LAXMI NARAYAN, Jaipur V. ITO, Jaipur

MA 45/JPR/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4058 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-02-2016
• 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: RAJENDRA SINGH JCIT DH FRFFK
• Assessee Lawyers: P C PARWAL C A FOHKKX DH LS
• Section: 54B; 263

Judgement Text

,E-,-LA-45@TSIH@15&JH Y{EH UKJK;.K LSUH] T;IQJ VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH, 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 AND SHRI T.R.MEENA, AM ) M.A. NO.45/JP/2015 (A/O ITA NO.53/JP/13) ASSESSMENT YEAR : 2009-10 PAN : ABTPN 0293Q SH.LAXMI NARAYAN SAINI, VS. THE CIT-II, JAIPUR. JAIPUR. VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KKZFJRH DH VKSJ LS@ ASSESSEE BY : SH.P.C.PARWAL, C.A. FOHKKX DH VKSJ LS@ DEPARTMENT BY : SH.RAJENDRA SINGH (JCIT) LQUOKBZ DH FRFFK@ DATE OF HEARING : 18.12.2015 ?KKS'K.KK DH FRFFK@ DATE OF PRONOUNCEMTNT: 02.02.2016 VKNS'K ORDER PER T.R.MEENA, AM THE ASSESSEE FILED M.A. PETITION ON 06.10.2015 AGA INST THIS BENCH ORDER IN ITA NO.53/JP/13 FOR ASSESSMENT YEAR 2009-10 ORDER D ATED 17.07.2015. THE ASSESSEE SUBMITTED AS UNDER :- 2. THE CIT IN PASSING THE ORDER U/S 263 GAVE THE F OLLOWING DIRECTIONS TO THE AO :- - 2 - (A) TO WITHDRAW THE CLAIM OF DEDUCTION U/S 54B OF RS.8,28,650/- INCURRED ON CONSTRUCTION OF BOUNDARY WALL TUBE WELL AND ROOMS ON THE AGRICULTURAL LAND BY HOLDING THAT SAME CANNOT BE TREATED AS COST OF AGRICULTURAL LAND. (B) TO WITHDRAW THE CLAIM OF DEDUCTION U/S 54B OF RS.32,50,000/- ON THE AGRICULTURAL LAND PURCHASED I N THE NAME OF THE SPOUSE. (C) TO VERIFY WHETHER THE AGRICULTURAL LAND SOLD HA S BEEN USED FOR AGRICULTURAL PURPOSE IN THE IMMEDIATELY PR ECEEDING TWO YEARS OR NOT. 3. THE AO IN CONSEQUENCE OF THE DIRECTION OF CIT, DISALLOWED THE CLAIM OF DEDUCTION U/S 54B OF RS.8,2 8,650/- AND RS.32,50,000/- VIDE ORDER U/S 143(3)/263 DT. 04 .03.2013 (PB 69). 4. BEFORE HONBLE ITAT, DETAILS ARGUMENTS WERE PLAC ED ON MERIT AGAINST THE DIRECTIONS OF CIT TO WITHDRAW THE CLAIM OF DEDUCTION U/S 54B OF RS.8,28,650/- AND OF RS.32,50, 000/-. THE SAME IS REPRODUCED AT PARA 2.6 OF THE ORDER. 5. THE HONBLE ITAT AT PARA 2.8 OF THE ORDER UPHOLD THE ORDER OF THE LD.CIT BY CONCLUDING THAT THE ORDER OF AO IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENU E AS THE AO HAD NOT MADE ANY ENQUIRY BEFORE ALLOWING DEDUCTION U/S 54B. NO FINDING IS GIVEN ON THE MERIT OF THE CLAIM OF DE DUCTION U/S 54B ON THE ABOVE TWO ISSUES. THIS HAS RESULTED IN SUSTAINING THE WITHDRAWAL OF DEDUCTION U/S 54B WITHOUT DECIDIN G THE ISSUE ON MERIT, EVEN THOUGH THE HONBLE BENCH IN CO URSE OF HEARING HAS OBSERVED THAT THE DIRECTION WOULD BE GI VEN TO THE AO TO EXAMINE THE CLAIM OF DEDUCTION U/S 54B ON MER IT. - 3 - IN VIEW OF ABOVE, A MISTAKE APPARENT ON RECORD HAS CREPT IN THE ORDER OF HONBLE ITAT AND THEREFORE PARA 2.8 OF THE ORDER BE SUITABLY MODIFIED. 2. THE CASE WAS HEARD, THE LD.A.R. FOR THE ASSESSEE ARGUED THAT HONBLE BENCH HAD NOT CONSIDERED THE ARGUMENT MADE BEFORE IT THAT ASSESSEE HAD INCURRED EXPENDITURE ON CONSTRUCTION ON BOUNDARY WALL & TUBE WELL ARE INTRAGAL PART OF COST OF AGRICULTURE LAND WHCH WAS USED BY THE ASSES SEE FOR HIS RESIDENCE. THE AGRICULTURE LAND WAS ALSO PURCHASED IN THE NAME OF WIFE OF THE ASSESSEE ON WHICH DEDUCTION U/S 54B IS ALLOWABLE. AT THE OUTSET THE LD.D.R. ARGUED THAT HONBLE ITAT AS CONSIDERED ALL THE RELEVANT FACTS AND ARGUM ENT MADE BEFORE THE BENCH. AS PER LAW U/S 254(2) ITAT HAS NO POWER TO REVIEW I T OWN CASE. THEREFORE, M.A. FILED BY THE ASSESSEE MAY PLEASED BE DISMISSED. 3. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED T HE MATERIAL BEFORE US. THE CIT HAS DIRECTED U/S 263 TO VERIFY THE CLAIM U/ S 54B, THE LAND PURCHASED IN THE NAME OF HIS WIFE & THE AGRICULTURE LAND USED FOR AG RICULTURE PURPOSE IN THE IMMEDIATE PROCEEDING YEAR. AS MATTER IS OPEN BEFOR E THE AO AND ASSESSEE CAN SUBMIT THE EVIDENCE BEFORE THE AO AT THE TIME OF AS SESSMENT TO JUSTIFY THE CLAIM MADE BY THE ASSESSEE. AS PER SECTION 254(2) WE DO NOT HAVE POWER TO REVIEW OUR OWN DECISION. ACCORDINGLY THE M.A. FILED BY THE AS SESSEE IS DISMISSED. - 4 - 4. IN THE RESULT, M.A. IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 02.02.2016 SD/- SD/- (R.P.TOLANI) (T.R.MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER T;IQJ@ JAIPUR, FNUKAD@ DATE : 02/02/2016 *BASANT* VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO :- 1- JH Y{EH UKJK;.K LSUH] T;IQJ A 2- VK;DJ VK;QDR&F}RH;] T;IQJ A 3- VK;DJ VK;QDR] 4- VK;DJ VK;QDR VIHYL~] 5- FOHKKXH; IZFRFUF/K] T;IQJ@ THE D.R. ITAT, JAIPUR 6- XKMZ QKBZY@ THE GUARD FILE (IN M.A. NO.45/JP/2015) VKNS'KKUQLKJ BY ORDER LGK;D IATHDKJ@ ASSISTANT REGISTRAR