HASTIRAJ PREMISES P. LTD, V. WTO WD 2(1)(4),

MA 73/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9086 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-08-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: WT
• Assessment Year: 1998-1999
• Appeal Filed On: 07-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KRISHNAMURTHY

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES WT, MUMBAI .., !', # # # # .#. ' , $% !', $ & BEFORE SHRI B.R.MITTAL, JM AND SHRI R.S.SYAL, AM '' $! ./ MA NOS.73 TO 78/MUM/2012 ( $ )*+ , / ARISING OUT OF WTA NOS.19 TO 24/MUM/2009) ( - - - - / / / / ASSESSMENT YEARS : 1998-99 TO 2003-2004) M/S.HASTIRAJ PREMISES (P) LIMITED 509, GUNDECHA CHAMBERS N.M.ROAD, MUMBAI 400 023. PAN : AAACH0406J. THE WEALTH TAX OFFICER WARD 2(1)(4) MUMBAI. ( $! / // / APPLICANT) / VS. ( ./01/ RESPONDENT) $! 2 22 2 3 $ 3 $ 3 $ 3 $ / APPLICANT BY : SHRI VIMAL PUNMIYA ./01 2 3 $ 2 3 $ 2 3 $ 2 3 $ / RESPONDENT BY : SHRI KRISHNAMURTHY 2 +% / / / / DATE OF HEARING : 24.08.2012 45- 2 +% / DATE OF PRONOUNCEMENT : 29.08.2012 !$6 !$6 !$6 !$6 / / / / O R D E R PER R.S.SYAL, AM : THESE MISCELLANEOUS APPLICATIONS UNDER THE WEALTH -TAX ACT, 1961 HAVE BEEN MOVED BY THE ASSESSEE PRAYING FOR TH E RECTIFICATION OF THE ORDER OF THE TRIBUNAL DATED 30 TH NOVEMBER, 2011 IN WTA NOS.19 TO 24/MUM/2009. 2. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED T HAT THE TRIBUNAL ERRED IN CONCLUDING THAT IF CONSTRUCTION I S NOT POSSIBLE ON MA NOS.73 TO 78/MUM/2012 M/S.HASTIRAJ PREMISES (P) LTD. 2 URBAN LAND THEN THE SAME DOES NOT CONSTITUTE PART O F TAXABLE WEALTH. IT WAS ALSO ARGUED THAT THE TRIBUNAL WENT WRONG IN CON FIRMING THE ASSESSMENT ORDER CAPITALIZING RATEABLE VALUE OF REA DY FLAT ON THE PLOT OF LAND WHERE NO CONSTRUCTION WAS POSSIBLE. IN THE OPPOSITION, THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED ON THE I MPUGNED ORDER. 3. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND PERU SED THE RELEVANT MATERIAL ON RECORD WE FIND THAT PARA 7 OF THE IMPUGNED ORDER TAKES NOTE OF THE ASSESSEES CONTENTION THAT URBAN LAND DID NOT FALL WITHIN THE DEFINITION OF ASSETS U/S 2(EA) AS THE CO NSTRUCTION THEREON WAS NOT PERMISSIBLE. SUCH CONTENTION HAS BEEN DEALT WITH IN PARAS 8 AND 9 OF THE TRIBUNAL ORDER BY NOTING THAT SIMILAR CONTENTION WAS REJECTED BY THE LEARNED CIT(A) ON A CONSIDERATION OF VARIOUS CLAUSES OF THE AGREEMENT DATED 29.06.1982 WHICH PROVIDED IN UNEQUIVOCAL TERMS THAT THE ASSESSEE HAD ACQUIRED THE RIGHT OF C ONSTRUCTION OF COMMERCIAL / RESIDENTIAL UNITS TO THE EXTENT OF 100 0 SQ.MTRS. FSI. IT IS IMPORTANT TO NOTE THAT THE ASSESSEE ACCEPTED THIS F INDING OF THE LEARNED CIT(A) FOR SOME EARLIER YEAR AND DID NOT FILE ANY APPEAL THERE AGAINST. FURTHER DISCUSSION HAS BEEN MADE IN PARA 9 BY NOTING THAT THE ASSESSEE INITIALLY AGREED TO PURCHASE THE PROPERTY CONSISTING OF TOTAL AREA 4,229 SQ.MTRS. FROM WEST COAST RESORTS PRIVATE LIMITED AND ON THE VERY NEXT DAY M/S.POONAM ENTERPRISES WAS BROUGH T INTO, WHO AGREED TO PURCHASE THE SAME PROPERTY FROM WEST COAS T RESORTS PRIVATE LIMITED FOR THE SAME AMOUNT AND THE SAID PR OPERTY HAS BEEN DESCRIBED AS LAND TOGETHER WITH STRUCTURES STANDIN G THEREON. MA NOS.73 TO 78/MUM/2012 M/S.HASTIRAJ PREMISES (P) LTD. 3 M/S.POONAM ENTERPRISES AFTER PURCHASING THE PROPERT Y OF 4,229 SQ.MTRS. TRANSFERRED 1200 SQ.MTRS. BEING THE PORTIO N OF LAND TO THE ASSESSEE FOR 98 YEARS, WHICH IN TURN WAS SUB-LEASED BY THE ASSESSEE TO M/S. SEA PRINCES HOTELS & PROPERTIES PRIVATE LIMITE D. SINCE M/S.POONAM ENTERPRISES AND M/S.SEA PRINCES HOTELS & PROPERTIES PRIVATE LIMITED HAPPEN TO BE SISTER CONCERNS OF TH E ASSESSEE, THE TRIBUNAL HAS RECORDED THAT M/S.POONAM ENTERPRISES P ARTED WITH THE OWNERSHIP OF BALANCE 1200 SQ.MTRS. AND RETAINED THE OWNERSHIP OVER 3,029 SQ.MTRS. WHICH MUST HAVE OFFERED THE PORTION WITH IT TO TAX AND HENCE THE REMAINING AREA OF 1200 SQ.MTRS. COMPLETEL Y ESCAPED WEALTH-TAX. AS THE PROPERTY IS ONE OF 4229 SQ.MTRS, COMPRISING OF BUILDING OR LAND APPURTENANT THERETO, THE TRIBUNAL HAS HELD THAT THE REMAINING AREA OF 1200 SQ.MTR. IS ALSO LIABLE TO BE INCLUDED. WE ARE UNABLE TO FIND ANY MISTAKE IN THE IMPUGNED O RDER REQUIRING RECTIFICATION AT OUR END. IT IS SO FOR THE REASON T HAT THE MATTER HAS BEEN THOROUGHLY DISCUSSED AND AFTER CONSIDERING THE CONT ENTIONS RAISED BY BOTH THE SIDES. THEREAFTER A FINAL CONCLUSION HAS B EEN ARRIVED AT. IT IS NOT PERMISSIBLE TO RE-ARGUE THE SAME MATTER BEFORE THE TRIBUNAL IN THE GARB OF RECTIFICATION PROCEEDINGS WITH AN ATTEMPT T O GET THE UNFAVOURABLE FINDING REVERSED, SPECIFICALLY WHEN TH ERE IS NO MISTAKE IN THE IMPUGNED ORDER. IN OUR CONSIDERED OPINION, T HERE IS NO MISTAKE MUCH LESS THE MISTAKE APPARENT FROM RECORD IN THE I MPUGNED ORDER REQUIRING ANY RECTIFICATION. MA NOS.73 TO 78/MUM/2012 M/S.HASTIRAJ PREMISES (P) LTD. 4 4. 7 +8 $! 2 '' $! %79 2 9+ :; IN THE RESULT, ALL THE MISCELLANEOUS APPLICATIONS ARE DISMISSED. ORDER PRONOUNCED ON THIS 29 TH AUGUST, 2012. . !$6 2 45- $'-+ !$6 2 . +' >$'-+ !$6 2 . +' >$'-+ !$6 2 . +' >$'-+/ COPY OF THE ORDER FORWARDED TO : 1. $! / THE APPLICANT. 2. ./01 / THE RESPONDENT. 3. ? () / THE CWT(A) - II, MUMBAI. 4. ? / CIT 5. 'B= . + , , / DR, ITAT, MUMBAI 6. =C D / GUARD FILE. !$6 !$6 !$6 !$6 / BY ORDER, /'+ . + //TRUE COPY// ) ) ) )/ // /: 9 : 9 : 9 : 9 ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI