Vishnubhai Mafatbhai Desai, Ahmedabad V. The ITO, Ward-1(1)(4), Ahmedabad

MA 73/AHD/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1256 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-12-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 19-02-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Assessee Lawyers: S V AGRAWAL
• Keywords: Sale consideration of property below Jantri Value; Rectification of order; Deemed to accrue or arise in india; Additional evidence; Capital Gains
• Section: 56(2)(vii)(b); 50C; 254(2); 49(4); 49(4)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD ( THROUGH VIRTUAL COURT ) BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER MA NO.73/AHD/2020 AY 2014-15 ./ITA NO.2849/AHD/2017 ( / ASSESSMENT YEAR : 2014-15 ) VISHNUBHAI MAFATBHAI DESAI A-40, NEELKANTH NAGAR B/H. BAJRNG ASHRAM THAKKARNAGAR AHMEDABAD-382 350 / VS. THE INCOME TAX OFFICER WARD-1(1)(4) AHMEDABAD ./ ./ PAN/GIR NO. : BLRPD 8447 B ( / APPLICANT ) .. ( / RESPONDENT ) / APPLICANT BY : SHRI S.V. AGRAWAL, AR / RESPONDENT BY : SHRI L.P. JAIN, SR.DR / DATE OF HEARING 04/12/2020 !'# / DATE OF PRONOUNCEMENT 16 /12/2020 / O R D E R PER PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED A MISCELLANEOUS APPLICATION DATED 17/02/2020 UNDER S.254(2) OF THE INCOME TAX ACT, 19 61 SEEKING RECTIFICATION OF MISTAKE ALLEGEDLY CREPT IN THE SUB STANTIVE ORDER OF THE TRIBUNAL PASSED IN ITA NO.2849/AHD/2017 DATED 11/09 /2019 FOR AY 2014-15. 2. WHEN THE MATTER WAS CALLED FOR HEARING ON THE AL LEGED APPARENT MISTAKE CONTEMPLATED UNDER S.254(2) OF THE ACT IN T HE SUBSTANTIVE ORDER, MA NO.73/AHD/2020 AY 2014-15 ITA NO.2849/AHD/2017 AY 2014-15 VISHNUBHAI MAFTBHAI DESAI VS. ITO - 2 - THE LD.AR FOR THE ASSESSEE SUBMITTED THAT THE TRIBU NAL COMMITTED ERROR IN REJECTING GROUND OF APPEAL NO.(1)(II) BY WHICH I T WAS HELD THAT PURCHASE OF LAND FALLS IN FINANCIAL YEAR 2013-14 ( AY 2014-15) TO WHICH AMENDED PROVISION OF SECTION 56(2)VII)(B) OF THE I. T. ACT IS APPLICABLE. IT WAS CONTENDED THAT THE PURCHASE TRANSACTIONS OF THE IMMOVABLE PROPERTY WERE CARRIED OUT AND COMPLETED PRIOR TO EFFECTIVE D ATE OF AMENDMENT IN SECTION 56(2)(VII)(B) OF THE ACT AND THEREFORE, TH E LAND PURCHASE TRANSACTION IN QUESTION ARE NOT HIT BY AMENDMENT CA RRIED OUT IN SECTION 56(2)(VII)(B) OF THE ACT. 3. IT WAS FURTHER CONTENDED ON BEHALF OF ASSESSEE T HAT ADDITIONAL EVIDENCES FILED BEFORE THE TRIBUNAL REGARDING THE L AND BEING RURAL LAND OUGHT TO HAVE BEEN ADMITTED HAVING REGARD TO THE DE CISION OF HONBLE SUPREME COURT IN NATIONAL THERMAL POWER CO. LTD. VS . CIT REPORTED AT (1998) 229 ITR 383(SC). 4. THE LD.DR, ON THE OTHER HAND, DEFENDED THE ORDER OF THE TRIBUNAL AND SUBMITTED THAT THE POINTS RAISED IN THE MISCELL ANEOUS APPLICATION HAS BEEN DULY ADDRESSED BY THE TRIBUNAL AND HENCE, THE ALLEGED ERRORS ARE NOT IN THE NATURE OF APPARENT MISTAKE. THE TRIBUNAL IS POWERLESS TO REVIEW ITS DECISION ON SAME SET OF FACTS IN THE GUISE OF R ECTIFICATION OF ERROR CONTEMPLATED UNDER S.254(2) OF THE ACT. THE LD.DR ACCORDINGLY SUBMITTED THAT PRAYER OF THE ASSESSEE IS NOT AMENAB LE TO S.254(2) OF THE ACT. MA NO.73/AHD/2020 AY 2014-15 ITA NO.2849/AHD/2017 AY 2014-15 VISHNUBHAI MAFTBHAI DESAI VS. ITO - 3 - 5. WE HAVE CAREFULLY CONSIDERED THE GRIEVANCE RAISE D ON BEHALF OF THE ASSESSEE AS EMANATING FROM THE APPELLATE ORDER OF THE TRIBUNAL IN THE CASE OF THE ASSESSEE. 5.1. THE GRIEVANCES OF THE ASSESSEE ARE TWO FOLD: 5.2. FIRSTLY, THE TRIBUNAL COMMITTED ERROR IN REJ ECTING THE GROUND RAISED TOWARDS INAPPLICABILITY OF AMENDED PROVISIONS OF SE CTION 56(2)(VII)(B). WE FIND THAT THE TRIBUNAL EXAMINED THE GROUND RAISE D BY THE ASSESSEE IN FOLLOWING WORDS: 10. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS IONS. THE TAXABILITY OF DEEMED INCOME UNDER S.56(2)(VII)(B)(II) OF THE ACT IS IN QUESTION. THE AO HAS APPLIED THE AFORESAID PROVISION AFTER COMPARING THE PURCHASE PRICE OF THE LAND VIS-A-VIS THE STAMP DUTY VALUATION AND ADDED T HE DIFFERENCE IN THE HANDS OF THE ASSESSEE IN PROPORTION TO HIS SHARE IN LAND HOLDING. THE CIT(A) HAS UPHELD THE AFORESAID ACTION OF THE AO. WE DO NOT SE E ANY INFIRMITY IN THE ORDER OF THE CIT(A) IN THIS REGARD. SECTION 49(4) O F THE ACT CLEARLY PROVIDES THAT THE BENEFIT OF THE INFLATED COST OF ACQUISITIO N IN VIEW OF THE DEEMING PROVISIONS UNDER S. 56(2)(VII)(B)(II) OF THE ACT WO ULD BE AVAILABLE AT THE TIME OF SALE OF THE ASSET AND CAPITAL GAINS WILL BE ACCO RDINGLY REDUCED TO THE EXTENT OF SUCH INCREASE IN DEEMED CONSIDERATION. THE CIT(A ) HAS GIVEN APPROPRIATE RELIEF IN THIS REGARD. WE THUS SEE NO WRONG IN ACTI ON OF THE CIT(A). THE PLEA OF THE ASSESSEE THAT THE AGRICULTURAL LAND IS RURAL LA ND WAS RAISED FOR THE FIRST TIME BEFORE US. IN THE ABSENCE OF ANY FINDINGS OF T HE LOWER AUTHORITIES ON FACTUAL ASPECTS, WE DECLINE TO ENTERTAIN THE AFORES AID NEW PLEA. WE ALSO FIND NO MERIT IN THE PLEA OF THE ASSESSEE FOR ITS INAPPL ICABILITY OF SECTION 56(2)(VII)(B)(II) OF THE ACT TO THE FY 2013-14 CONC ERNING AY 2014-15. THE AFORESAID PROVISION IS APPLICABLE FROM AY 2014-15 A ND WOULD THUS APPLY TO TRANSACTIONS CONCERNING FY 2013-14 AS INTENDED BY T HE LEGISLATURE. 5.3. APPARENTLY, THE TRIBUNAL HAS DEALT WITH THE GR OUND RAISED IN THE LIGHT OF FACTS PLACED BEFORE IT. THUS, THE ERROR I N CONCLUSION DRAWN BY THE MA NO.73/AHD/2020 AY 2014-15 ITA NO.2849/AHD/2017 AY 2014-15 VISHNUBHAI MAFTBHAI DESAI VS. ITO - 4 - TRIBUNAL, IF ANY, AS ALLEGED, CANNOT FALL WITHIN TH E SWEEP OF EXPRESSION APPARENT MISTAKE GOVERNING SECTION 254(2) OF THE AC T. THE PRAYER OF RECTIFICATION IS THUS NOT SUSTAINABLE. 5.4. THE SECOND OBJECTION OF THE ASSESSEE CONCERNS ADMISSIBILITY OF ADDITIONAL EVIDENCES. THE TRIBUNAL HAS REJECTED TH E CONTENTIONS OF THE ASSESSEE FOR ADMISSION OF ADDITIONAL EVIDENCES HAVI NG REGARD TO RULE 29 OF IT(AT) RULES, 1963. THE RELEVANT OPERATIVE PARA READS AS UNDER:- 7. BEFORE TRIBUNAL, THE ASSESSEE ALSO FILED A PETI TION UNDER RULE 29 OF THE ITAT RULES WITH AFFIDAVIT FOR ADMISSION OF ADDITION AL EVIDENCES. AS PER THE PETITION, THE ASSESSEE SEEKS ADMISSION OF THE ADDIT IONAL EVIDENCE ON AN ALTOGETHER NEW PLEA THAT AGRICULTURAL LAND PURCHASE D ARE RURAL LANDS AND THEREFORE ARE EXCLUDED FROM THE DEFINITION OF CAPIT AL ASSET UNDER S.2(14) R.W.S. 50C OF THE ACT. THE ASSESSEE HAS THUS CALLED UPON THE TRIBUNAL TO ADJUDICATE THE ISSUE IN THE LIGHT OF ADDITIONAL EVI DENCES SO PLACED. WE DO NOT FIND ANY COMPELLING REASON IN THE PETITION FOR ADMISSION OF THE ADDITIONAL EVIDENCE IN TERMS OF RULE 29 OF IT(AT) R ULES, 1963. RULE 29 OF THE ITAT RULES PROVIDES FOR STRINGENT STIPULATIONS FOR ADMISSION OF ADDITIONAL EVIDENCES. THE ASSESSEE HAS NOT SPECIFIE D ANY COGENT REASON AS TO WHY SUCH FACTS CONSIDERED RELEVANT BY THE ASSESS EE WERE NOT PLACED BEFORE THE LOWER AUTHORITIES. THE ASSESSEE HIMSELF HAS ADMITTED THAT THE POINT WAS NOT RAISED BEFORE THE LOWER AUTHORITIES A ND THE ISSUE INVOLVES EXAMINATION OF FACTUAL ASPECT. WE ARE NOT INCLINED FOR ADMISSION OF THE ADDITIONAL EVIDENCE REQUIRING FACTUAL VERIFICATIONS AT THIS BELATED STAGE AFTER LAPSE OF MORE THAN 5 YEARS. THEREFORE, WE DEC LINE TO ENTERTAIN THE ADDITIONAL EVIDENCES. 6. IT IS THUS OBVIOUS THAT TRIBUNAL HAS APPLIED ITS MIND AND TAKEN A CONSCIOUS VIEW ON THE ADMISSIBILITY OF ADDITIONAL E VIDENCES. HENCE, THE MA NO.73/AHD/2020 AY 2014-15 ITA NO.2849/AHD/2017 AY 2014-15 VISHNUBHAI MAFTBHAI DESAI VS. ITO - 5 - GRIEVANCES OF THE ASSESSEE ON THIS SCORE DO NOT FAL L WITHIN THE PURVIEW OF SECTION 254(2) OF THE ACT. 7. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS DEVOID OF MERITS AND HENCE DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 16 /12/2020 SD/- SD/- ( RAJPAL YADAV ) ( P RADIP KUMAR KEDIA ) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD; DATED 16/12/2020 &.., .(.. / T.C. NAIR, SR. PS !'#' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPLICANT 2. / THE RESPONDENT. 3. )*+ , / CONCERNED CIT 4. , ( ) / THE CIT(A)- 5. /01 ((*+ , *+# , ) / DR, ITAT, AHMEDABAD 6. 145 6 / GUARD FILE. / BY ORDER, / ( //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD