CHIRANJEEV LAL KHURANA, V. ITO WD 11(2)2,

MA 553/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9488 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-10-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 25-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V KRISHNA MURTHY
• Assessee Lawyers: S C TIWARI
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 50C

Judgement Text

MA NOS.553 OF 2011 AND 604 OF 2012 CHIRANJEEVLAL KH ANNA MUMBAI PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL 'C' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE-PRESIDENT AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER M.A.NOS.553/MUM/2011 & 604/MUM/2012 (ARISING OUT OF ITA NOS.6170/MUM/2008 & 6170/MUM/20 08) (ASSESSMENT YEAR: 2005-06) SHRI CHIRANJEEV LAL KHANNA, PLOT NO.8, X ROAD NO.4, GREATER MUMBAI HOUSING SOCIETY, JUHU, MUMBAI 400049 PAN: AABPK 3888 K VS. INCOME TAX OFFICER WARD 11(2)(2) MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI S.C. TIWARI, DEPARTMENT BY: SHRI V. KRISHNAMURTHY, DR DATE OF HEARING: 19/10/2012 DATE OF PRONOUNCEMENT: 31/10/2012 O R D E R PER B. RAMAKOTAIAH, A.M. ASSESSEE PREFERRED MISCELLANEOUS APPLICATION( MA 5 53) VIDE APPLICATION DATED NIL FILED ON 25.11.2011. WHEN THI S APPLICATION WAS POSTED FOR HEARING, ASSESSEE WANTED TO REVISE T HE APPLICATION AND ACCORDINGLY ASSESSEES CASE WAS ADJOURNED TO 19 /10/2012. IN THE MEANTIME ASSESSEE FILED REVISED APPLICATION WHI CH WAS NUMBERED AS M.A. NO.604/MUM/2012 TREATING IT AS A F RESH ONE. M.A. NO.553/MUM/2011 HAS BECOME INFRUCTUOUS AND THE RFORE DISMISSED. M.A.NO.604/MUM/2012 : 2. IN THIS REVISED M.A. ASSESSEE POINTS OUT TWO APPARE NT MISTAKES ACCORDING TO WHICH THE ORDER OF THE TRIBUN AL SUFFERS FROM GRAVE MISTAKE ON FACTS AND LAW, CONTRARY TO THE MAT ERIAL ON RECORD AND REQUESTED FOR SUITABLY AMENDING THE ORDER. PARA -1 OF ASSESSEES MA NOS.553 OF 2011 AND 604 OF 2012 CHIRANJEEVLAL KH ANNA MUMBAI PAGE 2 OF 4 APPLICATION IS ON THE ISSUE THAT WAS DECIDED BY THE ITAT IN PARA 10 TO 12.2 WHETHER THE TDR LOADED ON TO FSI AVAILABLE WITH ASSESSEE CAN BE SUBJECTED TO CAPITAL GAINS. ASSESSEE RELIED ON SEVEN CASES WHICH WERE LISTED IN PARA 10. THE ITAT VIDE PARA 12 .2 STATED THAT FIRST SIX DECISIONS MENTIONED IN PARA 10 OF THE SAI D ORDER ARE DISTINGUISHABLE, HENCE THOSE DECISIONS ARE NOT APPL ICABLE TO THE FACTS OF THE PRESENT CASE. IN PARA 12.3 THE LAST DE CISION RELIED ON BY ASSESSEES COUNSEL IN THE CASE OF INCOME TAX OFFICE R VS. SHRI RAM KUMAR MALHOTRA WAS SPECIFICALLY DISCUSSED AND HELD THAT THE DECISION ALSO WAS NOT APPLICABLE TO THE FACTS OF TH E PRESENT CASE. IT WAS THE CONTENTION OF THE LEARNED COUNSEL THAT THE FACTS IN THE SAID WERE SQUARELY APPLICABLE TO THE FACTS IN ASSESSEES CASE AND ACCORDINGLY THE ITAT ERRED IN DISTINGUISHING THE SA ID DECISION. THE ARGUMENTS WERE ENTIRELY ON THE DECISION OF THE ITAT IN DISTINGUISHING THE ABOVE SAID DECISION IN PARA 12.3 AND HOW A MATERIAL FACT OF BUILDING NOT BEING DEMOLISHED WA S CONSIDERED WHICH DOES NOT ARISE OUT OF THAT ORDER ACCORDING TO THE LEARNED COUNSEL. 3. THE SECOND MISTAKE STATED IN PARA 2 OF THE M.A. IS WITH REFERENCE TO THE TRANSFER OF LAND AND BUILDING TO T HE DEVELOPER. IT WAS THE CONTENTION THAT THE FINDING OF FACT BY THE TRIBUNAL THAT THERE IS A TRANSFER OF LAND AND BUILDING IS CONTRAR Y TO THE MATERIAL ON RECORD. 4. IT WAS THE SUBMISSION OF THE LEARNED COUNSEL THAT T HESE TWO MATERIAL FACTS ARE NOT BORNE OUT FROM THE RECORD AN D ACCORDINGLY THE ORDER OF THE ITAT SUFFERS FROM APPARENT MISTAKE AND REQUIRES TO BE AMENDED ACCORDINGLY. 5. THE LEARNED DR HOWEVER, STATED THAT THE M.A. RAISED BY ASSESSEE IS BEYOND THE SCOPE OF THE JURISDICTION OF THE ITAT AS VIDE PARA 13 THE ITAT RECORDED THE FOLLOWING CONSIDERIN G THE TOTALITY OF MA NOS.553 OF 2011 AND 604 OF 2012 CHIRANJEEVLAL KH ANNA MUMBAI PAGE 3 OF 4 THE FACTS OF THE PRESENT CASE AND CONSIDERING THE F ACT THAT ASSESSEE IN THE INSTANT CASE HAS TRANSFERRED THE LAND AND BU ILDING TO THE DEVELOPER THROUGH A DOCUMENT WHICH HAS BEEN REGISTE RED THROUGH STATE REGISTRATION AUTHORITIES; THEREFORE, THERE IS TRANSFER OF A CAPITAL ASSET, THE CAPITAL GAIN ON WHICH IS CHARGEA BLE TO INCOME TAX. REFERRING TO THE ABOVE IT WAS SUBMITTED THAT THE IT AT DECIDED THE ISSUE CONSIDERING THE TOTALITY OF FACTS. M.A. RELYI NG ON ONE CASE WHICH WAS DISTINGUISHED BY THE ITAT CANNOT BE ENTER TAINED. IT WAS ALSO FURTHER SUBMITTED THAT THE TWO CASES CAN NOT B E SAME ON FACTS AND ASSESSEES M.A. IS IN A WAY, SEEKING REVIEW OF THE ORDER. 6. WE HAVE CONSIDERED THE ISSUE AND EXAMINED THE CONTE NTIONS RAISED IN THE M.A. FIRST OF ALL IN THE DETAILED ORD ER PASSED BY THE ITAT, THE BENCH HAS ELABORATELY DISCUSSED THE FACTS OF THE CASE AND ALSO DISTINGUISHED THE CASE LAW RELIED UPON BY THE LEARNED COUNSEL, RECORDED IN PARA 10, 12.2 AND 12.3 OF THE ORDER. SI MILARLY IN PARA 16 ALSO A FINDING WAS GIVEN THAT THERE WAS A TRANSFER OF LAND AND BUILDING TO THE DEVELOPER AND THEREFORE, THE PROVIS IONS OF SECTION 50C ARE APPLICABLE TO THE FACTS OF THE PRESENT CASE . THERE IS A CLEAR FINDING BASED ON THE FINDINGS GIVEN BY THE CIT (A) IN HIS ORDER. IN VIEW OF THIS, SINCE THE DECISION WAS TAKEN AFTER VA LIDLY CONSIDERING THE FACTS ON RECORD AND THE CASE LAW RELIED UPON BY THE COUNSELS, WE ARE OF THE OPINION THAT THE PRESENT M.A. RAISED BY ASSESSEE IS BEYOND THE SCOPE OF THE PROVISIONS OF SECTION 254(2 ). THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. RAMESH ELE CTRIC & TRADING CO., 203 ITR 497 (BOM.) HAS CLEARLY ADJUDIC ATED THAT THE ITAT HAS NO POWER TO REVIEW OF THE ORDERS ALREADY P ASSED IN THE GUISE OF CORRECTING THE MISTAKE APPARENT FROM RECOR D. THE CONTENTIONS RAISED BY ASSESSEE CANNOT BE CONSIDERED AS MISTAKES APPARENT FROM RECORD AS THERE IS A CLEAR FINDING GI VEN ON VARIOUS ISSUES AND THEREFORE ANY OTHER VIEW WOULD ONLY RESU LT IN REVIEW OF THE DECISION ALREADY TAKEN BY THE BENCH. MA NOS.553 OF 2011 AND 604 OF 2012 CHIRANJEEVLAL KH ANNA MUMBAI PAGE 4 OF 4 7. LD COUNSEL RELIED ON THE DECISION OF HONBLE SUPREM E COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD 295 ITR 4 66 (SC) TO SUBMIT THAT NON CONSIDERATION OF JUDGMENT OF COORDI NATE BENCH IS A MISTAKE WHICH CAN BE RECTIFIED. THE SAID DECISION I S NOT APPLICABLE TO THE FACTS OF THE CASE. IN THIS CASE THERE IS NO MISTAKE IN THE SENSE THAT THE DECISIONS RELIED BY THE LD. COUNSEL WERE N OT ONLY SPECIFICALLY DISCUSSED, BUT ALSO DISTINGUISHED. ONC E A POSSIBLE VIEW HAS BEEN TAKEN ON THE BASIS OF MATERIAL ON RECORD, IT CAN NOT BE SAID THAT THERE IS APPARENT MISTAKE WHICH CAN BE RECTIFI ED UNDER SEC.254(2). IN VIEW OF THIS, WE HOLD THAT THE APPLI CATION IS NOT MAINTAINABLE AND ACCORDINGLY THE SAME IS DISMISSED. 8. IN THE RESULT M.AS FILED BY ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST OCTOBER, 2012. SD/- SD/- ( D. MANMOHAN ) (B. RAMAKOTAIAH) VICE-PRESIDENT ACCOUNTANT MEMBER MUMBAI, DATED 31 ST OCTOBER, 2012. VNODAN/SPS COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, C BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI