JOGINDER SINGH CHAWLA, V. ACIT 19(3),

MA 739/MUM/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6186 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-03-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2006-2007
• Appeal Filed On: 15-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: ASHIMA GUPTA
• Keywords: Capital asset; Cost of acquisition

Judgement Text

M.A.NO.739/M/2010 JOGINDER SINGH CHAWLA 1 IN THE INCOME TAX APPELLATE TRIBUNAL, I BENCH, MUMBAI. BEFORE N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER M.A.NO.739/M/2010 (ARISING OUT OF I.T.A NO.349/ MUM/2010) ASSESSMENT YEAR: 2006-07 JOGINDER SINGH CHAWLA .. APPELLANT FLAT NO.G-1, SANTA RITTA PREMISES CHS 556, ST. ALEXIOUS ROAD, BANDRA (W), MUMBAI. PA NO.AABPC 7072 P VS ASST. CIT 19(3) ,. RESPONDEN T MUMBAI. APPEARANCES: ASITA KHAN, FOR THE APPELLANT ASHIMA GUPTA, FOR THE RESPONDENT O R D E R 1. BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSESSEE APPLICANT HAS POINTED ERROR IN THE ORDER DATED 29 TH OCTOBER, 2010 PASSED BY US FOR THE ASSESSMENT YEAR 2006-07. 2. THE ERROR IS STATED TO BE LIKE THIS. ACCORDING TO THE APPLICANT, WHILE ASSESSEES MAIN CONTENTION FOR INCLUSION OF INTEREST CAPI TALIZED BY THE ASSESSEE, ON BORROWING FOR PURCHASE OF HOUSE, WAS DECLINED, THE IN TEREST SO PAID OUGHT TO HAVE BEEN ALLOWED BY THE TRIBUNAL UNDER SECTION 24 OF THE INCOME TAX ACT, 1961. THE ASSESSEE HAS NOTED THE DISCUSSION BY THE TRIBUNAL REGARDING REJECTION OF MAIN PLEA, I.E. WITH REGARD TO INCLUSION OF INTEREST CAPITALIZED IN THE COST OF ACQUISITION. THE ASSESSEE HAS ALSO POINTED OUT THAT THE ALTERNATE SUBMISSION WAS REJECTED BY THE TRIBUNAL BY OBSERVING THAT AS REGARDS THE LEARNED COU NSELS ALTERNATIVE SUBMISSIONS THAT THE EXPENDITURE INCURRED IN COMPUTATIO N OF INCOME, NO SPECIFIC M.A.NO.739/M/2010 JOGINDER SINGH CHAWLA 2 PROVISIONS HAS BEEN POINTED UNDER WHICH, THE CLAIM FOR DEDUCTION IS SOUGHT. IT IS NOW POINTED THAT THE APPLICANT WAS RELYING ON THE PR OVISIONS OF SECTION 24 IN ORDER TO CLAIM THE SAID DEDUCTION, WHICH IS FURTHER EVIDENC ED FROM THE FACT THAT IN THE GROUNDS OF APPEAL RAISED BY THE APPLICANT BEFORE US, AS NOTED IN FIRST PARAGRAPH OF THE ASSESSEE, SAID SECTION 24 WAS SPECIFICALLY MENTIONED. WE ARE URGED TO RECTIFY THE ORDER BY GIVING APPROPRIATE DIRECTION FOR CONSIDERIN G THE ASSESSEES CLAIM UNDER SECTION 24. 3. LEARNED COUNSEL FOR THE ASSESSEE POINTS OUT THAT THE A FORESAID PLEA OF THE ASSESSEE WAS NOT ADJUDICATED UPON BY US AND, THEREFORE, T HE ORDER PASSED BY US SUFFERS FROM A MISTAKE APPARENT FROM RECORD LIABLE TO BE RECTIFIED UNDER SECTION 254(2) OF THE ACT. WHEN LEARNED COUNSEL WAS ASKED WHE THER THIS PLEA WAS TAKEN UP DURING THE COURSE OF ORIGINAL HEARING, SHE SUBMITTED THAT ALTHOUGH SHE HAD NOT ARGUED THE APPEAL IN THE ORIGINAL HEARING, SHE HAS BE EN TOLD BY THE CLIENT THAT, THE GRIEVANCE WAS INDEED RAISED IN THE COURSE OF HEARING. LEARNED COUNSEL, HOWEVER, WAS NOT IN A POSITION TO FILE ANY AFFIDAVIT OR OTHER EVIDENCE IN SUPPORT OF HER CONTENTION. 4. LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, SUBMITTED THAT THE SUBMISSIONS BEING MADE NOW WERE APPARENTLY NOT MADE AT THE ORIGINAL HEARING AND, THEREFORE, IRRESPECTIVE OF THE MERITS OF THE SUBMISSION, IT WOULD NOT BE OPEN TO THE TRIBUNAL TO DEAL WITH THESE CONTENTIONS AT THIS STAGE. SHE ALSO SUBMITTED THAT THE ORDER PASSED BY THE TRIBUNAL DOES NOT SUFFER ANY MISTAKE APPARENT FROM RECORD AND, THEREFORE, THERE IS NO OCCASION TO TINKER WITH THE OR DER SO PASSED BY THE TRIBUNAL. 5. HAVING REGARD TO THE RIVAL SUBMISSIONS AND HAVING PE RUSED THE MATERIAL ON RECORD, WE FIND THAT IN THE COURSE OF ORIGINAL HEARI NG WHEN THE MATTER WAS REPRESENTED BY LEARNED COUNSEL OTHER THAN THE LEARNED COUNSEL PRESENT BEFORE US IN THIS HEARING, THE QUESTION OF DEDUCTION U/S.24 DID NOT REALLY COME UP. THE CORE ISSUE WHICH REQUIRED OUR ADJUDICATION WAS WHETHER OR NOT T HE INTEREST CAPITALIZED IN THE BOOKS OF ACCOUNT COULD BE INCLUDED IN THE COST OF ACQ UISITION OF CAPITAL ASSET AND THAT THERE WAS CATEGORICAL FINDING BY US TO THE EFFECT THA T THE INTEREST PAID ON BORROWINGS M.A.NO.739/M/2010 JOGINDER SINGH CHAWLA 3 FOR ACQUIRING PROPERTY COULD NOT BE INCLUDED IN THE COST OF ACQUISITION. AS REGARDS THE ALTERNATE CLAIM, NO SPECIFIC ARGUMENTS WERE ADVAN CED. IN OUR CONSIDERED VIEW, IN THE GARB OF RECTIFICATION PETITION, THIS PETITIO N SEEKS TO REVIEW OUR ORDER AND SUPPLEMENT ARGUMENTS MADE DURING THE ORIGINAL HEARIN G. THIS IS NOT PERMISSIBLE UNDER INHERENTLY LIMITED SCOPE OF SECTION 254(2). TH E MISTAKE WHICH CAN BE RECTIFIED UNDER SECTION 254(2 ) ARE MISTAKES OF ERRORS AND OMISSIONS WHICH ARE GLARING, NOT CAPABLE OF TWO VIEWS BEING TAKEN AND WH ICH ARE MANIFEST OR SELF EVIDENT. THE MISTAKE POINTED OUT BY THE LEARNED COUNSEL CLEARL Y DOES NOT FIT IN THAT CRITERION. IT IS ALSO SO FOR THE REASON THAT THE HOUSE PROPERTY WAS SOLD IN THE RELEVANT PREVIOUS YEAR NO SUCH CLAIM UNDER SECTION 24 WAS MADE AT ANY STA GE AND UNDER SUCH CIRCUMSTANCES AND WHETHER OR NOT THE DEDUCTION IN RE SPECT OF INTEREST PAID ON THE BORROWINGS COULD BE ALLOWED IS ITSELF, IF AT ALL PERMI SSIBLE, A RATHER CONTENTIOUS ISSUE WHICH IS CAPABLE OF TWO VIEWS BEING TAKEN. IN VIEW O F THESE DISCUSSIONS AND BEARING IN MIND THE ENTIRETY OF THE CASE, WE DO NOT SEE ANY LEGALLY SUSTAINABLE MERITS IN THE RECTIFICATION PETITION. WE, ACCORDINGLY, DISMISS THE SAME. 6. IN THE RESULT, MISCELLANEOUS APPLICATION IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 18 TH MARCH, 2011 SD/- (N.V.VASUDEVAN) JUDICIAL MEMBER SD/- (PRAMOD KUMAR) (ACCOUNTANT MEMBER) MUMBAI, DATED 18 TH MARCH, 2011 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)XIX, MUMBAI 4. COMMISSIONER OF INCOME TAX,19 , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH I, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI M.A.NO.739/M/2010 JOGINDER SINGH CHAWLA 4 M.A.NO.739/M/2010 JOGINDER SINGH CHAWLA 5