UMA SHANKAR GUPTA, Jaipur V. CIT, Alwar

MA 44/JPR/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4056 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-02-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 30-10-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJINDER SINGH J DHK
• Section: 54F

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM M.A. NO. 44/JP/2015 (ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 97/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 SHRI UMA SHANKAR GUPTA C/O M/S. UMA UDOG B-34, MIA, ALWAR CUKE VS. THE CIT ALWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: AESPS 9642 E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL , CA JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJINDER SINGH, JCIT-DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 18/12/2015 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 16/02/2016 VKNS'K@ ORDER PER R.P. TOLANI, JM THE ASSESSEE HAS FILED A MISCELLANEOUS APPLICATION AGAINST ITAT ORDER DATED 19-06-2015 CONTENDING THAT FOLLOWING MI STAKES HAVE CREPT IN THE IMPUGNED ORDER WHICH AMOUNTS TO RECTIFIABLE U/ S 254(2) OF THE ACT. 4. THE HON'BLE TRIBUNAL DECIDED THIS ISSUE AT PA RA 2.7 OF ITS ORDER WHERE IT HELD THAT THE AO IN HIS O RDER HAS MERELY REPRODUCED THE COMPUTATION OF LONG TERM CAP ITAL GAIN AS FILED BY THE ASSESSEE BUT HAS NOT RAISED AN Y QUERY IN THIS BEHALF WHICH SHOWS THAT LACK OF ENQUIRY ON THE PART OF THE AO AND THEREFORE, THE ORDER PASSED BY AO IS ERR ONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. HOW EVER, THE HON'BLE ITAT HAS NOT CONSIDERED THE SECOND ISSUE R AISED BY MA NO.44/JP/2015 SHRI UMA SHANKAR GUPTA VS. CIT, ALWAR . . 2 THE ASSESSEE AND THE CASE LAWS RELIED UPON BY HIM A S ABOVE WHERE THE VARIOUS COURTS HAVE HELD THAT EVEN WHEN INVESTMENT IS MADE FROM THE BORROWED CAPITAL, ASSES SEE IS ENTITLED TO DEDUCTION U/S 54F ON THE AMOUNT OF INVE STMENT. THEREFORE, NON CONSIDERATION OF THESE DECISIONS IN HOLDING THAT THE ORDER PASSED BY AO IS ERRONEOUS AND PREJUD ICIAL TO THE INTEREST OF THE REVENUE ONLY FOR THE REASON THA T AO HAS NOT RAISED ANY QUERY ON THIS ISSUE EVEN WHEN THESE CASES WERE RELIED BEFORE THE CIT IS A MISTAKE APPARENT ON RECORD. IT IS PRAYED THAT THE MISTAKE MAY BE ACCORDINGLY RE CTIFIED. 2.1 ON THE OTHER HAND, THE LD. DR CONTENDS THAT WHA T IS BEING AGITATED BY THE ASSESSEE AMOUNTS TO REVIEW OF ITAT ORDER (SU PRA) WHICH IS NOT RECTIFIABLE U/S 254(2) OF THE ACT. THE LD. DR FURTH ER CONTENDS THAT ITAT BY DETAILED ORDER HAS HELD THAT THE ORDER WAS ERRON EOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AND UPHOLDING THE SETTI NG ASIDE OF THE ASSESSMENT ORDER IS VERY CLEAR. THE LD. DR FURTHER CONTENDS THAT ONCE THE ORDER IS HELD ERRONEOUS AND PREJUDICIAL TO THE INTE REST OF THE REVENUE ON ONE ISSUE AND ORDER IS SET ASIDE, THE ASSESSEE IS F REE TO RAISE MANY GROUNDS AS PER HIS WISHES IN THE FRESH PROCEEDINGS. 2.2 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND MERIT IN THE CONTENTIO NS OF THE LD. DR THAT THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE AMOUNTS TO REVIEW OF ITAT ORDER (SUPRA). THE ASSESSMENT HAS BEEN SET ASI DE BY THE LD. CIT AFTER FINDING THE ASSESSMENT ORDER TO BE ERRONEOUS AND PREJUDICIAL TO THE MA NO.44/JP/2015 SHRI UMA SHANKAR GUPTA VS. CIT, ALWAR . . 3 INTEREST OF REVENUE. THE ASSESSEE IS FREE TO TAKE A S MANY ALTERNATE GROUNDS AS HE LIKES IN FRESH PROCEEDINGS. ONCE THE ORDER IS HELD TO BE PREJUDICIAL TO THE INTEREST OF THE REVENUE THEN THE MISTAKE AS POINTED OUT BY THE LD. AR AMOUNTS TO REVIEW OF ITAT ORDER (SUPR A), WHICH IS NOT PERMISSIBLE. THUS THE MISCELLANEOUS APPLICATION FI LED BY THE ASSESSEE IS DISMISSED. 3.0 IN THE RESULT, THE MISCELLANEOUS APPLICATION FI LED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 /02/2016. SD/- SD/- VH-VKJ-EHUK VKJ-IH-RKSYKUH (T.R. MEENA) (R.P.TOLANI) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 16/02/2016 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI UMA SHANKAR GUPTA, ALWAR 2. IZR;FKHZ@ THE RESPONDENT- , THE CIT , ALWAR . 3. VK;DJ VK;QDR@ CIT, 4. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 5. XKMZ QKBZY@ GUARD FILE (MA NO. 44/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR