR AY.2004-05) FILED BY THE ASSESSEE IS DISMISSED. ORDER IS PRONOUNCED ON 21/12/2020, AS PER RULE 34 OF INCOME TAX APPELLATE TRIBUNAL, RULE 1963. SD/- SD/- (PAWAN SINGH) (DR. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER LWJR /SURAT / DATE: 21/12/2020 SAMANTA, PS COPY OF THE ORDER FORWARDED TO 1. THE ASSESSEE 2. THE RESPONDENT 3. THE CIT(A) 4. PR.CIT 5. DR/AR, ITAT, SURAT 6. GUARD FILE BY ORDER // TRUE COPY // ASSISTANT REGISTRAR/SR. PS/PS ITAT, SURAT