SBI STAFF CHITRALEKHA CHS LTD, MUMBAI V. ITO 29 (3) (3), MUMBAI

MA 380/MUM/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1808 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-11-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2015-2016
• Appeal Filed On: 04-07-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ABHIRAMA KARTHIKEYAN
• Assessee Lawyers: DEEPAK TRALSHAWALLA
• Keywords: Application of stay; Cost of acquisition
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G MUMBAI BEFORE SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) M.A. NO. 380/MUM/2019 (SA NO. 254/MUM/2019) ASSESSMENT YEAR: 2015 - 16 SBI STAFF CHITRALEKHA CHS LTD., PRAM CHITRALEKSH SOCIETY OFFICE, SANE GURUJI NAGAR, MULUND (E), MUMBAI - 400081. VS. ITO 29(3)(3), 3 RD FLOOR, ROOM NO. 306, C - 10 BLDG., BKC, BANDRA EAST, MUMBAI - 400051. PAN NO. AAGAS4096K APPELLANT RESPONDENT ASSESSEE BY : MR. DEEPAK TRA LSH AWALLA, AR REVENUE BY : MR. ABHIRAMA KARTHIKEYAN S R . DR DATE OF HEARING : 06/09/2019 DATE OF PRONOUNCEMENT : 25/11/2019 ORDER PER N.K. PRADHAN, A.M. BY MEANS OF THIS MISCELLANEOUS APPLICATION (MA), THE APPLICANT SEEKS RECTIFICATION OF THE ORDER DATED 14.06.2019 PASSED BY THE ITAT G BENCH MUMBAI (SA NO. 254/MUM/2019) FOR THE ASSESSMENT YEAR (AY) 2015 - 16. 2. THE LD. COUNSEL FOR THE ASSESSEE SUBMI TS THAT THE ASSESSEE IS A CO - OPERATIVE HOUSING SOCIETY, WHO HAVE TRANSFERRED THEIR DEVELOPMENT RIGHTS (TDR) TO A BUILDER FOR RS.3,18,54,500/ - ; THE ASSESSING OFFICER (AO) TAXED IT AS SHORT TERM CAPITAL GAIN RAISING A DEMAND OF RS.79,77,670/ - . THE ORDER OF T HE AO WAS UPHELD IN APPEAL BY THE LD. CIT(A). THE ASSESSEE , THEREFORE, FILED A STAY SBI STAFF CHITRALEKHA CHS LTD., MA NO. 380/MUM/2019 2 PETITION BEFORE THE TRIBUNAL. IT IS STATED THAT THE STAY PETITION WAS HEARD AN D ORDER DATED 14.06.2019 WAS PASSED DISMISSING THE STAY BUT GRANTING EARLY HEARING ON 25.06.20 19. IT IS THE CONTENTION OF THE LD. COUNSEL THAT THE FOLLOWING PARA IN THEIR STAY ORDER MAY INADVERTENTLY INFLUENCE THE BENCH HEARING THE REGULAR APPEAL : 'AT THE OUTSET IT IS NOTICED THAT NEITHER THE AO NOR THE LD CIT (A) HAS ADJUDICATED THE CLAIM OF THE ASSESSEE THAT TDR CARRIES NIL COST OF ACQUISITION AND THEY HAVE NOT EXAMINED THE ISSUE IN THE LIGHT OF THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN CIT V SAMBHAJI NAGAR CO - OP HSG SOCIETY LTD ( 2015) 54 TAXMANN.COM 77 (BOM). IT SEEMS THAT PRIMA FACIE THE ISSUE IN THE INSTANT CASE IS IN FAVOUR OF THE ASSESSEE. BUT SINCE NEITHER THE AO NOR THE LD CIT (A) HAS EXAMINED THE MATTER IN THE LIGHT OF THE ABOVE DECISION, THE MATTER MAY GO BACK TO EITHER THE LD. CIT(A) OR THE AO FOR FRESH ADJUDICATION. THE LD. COUNSEL THUS SUBMITS THAT THE MA BE ACCEPTED AND THAT THE ABOVE OBSERVATIONS IN THE IMPUGNED ORDER BE TREATED AS WITHDRAWN. 3. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) SUBMITS THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE IMPUG NED ORDER PASSED BY THE TRIBUNAL. HE SUBMITS THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER IN THE GARB OF SECTION 254(2) OF THE ACT. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. AS MENTIONED EARLIER, THE TRIBUNA L HAS PASSED THE IMPUGNED ORDER IN RESPECT OF THE STAY APPLICATION FILED BY THE APPELLANT. ALONG WITH THE STAY APPLICATION, THE APPELLANT HAS FILED A WRITTEN SUBMISSION, WHICH WAS FILED BEFORE THE CIT(A). IN THE SAID WRITTEN SUBMISSION, THE APPELLANT HAS R ELIED ON THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN SAMBHAJI NAGAR CO - OP HSG SBI STAFF CHITRALEKHA CHS LTD., MA NO. 380/MUM/2019 3 SOCIETY LTD . (SUPRA) . THE APPELLANT HAS ALSO MENTIONED THAT THE DECISION IN SAMBHAJI NAGAR CO - OP HSG SOCIETY LTD . (SUPRA) HAS BEEN SUBSEQUENTLY FOLLOWED BY THE HIGH COURT IN A SERIES OF DECISIONS. THOSE DECISIONS HAVE ALSO BEEN MENTIONED BY THE APPELLANT. DURING THE COURSE OF HEARING IN STAY PETITION THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN SAMBHAJI NAGAR CO - OP HSG SOCIETY LTD . (SUPRA) WAS REFERRED BY THE LD. COUNSEL. IN THE INSTANT CASE, CONSIDERING THE ARGUMENT OF THE LD. COUNSEL WE HAVE ONLY REFERRED TO THE DECISION IN SAMBHAJI NAGAR CO - OP HSG SOCIETY LTD. (SUPRA) AND MENTIONED THAT PRIMA FACIE THE ISSUE IN THE INSTANT CASE IS IN FAVOUR OF THE ASSESSEE. DURING THE COURSE OF HEARING THE LD. COUNSEL AGREED FOR AN EARLY DATE FOR HEARING THE CASE. ACCORDINGLY AN ORDER WAS PASSED FIXING THE CASE FOR EARLY HEARING ON 25.06.2019. WE FAIL TO UNDERSTAND, WHAT MISTAKE HAS BEEN COMMITTED BY REFERRING TO THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT IN SAMBHAJI NAGAR CO - OP HSG SOCIETY LTD . (SUPRA), WHICH THE LD. COUNSEL SAYS HAS BEEN SUBSEQUENTLY FOLLOWED BY THE HIGH COURT IN A SERIES OF D ECISIONS. IN FACT, NOT A SINGLE ERROR IN THE IMPUGNED ORDER HAS BEEN POINTED OUT BY THE APPLICANT. WHAT THE APPLICANT WANTS IS A REVIEW OF THE ORDER PASSED BY THE TRIBUNAL. THE TRIBUNAL IS A CREATURE OF THE STATUTE. THE TRIBUNAL CANNOT REVIEW ITS OWN DEC ISION UNLESS IT IS PERMITTED TO DO SO BY THE STATUTE. THE HONBLE SUPREME COURT HAS HELD IN PATEL NARSHI THAKERSHI V. PRADYUMANSINGHJI ARJUNSINGHJI [AIR 1970 SC 1273] THAT THE POWER TO REVIEW IS NOT AN INHERENT POWER. IT MUST BE CONFERRED BY LAW EITHER SPE CIFICALLY OR BY NECESSARY IMPLICATION. IT IS A SETTLED LAW THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER IN THE GARB OF SECTION 254(2) OF THE ACT. SBI STAFF CHITRALEKHA CHS LTD., MA NO. 380/MUM/2019 4 5. IN THE RESULT, THE PRESENT MA BEING DEVOID ON MERIT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25/11/2019. SD/ - SD/ - ( MAHAVIR SINGH ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 25/11/2019 RAHUL SHARMA, SR. P.S. 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 . BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI