ACIT CIR 22(2), V. RAJESH BUILDERS,

MA 457/MUM/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5936 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-12-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 19-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S SRIVASTAVA
• Section: 263; 63

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI D BENCH BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER & SHRI R.S.PADVEKAR, JUDICIAL MEMBER M.A.NO.457/MUM/2010 A.Y 2004-05 [ARISING OUT OF I.T.A.NO.3250/M/2009] THE ASST. COMMISSIONER OF I.T., CIRCLE 22 (2), MUMBAI. VS. M/S RAJESH BUILDERS, 1/1, GHANSHYAM BAUG, CAMA LANE, HANSOTI ROAD, GHATKOPAR [W] MUMBAI 400 086. PAN: AAEFR 6687 G (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI R.S.SRIVASTAVA. RESPONDENT BY : SHRI GAURAV BANSAL. O R D E R PER T.R.SOOD, AM: THROUGH THIS MISCELLANEOUS APPLICATION REVENUE HAS SOUGHT RESTORATION OF THE APPEAL BECAUSE SOME ERROR HAS CR EPT INTO THE ORDER OF THE TRIBUNAL IN I.T.A.NO.3250/MUM/2009. 2. THE LD. DR REFERRED TO THE MISCELLANEOUS APPLICA TION AND SUBMITTED THAT IN THIS CASE REVISIONARY ORDER U/S.2 63 WAS PASSED AND NOTICE RAISING FIVE GROUNDS OR OBJECTIONS WAS ISSUE D. ULTIMATELY, A REVISIONARY ORDER WAS PASSED ACCORDINGLY. WHILE ADJ UDICATING THE REVISIONARY ORDER, THE TRIBUNAL IN PARA 6.3 HAS GIV EN A FINDING THAT THE ORDER U/S.263 WAS PASSED ON THREE GROUNDS WHICH IS FACTUALLY INCORRECT AND, THEREFORE, THE ORDER MAY BE RECALLED FOR RE-HE ARING. 3. ON THE OTHER HAND, LD. COUNSEL OF THE ASSESSEE C ARRIED US THROUGH THE REVISION ORDER PASSED U/S.263 AND POINT ED OUT THAT THE LAST 2 TWO GROUNDS REFERRED IN THE MISCELLANEOUS APPLICATI ON REGARDING EXPENSES OF ` `` ` .8,54,420/- ON ACCOUNT OF DEVELOPMENT CHARGES AND ` `` ` .13,26,887/- ON ACCOUNT OF LEGAL CHARGES ETC., WERE DEALT WITH BY THE COMMISSIONER IN THE FIRST PARA AND AFTER CONSIDERIN G THE OBJECTIONS OF THE ASSESSEE THESE TWO GROUNDS WERE DROPPED VIDE PA RA-6 OF THIS ORDER. THEREFORE, ULTIMATELY THE ORDER WAS PASSED O NLY ON THE BASIS OF OTHER THREE GROUNDS AND THAT IS WHY THE TRIBUNAL HA S MENTIONED THREE GROUNDS. THIS CLEARLY SHOWS THAT THERE IS NO MISTAK E IN THE ORDER OF THE TRIBUNAL. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY. IN THE MISCELLANEOUS APPLICATION IT HAS BEEN STATED THAT T HE ORDER U/S.263 WAS PASSED AND ASSESSMENT WAS SET ASIDE TO THE FILE OF THE AO FOR FRESH ASSESSMENT ON THE FOLLOWING GROUNDS: I. RECEIPT OF RS.1 CRORE WAS NOT SHOWN AS INCOME AND E VEN THOUGH THIS FACT WAS NOTED BY THE ASSESSING OFFICER , HE HAD FAILED TO MAKE ADDITION ON THIS ISSUE. II. THE INTEREST ON NABARD BONDS WAS NOT ACCOUNTED BY T HE ASSESSEE AND THE SAME HAD NOT BEEN EXAMINED BY THE ASSESSING OFFICER. III. TAXABLE LONG TERM CAPITAL GAIN SHOULD HAVE BEEN RS. 9.7 CRORE AS AGAINST LONG TERM CAPITAL GAIN OF RS 2.57 CRORE AND ALSO THERE WAS MISTAKE IN THE CALCULATION OF EXEMPT ION U/S.54EC. IV. DEBIT OF RS.8.54 LAKHS TOWARDS DEVELOPMENT CHARGES BY THE ASSESSEE SHOULD NOT HAVE BEEN ALLOWED. V. EXPENSES OF ` `` ` .13.26 LAKHS TOWARDS LEGAL CHARGES SHOULD NOT HAVE BEEN ALLOWED BY THE ASSESSING OFFICER. 3 5. HOWEVER CAREFUL PERUSAL OF THE ORDER PASSED U/S. 263 BY THE LEARNED COMMISSIONER CLEARLY SHOWS THAT THE LAST TW O GROUNDS WERE CONSIDERED AT PAGE-1 OF HIS ORDER AND AFTER CONSIDE RING THE OBJECTION OF THE ASSESSEE, THESE TWO GROUNDS WERE DROPPED BECAUS E AO HAD ALREADY DEALT WITH THIS MATTER VIDE PARA-6. THEREFO RE, CLEARLY THE ORDER HAS BEEN PASSED ONLY ON THE BASIS OF REST OF THE GR OUNDS AND THAT IS WHY THE TRIBUNAL HAS REFERRED TO ONLY THREE GROUNDS IN PARA 6.3. THIS CLEARLY SHOWS THAT THERE IS NO ERROR APPARENT FROM THE ORDER OF THE TRIBUNAL AND ACCORDINGLY, WE DISMISS THE MISCELLANE OUS APPLICATION. 6. IN THE RESULT, MISCELLANEOUS APPLICATION IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF DECEMBER, 2010. SD/- SD/- (R.S.PADVEKAR) (T.R.SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 10 TH DECEMBER, 2010. P/-*