ACIT, Circle-1(1), Visakhapatnam V. Ankitham Venkata Monish Samarendra Row, Visakhapatnam

MA 60/VIZ/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8092 (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. 60 /VIZ/201 7 (ARISING OUT OF I.T.A NO.68 5 /VIZ/2013) ( / ASSESSMENT YEAR : 20 10 - 11 ) ASST.COMMISSIONER OF INCOME TAX CIRCLE - 1 (1) VISAKHAPATNAM VS. S RI ANKITHAM VENKATA MONISH SAMARENDRA ROW D.NO.10 - 28 - 4/31 P - 2,DEEPANJALI WALTAIR UPLANDS SIRIPURAM, VISAKHAPATNAM [PAN : A CVPA4899A ] ( / 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 APPEALS 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 . 60 /VIZ/201 7 , A.Y.20 10 - 11 S RI ANKITHAM VENKATA MONISH SAMARENDRA ROW , 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.685/VIZ/2013 DATED 07.03.2014. AT THE TIME OF THE HEARING THE APPEAL OF THE ASSESSEE, NEITHER THE DEPARTM ENT NOR THE LD.AR BROUGHT TO OUR NOTICE REGARDING THE PENDENCY OF DEPARTMENTAL APPEAL. THE ISSUE IN BOTH THE CROSS APPEALS ARE ONE AND THE SAME I.E OF VALUATION OF PROPERTY AS PER STAMP DUTY VALUE/ ACTUAL CONSIDERATION AS PER SECTION 50C FOR COMPUTATIO N 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 OVERSIGHT, THE P ENDENCY OF APPEAL OF 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, REQUES TED TO RECALL THE ORDER OF THE ASSESSEES APPEAL AND DECIDE BOTH THE APPEAL TOGETHER ON MERITS. 3 M .A. NO . 60 /VIZ/201 7 , A.Y.20 10 - 11 S RI ANKITHAM VENKATA MONISH SAMARENDRA ROW , VISAKHAPATNAM 3. ON THE OTHER HAND, THE LD.AR VEHEMENTLY OPPOSED FOR RECALLING THE ORDER STATING THAT THERE WAS NO ERROR IN THE ORDER OF THE ITAT FOR RECALLING THE ORDER. 4 . WE HAVE 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 A MISTAKE WAS COMMITTED ON THE PART OF THE ITAT IN NOT CLUBBING THE APPEALS. THE ITAT DISPOSED OFF THE ASSESSEES APPEAL WITHOUT HEARING THE DEPARTMENTAL APPEAL. NEITHER THE LD.AR NOR THE LD.DR BROUGHT TO THE NOTICE OF THE ITAT, REGARDING TO THE PENDENCY OF THE DEPARTMENTAL APPEAL. THEREFORE, THERE IS ERROR IN THE ORDER PASSED BY THE ITAT. WHEN THE C ROSS APPEALS ARE FILED BY BOTH THE DEPARTMENT AND THE ASSESSEE, BOTH THE APPEALS ARE 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 THAT THERE IS 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 CIVIL APPEAL NO.4121 OF 1984 DATED 15 TH OCTOBER 1 984 HELD AS UNDER : 4 M .A. NO . 60 /VIZ/201 7 , A.Y.20 10 - 11 S RI ANKITHAM VENKATA MONISH SAMARENDRA ROW , VISAKHAPATNAM 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 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 MERGER. 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 P ARTIES 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 ORDE R AS TO COSTS. THEREFORE, WE RECALL THE ORDER PASSED BY THIS TRIBUNAL IN THE CASE OF THE ASSESSEE AND FIX THE CASE FOR HEARING ON 22.08.2019 FOR BOTH THE APPEALS. THE REGISTRY IS DIRECTED TO CLUB THE APPEALS AND POST THE CASE. SINCE THE DATE OF HEARIN G IS PRONOUNCED IN THE OPEN COURT, NO 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 . 60 /VIZ/201 7 , A.Y.20 10 - 11 S RI ANKITHAM VENKATA MONISH SAMARENDRA ROW , VISAKHAPATNAM ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH JULY 2019. SD/ - SD/ - ( . ) ( . . ) (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 - SRI ANKITHAM VENKATA MONISH SAMARENDRA ROW D.NO.10 - 28 - 4/31, P - 2,DEEPANJALI, WALTAIR UPLANDS, SIRIPURAM, VISAKHAPATNAM 2. / THE REVENUE ASST.COMMISSIONER OF INCOME TAX, CIRCLE - 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