MANEKCHAND KOTHARI, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 8(3) (ERSTWHILE DCIT, CC-46, MUMBAI), MUMBAI

MA 630/MUM/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5294 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 17-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K CHATURVEDI
• Assessee Lawyers: CHETAN KARIYA
• Keywords: Sale consideration of property below Jantri Value; Set aside
• Section: 50C; 153A; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM) AND SHRI RAM LAL NEGI (JM) M .A. N O. 630 / MUM /2018 ( ARISING OUT OF ITA N O. 260 /MUM /201 8 ) ( ASSESSMENT YEAR : 2011 12 ) MANEKCHAND KOTHARI, A/7, BHARAT NAGAR, M S ALI ROAD, GRANT ROAD, MUMBAI - 400007 PAN: AEJPK7982J VS. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 8(3), MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI CHETAN KARIYA (A R) REVENUE BY : SHRI V.K. CHATURVEDI (D R) DATE OF HEARING: 12/04 /201 9 DATE OF PRONOUNCEMENT: 10 / 07 /201 9 O R D E R PER RAM LAL NEGI, JM THE APPLICANT/ ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION FOR RECTIFICATION/RECALLIN G OF ORDER DATED 20.06. 2018 PASSED BY THE ITAT IN THE REVENUES APPEAL ITA NO . 260 /M UM /2018 PERTAI NING TO THE ASSESSMENT YEAR 2011 - 12 . 2. BEFORE US, THE LD. COUNSEL FOR THE APPLICANT SUBMITTED THAT THE DEPARTMENT CHALLENGED THE ORDER PASSED BY THE LD.CIT (A) ON THE GROUND THAT ( 1) THE LD. CIT (A) HAS ERRED IN DECIDING THAT THERE IS NO JURISDICTION OF AO TO PASS THE ORDER U/S 143 (3) R.W.S. 153A OF THE INCOME TAX ACT. AND (2) THAT THE LD. CIT (A) HAS FURTHER ERRED IN DELETING THE ADDITION OF RS. 39,31,080/ - U/S 50C OF THE ACT ON A CCOUNT OF SHORT TERM CAPITAL GAIN FROM THE SALE OF IMMOVABLE PROPERTY. 2 M.A. NO . 630 /MUM/2018 ASSESSMENT YEAR S : 2011 - 12 3. THE LD. COUNSEL POINTED OUT THAT THE TRIBUNAL HAS SET ASIDE THE MATTER TO THE FILE OF CIT (A), INTER ALIA HOLDING THAT IN THE INSTANT CASE, THERE IS NO QUESTION OF ANY COMPLETE ASSE SSMENT IN SO FAR AS THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME AT ALL FOR THE YEAR UNDER CONSIDERATION. FURTHER, THE TRIBUNAL HAS MENTIONED IN PARA 14 OF THE ORDER THAT IN THE INSTANT CASE NOWHERE THE CIT (A) HAS RECORDED ANY FINDINGS WITH REGARD TO A SSESSMENT HAVING BEEN COMPLETED OR ABATED NOR ANY OBSERVATION REGARDING ANY RETURN HAVING BEEN FILED BY THE ASSESSEE OR TIME PERIOD FOR ISSUE OF NOTICE U/S 143 (2) HAVING BEEN OV E R. 4. IN THE LIGHT OF THE AFORESAID OBSERVATIONS OF THE TRIBUNAL, THE LD. CO UNSEL FURTHER SUBMITTED THAT THE AFORESAID FACTS MENTIONED BY THE ITAT ARE FACTUALLY INCORRECT. THE ORIGINAL RETURN OF INCOME U/S 139 WAS FILED ON 05.12.2011, THE COPY OF WHICH WAS FILED BEFORE THE AO AS WELL AS THE CIT (A) DURING THE PROCEEDINGS U/S 143 ( 3) R.W.S. 153A OF THE ACT. SINCE, THE RETURN WAS FILED U/S 139 (1), THE TIME PERIOD OF ISSUING NOTICE U/S 143 (2) WAS ON OR BEFORE 30.09.2012. NO NOTICE WAS ISSUED BY THAT DATE. INTIMATION U /S 143 (1) WAS ISSUED AND RECEIVED BY THE APPELLANT BEFORE 31.03. 2013 WHICH WAS PRIOR TO THE DATE OF INTIMATION OF SUCH PROCEEDINGS. 5. THE LD. COUNSEL FURTHER SUBMITTED THAT THESE FACTS ARE RECORDED BY THE LD. CIT (A) ON PAGE 6 IN ITS ORDER. IN VIEW OF THE AFORESAID FACTS, THE LD. COUNSEL SUBMITTED THAT THE AFORESAID INCORRECT FACTS ARE ERROR S APPARENT ON THE FACE OF RECORD WHICH ARE REQUIRED TO BE RECTIFIED BY PASSING A SUITABLE ORDER. 6. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FAIRLY ADMITTED THE MISTAKE S POINTED OUT BY THE LD. COUNSEL IN THE ORD ER PASSED BY THE TRIBUNAL. 7. WE HAVE HEARD BOTH THE SIDES AND CAREFULLY PERUSED THE MATERIAL ON RECORD IN THE LIGHT OF THE SUBMISSIONS MADE BY THE LD. COUNSEL FOR THE ASSESSEE. SINCE, THE FACTS POINTED OUT ARE VITAL FOR ADJUDICATION OF THE ISSUES IN QUES TION AND SINCE THE TRIBUNAL HAS DECIDED THE ISSUES IN QUESTION ON THE 3 M.A. NO . 630 /MUM/2018 ASSESSMENT YEAR S : 2011 - 12 BASIS OF THE SAID FACTS WHICH ARE FACTUALLY INCORRECT , IN OUR CONSIDERED VIEW THE SAME ARE MISTAKE APPARENT ON RECORD WITHIN THE MEANING OF SECTION 254 (2) OF THE ACT, THEREFORE, THE SAM E ARE REQUIRED TO BE RECTIFIED. 8. HENCE, IN THE INTEREST OF JUSTICE, WE ALLOW THE PRESENT MISCELLANEOUS APPLICATION AND RECALL THE ORDER DATED 26.06.2018 PASSED BY THE TRIBUNAL FOR HEARING AFRESH BY A REGULAR BENCH. WE ACCORDINGLY DIRECT THE REGISTRY TO F IX THE CASE FOR HEARING AFRESH IN THE ORDINARY COURSE. IN THE RESULT, MISC. APPLICATION FILED BY THE ASSESSEE FOR A SSESSMENT YEAR 2011 - 12 IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH JULY , 2019 . SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 10 / 07 / 2019 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI