Sri K. Rajesh Mohan, Secunderabad V. ACIT, Circle-10(1), Hyderabad

MA 51/HYD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8058 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-05-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 12-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: GANGADHAR
• Assessee Lawyers: G M KRISHNA MURTHY
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER M.A. NO. 50/HYD/2012 IN ITA NO. 357/HYD/2011 ASSESSMENT YEAR 2007-07 SRI K. RANJEET MOHAN SECUNDERABAD PAN: AJLPK6402C VS. ACIT CIRCLE-10(1) HYDERABAD APPELLANT RESPONDENT M.A. NO. 51/HYD/2012 IN ITA NO. 359/HYD/2011 ASSESSMENT YEAR 2007-07 SRI K. RAJESH MOHAN SECUNDERABAD PAN: AJSPK5263E VS. ACIT CIRCLE-10(1) HYDERABAD APPELLANT RESPONDENT M.A. NO. 237/HYD/2011 IN ITA NO. 785/HYD/2010 ASSESSMENT YEAR 2006-07 SRI K. ROOPESH MOHAN SECUNDERABAD PAN: ABZPM3741Q VS. INCOME TAX OFFICER WARD-10(2) HYDERABAD APPELLANT RESPONDENT APPELLANT BY: SHRI G.M. KRISHNA MURTHY RESPONDENT BY: SHRI GANGADHAR PANDEY DATE OF HEARING: 18 . 05 .201 2 DATE OF PRONOUNCEMENT: 18.05.2012 O R D E R PER CHANDRA POOJARI, AM: BY THESE MISCELLANEOUS APPLICATIONS THE ASSESSEES HEREIN SEEK RECALL OF THE EX-PARTE ORDERS OF THE TRIBUNAL DATED 18.1.2012 AND 8.7.2011 IN I.T.A. NOS. 357 & 359/HYD/2011 AND I.T.A. NO. MA NO. 50/HYD/2012 & ORS. MR. K. RANJEET MOHAN & ORS. ===================== 2 785/HYD/2010, RESPECTIVELY FOR THE ASSESSMENT YEAR 2006-07 WHEREIN THE TRIBUNAL DECIDED THE ISSUE HOLDING AS F OLLOWS: '5. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT SECTION 50C OF THE ACT IS APPLICABLE ONLY IN THE CASES WHERE THE DOCUMENT IS REGISTERED AND IT IS FOUND THAT THE VALUE MENTIONED IN THE REGISTERED DOCUMENT IS LOWER THAN THAT OF THE REGISTERING AUTHORITY AND THERE SHOULD NOT BE DISPU TE AS REGARDS THE VALUATION OF THE STAMP DUTY. IN THE IN STANT CASE, THE DOCUMENT HAS NOT BEEN REGISTERED AS THE PURCHASER HAD DISPUTED THE VALUE FOR STAMP DUTY PURPOSE AND THE PURCHASER HAS FILED AN APPEAL BEFOR E THE HONBLE HIGH COURT OF ANDHRA PRADESH, DISPUTING THE STAMP DUTY VALUE FIXED BY THE REGISTRATION DEPARTMENT. SINCE, THE MATTER IS PENDING BEFORE TH E COURT; THE PROPERTY HAS NOT BEEN REGISTERED TILL TO DAY. HENCE, THE PRIMARY CONDITIONS THAT REGISTRATION OF THE PROPERTY DOCUMENT, FOR APPLICATION OF SECTION 50C O F THE ACT IS NOT FULFILLED. HENCE, THE FIRST APPELLATE A UTHORITY IS RIGHT IN DIRECTING THE ASSESSING OFFICER TO ADOP T THE VALUE DECLARED BY THE ASSESSEE FOR THE PURPOSE OF COMPUTATION OF CAPITAL GAIN. IT IS PRAYED TO CONFI RM THE ORDER OF THE CIT(A). HE RELIED ON THE DECISION OF JAIPUR BENCH OF THIS TRIBUNAL IN THE CASE OF SMT. VIJAYALAKSHMI DHADDHA VS. ITO REPORTED IN 27(II) IT CL 372 APART FROM NAVNEET KUMAR (SUPRA).' 2. ACCORDING TO THE LEARNED AR THE PROVISIONS OF SECTI ON 50C ARE NOT APPLICABLE FOR THE ASSESSMENT YEAR UNDER CO NSIDERATION AS THE SALE DEED WAS NOT REGISTERED AND THE ISSUE RELA TING TO VALUATION OF STAMP DUTY IS PENDING FOR REGISTRATION BEFORE TH E HONBLE HIGH COURT. BEING SO, THE TRIBUNAL COMMITTED AN ERROR I N REMITTING THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A D IRECTION TO DETERMINE THE SALE VALUE ON THE BASIS OF THE JUDGEM ENT OF HONBLE HIGH COURT. 3. THE DR RELIED ON THE ORDER OF THE TRIBUNAL. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. BY THESE MAS, IN OUR OPINION, THE ASSESSEE S ARE SEEKING REVIEW OF ITS OWN ORDER BY THE TRIBUNAL U/S. 254(2) OF THE ACT AND THE TRIBUNAL HAS NO SUCH POWER. THE TRIBUNAL HAS T AKEN A CONSCIOUS DECISION WHILE DISPOSING THE APPEALS OF T HE ASSESSEES MA NO. 50/HYD/2012 & ORS. MR. K. RANJEET MOHAN & ORS. ===================== 3 AND GIVEN A FINDING TO THE EFFECT THAT THE ASSESSIN G OFFICER HAS TO RE-DO THE ASSESSMENT AFTER FINALISATION OF THE ISSU E WHICH IS DISPUTED BEFORE THE HONBLE HIGH COURT. IN THE MEA NTIME THE ASSESSEES WANT RE-CONSIDERATION OF THE ORDER OF THE TRIBUNAL WHICH IS NOTHING BUT REVIEW OF ITS OWN ORDER U/S. 254(2) OF THE ACT. THE SCOPE AND AMBIT OF APPLICATION U/S. 254(2) IS AS FO LLOWS: (A) FIRSTLY, THE SCOPE AND AMBIT OF APPLICATION OF S. 2 54(2) OF IT ACT IS RESTRICTED TO RECTIFICATION OF THE MISTAKES APPARENT FROM THE RECORD. (B) SECONDLY, THAT NO PARTY APPEARING BEFORE THE TRIBUN AL SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED B Y THE TRIBUNAL AND IF THE PREJUDICE HAS RESULTED TO THE P ARTY, WHICH PREJUDICE IS ATTRIBUTABLE TO THE TRIBUNALS MISTAKE/ERROR OR OMISSION, AND WHICH AN ERROR IS A MANIFEST ERROR, THEN THE TRIBUNAL WOULD BE JUSTIFIED IN RECT IFYING ITS MISTAKE. THE RULE OF PRECEDENT IS AN IMPORTANT A SPECT OF LEGAL CERTAINTY IN THE RULE OF LAW AND THAT PRINCIP LE IS NOT OBLITERATED BY S. 254(2) OF THE ACT AND NON-CONSIDE RATION OF PRECEDENT BY THE TRIBUNAL CAUSES A PREJUDICE TO THE ASSESSEE. (C) THIRDLY, POWER TO RECTIFY A MISTAKE IS NOT EQUIVALE NT TO A POWER TO REVIEW OR RECALL THE ORDER SOUGHT TO BE RE CTIFIED. (D) FOURTHLY, UNDER S. 254(2) AN OVERSIGHT OF A FACT CA NNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER TH E SECTION. (E) FIFTHLY, FAILURE ON THE PART OF THE TRIBUNAL TO CON SIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON RECORD, ALTH OUGH IT MAY BE AN ERROR OF JUDGEMENT. MA NO. 50/HYD/2012 & ORS. MR. K. RANJEET MOHAN & ORS. ===================== 4 (F) SIXTHLY, EVEN IF ON THE BASIS OF A WRONG CONCLUSION THE TRIBUNAL HAS NOT ALLOWED A CLAIM OF THE PARTY IT WI LL NOT BE A GROUND FOR MOVING AN APPLICATION UNDER S. 254(2) OF THE ACT. (G) LASTLY, IN THE GARB OF AN APPLICATION FOR RECTIFICA TION UNDER S. 254(2) THE ASSESSEE CANNOT BE PERMITTED TO REOPEN A ND REARGUE THE WHOLE MATTER AS THE SAME IS BEYOND THE SCOPE OF S. 254(2) OF THE IT ACT. 5. IN THE RESULT, MAS FILED BY THE ASSESSEES ARE DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH MAY, 2012. SD/ - (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED THE 18 TH MAY, 2012 COPY FORWARDED TO: 1. SRI K. RANJEET MOHAN, 1 - 1 - 92, RP ROAD, SECUNDERABAD. 2. SRI K. RAJESH MOHAN, 1 - 1 - 92, RP ROAD, SECUNDERABAD. 3. SRI K. ROOPESH MOHAN, 1 - 1 - 92, RP ROAD, SECUNDERABAD. 4 . THE ASST. COMMISSIONER OF INCOME - TAX, CIRCLE - 10(1), ROOM NO. 515, I.T. TOWERS, AC GUARDS, HYDERABAD. 5. THE INCOME - TAX OFFICER, WARD - 10(2), HYDERABAD. 6 . THE CIT(A) - V I , HYDERABAD 7 . THE CIT - V, HYDERABAD. 8 . THE DR B BENCH, ITAT, HYDERABAD. TPRAO