AVIJIT MOITRA, MUMBAI V. D.C.I.T. CIR. 34, MUMBAI

MA 58/MUM/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4270 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-10-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 06-02-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AKHTAR HANSARI
• Keywords: Rectification of order; Capital Gains
• Section: 260A; 139(5); 139(1); 139(4); 254(2); 13; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER MA NO. 58/MUM/2020 (ARISING OUT OF ITA NO. 2829/MUM/2017) : A.Y : 2012 - 13 AVIJIT MOITRA 702, BUILDING NO. 13, UTSAV APARTMENT, NR. SHREEJI RESTAURANT, OSHIWARA POLICE STATION, ANDHERI (W), MUMBAI 400 053. PAN : ADCPM8561F (APPLICANT) VS. DCIT, CIRCLE - 34, MUMBAI. (RESPONDENT) APPLICANT BY : SHRI PIYUSH CHHAJED RESPONDENT BY : SHRI AKHTAR H. ANSARI DATE OF HEARING : 09/10/2020 DATE OF PRONOUNCEMENT : 14 /10/2020 O R D E R PER SHRI SAKTIJIT DEY, JM : BY FILING THE AFORESAID APPLICATION , PURPORTEDLY UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961, ASSESSEE SEEKS RECALL / RECTIFICATION OF ORDER DATED 04.09.2019 PASSED IN ITA NO. 2829/MUM/2017. 2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS ON RECORD. BEFORE WE DEAL WITH THE SUBSTANTIVE ISSUE AS TO WHETHER THERE IS ANY RECTIFIABLE MISTAKE AS ENVISA GED UNDER SECTION 254(2) OF THE ACT, WE NEED TO REITERATE CERTAIN BASIC FACTS. THE DISPUTE IN THE CORRESPONDING APPEAL FROM WHICH THE PRESENT APPLICATION ARISES RELATES TO DISALLOWANCE OF ASSESSEES CLAIM 2 MA NO. 58/MUM/2020 AVIJIT MOITRA OF DEDUCTION UNDER SECTION 54(1) OF THE ACT. DURI NG THE YEAR UNDER CONSIDERATION, ASSESSEE HAD DERIVED CAPITAL GAIN ON SALE OF AN IMMOVEABLE PROPERTY. IN THE RETURN OF INCOME FILED FOR THE IMPUGNED ASSESSMENT YEAR, ASSESSEE CLAIMED DEDUCTION UNDER SECTION 54(1) OF THE ACT BY STATING THAT THE CAPITAL GAI N DERIVED HAS BEEN INVESTED IN PURCHASING A NEW RESIDENTIAL HOUSE. HOWEVER, DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ON VERIFYING THE RELEVANT FACTS AND MATERIALS FOUND THAT ASSESSEE HAD NOT MADE ANY INVESTMENT IN PURCHASE OF A NEW PROPERT Y WITHIN THE DUE DATE OF FILING OF RETURN AS PRESCRIBED UNDER SECTION 139(1) OF THE ACT. SINCE , IN TERMS OF SECTION 54(2) OF THE ACT, ASSESSEE HAD NOT INVESTED/DEPOSITED THE UNUTILISED CAPITAL GAINS IN CAPITAL GAINS ACCOUNT SCHEME, THE ASSESSING OFFICER H ELD THAT THE ASSESSEE IS NOT ENTITLED TO DEDUCTION UNDER SECTION 54(1) OF THE ACT. THE AFORESAID DECISION OF THE ASSESSING OFFICER WAS ALSO UPHELD BY THE LD. COMMISSIONER (APPEALS). IN THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE TRIBUNAL, ASSESSEE AGA IN REITERATED THE STAND TAKEN BEFORE THE DEPARTMENTAL AUTHORITIES BY SUBMITTING THAT SINCE THE UNUTILISED CAPITAL GAIN WAS INVESTED IN PURCHASE OF NEW RESIDENTIAL HOUSE WITHIN THE EXTENDED TIME ALL OWED UNDER SECTION 139(4) AND 139(5) OF THE ACT, THE DEDUCT ION CLAIMED IS ALLOWABLE. IN SUPPORT OF SUCH CONTENTION, ASSESSEE RELIED UPON VARIOUS JUDICIAL PRECEDENTS. THE TRIBUNAL AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AS WELL AS THE REVENUE AND KEEPING IN VIEW THE RELEVANT STATUTORY PROVISIONS AS CONT AINED IN SECTIONS 54 AS WELL AS 139 OF THE ACT AND APPLYING THE RATIO LAID DOWN IN THE JUDICIAL PRECEDENTS CITED BEFORE IT , THOUGH, IN - PRINCIPLE, ACCEPTED THE SUBMISSIONS OF THE ASSESSEE THAT SECTION 139(1) ALSO ENCOMPASSES THE TIME ALLOWED UNDER SECTIONS 139(4) AND 139(5) OF THE ACT, HOWEVER, HELD THAT THE MOST CRUCIAL FACT WHICH HAS TO BE CONSIDERED IS THE ACTUAL DATE OF FILING OF RETURN BY THE ASSESSEE. THE TRIBUNAL WAS OF THE VIEW THAT IF THE INVESTMENT IN 3 MA NO. 58/MUM/2020 AVIJIT MOITRA PURCHASE OF NEW HOUSE PROPERTY WAS MADE BEFORE THE ACTUAL DATE OF FILING OF RETURN OF INCOME , EVEN , WITHIN THE TIME PERMITTED UNDER SECTIONS 139(4) AND 139(5) OF THE ACT, ASSESSEE WOULD BE ELIGIBLE TO CLAIM DEDUCTION UNDER SECTION 54 OF THE ACT. HOWEVER, IN THE FACTS OF ASSESSEES CASE, THE TRIBUNAL NOTED THAT THE ACTUAL DATE OF FILING OF RETURN BY THE ASSESSEE WAS 26.07.2012 AND, AS ON THAT DATE, ASSESSEE HAD NOT INVESTED ANY AMOUNT OUT OF THE UNUTILISED CAPITAL GAIN IN PURCHASE OF A NEW RESIDENTIAL HOUSE. THEREFORE, RELYING UPON THE RATIO LAID DOWN BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF HUMAYUN SULEMAN MERC HANT VS ACIT, 387 ITR 421 (BOM.) AS WELL AS SOME OTHER JUDICIAL PRECEDENTS, THE TRIBUNAL ULTIMATELY CONCLUDED THAT SINCE THE ASSESSEE HAD NOT INVESTED ANY AMOUNT OUT OF THE UNUTILISED CAPITAL GAIN IN PURCHASING A NEW RESIDENTIAL HOUSE BEFORE THE ACTUAL DAT E OF FILING OF RETURN OF INCOME IN TERMS OF SECTION 54(2) OF THE ACT, ASSESSEE SHOULD HAVE DEPOSITED THE UNUTILISED CAPITAL GAIN IN CAPITAL GAINS ACCOUNT SCHEME. AS T HE ASSESSEE HAD NOT COMPLI ED WITH THE ABOVE SAID CONDITION, THE TRIBUNAL UPHELD THE DECIS ION OF THE DEPARTMENTAL AUTHORITIES. 3. THUS, FROM THE AFORESAID DISCUSSION AS WELL AS ON A READING OF THE APPEAL ORDER PASSED BY THE TRIBUNAL, IT BECOMES ABSOLUTELY CLEAR THAT THE TRIBUNAL HAS DECIDED THE ISSUE AFTER CONSIDERING THE SUBMISSIONS MADE BY THE PARTIES AND AFTER TAKING NOTE OF NOT ONLY THE RELEVANT STATUTORY PROVISIONS, BUT ALSO THE JUDICIAL PRECEDENTS CITED BEFORE IT. FROM THE SUBMISSIONS MADE BY THE LD. AR BEFORE US AS WELL AS THE AVERMENTS MADE IN THE MISCELLANEOUS APPLICATION, IT APPEAR S THAT ASSESSEE HAS SOUGHT RECTIFICATION OF THE ORDER DUE TO THE FOLLOWING REASONS : - 4 MA NO. 58/MUM/2020 AVIJIT MOITRA I) THE DECISION OF THE TRIBUNAL IS NOT IN CONFORMITY WITH SOME OTHER DECISIONS OF THE CO - ORDINATE BENCHES; II) RELIANCE ON THE DECISION OF HON'BLE BOMBAY HIGH COURT IN T HE CASE OF HUMAYUN SULEMAN MERCHANT HAS BEEN WRONGLY PLACED; III) TRIBUNAL HAS MISINTERPRETED THE DECISION OF HON'BLE BOMBAY HIGH COURT AND WRONGLY DISTINGUISHED THE DECISION OF CO - ORDINATE BENCHES, WHICH IS A MISTAKE APPARENT ON THE FACE OF RECORD; AND, I V) THE ALTERNATE CONTENTION OF THE ASSESSEE THAT IT HAS ENTERED INTO MEMORANDUM OF UNDERSTANDING FOR PURCHASE OF PROPERTY , THEREBY , FULFILLING THE CONDITIONS OF SECTION 54(1) OF THE ACT, HAS NOT BEEN CONSIDERED. 4 . AS COULD BE SEEN FROM THE AFORESAID, ACC ORDING TO THE ASSESSEE THE APPEAL ORDER PASSED BY THE TRIBUNAL SUFFERS FROM MISTAKE APPARENT FROM RECORD DUE TO IMPROPER CONSIDERATION OF VARIOUS DECISIONS AS WELL AS NON - CONSIDERATION OF ALTERNATE CONTENTION. AS DISCUSSED EARLIER, THE TRIBUNAL AFTER CONS IDERING THE SUBMISSIONS OF THE ASSESSEE, TAKING NOTE OF FACTS INVOLVED, RELEVANT STATUTORY PROVISIONS AS WELL AS RATIO LAID DOWN IN THE DECISIONS CITED BEFORE IT , H AS DECIDED THE ISSUE IN A PARTICULAR MANNER. FROM THE SUBMISSIONS OF THE LD. AR AS WELL AS THE CONTENTS OF THE MISCELLANEOUS APPLICATION, PRIMA FACIE , IT APPEARS THAT THE ASSESSEE IS NOT SATISFIED WITH THE REASONING OF THE TRIBUNAL. IT FURTHER APPEARS , THE ASSESSEE WANTED THE ORDER TO BE PASSED IN A PARTICULAR MANNER. SINCE , THE ORDER WAS NOT PASSED ACCORDING TO HIS EXPECTATION, THEREFORE, HE HAS COME UP WITH THE PLEA THAT THE APPEAL ORDER SUFFERS FROM MISTAKE APPARENT ON THE FACE OF RECORD. IF THE ASSESSEE IS NOT AGREEABLE TO THE REASONING OF THE TRIBUNAL WHILE DECIDING THE APPEAL, HE HAS A P ROPER REMEDY OF APPEAL BEFORE THE HON'BLE HIGH COURT UNDER SECTION 260A OF 5 MA NO. 58/MUM/2020 AVIJIT MOITRA THE ACT. HOWEVER, THAT CANNOT BE A REASON TO SEEK REDRESSAL UNDER SECTION 254(2) OF THE ACT, WHICH IS CLEARLY ENVISAGED FOR RECTIFYING MISTAKE APPARENT ON THE FACE OF RECORD. THE SO - CALLED MISTAKE POINTED OUT BY THE ASSESSEE CERTAINLY CANNOT BE SAID TO BE MISTAKE APPARENT ON FACE OF RECORD AS ENVISAGED UNDER SECTION 254(2) OF THE ACT. BY FILING THE PRESENT APPLICATION, T HE ASSESSEE, IN OUR VIEW, IS TRYING TO CHALLENGE THE REASONIN G OF TRIBUNAL IN THE APPEAL ORDER IN THE GUISE OF RECTIFICATION . THIS, IN OUR VIEW, IS NOT ACCEPTABLE. ONLY BECAUSE THE DECISION OF THE TRIBUNAL IS NOT TO THE LIKING OF THE ASSESSEE, HE CANNOT SEEK REVIEW OF THE APPEAL ORDER BY TAKING RECOURSE TO SECTION 254(2) OF THE ACT. THEREFORE, WE HOLD THAT THE PRESENT APPLICATION FILED BY THE ASSESSEE BEING WITHOUT ANY SUBSTANCE OR MERIT, DESERVES TO BE DISMISSED. ACCORDINGLY, WE DO SO. 5 . IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 4 T H OCTOBER, 2020. SD/ - SD/ - (M. BALAGANESH) ACCOUNTANT MEMBER ( SAKTIJIT DEY ) JUDICIAL MEMBER MUMBAI, DATE : 1 4 T H OCTOBER, 20 20 *SSL* COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, A BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI