The ITO, 3(1), Bhopal V. Shri Ramesh Kumar Richhariya, Bhopal

MA 65/IND/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8699 (ITAT-INDORE)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 26-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Assessee Lawyers: GIRISH AGRAWAL

Judgement Text

1 IN THE INCOME TAX APPELATE TRIBUNALINDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JM AND SHRI R.C. SHARM A, AM M.A. NO. 65/IND/2012 ARISING OUT OF ITA NO. 382/IND/2009 INCOME TAX OFFICER 3(1), BHOPAL ::: APPLICANT VS RAMESH KUMAR RICHHARIYA PAN AATRR-3388M ::: RESPONDENT APPELLANT BY SHRI ARUN DEWAN RESPONDENTS BY SHRI ASHISH GOYAL AND SHRI GIRISH AGRAWAL DATE OF HEARING 8. 6.2012 DATE OF PRONOUNCEMENT 2 . 7 .2012 O R D E R PER R.C. SHARMA, ACCOUNTANTD MEMBER THIS MISCELLANEOUS APPLICATION IS FILED BY THE REVE NUE TO RECTIFY CERTAIN MISTAKES ALLEGED TO HAVE ARISEN IN THE ORDER OF THE TRIBUNAL DATED 28.7.2011. 2. THROUGH THIS PETITION, IT WAS ALLEGED BY THE DEPARTMENT THAT THE TRIBUNAL HAS OVERLOOKED THE ASS ESSING 2 OFFICERS PRIMARY REASON FOR DISALLOWANCE OF CLAIM U/S 54B, NAMELY, THAT THE ASSESSEE HAS NO LEGAL TITLE TO THE LAND AT VILLAGE BHAIROPUR IN VIEW OF THE COURT AND HAS GIVE N NO FINDING ON THIS ISSUE. IT WAS FURTHER ALLEGED THAT BY SETTING ASIDE THE CASE FOR LIMITED ENQUIRY, THE I.T.A.T. HA S IMPLICTLY ACCEPTED THAT THE PAYMENT OF RS. 39,72,000/-MADE AF TER THE DATE OF FILING OF RETURN AND NOT DEPOSITED IN A SPECIFIED ACCOUNT WAS PRINCIPALLY ELIGIBLE FOR EXEMPTION U/S 54B. THROUGH THIS PETITION, THE CONTENTION OF THE REVENU E WAS : (I) WHETHER ASSESSEE COULD BE SAID TO HAVE PURCHAS ED LAND AT BHAIROPUR WHEN THE FACTS ON RECORD NOT ONLY SHOWED THAT IN THE LAND RECORDS THE LAND STOOD IN T HE NAME OF SHRI NAVIN ARORA BUT AS PER COURT ORDER DATED 29.01.2008, THE SELLER SHRI NAVIN ARORA COULD NOT TRANSFER POSSESSION TO ANOTHER PERSON DURING THE PENDENCY OF THE SUIT. 3 (II) WHETHER PAYMENT OF RS.39,72,000/- MADE AFTER THE DATE OF FILING OF RETURN AND NOT DEPOSITED IN A SPE CIFIED ACCOUNT WAS PRINCIPALLY ELIGIBLE FOR EXEMPTION U/S 54B. 3. WE HAVE GONE THROUGH THE MISCELLANEOUS APPLICATI ON AND THE ORDER OF THE TRIBUNAL WHEREIN THE ORDER OF THE CIT(A) ACCEPTING THE ASSESSEES CLAIM FOR EXEMPTION ON ACCOUNT OF LONG TERM CAPITAL GAIN WAS SET ASIDE. I N THIS CASE, AN ADDITION OF RS. 42.48 LACS WAS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF SHORT TERM CAPITAL GAIN WHICH WAS DELETED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS). THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ALSO DIRECTED THE ASSESSING OFFICER T O ALLOW DEDUCTION OF RS. 1,19,72,000/- U/S 54B. WHILE DECI DING THE APPEAL FILED BY THE REVENUE, AFTER GIVING DETAI LED REASONING, THE TRIBUNAL HAS SET ASIDE THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AND TH E MATTER WAS RESTORED BACK TO THE FILE OF THE ASSESSI NG OFFICER FOR MAKING DETAILED INQUIRY WITH REGARD TO GENUINEN ESS OF AGREEMENT TO SALE EXECUTED ON 24.3.2001 AND TO DECI DE THE 4 ISSUE AFRESH IN THE LIGHT OF THE DETAILED FINDINGS GIVEN IN THE ORDER OF THE TRIBUNAL IN PARAS 21 TO 23 OF ITS ORDE R. ONCE THE MATTER HAS ALREADY BEEN SET ASIDE TO THE FILE O F THE ASSESSING OFFICER, THERE IS NO REASON TO PRESUME TH AT THE TRIBUNAL HAS ACCEPTED THE ASSESSEES CLAIM FOR DEDU CTION U/S 54B. THERE IS NO MISTAKE MUCH LESS AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL WHICH CAN BE R ECTIFIED U/S 254(2) OF THE ACT. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2.7.2012 SD SD (JOGINDER SINGH) (R.C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED - 2.7.2012 COPY TO : APPELLANT, RESPONDENT, CIT, CIT(A), DR DN/-