RATANSHI MULJI PATEL, V. ITO WD 22(2)(4),

MA 693/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0370 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-04-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 19-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S C TIWARI
• Keywords: Rectification of order

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D MUMBAI BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER /AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER M.A. NO. 693/MUM/2012 (ARISING OUT OF ITA NO. 5499/MUM/2011) ASSESSMENT YEAR 2008-09 RATANSHI MULJI PATEL, 11, GOPAL KRISHNA BHAVAN, 3 RD FLOOR, A-WING, S.R. MARG, OFF TILAK ROAD, GHATKOPAR (EAST), MUMBAI 77. VS. I.T.O. 22(2)(4) MUMBAI. PAN: AAAPP 5976 E (APPLICANT) (RESPONDEN T) APPLICANT BY : SHRI S.C. TIWARI RESPONDENT BY : NONE DATE OF HEARING : 26-04-2013 DATE OF PRONOUNCEMENT : 30-04-2013 O R D E R PER VIJAY PAL RAO, J.M. THIS MISCELLANEOUS APPLICATION (M.A) BY THE AS SESSEE IS DIRECTED AGAINST THE ORDER DT. 18 TH JULY 2012 OF THIS TRIBUNAL, WHEREBY THE APPEAL OF THE REVENUE WAS DISPOSED-OFF. 2. THE ASSESSEE HAS STATED IN THE M.A THAT SOME MISTA KES HAVE CREPT IN THE TRIBUNALS ORDER WITH REGARD TO FINDING THAT THE ASSESSEE HAS DECIDED THE SELL THE LAND WITHIN 11 MONTHS FROM THE DATE OF PURCHASE AND FURTHER INTENTION OF THE ASSESSEE WAS NOT TO HO LD THE LAND BUT TO RE-SALE THE SAME AT THE EARLIEST POSSIBLE OCCASION. IT IS STATED THAT THE ACTUAL SALE WAS MADE AFTER 17 MONTHS AND NOT FROM W ITHIN 11 MONTHS AS OBSERVED BY THE TRIBUNAL AND FURTHER THE LAND RE MAINED WITH THE M.A. NO. 693/MUM/2012 RATANSHI MULJI PATEL, 2 ASSESSEE DURING THE SAID PERIOD AND THE ASSESSEE CU LTIVATED THE SAME FOR GROWING CROPS. 3. THE LD. AUTHORISED REPRESENTATIVE (AR) OF THE ASSES SEE HAS CONTENDED THAT WHILE DECIDING THE ISSUE, THE TRIBUN AL HAS PLACED RELIANCE ON THE DECISION OF THE HONBLE SUPREME COU RT IN THE CASE OF CIT VS. GEMINI PICTURES CIRCUIT PRIVATE LTD., [220 ITR 43(SC)]. THE SAID DECISION IN TURN HAS BEEN PLACED RELIANCE ON T HE EARLIER JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF SARIFAB IBI MOHMED IBRAHIM VS. CIT [204 ITR 631]. THE LD. AR HAS SUBM ITTED THAT BOTH THESE DECISIONS HAVE BEEN RENDERED IN RELATION TO T HE PERIOD PRIOR TO THE AY. 1971-72 WHEREAS FOR THE AY. 1971-72, REVISE D CLAUSE 3 OF SECTION 14 HAS BEEN INSERTED SO AS TO EXCLUDE URBAN LAND FROM THE PURVIEW OF EXEMPTION. THUS, THE LD. AR HAS SUBMITT ED WITH THE RELIANCE PLACED UPON THE DECISION OF THE HONBLE SU PREME COURT IS MIS-PLACED IN THE FACTS AND CIRCUMSTANCES OF THE CA SE. 4. HAVING CONSIDERED THE SUBMISSIONS OF THE LD. AR AND CAREFUL PERUSAL OF THE RECORD, WE FIND THAT THE GRIEVANCE O F THE ASSESSEE IN THE M.A IS AGAINST THE FINDING OF THE TRIBUNAL ON THE M ERITS OF THE CASE. THE ASSESSEE HAS REITERATED THE CONTENTIONS AS RAIS ED DURING THE HEARING OF THE APPEAL WHICH HAS ALREADY BEEN CONSID ERED BY THE TRIBUNAL WHILE PASSING THE IMPUGNED ORDER. EVEN OT HERWISE, THE CONTENTION OF THE ASSESSEE IS NOT RELEVANT WHEN THE INCOME ARISING FROM SALE OF THE LAND HAS BEEN ASSESSED AS BUSINES S INCOME AND NOT AS CAPITAL GAIN. WE DO NOT FIND ANY APPARENT ERR OR IN THE OBSERVATION OF THE TRIBUNAL REGARDING THE SALE OF L AND BY THE ASSESSEE WITHIN 11 MONTHS FROM THE DATE OF PURCHASE. THE LD . AR OF THE ASSESSEE IS TRYING TO INCLUDE THE PERIOD OF HOLDING FROM THE DATE WHEN THE ASSESSEE HAS NEGOTIATED FOR PURCHASE OF LAND. THE HOLDING PERIOD OF THE LAND IN QUESTION WITH THE ASSESSEE WILL BE C OUNTED ONLY FROM THE ACTUAL DATE OF PURCHASE AND NOT PRIOR TO THE PURCHA SE. THE 11 MONTHS PERIOD CONSIDERED BY THE TRIBUNAL IS IN RELA TION TO THE M.A. NO. 693/MUM/2012 RATANSHI MULJI PATEL, 3 INTENTION OF THE ASSESSEE TO HOLD THE LAND OR TO RE -SALE IT SINCE THE ASSESSEE AFTER PURCHASING OF THE LAND HAS DECIDED T O SELL BY ACCEPTING THE ADVANCE. THEREFORE, THE INTENTION OF THE ASSES SEE TO HOLD THE LAND CLEARLY MANIFEST FROM THE FACTS. WHEN THE TRIBUNAL HAS GIVEN THE FINDING ON MERITS, AFTER CONSIDERING THE RIVAL CONT ENTIONS AND RELEVANT FACTS, THEN THE SAME CANNOT BE REVIEWED IN THE PROC EEDINGS U/S. 254(2). 5. THE SCOPE OF SEC. 254(2) IS VERY LIMITED AND CIRCU MSCRIBED. FOR EXERCISING THE JURISDICTIONAL U/S. 254(2), IT IS TH E MANDATORY CONDITION THAT SUCH MISTAKE SHOULD BE WIDE APPARENT, MANIFEST AND PATENT AND NOT SOMETHING WHICH COULD BE INVOLVED SERIOUS CIRCU MSTANCES OF DISPUTES OF QUESTION OF FACTS OR LAW AND CAN BE EST ABLISHED BY LONG DRAWN PROCESS AND REASONING ON THE POINT TO BE RECT IFIED. A PATENT MISTAKE AS WELL AS EVIDENT ERROR, WHICH DOES NOT RE QUIRE AN ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENTS TO ESTABLISH CA N BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORDS AND CAN B E RECTIFIED UNDER THE AMBIT OF SEC. 254(2). IT IS WELL SETTLED THAT SEC. 254(2) DOES NOT CONFER POWER ON THE TRIBUNAL TO REVIEW IS EARLIER O RDER. THUS, THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER PASSED ON MERIT AND IN THE GRAB OF RECTIFICATION OF MISTAKE NO ORDER CAN BE PA SSED U/S. 254(2) WHICH AMOUNT TO REVERSAL OF THE ORDER PASSED AFTER DISCUSSING ALL THE FACTS AND STATUTORY PROVISIONS IN DETAIL. THEREFOR E, WE DO NOT FIND ANY MERIT IN THE M.A FILED BY THE ASSESSEE. IN THE RESULT, THE M.A FILED BY THE ASS ESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH APRIL, 2013. SD/- SD/- ( N.K. BILLAIYA ) ( VIJAY PAL RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 30 TH APRIL, 2013 TNMM M.A. NO. 693/MUM/2012 RATANSHI MULJI PATEL, 4 COPY TO: 1. APPLICANT 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR D BENCH, ITAT, MUMBAI 6. GUARD FILE //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , / ITAT, MUMBAI