ITO, Ward - 1(1), Visakhapatnam V. Ankitham Jagga Row Indrani, Visakhapatnam

MA 59/VIZ/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8091 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 10 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-07-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 07-09-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P SRINIVASA MURTHY
• Assessee Lawyers: C V S MURTHY
• Keywords: Sale consideration of property below Jantri Value; Right to appeal; Set aside; Capital Gains
• Section: 50C; 201

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , ACCOUNTANT MEMBER M .A.NO. 59 /VIZ/201 7 (ARISING OUT OF I.T.A NO.684/VIZ/2013) ( / ASSESSMENT YEAR : 20 10 - 11 ) INCOME TAX OFFICER WARD - 1(1) VISAKHAPATNAM VS. SMT. ANKITHAM JAGGA ROW INDRANI C/O M/S A.Y.BHANOJI ROW G.P.RAMAYYA & CO., PORT AREA VISAKHAPATNAM [PAN : AFVPA3791G] ( / APPELLANT) ( / RESPONDENT) / APPELLANT BY : SHRI P.SRINIVASA MURTHY , D R / RESPONDENT BY : SHRI C.V.S.MURTHY, AR / DATE OF HEARING : 1 6 . 0 7 . 201 9 / DATE OF PRONOUNCEMENT : 16 .0 7 . 201 9 / O R D E R P ER SHRI D.S.SUNDER SINGH, ACCOUNTANT MEMBER : IN THE INSTANT CASE, THE DEPARTMENT AS WELL AS THE ASSESSEE HAVE FILED APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)], VISAKHAPATNAM VIDE ITA NO.0058/2013 - 14/ITO W 1(1) 2 M .A. NO . 59 /VIZ/201 7 , A.Y.20 10 - 11 S MT.ANKITHAM JAGGA RAO INDRANI , VISAKHAPATNAM VSP/2013 - 14 DATED 20.09.2013 FOR THE ASSESSMENT YEAR ( A.Y.) 2010 - 11. THE ASSESSEES APPEAL CAME UP FOR HEARING AND THE APPEAL OF THE ASSESSEE WAS DISPOSED OFF BY THE ORDER OF THIS TRIBUNAL IN I.T.A NO.684/VIZ/2013 DATED 07.03.2014. AT THE TIME OF THE HEARING THE APPEAL OF THE ASSESSEE, NEITHER THE DEPARTMEN T NOR THE LD.AR BROUGHT TO OUR NOTICE REGARDING THE PENDENCY OF DEPARTMENTAL APPEAL. THE ISSUE OF BOTH THE CROSS APPEALS ARE ONE AND THE SAME I.E ADOPTION OF THE VALUE OF PROPERTY AS PER STAMP DUTY VALUE / ACTUAL CONSIDERATION AS PER SECTION 50C FOR C OMPUTATION OF CAPITAL GAINS . THEREFORE, THE DEPARTMENT HAS FILED MISCELLANEOUS APPLICATION REQUESTING THE ITAT TO RECALL THE ORDER OF THE ASSESSEE AND TO DECIDE BOTH THE APPEALS TOGETHER. 2. APPEARING FOR THE REVENUE, THE LD.DR ARGUED THAT DUE TO OVERSIG HT, THE PENDENCY THE DEPARTMENT WAS NOT BROUGHT TO THE NOTICE OF ITAT AT THE TIME OF ASSESSEES APPEAL HEARING . SINCE THE ISSUE INVOLVED IN BOTH THE APPEALS IS COMMON AND THE ASSESSEES APPEAL WAS DECIDED WITHOUT HEARING THE DEPARTMENTAL APPEAL, REQUESTED TO RECALL THE ORDER OF THE ASSESSEE APPEAL AND DECIDE BOTH THE APPEAL TOGETHER ON MERITS. 3 M .A. NO . 59 /VIZ/201 7 , A.Y.20 10 - 11 S MT.ANKITHAM JAGGA RAO INDRANI , VISAKHAPATNAM 3. ON THE OTHER HAND, THE LD.AR VEHEMENTLY OPPOSED FOR RECALLING THE ORDER STATING THAT THERE IS NO ERROR IN THE ORDER OF THE ITAT FOR RECALLING THE ORDER. 4. WE HA VE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD. IN THE INSTANT CASE, THE ASSESSEE AND THE REVENUE HAVE FILED CROSS APPEALS AND THERE WAS A MISTAKE COMMITTED ON THE PART OF THE ITAT IN NOT CLUBBING THE APPEALS. THEREFORE, THE ITAT DIS POSED OFF THE ASSESSEES APPEAL WITHOUT HEARING THE DEPARTMENTAL APPEAL. NEITHER THE LD.AR NOR THE LD.DR BROUGHT TO THE NOTICE OF THE ITAT, WITH REGARD TO THE PENDENCY OF THE DEPARTMENTAL APPEAL. THEREFORE, THERE IS ERROR IN THE ORDER PASSED BY THE ITAT. WHEN THE CROSS APPEALS ARE FILED BY BOTH THE DEPARTMENT AND THE ASSESSEE, REQUIRED TO BE CLUBBED AND HEARD TOGETHER. DISPOSAL OF ASSESSEES APPEAL WITHOUT HEARING THE DEPARTMENTAL APPEAL CAUSE INJURY AND INJUSTICE TO THE DEPARTMENT. THEREFORE, WE HOLD T HAT THERE WAS A MISTAKE IN THE ORDER OF THE TRIBUNAL, HENCE, THE ASSESSEES APPEAL REQUIRED TO BE RECALLED. HONBLE SUPREME COURT IN THE CASE OF COMMISSIONER OF SALES TAX, U.P. VS. VIJAI INT.UDYOG HELD AS UNDER : ON THE FACTS OF THE CASE, WE DO NOT ACCEPT THE VIEW OF THE HIGH COURT THAT THE DOCTRINE OF MERGER APPLIED. BOTH THE ASSESSEE AND THE COMMISSIONER HAD A STATUTORY RIGHT OF APPEAL TO THE TRIBUNAL AGAINST THE DECISION OF THE 4 M .A. NO . 59 /VIZ/201 7 , A.Y.20 10 - 11 S MT.ANKITHAM JAGGA RAO INDRANI , VISAKHAPATNAM ASSISTANT COMMISSIONER AND IN EXERCISE OF THAT RIGHT TWO SEPARATE APPEALS HAS BEEN FIELD. ON ACCOUNT OF THE MISTAKE OF THE TRIBUNAL IS NOT CLUBBING THE TWO APPEALS, THE STATUTORY RIGHT OF APPEAL OF ONE PART COULD NOT BE NEGATIVE. IT IS A WELL - SETTLED PROPOSITION OF LAW THAT NO PARTY SHOULD SUFFER ON ACCOUNT OF THE MISTAKE OF THE COURT OR THE TRIBUNAL. THAT APART, IN A SITUATION LIKE THIS, THE DOCTRINE OF MERGER HAS NO APPLICATION AND THE HIGH COURT WAS IN ERROR IN THROWING OUT THE COMMISSIONERS APPEAL BY APPLYING THE DOCTRINE OF MERG ER. TO MEET OUT JUSTICE TO THE PARTIES AND OVERCOME THE DIFF ICULTY ARISING IN THE CIRCUMSTANCES INDICATED ABOVE, WE SUGGESTED TO THE COUNSEL OF THE PARTIES THAT BOTH THE APPEALS SHOULD BE REHEARD BY THE TRIBUNAL AND COUNSEL FOR BOTH PARTIES FAIRLY AGREED THAT IT SHOULD BE DONE. WE, ACCORDINGLY, ALLOW THIS APPEAL, SET ASIDE THE ORDER OF THE HIGH COURT AS ALSO THE TWO SEPARATE ORDERS OF THE TRIBUNAL BY CONSENT OF THE PARTIES AND DIRECT THAT APPEAL NO.1366 OF 1980, FILED BY THE ASSESSEE AND APPEAL NO.541 OF 1981 FILED BY THE COMMISSIONER RELATING TO THE YEAR 1978 - 79 SHALL BE REHEARD. THE TRIBUNAL SHALL HEAR BOTH THE APPEALS ON THE SAME DAY AND DISPOSE THEM OF BY A COMMON JUDGEMENT TO AVOID ANY FURTHER DIFFICULTY. THERE SHALL BE NO ORDER AS TO COSTS. THE REFORE, WE RECALL THE ORDER PASSED BY THIS TRIBUNAL IN THE CASE OF THE ASSESSEE AND FIX BOTH THE CASES FOR HEARING ON 22.08.2019. THE REGISTRY IS DIRECT ED TO CLUB THE APPEALS AND POST THE CASE. SINCE THE DATE OF HEARING IS PRONOUNCED IN THE OPEN COURT, N O NOTICE IS REQUIRED TO BE ISSUED SEPARATELY TO BOTH THE PARTIES. 4 . IN TH E RESULT, THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE IS ALLOWED. 5 M .A. NO . 59 /VIZ/201 7 , A.Y.20 10 - 11 S MT.ANKITHAM JAGGA RAO INDRANI , VISAKHAPATNAM ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH JULY 2019. S D/ - S D/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 16 .0 7 .2019 L.RAMA, SPS / COPY OF THE ORDER FORWARDED TO: - 1. / THE ASSESSEE - SMT. ANKITHAM JAGGA ROW INDRANI, C/O M/S A.Y.BHANOJI ROW, G.P.RAMAYYA & CO.,PORT AREA, VISAKHAPATNAM 2. / THE REVENUE INCOME TAX OFFICER, WARD - 1(1), VISAKHAPATNAM 3. THE COMMISSIONER OF INCOME TAX - 1 , VISAKHAPATNAM 4. THE COMMISSIONER OF INCOME TAX (APPEALS), VISAKHAPATNAM 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM