Harish Chand Surana, Hyderabad V. Dy.CIT, Central Circle-2, Hyderabad

MA 74/HYD/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2064 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-07-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 15-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ESTHER N HANGHAL
• Assessee Lawyers: K C DEVADAS
• Keywords: Revised return
• Section: 131; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI B.RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER M.A.NO.74/HYD.2014 (IN ITA NO.954/HYD/13) : ASSESSMENT YEAR 2009 - 10 SHRI HARISH CHAND SURANA, SECUNDERABAD ( PAN - AIRPS 7926 G) V/S. DY. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE 2, HYDERABAD (APPLICANT) (RESPONDENT) M.A.NO.75/HYD/2014 (IN ITA NO.955/HYD/13) : ASSESSMENT YEAR 2009 - 10 SHRI NIKHIL SURANA, SECUNDERABAD ( PAN - AOPPS 3582 C) V/S. DY. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE 2, HYDERABAD (APPLICANT) (RESPONDENT) APPLICANTS BY : SHRI K.C.DEVADAS RESPONDENT BY : SMT. ESTHER N.HANGHAL DR DATE OF HEARING 13 .0 6 .2014 DATE OF PRONOUNCEMENT 18.07.2014 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER: BY THESE APPLICATIONS UNDER S.254(2) OF THE INCOME TAX ACT,1961, ASSESSEES, WHO ARE RELATED AS FATHER AND SON, SEEK RECTIFICATION/RACALL OF THE CONSOLIDATED ORDER OF THIS TRIBUNAL DATED 21.2.2014 IN SOFAR AS IT RELATED TO ITA NOS.954 AND 955/HYD/2013 FOR THE ASSESSMENT YEAR 2009 - 10, ON THE GROUND THAT CERTAIN MISTAKES APPARENT FROM RECORD HAVE CREPT INTO THE SAME. MA NO.74 & 75/HYD/2014 (IN I TA NO. 954 AND 955 /HYD/201 3 ) SHRI HARISH CAHND SURANA & ANR ., SECUNDERABAD 2 2. IN MA NO.74/HYD/2014 FILED BY HARISH CHAND SURANA, THE MISTAKE POINTED OUT WAS WITH REGARD TO ONE OF THE GROUNDS OF THE ASSESSEE THAT THE CIT(A) ERRED IN P LACING RELIANCE ON THE STATEMENT OF PREM SAGAR RAO WHO DID NO T RESPOND TO THE SPECIFIC DEMAND O F THE APPELLANT FOR CROSS EXAMINATION AND THEREFORE , THE STATEMENT COULD NO T BE RELIED UPON FOR THE PURPOSE OF DETERMINING THE SALE CONSIDERATION OF THE IMMOVABLE PROPERTY, WHICH HAS BEEN DEALT WITH BY THE TRIBUNAL IN PARA 17 OF ITS ORDER DATED 21.2.2014. CONT E STING THE OBSERVATION OF THE TRIBUNAL IN PARA 17 THAT WHEN ASSESSEE WAS GIVEN OPPORTUNITY TO CROSS EXA M INE SRI PREMA SAGAR RAO ON 9.11.2010 NEITHER THE ASSESSEE NOR SRI PREMA SAGAR RAO APP E ARED, IT IS PLEADED THAT TH E SAID OBSERVATION WAS FACTUALLY INCORRECT. OUR ATTENTION IN THIS BEHALF IS INVITED TO LETTER DATED 13.12.2010 WHICH FINDS PLACE AT PAGES 21 TO 22 OF THE PAPER - BOOK, WHICH , VIDE RELEVANT PORTION AS TAKEN FROM THE EXTRACT IN THE PRESENT APPLICATION READ AS FOLLOWS, IN RELATION TO CROSS - EXAMINATION OF SRI PREM SAGAR, CLARIFIED THE POSITION, I . SUMMON S WAS ISSUED TO ME U/S. 131 OF THE INCOME TAX ACT,1961 ASKIN G ME TO APP E AR ON 9.11.2010 IN R E SPE C T O F THE SALE CONSID E RATION RE C E IVED BY ME AND MY SON NIKHIL SURANA ARISIN G OUT O F SALE O F L A ND AT NACHARAM TO M/S. SAINATH ESTATES REPRESENTED BY ITS DI R ECTOR SHRI PREMSAGAR. II . AS MY FATHER MR.BADALCHAND SURANA HAS BEEN LOOKING AFTER ALL MY A FF AIRS IN C LU D IN G TAX AFFAIRS, HE HAD APP E ARED ON 9.11.2010 TO EXAMIN E AND CROSS - EXAMIN E MR.PREMSAGAR WHO HAD STATED T HAT H E HAD PAID US A SUM OF R S .16,20,00,000 FOR ACQUIRING THE ABOVE PROPERTY. III . MR. PR EM SAGAR DID NOT COME ON 09.11.2010 FOR EXAMINATION/CROSS EXAMINATION, ALTHOUGH IT WAS STATED THAT I C OULD CROSS - EXA MINE HIM ON 09.11.2010. MA NO.74 & 75/HYD/2014 (IN I TA NO. 954 AND 955 /HYD/201 3 ) SHRI HARISH CAHND SURANA & ANR ., SECUNDERABAD 3 IV . AS IT WAS A SUMMONS ISSUED TO ME AND AS M R.BADALCHAND SURANA HAD EARLIER APPEARED, I WAS ASKED TO APPEAR ON 22.11.2010. BUT I COULD NO T APPEAR ON 22.11.2010 AS MY SISTER MS.ANJU SANCHETI PASSED AWAY ON 14.11.2010 AT A YOUNG AGE OF 42 YEA R S LEAVING ALL OF US IN A STATE OF MENTAL SHO C K AND D I SMAY. V . HOW E VER, I HAD VIDE MY LETTE R DATED 19.11.2010 STA T ED THAT I WOUL D APPEAR ON 30.11.2010 AND ALSO REQUESTED THAT MR.PREMSAGAR BE INFORMED TO BE PRESENT ON 30.11.2010 FOR CROS S EXAMINE SO THAT I COULD EXMINE/CROSS - EXAMIN E THROUGH MY AD V O CA TE OR MR.BADALCHAND SURANA AS THE CA S E MAY B E . THIS LE T TER WAS FILED ON 19.11.2010. VI . ON30.11.2010 I H A D APP E ARED IN RESPONSE TO THE SUMMONS AND I WAS ASKED CERTAIN QUESTIONS TO WHICH I HAD RESPONDED. HOWEV E R , MR. PREM S AGAR WAS NOT AVAILABLE ON 30.11.2010 FOR MY CROSS - EXAMINATION. I HAD STA T ED THAT M YSELF AND MY SON NIKHIL SURANA HAD RECEIVED A TOTAL SUM OF R S .14,75,60,000 TOWARDS SALE OF LAND IN ACCORDANCE WITH THE REVISED RETURN FILED ON 26 TH OCTOB E R, 2010. VII . IN VI E W OF THE FACT THAT M R.PREMS A GAR DID NOT APPEAR FOR MY CROSS EXAMINATION TO CON F IRM THAT H E HAD PAID US A TOTAL SUM OF R S .16,20,00,000, TH I S SUM CANNO T B E ADOPTED AS HE HAD FAIL E D TO CO N FIRM OR APPEAR FOR EXAMINATION/CROSS - EXAMIN A TION IN SP I TE OF SUFFICIENT OPPOR TUN ITIES BEIN G GIVEN AND HE HAD ALSO AVOIDED TO APP E AR SPECIFICALLY FOR THIS PURPOSE ON MANY OCCASIONS. TH ERE FORE, IT IS MY SUBMISSION ANY STATEMENT MADE BY HIM IS NOT BIN D IN G AS IT IS NO T SUPPO R TED BY ANY DOCUMENTARY EVIDE NCE WHATSO E VER OR OTHERWISE AND MUCH SO THE SUM OF R S .16,20,00,000 ALL E GED BY HIM AS HAVING PAID TOWARDS THE SALE CONSIDERATION OF LAND AT NACHARAM CANNO T B E ADDED TOWARDS THE TOTAL SALE CONSIDERATION OF LAND EITHER IN MY HANDS OR MR.NIKHIL SURANAS HANDS. MA NO.74 & 75/HYD/2014 (IN I TA NO. 954 AND 955 /HYD/201 3 ) SHRI HARISH CAHND SURANA & ANR ., SECUNDERABAD 4 INVITING FURTHER ATTENTION TO THE LETTER DATED 14.12.2010 FIL E D BEFORE THE ASSESSING OFFICER, COPY OF WHICH IS PL A CED AT PAGE 20 OF THE PAPER - BOOK, WHICH EVIDENCES THE FACTUM OF THE ASSESSEE HAVING APPEARED ALONGWITH HIS FATHER BADALCHAND SURANA ON 9.11.2010, DULY EXTRACTING RELEVANT PORTION THEREOF, IT IS SUBMITTED IN THE PRESENT PETITION THAT THERE IS A MISTAKE APPARENT FROM RECORD IN TH E O R DER OF THE TRIBUNAL, IN AS MUCH IT HAS ST ATE D T H A T THE ASSESSEE H A D NO T APPEARED ON 9.11.2010. 3. RECA LLING THE SUBMISSION MADE BEFORE TH E TRIBUNAL, IT WAS SUBMITTED THAT DEBITING THE AMOUNT IN THE BOOK S O F M / S . SAINATH E S TATES COULD B E A SCHEME OR DEVICE TO INCREASE THE EXPEN SES WHICH ARE TAX DEDUCTIBLE, AND ONLY A CROSS - EXAMINATION WOULD HAVE REVEALED TH E FACT WHETHER THE UNSIGNED CASH RECEIPTS WAS ACTUALLY RECEIVED BY THE ASSESSEE, AND AS SUCH THE ORDER OF THE TRIBUNAL, BASED ON THE OBSERVATION THAT NEITHER THE ASSESSEE NOR SHRI PREM SAGAR APPEARED ON 9.11.2010, CALLS FOR RECTIFICATION. 4. REFERRING TO THE FIN D IN G O F THE TRIBUNAL AT PARA 22, ON THE ASPECT OF VALUATION OF PROPERTY AS ON 1.4.1981 FOR THE PU R PO S E OF COMPUTATION OF CAPITAL GAIN WHI C H WAS ADOP T ED BY THE RE GISTERED V A LU E R AT R S .250 - PER SQ. YARD AND RS.100 PER SQ. YARD, IT WAS STATED THAT THE REGISTERED VALUER WHIL E COMPUTIN G THE VALUE OF THE LAND WHICH VALUES ADOPTED FOR LANDS AT BANAJRA HILLS AT R S .500 PER SQ. YARD, REDUCED THE VALUE OF THE ASSESSEE S LAND IN QUESTION BY 50% AND ADOPTED TH E V ALUE OF THE LAND AT RS .250 PER SQ.YAD AS THERE WERE NO CO M P A RABLE CA S ES. THOUGH THE ASSESSEE RELIED ON A NUMBER OF DECISIONS, DULY PLACING COPIES THEREOF IN THE PAPER - BOOK DISPU T IN G THE ABOVE METHOD ADOPTED BY THE ASSESSING OFFICER, THE TRIBUNAL HAS NO T CONSIDERED THE SAME P ERHAPS INADVERTENTLY, AND AS SUCH THERE IS A MISTAKE APPARENT FROM RECORD, WHICH CALLS FOR RECTIFICATION. MA NO.74 & 75/HYD/2014 (IN I TA NO. 954 AND 955 /HYD/201 3 ) SHRI HARISH CAHND SURANA & ANR ., SECUNDERABAD 5 5. REFERRING FU R TH E R TO PARA 13 OF THE ORDER OF THE TRIBUNAL DATED , WHICH IS ON THE ASPECT OF ASSESSEES CLAIM FOR EXEMPTION UNDER S.54F OF THE A C T, IT IS SUBMI T TED THAT THE CLAIM FOR EXEMPTION UNDERS.54F FOR ALL TH E FL AT S IS A LEGAL GROUND, WHI C H COULD NO T BE RAISED BEFORE THE LOWER AUTHO R ITI E S, ON A C COUN T OF FLU C TUATION OF LAND ON TH E SUBJ EC T . IT IS STATED THAT ALL THE FLATS WERE REGISTERED IN THE NAMES OF CLOSE FAMILY MEMBERS, I.E. FATHER, MOTHER, WIFE AND MAJOR DAUGHTER APART FROM CERTAIN FLATS IN THE ASSESSEES OWN NAME, AND A STATEMENT SHOWING COMPLETE ALLOTMENT OF FLATS IN THE NAMES OF THE ASSESSEE AND HIS WIFE, ETC. WAS FILED BEFORE THE T RIBUNAL. SINCE FLATS HAVE BEN REGISTE RED IN THE ANAMES OF CLOSE FAMILY MEMBERS AND IN THE NAME OF TEHE ASSESSEE ITSELF AND NTO IN THE LAME OF OTHERS AS STATED IN THE ORDER, ASSESSEE IS ENTITLED FOR EXEMPTION UNDER S.54F OF THE ACT. IT WAS RECALLED TH AT RELIANCE WAS ALSO PLACED ON THE DECISION OF THE DELHI HIGH CO U R T IN CIT V/S. KAMAL WAHAL (351 ITR 4), IN SUPPORT OF THE PROPOSITION THAT PRUCHSI NG HOUSE IN THE NAME OF WIFE ALSO QUALIFIES FOR EXEMPTION UNDER S.54F OF THE ACT. 6. M.A. NO.75/HYD/20 14 FI L ED BY SHRI NIKHIL SURANA ALSO CONTAIN S ALL THE AVERMENTS CORRESPONDING TO THE AVERMENTS MADE IN MA NO.74/HYD/2014 OF SHRI HARISH CHAND SURANA, WITH REGARD TO CROSS - EXAMINATION OF SHRI PREM SAGAR AND VALUATION OF THE PROPERTY. EVEN ON THE ASPECT OF EXEMPTION UNDER S.54F, THOUGH AVERMENTS MADE CORRESPOND TO THE ONES MADE IN TH E OTHER M.A. OF SHRI HARISH CHAND SURANA, THE ONLY VARIATION IS THAT IT HAS BEEN STATED IN THIS APPLICATION THAT FLATS NOS .739 AND 740 WERE R EGISTER E D IN TH E NAME OF THE ASSESSEE ONLY AS P E R THE STATEMENT FILED, AND THER E F O RE, EXEMPTION UNDER S.54F OUGHT TO H A VE BEEN ALLOWED IN RESPECT OF FLATS WHICH ARE IN ASSESSEES NAME ONLY. 7. IN VIEW OF THE ABOVE, IT IS PLEADED THAT THE ORDER OF THIS TRIBUNAL 21.2.2014 WARRANTS RECTIFICATION/RECALL. MA NO.74 & 75/HYD/2014 (IN I TA NO. 954 AND 955 /HYD/201 3 ) SHRI HARISH CAHND SURANA & ANR ., SECUNDERABAD 6 8. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE CONTRARY, OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEES AND SUBMITTED HAT THERE IS NO MISTAKE APPARENT FROM REC ORD IN THE ORDER OF THE TRIBUNAL AND ALL THAT THE ASSESSEE IS SEEKING IS A MERE REVIEW OF THE ORDER OF THE TRIBUNAL, IN THE GUISE OF RECTIFICATION. 9. WE HEARD BOTH SIDES AND EXAMINED THE MATTER IN THE LIGHT OF THE AVERMENTS MADE IN THE PRESENT APPLICATI ONS AND THE ORDER OF THIS TRIBUNAL DATED 21.2.2014. WE DO NOT FIND MERIT IN THE PRESENT APPLICATIONS OF THE ASSESSEES, INASMUCH AS THE TRIBUNAL HAS RENDERED A CONSCIOUS VIEW ON THE POINT AT DISPUTE AFTER CONSIDERING ALL THE RELEVANT ASPECTS OF THE MATTER. AS FOR THE ISSUE RELATING TO CROSS - EXAMINATION OF SHRI PREMA SAGAR RAO, THE CASE OF THE ASSESSEE IS THAT THERE IS A MISTAKE IN THE OBSERVATION OF THE TRIBUNAL IN PARA 17 TO THE EFFECT THAT ON 9.11. 2 010 , WHEN OPPORTUNITY OF CROSS - EXAMINATION WAS SOUGHT T O BE GIVEN TO THE ASSESSEE, NEITHER THE ASSESSEE NOR S H RI PREM SAGAR RAO APPEARED. HOWEVER, AS SUBMISSIONS MADE IN THE MISCELLANEOUS APPLICATIONS, DIGESTED ABOVE, WOULD SHOW, IT WAS NOT THE ASSESSEE BUT HIS FATHER BADAL CHAND SURANA, WHO WAS PRESENT BEFOR E THE ASSESSING OFFICER ON 9.11.2010. EVEN OTHERWISE ALSO, PRESENCE OR ABSENCE O F ASSESSEE BEFORE ASSESSING OFFICER WOULD NOT HAVE MADE ANY MATERIAL DIFFERENCE ON THE CONCLUSIONS ARRIVED AT BY THE TRIBUNAL. IT IS SO BECAUSE THE TRIBUNAL DID NOT DETERMINE THE ISSUE BEFORE IT BASED ON THIS ASPECT AT ALL, BECAUSE IT OBSERVED IN THE VERY NEXT SENTENCE THAT CROSS - EXAMINING PREMA SAGAR RAO IN NO WAY , WOULD HAVE IMPROVED THE CASE OF THE ASSESSEE, AND PROCEEDED TO CONCLUDE THAT SINCE THE ENTRIES MADE IN THE BOOK S OF ACCOUNT OF M/S. SAINATH ESTATES AND ASSESSEE HIMSELF HAS ALSO ACCEPTED A P A RT OF THE CASH PAYMENT CLEARLY ESTABLISHED THAT SALE CONSIDERATION OF R S .16.20 CRORES RECORDED IN THE BOOKS OF ACCOUNTS OF M/S. SAINATH ESTATE S IS THE ACTUAL AMOUN T RECEIVED B Y THE ASSESSEE AND HIS SON. THUS, IRRESPECTIVE OF THE CORRECTNESS OR OTHERWISE OF THE MISTAKE POINTED OUT BY THE ASSESSEE, WITH REGARD TO AFFORDING OR OTHERWISE OF MA NO.74 & 75/HYD/2014 (IN I TA NO. 954 AND 955 /HYD/201 3 ) SHRI HARISH CAHND SURANA & ANR ., SECUNDERABAD 7 OPPORTUNITY TO THE ASSESSEE OF CROSS - EXAMINATION OF SHRI PREMA SAGAR RAO, THERE WOULD BE NO IMPACT ON THE ULTIMATE DECISION OF THE TRIBUNAL, AND CONSEQUENTLY, THE PRESENT APPLICATION IS DEVOID OF MERIT ON THIS COUNT. 10. ON THE ASPECTS OF VALUATION OF THE PROPERTY AND THE CLAIM FOR EXEMPTION UNDER S.54F OF THE ACT, WE FIND THAT THE TRIBUNAL H AS TAKEN A CONSCIOUS DECISION AFTER CONSIDERING ALL THE ASPECTS OF THE MATTER, AND THE ARGUMENTS OF THE PARTIES BEFORE IT, IN THE LIGHT OF THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEES BY THE PRESENT APPLICATIONS ARE MERELY DISPUTING THE FINDINGS OF THE TRIBUNAL, REITERATING THE CONTENTIONS URGED EARLIER AND REARGUING THE MATTER, AND THEREBY SEEKING A MERE REVIEW OF THE ORDER OF THIS TRIBUNAL. SINCE SUCH A REVIEW IS NOT PERMISSIBLE IN THESE PROCEEDINGS UNDER S.254(2) OF THE ACT, THE SCOPE OF WHICH IS CONFINED TO MERE RECTIFICATION OF THE OBVIOUS AND PATENT MISTAKES APPARENT FROM RECORD, ON THIS ACCOUNT ALSO, THE PRESENT APPLICATIONS ARE LIABLE TO BE REJECTED. WE ACCORDINGLY REJECT THE SAME. 11. IN THE RESULT, BOTH THE APPLICATIONS OF THE ASSESSEES ARE REJECTED. O RDER PRONOUNCED IN THE COURT ON 18.07.2014 SD/ - SD/ - ( B.RAMAKOTAIAH ) ( SAKTIJIT DEY ) ACCOUNTANT MEMBER JUDICIAL MEMBER DT/ - 18 TH JU LY , 2014 COPY FORWARDED TO: 1. 2. SHRI HARISH CHAND SURANA, C/O. SEKHAR & CO., CHARTERED ACCOUNTANTS, 133/4, R.P.ROAD, SECUNDERABAD. SHRI NIKHIL SURANA, C/O. SEKHAR & CO., CHARTERED ACCOUNTANTS, 133/4, R.P.ROAD, SECUNDERABAD. MA NO.74 & 75/HYD/2014 (IN I TA NO. 954 AND 955 /HYD/201 3 ) SHRI HARISH CAHND SURANA & ANR ., SECUNDERABAD 8 3 . DY. COMMISSIONER OF INCOME - TAX CIRCLE 2 , HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) I HYDERABAD 4. COMMISSIONER OF INCOME - TAX, HYDERABAD 5 DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S