ITO, Ward-9(2), Hyderabad V. Sri Rajender Pershad Tejprakash, Hyderabad

MA 59/HYD/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2072 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-06-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 12-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KIRAN KATTA
• Assessee Lawyers: K A SAI PRASAD
• Keywords: Capital asset; Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI B.RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER MISC. APPLN. NO.59/HYD/2014 (IN ITA NO.1715/HYD/2013) (ASSESSMENT YEAR 2009 - 10) INCOME TAX OFFICER WARD 9(2), HYDERABAD V/S SHRI RAJEND E R PERSHAD TEJPRAKASH, HYDERABAD (PAN A BIPT 3968 M ) (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI KIRAN KATTA DR RESPONDENT BY : SHRI K.A.SAIPRASAD DATE OF HEARING 20.06.2014 DATE OF PRONOUNCEMENT 20.06.2014 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER: BY THIS MISCELLANEOUS APPLICATION, REVENUE HAS REQUESTED FOR RECTIFICA TION/RECALL OF THE ORDER OF THE TRIBUNAL DATED 30.8.2013 IN APPEAL, ITA NO.1715/HYD/2013 OF THE ASSESSEE, FOR THE ASSESSMENT YEAR 200 9 - 1 0, ON THE GROUND THAT CERTAIN MISTAKES APPARENT FROM THE RECORD HAVE CREPT INTO THE SAME. 2. IT IS STATED IN THIS APPLICATION AT THE OUTSET, NARRATIN G FACTS OF THE CASE, THAT DURIN G TH E YEAR UNDER CONSIDERATION, ASSESSEE SOLD 1224.50 SQ. FT. OF RCC ST R UCTURE AND 544 SQ. FT. OF AREA WITH ACC SHEDS, OUT OF TOTAL AREA OF ACRES 2 - 2 GTS. LAND, FOR A TO TAL CON S ID E RATION OF RS .1,62,50,000 AND CLAIMED THE GAIN ARISING OUT OF THIS TRANS A CTION AS EXEMPT, ON THE GROUND THAT THE LAND IN QUESTION IS AN AGRICULTURAL LAND. THE ASSESSING OFFICER WHILE COMPLET ING THE ASSESSMENT UNDER S.143(3 ) DETERMIN E D THE INCO ME O F THE ASSESSEE AT R S .1,64,78,190, DISALLO W I N G THE ASSESSEES CLAIM WITH REGARD TO EXEMPTION IN RESPECT OF THE ABOVE MA NO. 59 /HYD/2014( ITA NO. 1715 /HYD/ 1 3 ) SHRI RAJEND E R PERSHAD TEJPRAKASH, HYDERABAD 2 TRANSACTION OF SALE OF PROPERTY . ON APPEAL, THE CIT(A) OBSERVING THAT THE LAND IN QUESTION IS NO T AN AGRICULTURAL LAND, CONFIRMED TH E A DDITION MADE BY THE ASSESSING OFFICER. ON FURTHER APPEAL, THE TRIBUNAL FOLLO W IN G THE DECISION OF TH E COORDINATE BENCH IN TH E CA S E OF SMT. T. URMILA V/S. ITO(57 SOT 90)(URO) HELD THAT SIN C E THE LAND WAS NOT WITHIN 8 KM OF ANY MUNICIPALITY; HADA WAS NOT A L OCAL BOD Y THE LAND QUESTION IS NO T A CAPITAL ASSET AS DEFIN E D U/S. 2(14)(III)(A ) OF THE AC T. I T WAS CONSEQUENTLY H E LD THAT THE LAND SOLD BY THE ASSESSEE IS AN AG R IC UL TURAL LAND AND NO T INCIDENCE OF CAPITAL GAINS AROSE. IT IS STATED IN THE PRESENT APPLICA TION THAT THE LAND IN QUESTION IS SITUATED IN TONDAPALLY VILL A GE, WHICH IS WITHIN 5 KM DISTANCE OF SHAM S HABAD MUNICIPALITY, A MUNICIPALITY NOTIFIED BY THE GOVERNMENT IN GAZETTE NOTIFICATION DATED 6.1.199 4 . AS PER THIS N OTIFICATION, SHAMSHABAD IS A NOTIFIED MUNICIPALITY AND THONDAPALLY V ILLAGE IS WITHIN 5 KM OF SHAMSHABAD, AND ACCORDINGLY, THE LAND IN QUES T ION, THOUGH COMES WITHIN THE JURI S DI C TION OF HADA FOR THE PURPOSE OF MUNICIPAL ADMINISTRATION, IT I S ALSO WITHIN 5 KM OF A NO T IFIED MUNICIPA LITY AND ACCORDINGLY THE LAND IS TO BE TREATED AS CAPITAL ASSET AS PER PROVISION S OF S.2(14)(III)(B) OF THE ACT. INASMUCH AS THIS FACT APPEARS TO HAVE NOT BEEN CONSIDERED AT ANY STAGE OF THE PROCEEDINGS IN THIS CASE, THE PRESENT MISCELLANEOUS APPLI C ATION HAS BEEN FILED. REITERATING THE AVERMENTS MADE IN THE PRESENT APPLICATION, LEARNED DEPARTMENTAL REPRESENTATIVE REQUESTED FOR RECTIFICATION/RECALL OF THE ORDER OF THE TRIBUNAL DATED 30 . 8 .2013. 3. THE LEARNED COUNSEL FOR THE ASSESSEE, ON THE CONTRARY , OPPOSING THE CONTENTIONS OF THE ASSESSEE, SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM RECORD, AND AS SUCH, THE PRESENT APPLICATION IS DEVOID OF MERIT. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD, IN THE LIGHT OF THE AVERMENTS MADE IN THE PRESENT APPLICATION MA NO. 59 /HYD/2014( ITA NO. 1715 /HYD/ 1 3 ) SHRI RAJEND E R PERSHAD TEJPRAKASH, HYDERABAD 3 AND THE ORDER OF THIS TRIBUNAL DATED 30.8.2013 . AS STATED BY THE APPLICANT ITSELF IN THE PENULTIMATE PARA OF THE PRESENT APPLICATION, THE FACT STATED IN PARA 5 OF THE PRESENT APPLICATION, VIZ. THE LAND IN QUESTION SITUATED IN T H ONDAPALLY VILLAGE, IS WITHIN 5 KM DISTANCE O F SHAMSHABAD MUNICIPALITY, A M UNICIPALITY NOTIFIED BY TH E GOVERNMENT IN GAZETTE NOTIFICATION DATED 6.1.1994, HAS NOT BEEN CONSIDERED AT ANY STAGE OF THE PROCEEDINGS IN THIS CASE. WHEN SUCH A FAC T HAS NOT BEEN CONSIDERED AT ANY STAGE OF THE PROCEEDINGS STARTING FROM ASSESSMENT PROCEEDINGS TILL THE DISPOSAL OF APPEAL BY THIS TRIBUNAL, OBVIOUSLY THAT FACT, NOT FORMING PART OF THE RECORD AND NOT PLEADED BY EITHER OF THE PARTIES EARLIER , HAS NOT BEEN CONSIDERED BY THE TRIBUNAL IN ITS ORDER DATED 30.8.2013. I N THE CIRCUMSTANCES, IT CANNOT BE SAID THAT THERE IS ANY MISTAKE APPARENT FROM RECORD IN THE ORDER OF THIS TRIBUNAL DATED 30.8.2013 ON ACCOUNT OF NON - CONSIDERATION OF SUCH A FACT BROUGHT ON RECOR D FOR THE FIRST TIME DURING THE PRESENT PROCEEDINGS UNDER S.254(2) OF THE ACT . BY BRINGING ON RECORD A NEW FACT/MATERIAL AND THEREBY MAKING OUT A NEW CASE, T HE REVENUE IS MERELY SEEKING A REVIEW OF THE ORDER OF THE TRIBUNAL DATED 30 . 8 .2013, SINCE SUCH A REVIEW IS NOT PERMISSIBLE IN THESE PROCEEDINGS UNDER S.254(2) OF THE ACT, THE SCOPE OF WHICH IS CONFINED TO MERE RECTIFICATION OF MISTAKES APPARENT FROM RECORD, THE PRESENT APPLICATION OF THE REVENUE IS DEVOID OF MERIT, AND AS SUCH, IT IS LIABLE TO BE REJE CTED. WE REJECT THE SAME ACCORDINGLY. 5. IN THE RESULT, REVENUES MISCELLANEOUS APPLICATION IS REJECTED. ORDER PRONOUNCED IN THE COURT ON THE CONCLUSION OF HEARING ON THE MISCELLANEOUS APPLICATION ON 20.06.2014 SD/ - SD/ - ( B.RAMAKOTAIAH ) ( SAKTIJIT DEY ) ACCOUNTANT MEMBER. JUDICIAL MEMBER. D T/ - 20 TH JUNE, 201 4 MA NO. 59 /HYD/2014( ITA NO. 1715 /HYD/ 1 3 ) SHRI RAJEND E R PERSHAD TEJPRAKASH, HYDERABAD 4 COPY FORWARDED TO: 1. INCOME TAX OFFICER WARD 9(2), HYDERABAD 2. SHRI RAJEND E R PERSHAD TEJPRAKASH, H.NO.22 - 6 - 85, MACHILI KAMAN, HYDERABAD 3. 4. 5. COMMISSIONER OF INCOME - TAX(APPEALS) V I , HYDERABAD COMMISSIONER OF INCOME - TAX V, HYDERABAD DEPARTMENTAL REPRESENTATIVE ITAT HYDERABAD B.V.S.