DCIT, Chandigarh V. Hiteish Arora, Chandigarh

MA 54/CHANDI/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 3782 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 19-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDRA KANTA
• Section: 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH A, CHANDIGARH BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER M.A. NO. 54/CHD/2019 (IN ITA NO. 320/CHD/2016) (ASSESSMENT YEAR: 2009-10) THE ITO VS. SH. HITESH ARORA WARD 4(3) SCO 164-SECTOR 37-C CHANDIGARH CHANDIGARH PAN: ADNPA6661R M.A. NO. 55/CHD/2019 (IN ITA NO. 321/CHD/2016) (ASSESSMENT YEAR: 2009-10) THE ITO VS. SH. ASHISH ARORA WARD 4(3) SCO 164-SECTOR 37-C CHANDIGARH CHANDIGARH PAN: AEXPA8162Q (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI JASPAL SHARMA DEPARTMENT BY : SMT. CHANDRAKANTA DATE OF HEARING : 08/08/2019 DATE OF PRONOUNCEMENT : 08/08/2019 O R D E R PER DR.B.R.R.KUMAR, A.M . BOTH THE ABOVE MISC. APPLICATIONS HAVE BEEN FILED B Y THE DEPARTMENT AND REQUESTING FOR RECTIFICATION OF THE ORDER DATED 06/08/2018 IN ITA NO. 320 & 321 /CHD/2016 FOR ASSESSMENT YEAR 2009-10. 2. IN BOTH THE M.AS THE GROUND TAKEN IS AS UNDER: WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, HONBLE ITAT HAS ERRED IN ALLOWING THE APPEAL OF THE ASSESSEE IN DEL ETING THE ADDITION BY TREATING THE SALE CONSIDERATION RECEIVED OVER AND ABOVE THE SALE CONSIDERATION MENTIONED IN THE REGISTERED SALE DEED AS CAPITAL G AIN INSTEAD OF INCOME FROM OTHER SOURCES WHEN HONBLE ITAT IN ITS OWN JUDGEMEN T IN ITA NO. 665/CHD/2016 IN THE CASE OF ACIT VS. SHRI. MOHINDER SINGH HAS HE LD THAT THE NATURE OF RECEIPT OF THE INCOME OVER AND ABOVE THE REGISTERED SALE CONSI DERATION IN THE HANDS OF SELLER WILL NOT FALL UNDER THE HEAD CAPITAL GAINS BUT INCOME FROM OTHER SOURCES. 3 (A) DURING THE ARGUMENT BEFORE US, BOTH THE PARTI ES FAIRLY ACCEPTED THAT THE ABOVE MENTIONED CASE HAS NOT BEEN BROUGHT UP BEFORE THE BENCH DURING THE EARLIER ARGUMENTS. HENCE, CONSIDERATION OF A CASE W HICH WAS NOT ARGUED BEFORE THE BENCH DOESNT ARISE. 3(B) LD. AR HAS ARGUED THAT THE INSTANT CASE INVOLV ED A SURVEY CONDUCTED UNDER SECTION 133A OF THE INCOME TAX ACT,1961 AND T HE ASSESSEE HAS FILED RETURN O F INCOME IN WHICH THE LONG TERM CAPITAL GAINS WER E COMPUTED TAKING THE ADDITIONAL INCOME DECLARED. THE ADDITIONAL INCOME D ECLARED WAS ON ACCOUNT OF A DOCUMENTS FOUND DURING THE SURVEY WHEREAS IN T HE CASE REFERRED BY THE REVENUE THERE WAS NO SURVEY CONDUCTED AND THE AMOUN T WAS NOT OFFERED TO TAXATION IN THE RETURNS. THE LD. DR DID NOT OBJECT TO THE FACTUAL POSITION OF BOTH THE CASES. HENCE, WE HEREBY HOLD THAT THE FACTS OF BOTH THE CASES ARE DIFFERENT AND THE FACTS OF ONE CASE CANNOT BE SUPER IMPOSED O N THE OTHER CASE. 3(C) THE ISSUE TAKEN UP IN THE M.A BY THE REVENUE C ANNOT BE SAID TO BE A MISTAKE APPARENT FROM THE RECORD AS PER THE PROVISI ONS OF SECTION 254(2) OF THE INCOME TAX ACT,1961. HENCE, THE M.A IS HEREBY DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (DIVA SINGH) (DR. B.R.R. KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 08/08/2019 AG COPY TO: 1.THE APPELLANT, 2. THE RESPONDENT, 3. THE CIT(A ), 4. THE CIT, 5. THE DR