Sameer Vithalrao Ghanwat, Pune V. Income-tax Officer, Ward - 12(1), Pune

MA 44/PUN/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9344 (ITAT-PUNE)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-01-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 17-05-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE; KA U S HAL KUMAR
• Keywords: Rectification of order; Cost of acquisition; Capital Gains
• Section: 254(2); 73; 54

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI PARTHA SARATHI CHAUDHURY , JM M .A. NO. 44 /PUN/20 19 (ARISING OUT OF ITA NO. 645/PUN/2018 ) / ASSESSMENT YEAR : 2013 - 14 SHRI SAMEER VITHALRAO GHANWAT, 722/26, LAXMI PARK COLONY, NAVI PETH, PUNE - 411 030. PAN : AKPPG0286P .. /APPLICANT / V/S. THE INCOME TAX OFFICER, WARD - 12(1), PUNE. .. / RESPONDENT A SSESSEE BY : SHRI PRATIK SANDBHOR REVENUE BY : SHRI KA U S HAL KUMAR & SHRI S.P WALIMBE / DATE OF HEARING : 10.01.2020 / DATE OF PRONOUNCEMENT : 10 .01.2020 / ORDER PER PARTHA SARATHI CHAUDHU RY, JM : THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY ASSESSEE U/S. 254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) SEEKING REVIEWING OF ITS OWN ORDER OF TRIBUNAL IN ITA NO.645/PUN/2018 DATED 21 .01.2019 AND STATING THAT ORDER WAS PASS ED EX - PARTE AND ASSESSEE DID NOT HAVE AN OPPORTUNITY TO PUT UP ITS CASE . 2 M A NO. 44 /PUN/20 19 A.Y. 2013 - 14 2. THE LD. AR OF THE ASSESSEE THROUGH THE MISCELLANEOUS APPLICATION HAS SUBMITTED THE REASONS FOR NON APPEARING BEFORE THE TRIBUNAL ON THE DATE OF HEARING BUT HE COULD NOT POINT OUT ANY APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL DATED 21.01.2019 AS CONTEMPLATED IN SECTION 254(2) OF THE ACT. 3. ON THE OTHER HAND, THE LD. DR HAS STRONGLY OPPOSED THE MISCELLANEOUS APPLICATION AND SUBMITTED THAT THE ORDER OF THE TRIBUNAL DATED 21 .01.2019 IS WELL REASONED AND IT DOES NOT CALL FOR ANY REVIEW OR RECTIFICATION . 4. WE HAVE PERUSED THE CASE RECORD AND HEARD THE RIVAL CONTENTIONS. WE FIND THERE ARE TWO ISSUES I.E. (I) COST OF ACQUISITION AND (II) DEDUCTION CLAIMED U/S.54F OF THE ACT. WI TH REGARD TO THE FIRST ISSUE I.E. COST OF ACQUISITION AS PER PARA 6 OF THE TRIBUNALS ORDER, IT IS EVIDENT THAT THE ASSESSEE HAD ADMITTED BEFORE THE ASSESSING OFFICER TO ADOPT THE COST OF ACQUISITION AT RS.10,360/ - AND ON THE BASIS OF WHICH, THE TRIBUNAL OBSERVED THAT THERE IS NO MERIT IN THE GROUND OF APPEAL RAISED BY THE ASSESSEE IN THIS REGARD. HENCE, THE SAME IS DISMISSED. WITH REGARD TO THE SECOND ISSUE I.E. DEDUCTION CLAIMED U/S.54F OF THE ACT, THE TRIBUNAL RELIED ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF HUMAYUN SULEMAN MERCHANT VS. CCIT (2016) 73 TAXMANN.COM 2 (BOM.) WHICH HAS BEEN APPLIED BY THE PUNE BENCH OF THE TRIBUNAL IN ITA NO.923/PUN/2015 RELATING TO ASSESSMENT YEAR 2009 - 10 VIDE ORDER DATED 20.12.2017 AND VIDE PARA NO.7 OF THE ORDER DATED 20.12.2017, IT HAS BEEN HELD THAT THE CLAIM OF DEDUCTION UNDER SECTION 54 OF THE ACT WAS DENIED TO THE ASSESSEE AS HE HAD NOT DEPOSITED THE AMOUNT IN CAPITAL GAINS SCHEME ACCOUNT BY THE DUE DATE OF FILING OF THE RETURN OF INCOME. THE TRIBUNAL DISMISSED THIS GROUND. 3 M A NO. 44 /PUN/20 19 A.Y. 2013 - 14 5. ON CAREFUL EXAMINATION OF THE ORDER OF THE TRIBUNAL DATED 21.01.2019, WE DO NOT FIND ANY APPARENT MISTAKE WHICH HAS BEEN POINTED OUT BY THE LD. AR OF THE ASSESSEE. THERE ARE S ERIES OF DECISIONS BY THE HON'BLE SUPREME COURT AS WELL AS HON'BLE HIGH COURT EXPOUNDING SCOPE OF EXERCISING POWERS UNDER SECTION 254(2) OF THE ACT. WE DO NOT DEEM IT NECESSARY TO RECITE AND RECAPITULATE ALL OF THEM, BUT SUFFI CE TO SAY THAT CORE OF ALL THESE AUTHORITATIVE PRONOUNCEMENTS IS THAT POWER FOR RECTIFICATION UNDER SECTION 254(2) OF THE ACT CAN BE EXERCISED ONLY WHEN MISTAKE, WHICH IS SOUGHT TO BE RECTIFIED, IS AN OBVI OUS AND PATENT MISTAKE, WHICH IS APPARENT FROM THE RECORD AND NOT A MISTAKE, WHICH IS REQUIRED TO BE ESTABLISHED BY ARGUMENTS AND LONG DRAWN PROCESS OF REASONING ON POINTS, ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. FOR FORTIFYING THIS VIEW, WE MAKE R EFERENCE TO THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LD., 262 ITR 146 WHICH HAS BEEN UPHELD BY THE HON'BLE SUPREME COURT REPORTED IN 305 ITR 227. 6. THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. RAMESH ELECTRIC & TRADING COMPANY REPORTED AS 203 ITR 497 HAS HELD THAT THE SCOPE OF SECTION 254(2) IS LIMITED TO RECTIFICATION OF MISTAKE APPARENT FROM RECORD ITSELF AND NOT RECTIFICATION IN ERROR OF JUDGMENT. THE RELEVANT OBSERVAT IONS OF THE HON'BLE HIGH COURT ARE AS UNDER: THE TRIBUNAL CANNOT, IN EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION SO ARRIVED AT. THE MISTAKE WHICH THE TRIBUNAL IS ENTITLED T O CORRECT IS NOT AN ERROR OF JUDGMENT BUT A MISTAKE WHICH IS APPARENT FROM THE RECORD ITSELF. 4 M A NO. 44 /PUN/20 19 A.Y. 2013 - 14 WE ARE OF CONSIDERED VIEW THAT IN THE GUISE OF RECTIFICATION, THE ASSESSEE IS SEEKING REVIEW OF THE ORDER OF TRIBUNAL, WHICH IS BEYOND THE SCOPE OF POWERS AS EN VISAGED U/S. 254(2) OF THE ACT. 7. IN VIEW OF THE ABOVE AND AS PER THE MISCELLANEOUS APPLICATION FILED BEFORE US, WE DO NOT FIND ANY MISTAKE, MUCH LESS ANY APPARENT MISTAKE THAT WARRANTS RECTIFICATION IN THE ORDER OF TRIBUNAL DATED 21.01.2019. ACCORDINGLY , MISCELLANEOUS APPLICATION FILED BY ASSESSEE IS DISMISSED BEING DEVOID OF ANY MERIT. 8. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY ASSESSEE IS DISMISSED. ORDER PRO NOUNCED ON 10 TH DAY OF JANUARY, 2020. SD/ - SD/ - ANIL CHATURVEDI PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 10 TH JANUARY, 2020 . SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A), PUNE - 5, PUNE. 4. THE PR. CIT, PUNE - 4, PUNE. 5 . , , - , / DR, ITAT, SMC BENCH, PUNE. 6 . / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE . 5 M A NO. 44 /PUN/20 19 A.Y. 2013 - 14 DATE 1 DRAFT DICTATED ON 10.01.2020 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 10.01.2020 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER