The ACIT, Circle-6, Ahmedabad V. M/s. Umiya Investment, Ahmedabad

MA 45/AHD/2013

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4409 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 25-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N DIVETIA

Judgement Text

, B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI RAJPAL YADAV, JUDICIAL MEMBER MA NO.45/AHD/2013 IN ./ IT(SS)A NO.39/AHD/2007 [BLOCK PERIOD : 01.04.1986 TO 20.01.1997] ACIT, CIR.6 AHMEDABAD. VS M/S.UMIYA INVESTMENTS A-1, AKSHARDAM SOCIETY PARSHWANATH TOWNSHIP SAIJPUR BOGHA AHMEDABAD. ( APPLICANT ) (RESPONDENT) REVENUE BY : SHRI PRASOON KABRA, SR.DR ASSESSEE BY : SHRI S.N. DIVETIA, AR / DATE OF HEARING : 15/07/2016 / DATE OF PRONOUNCEMENT: 15/07/2016 %&/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: PRESENT MISC. APPLICATION IS DIRECTED AT THE INSTAN CE OF THE REVENUE POINTING OUT APPARENT ERROR IN THE ORDER OF THE ITAT PASSED IN IT(SS)A.NO.39/AHD/2007. 2. IT IS PLEADED IN THE APPLICATION THAT THE ASSESS EE HAD ENTERED INTO AN AGREEMENT ON 20.5.1996 WITH M/S.AMBIKA CORPORATI ON FOR PURCHASE OF A LAND. THE ASSESSEE HAS MADE PAYMENTS OF RS.5. 00 LAKHS ON 7.4.1996, RS.98.00 LAKHS ON 20.5.1996 (ON THE DATE OF AGREEMENT) AND RS.39.00 LAKHS ON 20.9.1996. IN ORDER TO EXPLAIN T HE SOURCE OF THESE PAYMENTS, IT WAS CONTENDED BY THE ASSESSEE THAT IT HAS SOLD LAND TO M/S.TIRUMURTI ASSOCIATES. THE ASSESSEE HAS ALLEGED RECEIPT OF PAYMENT MA NO.45/AHD/2013 2 ON 3.4.1996 RS.5.00 LAKHS, RS.98.00 LAKHS ON 20.4.1 996 AND RS.46,27,709/- ON 13.09.1996. ACCORDING TO THE REV ENUE, THE AGREEMENT DATED 4.6.1996 FOR SALE OF LAND ENTERED W ITH M/S.TIRUMURTI ASSOCIATES. ON THIS DATE OF AGREEMENT A SUM OF RS.9 8 LAKHS WAS RECEIVED BY THE ASSESSEE, WHEREAS IT HAS ALLEGED TO MAKE PAYMENT FOR PURCHASE OF LAND ON 20.5.1996. THUS, THE AGREEMENT FOR PURCHASE WAS EARLIER IN TIME THAN THE AGREEMENT FOR SALE. IF TH AT BE SO, THEN, HOW THE ASSESSEE CAN DEMONSTRATE THE PAYEMNT RECEIVED FROM M/S.TIRUMURTI ASSOCIATES WAS USED FOR PURCHASE OF LAND. THE LD.D R RELIED ON THIS PLEADING. ON THE OTHER HAND, THE LD.COUNSEL FOR TH E ASSESSEE RELIED UPON THE ORDER OF THE ITAT. 3. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. THE TRIBUNAL HAS RECORDED THE FO LLOWING FINDING ON THIS ISSUE. ' WE HAVE HEARD BOTH SIDES AT SOME LENGTH AND CAREF ULLY PERUSED THE ORDERS OF THE AUTHORITIES BELOW IN THE LIGHT O F COMPILATION FILED. THE SHORT ISSUE IS THAT WHETHER TWO MAJOR AM OUNTS I.E. RS. 98 LAKH AND RS. 39LAKHS WERE OUT OF THE AMOUNTS REC EIVED FROM M/S TRIMURTI ASSOCIATES. WE HAVE NOTED THAT VIDE A BANAKHAT DATED 20/05/1996 THE ASSESSEE HAS AGREED TO MAKE TO TAL INVESTMENT OF RS. 1.42 CRORES AS PER THE THREE DATE S NOTED HEREINABOVE. MEANWHILE, WHEN THE INSTALLMENT OF RS. 98 LAKHS WAS DUE ON 20/05/1997, FACTS HAVE REVEALED; THAT THE AS SESSEE HAS ENTERED INTO A SALE AGREEMENT WITH M/S TRIMURTI ASS OCIATES DATED 04/06/1997 AND ACCORDINGLY AN AMOUNT OF RS. 1,42,27 ,709 WAS RECEIVED IN THE FOLLOWING MANNER: - ON 13.04.1996 RS. 5 LAKH (BANACHITTI) ON 20.04.1996 RS. 98 LAKHS (BANAKHAT) ON 13.09.1996 RS. 46,27,700 WE HAVE NOTED THAT THE LD. CIT(A) HAS ACCEPTED THE SAID FACTUAL ASPECT THAT ON RECEIVING THE AFORESAID TWO MAJOR AM OUNTS FROM M/S TRIMURTI ASSOCIATES, THE ASSESSEE HAS MADE THE PAYMENT MA NO.45/AHD/2013 3 TOWARDS M/S AMBIKA CORPORATION. SINCE THE ASSESSEE HAS SUCCESSFULLY ESTABLISHED THE NEXUS WHICH WAS FOUND CORRECT BY THE LD. CIT((A) BEING BASED ON EVIDENCE AND THE BANAKHA T ALREADY ON RECORD, WE HEREBY DO NOT FIND ANY REASON TO INTERFE RE WITH THE SAID FACTUAL FINDING OF LD. CIT(A).' 4. IT IS PERTINENT TO OBSERVE THAT THE POWER OF REC TIFICATION UNDER SECTION 254(2) OF THE INCOME TAX ACT CAN BE EXERCIS ED ONLY WHEN THE MISTAKE, WHICH IS SOUGHT TO BE RECTIFIED, IS AN OBV IOUS AND PATENT MISTAKE, WHICH IS APPARENT FROM THE RECORD AND NOT A MISTAKE, WHICH IS REQUIRED TO BE ESTABLISHED BY ARGUMENTS AND LONG DR AWN PROCESS OF REASONING ON POINTS, ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. 5. ON PERUSAL OF THE RECORD, WE FIND THAT THIS MA H AS BEEN FIELD BY THE REVENUE WITHOUT PROPERLY GOING THROUGH THE RECO RD. IN THE PAPER BOOK, THE ASSESSEE HAS PLACED ON RECORD COPY OF THE PLAINT, CONSENT DECREE PASSED BY THE CIVIL COURT AND SCHEDULE OF PA YMENT. THE ASSESSEE HAS FILED COPY OF A SUIT BEARING NO.4801/9 8 ON 14.9.1998. THIS CIVIL SUIT WAS DECIDED ON18.12.1998. THE ASSE SSEE HAS ALLEGED IN THE CIVIL SUIT THAT PAYMENT OF RS.98 LAKHS WAS RECE IVED BY THE ASSESSEE ON 20.4.1996. THIS PLEADING OF THE ASSESSEE WAS AC CEPTED BY THE VENDOR, VIZ. REPRESENTATIVE OF M/S.TIRUMURTI ASSOCI ATES. THEY HAVE RENDERED INTO EVIDENCE THE BOOKS OF ACCOUNTS. IT W AS THE PLEADING THAT DEFENDANT I.E. VENDOR HAS DEBITED THE ACCOUNT OF PL AINTIFF IN ITS BOOKS. SUIT WAS FILED WITH AN INTENTION THAT THE DEFENDANT WAS NOT MAKING PAYMENT OF BALANCE AMOUNT IN PURSUANCE OF THE AGREE MENT. THE LD.FIRST APPELLATE AUTHORITY HAS ACCEPTED THE PAYME NT BY M/S.TIRUMURTI ASSOCIATES WELL IN ADVANCE. THIS FINDING HAS BEEN APPROVED BY THE TRIBUNAL, AS OBSERVED EARLIER THAT IN THE GARB OF R ECTIFICATION OF AN APPARENT ERROR, THE REVENUE CANNOT PERSUADE THE ITA T TO REVIEW ITS MA NO.45/AHD/2013 4 ORDER. THERE IS NO APPARENT ERROR IN THE ORDER OF THE TRIBUNAL. THEREFORE, THE PRESENT MA IS DISMISSED. 6. IN THE RESULT, MISC. APPLICATION OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 15 TH JULY, 2016 AT AHMEDABAD. SD/- SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 15/07/2016