ITO, Davangere V. M/s Prashanth Rice Industries, Davangere

MA 42/BANG/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3698 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-06-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-06-2010
• Assessment Year: 2005-2006
• Appeal Filed On: 22-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ZACINTA JIMIK VASHAI
• Assessee Lawyers: PADAMCHAND KHINCHA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER M.P.NO.42/BANG/2010 (ARISING OUT OF ITA NO.121/B/09) ASSESSMENT YEAR : 2005-06 THE INCOME TAX OFFICER, WARD 2, DAVANGERE. : APPLICANT VS. M/S. PRASHANTH RICE INDUSTRIES, NO.270/1, INDUSTRIAL AREA, LOKIKERE ROAD, DAVANGERE. : RESPONDENT APPLICANT BY : SMT. ZACINTA JIMIK VASHAI, ADDL. CIT (DR) RESPONDENT BY : SHRI PADAMCHAND KHINCHA, C.A. O R D E R PER A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER THIS MISCELLANEOUS PETITION IS FILED BY THE REVE NUE AGAINST THE ORDER OF THE TRIBUNAL DATED 30.9.2009 IN ITA NO.121 /B/2009. 2. THE PRAYER OF THE REVENUE WAS THAT THE TRIBUNAL HAD FAILED TO CONSIDER THE ADOPTION OF MARKET VALUE BASED ON THE SALE INSTANCES IN THE VICINITY OF THE PROPERTY. M.P. NO.24/BANG/10 PAGE 2 OF 3 3. THE TRIBUNAL IN ITS ORDER HAD UPHELD THE ORDER O F THE LD. CIT(APPEALS) AFTER AN ELABORATE DISCUSSION IN PARA 4.1 OF ITS ORDER. THE RELEVANT PORTION OF THE ORDER IS REPRODUCED BELOW : THE LAND RATE OF RESIDENTIAL AND COMMERCIAL AS POI NTED OUT ABOVE ARE IN RESPECT OF SURVEY NO.57 TO 65 I.E. THE SURVE Y WHICH ARE ADJACENT TO THE ASSESSEE FIRM. THEREFORE ADOPTION OF RATE AT RS.30/SQ.FT. FOR INDUSTRIAL LAND BY THE LD. CIT(A) IS APPROPRIATE AND THE LD. CIT(A) HAS UPHELD THE DISCOUNT AS GIVEN BY THE AO. HENCE WE UPHOLD THE VALUE ADOPTED BY THE LD. CIT(A). 4. THE TRIBUNALS FINDING WAS THAT THE LD. CIT(A) U PHELD THE DISCOUNT GIVEN BY THE AO BEING 50% OF THE AREA TO BE EXCLUDE D FOR VALUATION PURPOSE SINCE THE AREA IS MORE THAN 4 ACRES. IN OT HER WORDS, 50% RATE WILL BE APPLICABLE WHILE VALUING THE ENTIRE AREA OF THE LAND OF 4 ACRES. THE TRIBUNAL IN ITS ORDER HAD ADOPTED RS.30/SQ.FT. WITH THIS VIEW. HENCE, EFFECTIVELY THE RATE OF RS.15/SQ.FT. WILL BE APPLIC ABLE WHEN APPLIED TO THE ENTIRE EXTENT OF 4 ACRES OF LAND AS CONFIRMED BY TH E LD. CIT(A) IN HIS ORDER. 5. THE GRIEVANCE OF THE REVENUE TO RECONSIDER THE D ECISION OF THE TRIBUNAL ON THE ISSUE WHICH IT HAD ALREADY ELABORAT ELY CONSIDERED IN ITS ORDER IS NOT MAINTAINABLE. THE ACT ONLY PERMITS TH E TRIBUNAL TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. IN THIS CASE, WE DO NOT FIND ANY MISTAKE APPARENT FROM THE RECORD. THE HONBLE SUPREME COUR T HAS HELD IN PATEL NARSHI THAKERSHI V. PRADHYUMANSINGHJI ARJUNSINGHJI (AIR 1970 SC 1273) THAT THE POWER TO REVIEW IS NOT AN INHERENT POWER, IT MUST BE CONFERRED BY LAW EITHER SPECIFICALLY OR BY NECESSARY IMPLICATION S. IT DOES NOT STAND TO REASON THAT, IF POWER OF REVIEW IS NOT PRESENT WITH THE TRIBUNAL, IT M.P. NO.24/BANG/10 PAGE 3 OF 3 NEVERTHELESS, CAN EXERCISE SUCH POWER INDIRECTLY WH EN IT CANNOT DO SO DIRECTLY. FOLLOWING THE RATIO LAID DOWN BY THE HON BLE APEX COURT AND THE FACTS OF THE CASE, WE DISMISS THE MISCELLANEOUS PET ITION FILED BY THE REVENUE. 6. IN THE RESULT, THE MISCELLANEOUS PETITION IS DIS MISSED. PRONOUNCED IN THE OPEN COURT ON THIS 11 TH DAY OF JUNE, 2010. SD/- SD/- ( SMT. P. MADHAVI DEVI ) (A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBE R BANGALORE, DATED, THE 11 TH JUNE, 2010. DS/- COPY TO: 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE (1+1) BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.