Arun Shungloo Trust, V. ACIT, Circle-23(1),

MA 396/DEL/2010

• Counselvise Citation: [2011] 111 COUNSELVISE.COM (IT) 0396 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-02-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2001-2002
• Appeal Filed On: 05-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS ANUSHA KHURANA
• Keywords: Capital Gains

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `FRIDAY E: NEW DELHI BEFORE SHRI C.L.SETHI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER M.A.NO.396/DEL/2010 (IN I.T.A. NO.1336/DEL/2005) ASSESSMENT YEAR : 2001-02 ARUN SHUNGLOO TRUST, ASSTT. COMMISSIONE R OF INCOME-TAX, M-2, GREATER KAILASH-I, VS. CIRCLE 23(1), NEW DEL HI. NEW DELHI. (APPLICANT) (RESPONDENT) APPLICANT BY : MS. ROLI CHAUBEY, CA. RESPONDENT BY : MRS. ANUSHA KHURANA, SR.DR. O R D E R PER C.L. SETHI, JUDICIAL MEMBER THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE ASSESSEE IN CONNECTION WITH THE ABOVE REFERRED APPEAL STATIN G THEREIN AS UNDER:- VIDE PARA 3 ON PAGE NO.1 THEREOF, THE HONBLE BENC H HAS CORRECTLY STATED THAT THE ASSESSEE WAS FORMED VIDE A TRUST DEED DATED 5/1/1996. HOWEVER, THE SAME PARA ON PAGE NO. 2 OF THE ORDER READS, CAPITAL GAINS DERIVED BY THE ASSESSEE ON THE SALE OF PROPERTY RECEIVED BY IT ON 1/1/1996 IN THE FORM OF CORPUS... THERE IS AN OBVIOUS ERROR AS THE ASSESSEE COULD NOT HAVE RECEIVED THE PROPERTY REFERRED TO AS ITS CORPUS ON 1/1/1996, WHICH IS A DATE ON WHICH IT WAS NOT EVEN IN EXISTEN CE. THIS REASON FOR THIS ERROR HAS BEEN TRACED BY US TO THE SHOW CAUSE NOTICE DATED 12/3/2004 ISSUED TO US BY THE LEARNED ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS. COPY OF THE NOTICE ATTACHED HEREWITH ERRONEOUSLY MENTIONS VIDE POINT N O. 1(II), THE DATE WHEN THE ASSESSEE BECAME THE ACTUAL OWNER OF T HE PROPERTY 2 AS 1/1/1996 INSTEAD OF 5/1/1996, BEING THE DAY THE ASSESSEE TRUST WAS FORMED AND THE PROPERTY TRANSFERRED TO IT AS ITS CORPUS FUND. SUCH ERROR WAS NOTICED BY US ONLY NOW AND HE NCE IT IS BEING BROUGHT TO YOUR HONOURS KIND ATTENTION. IT I S REQUESTED THAT THIS MISTAKE BE RECTIFIED. 2. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. WE FIND THAT THE TRUST WAS FORMED VIDE TRUST DEED D ATED 05.01.1996. THE ASSESSEE TRUST RECEIVED PROPERTY IN THE FORM OF COR PUS ON THE DATE WHEN THE TRUST DEED WAS CREATED ON 05.01.1996. THEREFORE, T HE DATE 01.01.1996 MENTIONED IN PARA 3 AT PAGE 2 OF THE TRIBUNALS ORD ER WAS A CLERICAL MISTAKE COMMITTED IN THE ORDER. WE, THEREFORE, RECTIFY OUR ORDER AND SAY THAT AT PAGE 2 PARA 3 OF THE ORDER, THE DATE MENTIONED AS 01.01. 1996 BE READ AS 05.01.1996. WE RECTIFY OUR ORDER ACCORDINGLY. 3. THE ASSESSEE HAS ALSO POINTED OUT ANOTHER MISTAK E WHICH READS AS UNDER:- FURTHER IT ALSO SEEMS TO THE ASSESSEE THAT AS THE FACT OF THE CASE WERE INCORRECTLY CONSIDERED, THE PROVISIONS OF THE ACT RELEVANT TO THE CASE I.E. SECTION 2(42A), SECTION 4 7 AND SECTION 49 WERE NOT CORRECTLY EVALUATED AND APPLIED TO THE FACTS OF THE CASE BEFORE PASSING OF THE ORDER. THE VERY MODE OF TRANSFER WAS PUT UNDER QUESTION MARK BY A TRANSFER BEING SAI D TO BE MADE ON A DAY WHEN THE ASSESSEE DID NOT EVEN EXIST AND AS A RESULT, DUE RELIEF COULD NOT BE GRANTED TO THE ASSE SSEE SINCE THE ORDER DUE TO THE MISTAKE IN THE DATE MENTIONED ON T HE FACE OF THE ORDER, THE APPLICABILITY OF THE SECTION WERE OV ERLOOKED. HENCE THE ORDER NEEDS RECONSIDERATION. 3 4. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PA RTIES, WE FIND THAT THE POINT RAISED IN THIS PARA CANNOT BE SAID TO BE A MI STAKE APPARENT FROM RECORD SO AS TO MODIFY OR RECTIFY OUR ORDER IN ANY OTHER M ANNER EXCEPT MAKING THE CHANGE OF THE DATE FROM 1.1.1996 TO 5.1.1996 AS ALR EADY DIRECTED ABOVE. 5. THE MISC. APPLICATION FILED BY THE ASSESSEE STAN DS DISPOSED OF ACCORDINGLY. 6. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT I MMEDIATELY AFTER THE HEARING WAS OVER ON 18.02.2011. SD/- SD/- (SHAMIM YAHYA) (C.L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18 TH FEBRUARY, 2011. COPY OF THE ORDER FORWARDED TO:- 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.