Chitti Parvatha Vardhanamma, Hyderabad, Hyderabad V. ITO, Ward-7(1), Hyderabad, Hyderabad

MA 72/HYD/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3236 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-07-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 02-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Rectification of order; Fair market value
• Section: 50C; 148; 54; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER M.A.NO.72/HYD/2015 ARISING OUT OF ITA.NO.1085/HYD/2014 ASSESSMENT YEAR 2005-2006 SMT. CHITTI PARVATHA VARDHANAMMA, HYDERABAD. PAN AAZPC9873A VS. THE INCOME TAX OFFICER, WARD-7(1), HYDERABAD. (APPLICANT) (RESPONDENT) FOR APPLICANT : MR. B. SHANTHI KUMAR FOR RESPONDENT : MR. RAMAKRISHNA BANDI DATE OF HEARING : 03.07.2015 DATE OF PRONOUNCEMENT : 10 .07.2015 ORDER PER SAKTIJIT DEY, J.M. THIS APPLICATION HAS BEEN FILED BY THE ASSESSEE SEEKING RECTIFICATION OF MISTAKE SUPPOSED TO HAVE C REPT INTO THE ORDER OF THE TRIBUNAL IN ITA.NO.1085/HYD/2 013 DATED 12.03.2014. 2. IN THE APPLICATION FILED THE ASSESSEE HAS POINTED OUT TWO MISTAKES IN THE ORDER OF THE TRIBUN AL. THE FIRST MISTAKE IS WITH REFERENCE TO OBSERVATIONS OF THE TRIBUNAL THAT THE ASSESSEE OUGHT TO HAVE REQUESTED THE A.O. FOR A REFERENCE TO DVO FOR DETERMINING THE FAI R MARKET VALUE OF THE PROPERTY SOLD IN TERMS OF SECTI ON 2 M.A.NO.72/HYD/2015 IN ITA.NO.1085/HYD/2014 SMT. CHITTI PARVATHAVARDHANAMMA, HYDERABAD. 50C(2). THE SECOND MISTAKE POINTED OUT BY THE ASSES SEE IS, THE TRIBUNAL HAS NOT DECIDED THE ISSUE RELATING TO CLAIM OF EXEMPTION UNDER SECTION 54 IN INVESTMENT MADE IN ACQUISITION OF NEW HOUSE PROPERTY. 3. AS FAR AS THE FIRST MISTAKE IS CONCERNED, THE LEARNED A.R. SUBMITTED THAT THE ASSESSEE IN RESPONS E TO THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT HAS SUBMITTED A LETTER DATED 18.10.2008 BEFORE THE A.O. WHEREIN IT WAS CLAIMED BY THE ASSESSEE THAT THE VAL UE DETERMINED BY THE SUB-REGISTRAR OFFICE FOR STAMP DU TY PURPOSE IS MORE THAN THE FAIR MARKET VALUE. THE LEA RNED A.R. REFERRING TO THE PROVISIONS OF SECTION 50C(2) OF THE ACT SUBMITTED THAT THE WORD USED IN SUB-SECTION(2) OF S ECTION 50C IS CLAIMS. THEREFORE, THERE IS NO REQUIREMENT UNDER LAW FOR THE ASSESSEE TO REQUEST THE A.O. TO REFER T HE DETERMINATION OF FAIR MARKET VALUE TO DVO. AS FAR A S THE SECOND MISTAKE IS CONCERNED, THE LEARNED A.R. SUBMI TTED BEFORE US THAT THE LD. CIT(A) WHILE DECIDING THE IS SUE OF CAPITAL GAIN HAS ALSO HELD THAT THE A.O. SHOULD ALS O ALLOW EXEMPTION UNDER SECTION 54 FOR AN AMOUNT OF RS.25,17,600. HOWEVER, THE TRIBUNAL IN ITS ORDER PA SSED HAS NOT MADE ANY REFERENCE TO SUCH OBSERVATION OF T HE LD. CIT(A). HENCE, FAILED TO RENDER ANY DECISION ON THI S ISSUE. 4. THE LEARNED D.R. ON THE OTHER HAND, SUBMITTED BEFORE US THAT AS FAR AS THE FIRST ISSUE WITH REGAR D TO ADOPTION OF THE SALE CONSIDERATION AS PER SECTION 5 0C, THE TRIBUNAL HAVING DECIDED THE ISSUE AFTER CONSIDERING ALL 3 M.A.NO.72/HYD/2015 IN ITA.NO.1085/HYD/2014 SMT. CHITTI PARVATHAVARDHANAMMA, HYDERABAD. FACTS AND MATERIALS AND RELEVANT STATUTORY PROVISIO NS, THE VIEW TAKEN BY THE TRIBUNAL ON THE ISSUE CANNOT BE CHALLENGED IN A M.A. AS IT WILL AMOUNT TO REVIEW OF THE ORDER PASSED BY THE TRIBUNAL. AS FAR AS THE SECOND ISSUE IS CONCERNED, LEARNED D.R. SUBMITTED THAT SINCE THE ISSUE RELATING TO CLAIM OF EXEMPTION UNDER SECTION 54 WAS NOT A SUBJECT MATTER OF APPEAL BEFORE THE ITAT, THERE WAS NO NEED ON THE PART OF THE TRIBUNAL TO MAKE ANY OBSERV ATIONS ON THIS ISSUE. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIES AND PERUSED THE MATERIALS ON RECORD. AS CAN BE SEEN FROM THE APPEAL ORDER, THE TRIBUNAL HAS EXHAUS TIVELY DEALT WITH ALL THE FACTS RELATING TO THE ISSUE OF C OMPUTATION OF CAPITAL GAIN BY APPLYING THE PROVISIONS OF SECTI ON 50C OF THE ACT. WHILE DISCUSSING THE FACTS OF THE CASE, TH E TRIBUNAL HAS ALSO REFERRED TO ASSESSEE LETTER DATED 18.10.2008. THEREFORE, WHILE DECIDING THE ISSUE OF APPLICABILITY OF SECTION 50C, THE TRIBUNAL WAS CONS CIOUS OF THE FACTS STATED BY THE ASSESSEE IN LETTER DATED 18 .10.2008 SUBMITTED BEFORE THE A.O. IN RESPONSE TO THE NOTICE ISSUED UNDER SECTION 148. HOWEVER, KEEPING IN VIEW THE FAC TS STATED IN THE SAID LETTER AND REFERRING TO THE PROV ISIONS OF SECTION 50C OF THE ACT, THE TRIBUNAL TOOK A VIEW TH AT AS PER PROVISIONS OF SECTION 50C(2), THE ASSESSEE SHOU LD HAVE MADE A REQUEST BEFORE THE A.O. TO MAKE A REFERENCE TO THE DVO FOR DETERMINING THE FAIR MARKET VALUE OF THE PR OPERTY. THEREFORE, THE VIEW TAKEN BY THE TRIBUNAL IS NOT ON LY ON DUE CONSIDERATION OF FACTS ON RECORD BUT ALSO ON 4 M.A.NO.72/HYD/2015 IN ITA.NO.1085/HYD/2014 SMT. CHITTI PARVATHAVARDHANAMMA, HYDERABAD. INTERPRETING THE PROVISIONS OF SECTION 50C(2). THER EFORE, THE CONTENTION OF THE ASSESSEE THAT THERE IS A MIST AKE IN THE ORDER OF THE TRIBUNAL WHILE INTERPRETING THE PR OVISIONS OF SECTION 50C(2), IN OUR VIEW, IS NOT A MISTAKE EN VISAGED UNDER SECTION 254(2). WHEN THE TRIBUNAL HAS TAKEN A DECISION BY INTERPRETATION THE STATUTORY PROVISION, IN A PARTICULAR MANNER, THE VIEW SO TAKEN CANNOT BE CONSIDERED TO BE A MISTAKE APPARENT ON RECORD TO BE CORRECTED AS PER THE PROVISIONS OF SECTION 254(2). THEREFORE, ANY DECISION TO CORRECT THE SO-CALLED MI STAKE WOULD TANTAMOUNT TO REVIEWING THE ORDER PASSED BY T HE TRIBUNAL, HENCE, NEITHER WITHIN THE SCOPE AND AMBIT OF SECTION 254(2) NOR PERMISSIBLE UNDER LAW. THEREFORE , THE MISTAKE POINTED OUT BY THE ASSESSEE NOT BEING A REC TIFIABLE MISTAKE AS PER SECTION 254(2), WE DECLINE TO ENTERT AIN ASSESSEES APPLICATION ON THIS ISSUE. 6. AS FAR AS THE SECOND ISSUE RELATING TO LD. CIT(A)S DIRECTIONS ON EXEMPTION TO BE ALLOWED TO T HE ASSESSEE UNDER SECTION 54 OF THE ACT IN RESPECT OF INVESTMENT MADE IN ACQUISITION OF NEW PROPERTY, ON PERUSAL OF MATERIALS ON RECORD, IT IS CLEAR THAT TH E ISSUE RELATING TO THE CLAIM OF EXEMPTION UNDER SECTION 54 WAS NEVER A SUBJECT MATTER OF APPEAL BEFORE THE TRIBUNA L AS THE DEPARTMENT HAS NOT RAISED ANY GROUND ON THIS IS SUE. THEREFORE, THERE IS NO SCOPE FOR THE TRIBUNAL TO MA KE ANY OBSERVATIONS WITH REGARD TO SUCH ISSUE. THAT BEING THE CASE, THE OBSERVATIONS OF THE LD. CIT(A) ON THE ISS UE REMAINS UNALTERED. THUS, THERE BEING NO MISTAKE IN THE 5 M.A.NO.72/HYD/2015 IN ITA.NO.1085/HYD/2014 SMT. CHITTI PARVATHAVARDHANAMMA, HYDERABAD. ORDER OF THE TRIBUNAL, THE MISCELLANEOUS APPLICATIO N OF THE ASSESSEE IS DISMISSED. 7. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10.07.2015 SD/- SD/- (P.M. JAGTAP) (SAKTIJIT DEY) ACOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED 10 TH JULY, 2015 VBP/- COPY TO : 1. SMT. CHITTI PARVATHA VARDHANAMMA, 10-3-414/92/2RT, VIJAYANAGAR COLONY, HYDERABAD. 2. THE INCOME TAX OFFICER, WARD 7(1), 2-B, INCOME TAX TOWERS, A.C. GUARDS, HYDERABAD. 3. CIT(A) - VI, 6A, I.T. TOWERS, A.C. GUARDS, HYDERABAD. 4. CIT - V I , HYDERABAD 5. D.R. ITAT A BENCH, HYDERABAD. 6. GUARD FILE