RAMESH CHAND KAPOOR, Jaipur V. ITO, Alwar

MA 54/JPR/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6623 (ITAT-JAIPUR)
• Duration Of Justice: 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 26-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Keywords: Rectification of order; Cost of acquisition
• Section: 54F

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM MA NO. 54/JP/2018 (ARISING OUT OF ITA NO. 255/JP/2017 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2013-14 SHRI RAMESH CHAND KAPOOR T/H LEGAL HEIR SMT. PUSHPA KAPOOR, 42, SCHEME NO. 2, LAJPAT NAGAR, ALWAR. CUKE VS. THE ITO, WARD- 1(1), ALWAR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: CNSPK 8802 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P.C. PARWAL (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI J.C. KULHARI (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 11/05/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 14/05/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. BY WAY OF THIS MISCELLANEOUS APPLICATION BY THE AS SESSEE IS DIRECTED AGAINST THE ORDER DATED 09.04.2018. THE AS SESSEE IS SEEKING RECTIFICATION OF MISTAKE IN THE ORDER OF THE TRIBUN AL IN RESPECT OF THE FINDING ON THE GROUND NOS. 2 AND 2.1 THE APPEAL OF THE ASSESSEE. MA NO. 54/JP/2018 SHRI RAMESH CHAND KAPOOR VS. ITO 2 2. WE HAVE HEARD THE LD. AR AS WELL AS THE LD. DR A ND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE FIRST MISTAKE HAS BEEN POINTED IN PARA 6 OF THE ORDER REGARDING THE STATUS OF THE NEW ASSET PURCHASED BY THE ASSESSEE FOR THE PURPOSE OF DEDUCTION U/S 54F O F THE ACT. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THE TRIBUNAL HAS GIVEN A FINDING ON THE BASIS OF THE REMAND REPORT OF THE AO AND COM E TO THE CONCLUSION THAT THE ASSESSEE HAS NOT CARRIED OUT ANY CONSTRUCT ION OF HOUSE BUT THE SAID HOUSE WAS ALREADY IN EXISTENCE WHEN THE ASSESS EE PURCHASED THE ALLEGED PLOT OF LAND. THE LD. AR HAS REFERRED TO TH E REMAND REPORT OF THE AO AT PAGE 3 OF THE PAPER BOOK AND SUBMITTED THAT T HE OBSERVATION OF THE TRIBUNAL IN PARA 6 AND FURTHER IN PARA 9 ARE CO NTRARY TO THE FACT AS RECORDED IN THE REMAND REPORT WHEREIN THE AO ACCEPT ED THE CONSTRUCTION OF HOUSE DONE BY THE ASSESSEE. THE NEX T MISTAKE HAS BEEN POINTED OUT BY THE LD. AR IS REGARDING THE COST OF THE PLOT OF LAND MENTIONED IN PARA 9 AS RS. 20,00,000/-. THE LD. AR HAS POINTED THAT THE TRIBUNAL HAS TAKEN THE PURCHASE CONSIDERATION AS RS . 20,00,000/- AND HAS NOT CONSIDERED THE STAMP DUTY AND OTHER EXPENDI TURE INCURRED BY THE ASSESSEE FOR PURCHASE OF THE SAID ASSET THUS, T HE LD. AR HAS SUBMITTED THAT THERE ARE MISTAKES IN THE IMPUGNED O RDER WHICH REQUIRES TO BE RECTIFIED. MA NO. 54/JP/2018 SHRI RAMESH CHAND KAPOOR VS. ITO 3 3. ON THE OTHER HAND, THE LD. DR HAS VEHEMENTLY OPP OSED TO THE MISCELLANEOUS APPLICATION OF THE ASSESSEE AND SUBMI TTED THAT THE TRIBUNAL HAS GIVEN THE FINDINGS ON MERITS WHICH CAN NOT BE REVERSED OR REVIEWED IN THE PROCEEDINGS U/S 254(2) OF THE I.T. ACT. HENCE, HE HAS CONTENDED THAT THE ASSESSEE IS SEEKING REVIEW OF TH E DECISION OF THE TRIBUNAL WHICH IS NOT PERMISSIBLE. 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CARE FUL PERUSAL ON RECORD WE NOTE THAT WHILE DECIDING THE GROUND NO. 2 REGARDING DEDUCTION U/S 54F OF THE ACT THE TRIBUNAL HAS CONSI DERED THE FACT THAT AS PER THE REMAND REPORT OF THE ASSESSING OFFICER N O CONSTRUCTION WAS CARRIED OUT BY THE ASSESSEE AS CLAIMED. HOWEVER, WE FIND THAT IN THE REMAND REPORT THE AO HAS NOT DISPUTED THE CONSTRUCT ION OF NEW HOUSE AND ONLY OBJECTION RAISED BY THE AO WAS THAT THE AS SESSEE HAS NOT PURCHASED THE NEW HOUSE IN HIS NAME BUT THE SAME WA S PURCHASED IN THE NAME OF WIFE. THEREFORE, WE FIND THAT THE FINDI NG OF THE TRIBUNAL IS BASED ON INCORRECT FACTS AS CONSIDERED WHILE DECIDI NG THE GROUND NO. 2 OF THE ASSESSEES APPEAL. THE SECOND MISTAKE POINTE D OUT IN THE MISCELLANEOUS APPLICATION IS REGARDING THE COST OF ACQUISITION OF PLOT OF LAND WHICH IS MENTIONED BY THE TRIBUNAL AS RS. 20 L ACS BUT THE ACTUAL COST OF ACQUISITION AS RS. 21,11,500/- COMPRISING O F PURCHASE MA NO. 54/JP/2018 SHRI RAMESH CHAND KAPOOR VS. ITO 4 CONSIDERATION, THE STAMP DUTY AND OTHER MISCELLANEO US EXPENSES. WE FIND THAT THE TRIBUNAL HAS CONSIDERED ONLY RS. 20 L ACS AS COST OF ACQUISITION OF PLOT WHICH IS INCORRECT AS THE STAMP DUTY, BROKERAGE ETC. WERE NOT TAKEN INTO CONSIDERATION. ACCORDINGLY, WE ARE OF THE CONSIDERED VIEW THAT THERE IS A MISTAKE IN THE IMPU GNED ORDER OF THE TRIBUNAL AS THE CORRECT FACTS HAD ESCAPED THE ATTEN TION OF THE TRIBUNAL. HENCE, WE RECALL THE IMPUGNED ORDER DATED 09.04.201 8 OF THE TRIBUNAL TO THE EXTENT OF THE FINDING ON THE GROUND NOS. 2 & 2.1 OF THE ASSESSEES APPEAL. THE REGISTRY IS DIRECTED TO LIST THE APPEAL OF THE ASSESSEE FOR FRESH HEARING AND ADJUDICATION OF GROUND NO. 2 AND 2.1 OF THE ASSESSEES APPEAL. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14/05/2018. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 14/05/2018. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI RAMESH CHAND KAPOOR, ALWAR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-1(1), ALWAR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) MA NO. 54/JP/2018 SHRI RAMESH CHAND KAPOOR VS. ITO 5 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {M.A. NO. 54/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR