Assistant Commissioner of Income Tax, Circle-2(3)(1), Bangalore V. Dr. Saif Salahuddin, Bangalore

MA 37/BANG/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6806 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 19-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE C BENCH, BANGALORE BEFORE SHRI A.K. GARODIA, ACCOUNANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER [MP NO. 37/BANG/2019 (IN ITA NO. 1863/BANG/2017)] (ASSESSMENT YEAR : 2011 12) ACIT, CIRCLE 2 (3) (1), APPELLANT BANGALORE. VS DR. SAIF SALAHUDDIN, RESPONDENT NO. 511, 5 TH MAIN, 3 RD BLOCK, KORAMANGALA, BENGALURU 560034. PAN: APNPS2167J ASSESSEE BY : SMT. SHEETAL, ADVOCATE REVENUE BY : DR. P. V. PRADEEP KUMAR, ADDL. CIT DR DATE OF HEARING : 12.07.2019 DATE OF PRONOUNCEMENT : 25.07.2019 O R D E R PER A. K. GARODIA, A.M.: THIS M. P. IS FILED BY THE REVENUE AND IT IS STATED IN THIS M. P. THAT THERE ARE SOME FACTUAL MISTAKES IN THIS TRIBUNAL ORDER AND THEREFORE, THIS TRIBUNAL ORDER SHOULD BE RECALLED AND DECIDED AGAIN AFTER INCORPORATING CORRECT FACTS. 2. FIRST, WE REPRODUCE PARA 1 OF THE M. P. BECAUSE IN THIS PARA ONLY, THE ALLEGED FACTUAL MISTAKES IN THE TRIBUNAL ORDER ARE POINTED OUT. THIS PARA READS AS UNDER:- THE STATEMENT OF ITAT IN THE LINES 8 TH TO 6 TH FROM THE END OF PARA 6 OF THE ORDER THAT ASSESSEE FURTHER PURCHASED THE RESIDENTIAL HOUSE THROUGH SALE DEED DATED 8.11.2012 RATHER WITHIN THE PRESCRIBED PERIOD OF 2 YEARS FROM THE DATE OF TRANSFER OF THE ORIGINAL RESIDENTIAL HOUSE IS FACTUALLY INCORRECT BECAUSE OUT OF INVESTMENT OF RS. 75 LAKHS IN THE NEW ASSET AS CLAIMED BY THE ASSESSEE, THE INVESTMENT OF RS. 47.5 LAKHS WAS MADE ON 4.8.2017 AND THE BALANCE AMOUNT CLAIMED AS INVESTMENT IN INTERIORS WAS NEVER SUPPORTED BY ANY EVIDENCE. 3. IN COURSE OF HEARING OF THE M. P., LEARNED DR OF THE REVENUE REITERATED THE SAME CONTENTIONS AND DRAWN OUR ATTENTION TO VARIOUS PARAS OF THE ORDER OF CIT (A) BEING PARA 3.4, 3.5 AND PARA 5.1 TO 5.5 IN THIS REGARD BUT HIS MAIN STRESS WAS ON PARA 5.3 OF THE ORDER OF CIT (A) WHERE IT IS NOTED BY CIT (A) THAT THE ASSESSEES M. P. NO. 37/BANG/2019 2 COUNSEL INFORMED TO CIT (A) ON 03.08.2017 THAT THE CHEQUE PAID FOR NEW HOUSE WAS NOT PRESENTED AT ALL AND WHEN ASKED TO EXPLAIN, IN WRITTEN SUBMISSIONS DATED 05.08.2017 FILED ON 08.08.2017 (REPRODUCED BY CIT (A)), IT WAS STATED THAT THE VENDOR ACCEPTED THE CHEQUE IN FULL PAYMENT TOWARDS THE CONSIDERATION BUT THE VENDOR FAILED TO PRESENT THE CHEQUE BEFORE THE BANKERS FOR REASONS BEST KNOWN TO HER AND ONLY NOW, THE VENDOR APPROACHED THE ASSESSEE PURCHASER FOR PAYMENT WHICH HAS BEEN DISCHARGED VIDE NEFT NO. DR. N 216170038787566 DATED 04.08.2017 FROM YES BANK LTD. LEARNED DR FURTHER SUBMITTED THAT BASED ON THESE FACTS, A CATEGORICAL FINDING IS GIVEN BY CIT (A) IN PARA 5.4 OF HIS ORDER THAT NO PAYMENT WAS MADE AT THE TIME OF EXECUTION OF SALE DEED DATED 08.11.2012 BUT THE PAYMENT IS MADE IN F. Y. 2017 18 AS PER THE ASSESSEE HIMSELF WHILE THE PROPERTY WAS REGISTERED IN 2012 ITSELF AND ON THE BASIS OF THIS FINDING, LEARNED CIT (A) HAS DRAWN THE CONCLUSION THAT THIS TRANSACTION CANNOT BE SAID TO BE AN INVESTMENT OR PURCHASE OF A NEW HOUSE WITHIN THE MEANING OF SECTION 54 WITHIN THE TIME ALLOWED BECAUSE THERE CAN BE NO PURCHASE WITHOUT MAKING PAYMENT AND HENCE, DEDUCTION U/S 54 IS NOT ALLOWABLE. LEARNED DR SUBMITTED THAT IN VIEW OF THIS CATEGORICAL FINDING OF CIT (A) AND FACTS NOTED BY HIM ABOUT ACTUAL DATE OF PAYMENT, A FACTUAL MISTAKE IS THERE IN THE TRIBUNAL ORDER THAT THE NEW HOUSE WAS PURCHASED ON 08.11.2012 AND THEREFORE, THE IMPUGNED TRIBUNAL ORDER SHOULD BE RECALLED AND DECIDED AGAIN AFTER INCORPORATING CORRECT FACTS. LEARNED A.R. OF THE ASSESSEE SUBMITTED THAT THERE IS NO APPARENT MISTAKE IN THE TRIBUNAL ORDER WHICH NEEDS RECTIFICATION U/S 254 (2). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT EVEN AS PER THE ORDER OF CIT (A), IT IS NOTED THAT THE SALE DEED WAS EXECUTED ON 08.11.2012. THIS IS ALSO A SUBMISSION OF THE ASSESSEE BEFORE CIT (A) THAT THE VENDOR ACCEPTED THE CHEQUE IN FULL PAYMENT TOWARDS THE CONSIDERATION BUT THE VENDOR FAILED TO PRESENT THE CHEQUE BEFORE THE BANKERS FOR REASONS BEST KNOWN TO HER AND ONLY NOW, THE VENDOR APPROACHED THE ASSESSEE PURCHASER FOR PAYMENT WHICH HAS BEEN DISCHARGED VIDE NEFT DATED 04.08.2017 FROM YES BANK LTD. THERE IS NO MISTAKE POINTED OUT IN THIS SUBMISSION OF THE ASSESSEE BY CIT (A) OR BY THE LEARNED DR OF THE REVENUE. HENCE THIS IS ADMITTED POSITION OF FACT THAT THE SALE DEED WAS EXECUTED ON 08.11.2012 AND THE PAYMENT WAS ALSO MADE BY THE ASSESSEE ON THAT DATE BY CHEQUE AND THE VENDOR ACCEPTED SUCH PAYMENT AND THEN ONLY, THE VENDOR EXECUTED THE SALE DEED ON 08.11.2012. NOW THE QUESTION IS THIS THAT WHETHER THERE IS ANY FACTUAL MISTAKE IN THE TRIBUNAL ORDER IF THE TRIBUNAL CAME TO THIS CONCLUSION THAT THE PURCHASE WAS COMPLETE ON 08.11.2012? IN OUR VIEW, THE VENDOR HAS ACCEPTED THE RECEIPT OF CHEQUE AS FULL PAYMENT OF THE AGREED CONSIDERATION AND THIS M. P. NO. 37/BANG/2019 3 IS EVIDENT FROM THIS ACT OF THE VENDOR THAT THE VENDOR EXECUTED THE SALE DEED ON 08.11.2012. WHETHER TO ACCEPT THE DATE OF PURCHASE, IS IT REQUIRED TO GO INTO THESE DETAILS AS TO WHEN THE VENDOR PRESENTED THE CHEQUE TO THE BANK FOR CLEARING AND WHEN THE CHEQUE WAS CLEARED OR NOT PRESENTED OR NOT CLEARED? IN OUR CONSIDERED OPINION, ONCE THE VENDOR HAS ACCEPTED THE PAYMENT BY CHEQUE AS GOOD PAYMENT AND EXECUTED THE SALE DEED IN FAVOUR OF THE ASSESSEE, THE SALE BY THE VENDOR AND PURCHASE BY THE ASSESSEE IS COMPLETED AND DELAY IN PRESENTATION OF CHEQUE BY THE VENDOR OR ITS NON-PRESENTATION BY THE VENDOR ETC. CANNOT DETERMINE THE DATE OF PURCHASE. HENCE, IN OUR CONSIDERED OPINION, MERE NON DISCUSSION OF THESE FACTS SPECIFICALLY IN THE TRIBUNAL ORDER CANNOT BE ACCEPTED AS AN APPARENT MISTAKE IN THE TRIBUNAL ORDER RECTIFIABLE U/S 254 (2) PARTICULARLY IN VIEW OF THIS FACT THAT IN PARA 6 OF THE IMPUGNED TRIBUNAL ORDER, IT IS SPECIFICALLY STATED BY THE TRIBUNAL THAT THE ORDERS OF THE LOWER AUTHORITIES WERE CAREFULLY EXAMINED IN THE LIGHT OF RIVAL SUBMISSIONS. WE HOLD ACCORDINGLY. 5. IN THE RESULT, THE M. P. FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE NOTED ON THE CAPTION PAGE. SD/- SD/- (PAVAN KUMAR GADALE) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE D A T E D : 25.07.2019 *MS COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.