Assistant Commissioner of Income-tax, Central Circle - 2(2), Pune V. Sinhgad Technical Education Soc., Pune

MA 60/PUN/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6331 (ITAT-PUNE)
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-02-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 19-01-2018
• Assessment Year: 2006-2007
• Appeal Filed On: 29-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MUKESH JHA
• Assessee Lawyers: S N DOSHI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE , , , BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWASTHY, JM . / MA NO. 6 0 /PUN/2017 (ARISING OUT OF ITA NO .320 /PUN/201 0 ) / ASSESSMENT YEAR : 200 6 - 07 ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), PUNE ....... / APP LICANT / V/S. SINHGAD TECHNICAL EDUCATION SOCIETY, S. NO. 44/1 VADGAON (BK), OFF. SINHGAD ROAD, PUNE 411041 PAN : AABTS 9900Q / RESPONDENT ASSESSEE BY : S/SHRI S.N. DOSHI & PIYUSH BAFNA REVENUE BY : SHRI MUKESH JHA / DATE OF HEARING : 19 - 01 - 2018 / DATE OF PRONOUNCEMENT : 14 - 0 2 - 201 8 / ORDER PER VIKAS AWASTHY, JM : TH IS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE REVENUE U/S. 254(2) O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) 2 MA NO. 60/PUN/2017 SEEKING RECTIFICATION IN THE ORDER OF TRIBUNAL IN ITA NO .320/PUN/2010 DATED 1 4 - 12 - 2016 FOR THE ASSESSMENT YEAR 2006 - 07. 2. SHRI MUKESH JHA REPRESENTING THE DEPARTMENT SUBMITTED THAT IN PARA 85 AT PAGE 58 OF THE ORDER, THE TRIBUNAL HAS OBSERVED THAT THE REVENUE HAS NOT CHALLENGED THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) FOR ASSESSMENT YEARS 2007 - 08 AND 2008 - 09 ON THE ISSUE OF EXCESS RENT PAID BY ASSESSEE TO M.N. NAVALE (BIGGE R HUF) IN RESPECT OF PROPERTIES AT FLAT NOS. 7, 8 AND 9, GEETA BUILDING, BOMBAY AND PROPERTY AT WARJE. THE LD. DR POINTED THAT THE OBSERVATIONS OF THE TRIBUNAL IN PARA 85 ARE FACTUALLY INCORRECT. THE DEPARTMENT HAS PREFERRED APPEAL BEFORE THE TRIBUNAL ON THESE ISSUES OF EXCESS RENT PAYMENT IN ITA NOS. 15 & 16/PUN/2015 FOR ASSESSMENT YEARS 2007 - 08 AND 2008 - 09. 3. ON THE OTHER HAND S/SHRI S.N. DOSHI & PIYUSH BAFNA APPEARING ON BEHALF OF THE ASSESSEE FAIRLY ADMITTED THAT THE REVENUE HAS FILED APPEALS AGAIN ST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN ASSESSMENT YEARS 2007 - 08 AND 2008 - 09 BEFORE THE TRIBUNAL. THE LD. AR SUBMITTED THAT THE ASSESSEE HAS NO OBJECTION IN RECTIFYING THE MISTAKE CREPT IN THE ORDER OF TRIBUNAL IN PARA 85 IN MENTIONING THE FACTUAL ASPECT. HOWEVER, THE RECTIFICATION OF THE MISTAKE SHOULD NOT CAUSE PREJUDICE TO THE ASSESSEE. 4. BOTH SIDES HEARD. THE DEPARTMENT IS SEEKING RECTIFICATION OF THE FACTS MENTIONED IN PARA 85 AT PAGE 58 IN THE ORDER OF TRIBUNAL DATED 14 - 12 - 2016 . IN THE ORDER OF TRIBUNAL IT HAS BEEN MENTIONED THAT NO APPEAL HAS BEEN FILED BY THE DEPARTMENT ON THE ISSUE OF RENTAL INCOME FOR ASSESSMENT YEARS 2007 - 08 AND 2008 - 09. WHEREAS, IN FACT, THE DEPARTMENT 3 MA NO. 60/PUN/2017 HAD FILED APPEALS FOR ASSESSMENT YEARS 2007 - 08 AND 2 008 - 09. THE PARA 85 OF THE ORDER PRESENTLY READS AS UNDER : 8 5. SINCE THE IMPUGNED ORDER OF CIT(A) WAS PRIOR TO THE ORDER OF CIT(A) FOR A.Y. 2007 - 08 AND 2008 - 09 AND SINCE THE REVENUE HAS NOT CHALLENGED THE ORDER OF CIT(A) ON THIS ISSUE FOR A.Y. 2007 - 08 A ND 2008 - 09, THEREFORE, WE HOLD THAT THE ASSESSEE TRUST HAS NOT VIOLATED THE PROVISIONS OF SECTION 13(1)(C) BY GIVING RENT TO M.N. NAVALE (BIGGER HUF) IN RESPECT OF THE PROPERTIES STATED AT FLAT NO.7, 13 AND 9, GEETA BUILDING, BOMBAY AND PROPERTY AT WARJE. 5 . THE ERROR HAS CREPT IN THE ORDER OF TRIBUNAL IN MENTIONING THE CORRECT FACTUAL ASPECT. THEREFORE, PARA 85 NEEDS RECTIFICATION. SINCE, CONTENTS OF PARA 85 ARE FACTUALLY INCORRECT, THE SAME IS DIRECTED TO BE OMITTED. WE OBSERVE THAT THE OBSERVATIONS MADE BY THE TRIBUNAL IN PARA 85 ARE NOT SOLE BASIS FOR GRANTING RELIEF TO THE ASSESSEE , T HEREFORE, THE OMISSION OF PARA 85 AT PAGE 58 OF THE ORDER WOULD NOT HAV E ANY BEARING ON THE FINAL DECI SION OF THE APPEAL BY THE ASSESSEE. ACCORDINGLY, TH E MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS ACCEPTED , THE FACTUAL ERROR CREPT IN THE ORDER OF TRIBUNAL IN PARA 85 IS RECTIFIED BY OMITTING PARA 85 FROM THE ORDER. PARA 85 AT PAGE 58 WILL NOW BE READ AS : 85. OMITTED. 6. IN THE RESULT, MISCELLANEOUS APPLICATION BY THE REVENUE IS ALLOWED . ORDER PRONOUNCED ON WEDNESDAY, T HE 14 TH DAY OF FEBRUARY, 201 8 . SD/ - SD/ - ( / ANIL CHATURVEDI ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 14 TH FEBRUARY, 2018 RK 4 MA NO. 60/PUN/2017 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - II, PUNE 4. / THE CIT (CENTRAL), PUNE 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE