SEKSARIA INDUSTRIES P.LTD, V. ITO WD 2(3)(2),

MA 431/MUM/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3083 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-04-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 04-12-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AZGHAR ZAIN
• Assessee Lawyers: Y P TRIVEDI
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Retrospective amendment
• Section: 50C; 2

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E MUMBAI . . , . . , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND SHRI R.C.SHARMA , ACCOUNTANT MEMBER MA. NO.431/MUM/2014 (ARISING OUT OF ITA NO.2835/MUM/2013 ,A.Y.2009-10) SEKSARIA INDUSTRIES PVT. LTD., 5 TH FLOOR, SEKSARIA CHAMBERS, 139, NAGINDAS MASTER ROAD, FORT, MUMBAI 400 023. PAN:AAACS 6145H (APPELLANT ) VS. INCOME TAX OFFICER, WARD 2(3)(2), AAYKAR BHAVAN, MK ROAD, MUMBAI 400020 (RESPONDENT) APPELLANT BY : SHRI Y.P.TRIVEDI RESPONDENT BY : SHRI A ZGHAR ZAIN DATE OF HEARING : 20/03/2015 DATE OF PRONOUNCEMENT : 01 /04/2015 ORDER PER I.P.BANSAL, J.M: VIDE MISCELLANEOUS APPLICATION FILED AS ABOVE, IT IS THE CASE OF THE ASSESSEE THAT TRIBUNAL HAS COMMITTED THREE APPARENT MISTAKES WHIL E DELIVERING THE DECISION VIDE ORDER DATED 31/10/2014. 2. THE FIRST MISTAKE AS POINTED OUT IN THE APPLICA TION IS THAT REGISTERED VALUERS REPORT VALUING THE PROPERTY HAS BEEN ACCEPTED TO B E TAKEN INTO CONSIDERATION BUT RATIO OF OWNERSHIP AS DETERMINED BY THE REGISTERED VALUER HA S NOT BEEN TAKEN INTO CONSIDERATION WHICH IS 45% TO THE LESSOR AND 55% TO THE LESSEE. IT IS THE CASE OF THE ASSESSEE THAT THE SAME PROPORTION SHOULD HAVE BEEN ADOPTED FOR APPORT IONMENT OF VALUE OF LAND AS ON THE DATE OF SALE. MA. NO.431/MUM/2014 (ARISING OUT OF ITA NO.2835/MUM/2013 ,A.Y.2009-10) 2 2.1 THE SECOND MISTAKE POINTED OUT IN THE APPLICATI ON IS REGARDING VALUE OF TDR AT 100%, WHEREAS ACCORDING TO ASSESSEE, THE SAME SHOU LD HAVE BEEN TAKEN AT 60% OF THE TDR VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY. 2.2 THE THIRD MISTAKE POINTED OUT IN THE APPLICATIO N IS THAT TRIBUNAL HAS FAILED TO CONSIDER GROUND NO.1.4, ACCORDING TO WHICH, FOR THE PURPOSE OF COMPUTING CAPITAL GAIN TDR VALUE COULD NOT BE TAKEN INTO CONSIDERATION. G ROUND NO.1.4 READ AS UNDER: 1.4 THE LEARNED CIT(A) FAILED TO EXCLUDE VALUE OF T DR FROM THE TOTAL VALUATION MADE BY STAMP OFFICE AND COMPUTATION OF CAPITAL GAI NS BEING A CAPITAL ASSETS WITHOUT ANY COST. 3. ARGUING ON THE FIRST MISTAKE IT WAS SUBMITTED BY LD. AR THAT THE PROPORTION OF THE OWNERSHIP OF THE ASSET SHOULD BE TAKEN AS PER REGI STERED VALUERS REPORT ACCORDING TO WHICH, THE VALUE HAS BEEN ACCEPTED BY THE TRIBUNAL AS ON 1/4/1981. 4. WE HAVE CAREFULLY CONSIDERED SUCH SUBMISSION OF LD.AR BUT WE FIND NO FORCE IN SUCH ARGUMENT THAT SIMPLY ON THE BASIS OF REGISTER ED VALUERS REPORT, SHARE OF ASSESSEE IN THE IMPUGNED PROPERTY WAS TO BE DETERMINED. SHA RE OF THE ASSESSEE IN THE IMPUGNED PROPERTY WAS TAKEN BY STAMP VALUATION AUTHORITY AT 60% AND THE SAME CANNOT BE DEVIATED. THE REGISTERED VALUERS REPORT WAS ONLY WITH RESPECT TO VALUATION AS ON 1/4/1981 AND NOT FOR THE PURPOSE OF DETERMINING THE SHARE OF THE ASSESSEE. THEREFORE, THE MISTAKE POINTED OUT BY LD. AR IN THE ORDER IS NOT A MISTAKE APPARENT FROM THE RECORD AS DESCRIBED IN SECTION 254(2) OF THE ACT. THEREFORE, THIS CONTENTION OF LD. AR IS REJECTED. MA. NO.431/MUM/2014 (ARISING OUT OF ITA NO.2835/MUM/2013 ,A.Y.2009-10) 3 5. APROPOS SECOND MISTAKE, IT IS SEEN THAT WHILE DE CIDING THE ISSUE REGARDING COMPUTATION OF CAPITAL GAIN THE ACTION OF THE AO AN D LD. CIT(A) HAS BEEN UPHELD ONLY ON SHORT ISSUE THAT THE VALUE DETERMINED BY STAMP VALU ATION AUTHORITY, AS PER PROVISIONS OF SECTION 50C WOULD BE BINDING UPON THE ASSESSEE AND IF IT IS SO, IT CANNOT BE PERMISSIBLE FOR THE ASSESSEE TO CONTEND THAT THE SHARE OF THE A SSESSEE IN TDR VALUE AS DETERMINED BY STAMP VALUATION AUTHORITY WOULD BE SUBJECT MATTER OF VARIATION. THESE FINDINGS OF TRIBUNAL ARE RECORDED IN PARA 7.5 OF THE ORDER DATE D 31/10/2014. MOREOVER, FOR RAISING SUCH CONTENTION THE LD. AR HAS RELIED UPON THE FI NDINGS OF TRIBUNAL RECORDED IN PARA 7.6 OF THE ORDER AND IN THE SAID PARA SUCH CONTENT ION HAS SPECIFICALLY BEEN REJECTED. THE TRIBUNAL DOES NOT HAVE POWER TO REVIEW ITS ORDER AN D THE MISTAKE POINTED OUT BY LD. AR DOES NOT FALL WITHIN THE PURVIEW OF SECTION 254(2) AND REMEDY TO THE ASSESSEE, IF ANY, LIES SOMEWHERE ELSE. 5.1 BEFORE PARTING WITH THE REJECTION OF PLEA OF LD . AR IN RESPECT OF ABOVE TWO MISTAKES WE MAY MENTION THAT AS PER TRITE LAW EXP LAINED BY HONBLE SUPREME COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANG E LTD., 305 ITR 227(SC) AN ERROR ON THE FACE OF RECORD MEANS AN ERROR WHICH STRIKES ON MERE LOOKING AND DOES NOT NEED LONG DRAWN PROCESS OF REASONING ON POINTS WHERE THE RE MAY BE CONCEIVABLE TWO OPINIONS. IF THE VIEW ACCEPTED BY THE COURT IN THE ORIGINAL J UDGMENT IS ONE OF THE POSSIBLE VIEWS, THE CASE CANNOT BE SAID TO BE COVERED BY AN ERROR APPARENT ON THE FACE OF THE RECORD. THEREFORE, THE ABOVE MENTIONED TWO MISTAKES ARE NOT MISTAKES APPARENT ON THE FACE OF THE RECORD. 6. NOW COMING TO THE THIRD MISTAKE, WE FIND THAT TH IS GROUND WAS SPECIFICALLY RAISED BY THE ASSESSEE. THOUGH THE SAID GROUND DOES NOT A RISE OUT OF THE ORDER OF LD. CIT(A) AND IF ASSESSEE WANTED TO PURSUE SUCH GROUND THEN THE SAME WAS REQUIRED TO BE RAISED AS MA. NO.431/MUM/2014 (ARISING OUT OF ITA NO.2835/MUM/2013 ,A.Y.2009-10) 4 ADDITIONAL GROUND AND WHICH IS NOT DONE. HOWEVER, THE FACT REMAINS THAT NEITHER THE SAID GROUND OF THE ASSESSEE HAS BEEN DISMISSED ON THE GR OUND THAT THE SAME DOES NOT ARISE OUT OF ORDER OF LD. CIT(A) NOR SAME HAS BEEN UNADMITT ED AS ADDITIONAL GROUND. THEREFORE, GROUND NO.1.4 REMAINS TO BE UNDECIDED. HERE IT IS THE CASE OF THE LD. AR THAT ACCORDING TO THE LATEST DECISION OF HONBLE BOMBAY HIGH COUR T IN THE CASE OF CIT VS. SAMBHAJI NAGAR CO-OPERATIVE HOUSING SOCIETY LTD., ORDER DAT ED 11/12/14, PASSED IN INCOME TAX APPEAL NO.1356 OF 2012, COPY PLACED ON RECORD, TDR VALUE COULD NOT BE TAKEN INTO CONSIDERATION FOR COMPUTATION OF CAPITAL GAIN. ACC ORDING TO LD. AR, ANY ORDER OF THE TRIBUNAL CONTRARY TO THE DECISION OF JURISDICTIONA L HIGH COURT EITHER RENDERED EARLIER TO THE DECIDING THE ISSUE OR SUBSEQUENT THEREOF WILL GIVE RISE TO MISTAKE APPARENT FROM THE RECORD. FOR THIS PURPOSE, RELIANCE HAS BEEN PLAC ED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOC K EXCHANGE LTD., 305 ITR 227(SC), WHEREIN IT HAS BEEN HELD THAT A JUDICIAL DECISION ACTS RETROSPECTIVELY AND EVEN WHERE AN EARLIER DECISION OF THE COURT OPERATED FOR QUITE SO METIME, THE DECISION RENDERED WOULD HAVE RETROSPECTIVE EFFECT CLARIFYING THE LEGAL PO SITION WHICH WAS EARLIER NOT CORRECTLY UNDERSTOOD, THEREFORE, NON-CONSIDERATION OF EXISTIN G OR SUBSEQUENT DECISION OF JURISDICTIONAL HIGH COURT OR SUPREME COURT IS A MI STAKE APPARENT FROM THE RECORD RECTIFIABLE UNDER SECTION 254(2) OF THE ACT. WE FI ND FORCE IN SUCH CONTENTION OF LD. AR. THEREFORE, AS GROUND NO.1.4 HAS NOT BEEN DECIDED, FOR ADJUDICATION THEREOF, WE ACCEPT THIS PART OF ARGUMENTS OF LD. AR. 7. IN VIEW OF ABOVE DISCUSSION, FOR LIMITED PURPOSE OF DECIDING GROUND NO.1.4, WE RECALL AFOREMENTIONED ORDER DATED 31/10/2014 ACCEPT ING THIRD MISTAKE POINTED OUT BY LD. AR. IN RESPECT OF OTHER TWO MISTAKES WE HAVE REJEC TED THE CONTENTION OF LD. AR. WE ORDER ACCORDINGLY. MA. NO.431/MUM/2014 (ARISING OUT OF ITA NO.2835/MUM/2013 ,A.Y.2009-10) 5 8. FOR THE REASONS DISCUSSED ABOVE, MISCELLANEOUS A PPLICATION FILED BY THE ASSESSEE IS PARTLY ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 01/04/2015 ! ' 01/04/2015 SD/- SD/- ( . . /R.C.SHARMA ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; ! DATED 01/04/2015 / COPY OF THE ORDER FORWARDED TO : 1. % &' / THE APPLICANT 2. ()&' / THE RESPONDENT. 3. *+ ( % ) / THE CIT(A)- 4. *+ / CIT 5. ,- (+!./ , %0 %./ , / DR, ITAT, MUMBAI 6. 1 / GUARD FILE. / BY ORDER, ) ,+ (+ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . ! . ./ VM , SR. PS