Young Indian, New Delhi V. ACIT(E), New Delhi

MA 85/DEL/2022

• Counselvise Citation: [2023] 101 COUNSELVISE.COM (IT) 9380 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-12-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: F
• Next Hearing Date: 09-11-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 01-05-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Value adopted by valuation officer; Capital asset; Business income; Depreciation; Charitable institution; Retrospective amendment; Additional evidence; Tangible material; Fair market value; Valuation report; Competent authority; Cancellation of registration; Reason to believe; Borrowed satisfaction; TDS; Set aside; Capital Gains
• Section: 148; 37; 56; 28; 11; 56(2); 133A; 260A; 12A; 12AA; 201; 254(2); 113; 43; 22

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “F”: NEW DELHI BEFORE SHRI M BALAGANESH, ACCOUNTANT MEMBER AND MS. ASTHA CHANDRA, JUDICIAL MEMBER MA No. 85/Del/2022 Arising out of ITA No. 1251/Del/2019 Asstt. Year: 2011-12 O R D E R By virtue of his Miscellaneous Application, the assessee seeks to recall the order passed by this Tribunal in ITA No. 1251/Del/2019 for assessment year 2011-12 dated 31.3.2022 on the ground that the followings errors had crept in the order of the Tribunal:- “1. GROUND NO. I: ORDER PASSED WITHOUT JURISDICTION NOT ADJUDICATING ON THE CONTENTION THAT EVEN IF THE EXEMPTION WARD HAD JURISDICTION AT THE TIME OF ISSUANCE OF NOTICE U/S. 148, SINCE THE CANCELLATION ORDER OF THE CIT(E) DATED 26.10.2017 WAS PASSED BEFORE COMPLETION OF REASSESSMENT, THE AO HAD NO JURISDICTION TO PASS THE IMPUGNED ORDER. Young Indian 5A, Herald House, Bahadurshah Zafar Marg, New Delhi - 110 002 PAN AAACY4625Q Vs. ACIT(E), New Delhi. (Appellant) (Respondent) Assessee by: Shri Saurabh Soparkar, Sr. Advocate Ms. Anjali Aggarwal, Advocate Shri Ankit Agarwal, Advocate Department by: Shri G.C. Srivastava, Special Counsel for Revenue Shri Kalrav Mehrotra, Advocate Date of Hearing: 24.11.2023 Date of pronouncement: 22.12.2023 MA No. 85/Del/2022 Young Indian vs. ACIT 2 Submissions of the Applicant: 1.1 The Applicant humbly submits that during the course of the hearing, the Applicant had pointed out that the registration of the Applicant u/s. 12AA was cancelled by the CIT(E) vide order bearing F. No. CIT(E)/12A/2017-18 dated October 26, 2017, withdrawing exemption u/s. 11 with retrospective effect from AY 2011-12 onwards. The copy of the cancellation order is at Pages 3 to 24 of the PB-I. It was accordingly contended that even if the AO had valid jurisdiction at the time of issuance of reopening notice in January 2017, certainly, at the time of passing of the assessment order in December 2017, the AO had no jurisdiction over the Applicant as the registration of the Applicant was retrospectively cancelled by the CIT(E) prior to the said date. The said contention is also mentioned at para 2.5 of the written submissions filed by the Applicant ("written submissions"). 1.2 On perusal of the Tribunal order (Para 22), it is observed that the jurisdiction of the AO has been upheld on the basis that on the date of issuance of reopening notice, the jurisdiction remained with the exemption ward since the suo moto surrender made by the Applicant prior to that date is irrelevant. However, it is observed that the fact that the registration of the Applicant was cancelled retrospectively by the CIT(E) during the course of reassessment itself and the contention that the order passed by the AO subsequent to this cancellation was without jurisdiction has not been considered while passing the order. The Tribunal's order is silent on the said contention of the Applicant. It is evident that the said contention has skipped the attention of the Hon'ble Bench while dictating the order. It is most humbly submitted that this is an apparent mistake which ought to be rectified. 1.3 The Applicant submits that non consideration as well as non adjudication of a vital contention of the Applicant amounts to mistake apparent on record and the same ought to be rectified. In this regard, kind attention is drawn to the decision of the Gujarat High Court in the case of ACIT vs. Saurashtra Kutch Stock Exchange Ltd. (262 ITR 146)(Guj), which has been affirmed by Hon'ble Apex Court in 173 Taxman 322, wherein it is held as under: "... It has to be borne in mind that the Act is a statute providing for levy and collection of tax. In case a party before the Tribunal invites the attention of the Tribunal that a point or a contention which is material for determining the amount of tax payable (which may be nil in a given case) has not been considered by the Tribunal, it would certainly constitute a mistake apparent from the record within the meaning of section 254(2) of the Act. The term 'record' in the provision takes within its sweep the entire record before the Tribunal. The provisions of section 254(2) could not be construed in a manner which would produce an MA No. 85/Del/2022 Young Indian vs. ACIT 3 anomaly or otherwise produce an irrational or illogical result. It is one of the basic principles and a legal policy that when there is a provision for rectification of a mistake apparent from the record, that power should be allowed to be exercised for correcting mistake and/or error from the record and if the Tribunal feels that the Tribunal has committed an error of law, it would be against the concept of justice and fair play and also against the principle of legal policy not to allow the Tribunal to exercise such power". (underlined for emphasis) 1.4 Similar view has also been taken in the following decisions:  Shahid Atiq vs. ITO (97 ITD 22)(DEL);  Stock Exchange vs. ACIT (68 TTJ 610)(AHD); 1.5 In view of the above, the Applicant prays that the Hon'ble Tribunal may be pleased to rectify the aforesaid inadvertent error by recalling the captioned Order in its entirety or in part and/ or pass such supplemental order as the Hon'ble Tribunal may deem fit under the foregoing facts and circumstances. II. GROUND NO. II: REOPENING OF ASSESSMENT IS BAD IN LAW - NOT CONSIDERING VARIOUS CONTENTIONS RAISED BY THE APPLICANT. Submissions of the Applicant: 2.1 The Applicant humbly submits that during the course of the hearing, the Applicant had contended that the reopening is bad in law since the reasons were recorded only after obtaining approval the CIT(E). This is clear from the fact that the reasons were not even signed or signed only as draft before the approval (Para 3.2 to 3.13 of the written submissions). Further, the reasons of 10.1.2017 have been signed only after obtaining approval which shows that the reasons were finalised and recorded only after approval (Paras 3.15 to 3.18 of the written submissions) and were based on borrowed satisfaction (Para 3.19 to 3.22 of the written submissions). It was accordingly submitted that since there is no independent and proper recording of reasons by the AO as per provisions of law, the reopening is bad in law. 2.2 The Applicant had also contended that if the reasons dated 9.1.2017 are held to be the reasons recorded then, the said reason were never shared with the Applicant since what was provided to the Applicant during reassessment was only the reasons dated 10.1.2017 and therefore, even for this reason the reopening is bad in law (Para 3.14 of the written submissions). For each of these propositions, the Applicant has relied on various judicial pronouncements as also cited in the said written submissions. MA No. 85/Del/2022 Young Indian vs. ACIT 4 2.3 On perusal of the Tribunal's order, it is observed that the said ground has been adjudicated on the basis that the contention and grievance of the Applicant is only that the reasons sent to CIT(E) for approval were signed as draft which shows the tentativeness of the same (Para 53 at Page 108 of the Tribunal's order). It has accordingly been held that since these reasons were signed though as draft, the reopening is valid. 2.4 In this regard, it is humbly submitted that the said contention is only one of the many contentions raised by the Applicant. The Tribunal's order is completely silent on the validity of the first unsigned reasons as filed by the Revenue at pages 5-44 of the Revenue PB. Further, the contention of the Applicant that the reasons dated 10.1.2017 has been finalised based on borrowed satisfaction and that if the reasons of 9.1.2017 are the valid reason (as has been held by the Hon'ble Tribunal), then since the same were never provided to the Applicant, the reopening is bad in law, have not been considered/adjudicated. 2.5. It is reiterated that the contention of the Applicant is that the reasons were not 'recorded' before sending for approval and not simply that the reasons sent for approval were signed as draft. In this regard, kind attention is again invited to Para 3.30 of the written submissions filed by the Applicant, wherein too the Applicant had clarified that the "grievance of the Appellant is not that the reasons sent to the CIT(E) is not signed but that the reasons are not recorded by the AO before seeking the approval." 2.6 Therefore, it is humbly submitted that the first reasons as appearing in the file of the AO and which is unsigned, are the most relevant for the purpose of this ground. In fact, as pointed out during the hearing and also stated at Page 1 of LPB V, (Para 1.1), during inspection of the AO's file, it was found that there was not even any order sheet in the file of the AO stating about recording of any reasons and sending the same for approval to the CIT(E). Further, even the inward / outward register of the AO and the CIT(E) were not provided for inspection though asked for [Page 1 of LPB V, (Para 1.2). 2.7 It is accordingly humbly submitted that in this case, the fact of existence of unsigned reason and a mere draft reason clearly shows that reasons were not properly recorded and that first there was approval and then finalisation of reasons. The manner in which the present assessment been reopened clearly shows that the AO has not properly and independently recorded reasons before reopening the assessment. 2.8 However, it appears that this aspect has also skipped the attention of the Hon'ble Tribunal since there is no adjudication on the said contention of the MA No. 85/Del/2022 Young Indian vs. ACIT 5 Applicant. It is most humbly submitted that non-adjudication of the said issue is a mistake apparent from record, which ought to be rectified. 2.9 Reliance is again placed on the following decisions, wherein it is held that non adjudication of the contention raised by the assessee is a mistake apparent from record:  ACIT vs. Saurashtra Kutch Stock Exchange Ltd. (262 ITR 146)(Guj), affirmed by Hon'ble Apex Court in 173 Taxman 322;  Shahid Atiq vs. ITO (97 ITD 22)(DEL);  Stock Exchange vs. ACIT (68 TTJ 610)(AHD). 2.10 Further, various decisions relied upon by the Applicant on these contentions have also not been dealt with. The Applicant relies on the decision of the Hon'ble Supreme Court in case of ACIT v. Saurashtra Kutch Stock Exchange Ltd. [(2008) 305 ITR 227] wherein it is held that non- consideration of the decision of the Hon'ble Jurisdictional High Court constitutes mistake apparent on record. 2.11 Reliance is also placed on the decision of the Supreme Court in Honda Siel Power Products Ltd. v. CIT (165 TAXMAN 307)(SC) wherein it is held that not considering the decisions relied upon before the Tribunal amounts to a mistake apparent from the records. 2.12 In view of the above, the Applicant prays that the Hon'ble Tribunal may be pleased to rectify the aforesaid inadvertent error by recalling the captioned Order in its entirety or in part and/ or pass such supplemental order as the Hon'ble Tribunal may deem fit under the foregoing facts and circumstances. III. GROUND NO. V, VI and XII - ADDITION U/S. 28(iv) - NOT ADJUDICATING ON THE CONTENTION OF THE APPLICANT THAT EVEN IF CORPORATE VEIL IS LIFTED AND IT IS HELD THAT THE APPLICANT HAS ACQUIRED THE ASSETS OF AIL, EVEN IN THAT CASE, ALL THE CONTENTIONS RAISED BY THE APPLICANT AND THE DECISIONS RELIED UPON BY THE APPLICANT WOULD STILL BE RELEVANT SINCE THE SAME WOULD APPLY REGARDLESS OF WHETHER THE ASSET ACQUIRED IS SHARES OR ASSETS. Submission of the Applicant: 3.1 The Applicant humbly submits that during the course of the hearing, the Applicant had raised various contentions about taxability u/s. 28(iv) of the alleged benefit arising on acquisition of shares of AJL and relied upon several judicial pronouncements in support of the said (Pages 1-10 of LPBVII as well as Para 5.105 to 5.190 of the written submissions). The Ld. DR had argued MA No. 85/Del/2022 Young Indian vs. ACIT 6 that these contentions and decisions are not applicable the premise of the Applicant is that what was acquired was the shares of AJL whereas the case of the Revenue is that the Applicant has acquired the real estate assets of AJL. In reply to this contention, it was pointed out during the hearing that even if it is assumed that the Applicant had acquired the assets of AJL (and not the shares), even in that case all the propositions and contentions and decisions replied by the Applicant would still apply since the said principles would apply regardless of whether the asset is share or an immovable property. The said contention is also captured at Paras 5.157-5.159 of the written submissions filed by the Applicant. 3.2 However, on perusal of the Tribunal's order, it is observed that the Hon'ble Tribunal has summarily rejected all the contentions of the Applicant on the same basis that these propositions and decisions are not applicable since what the Applicant has acquired are the assets of AJL and not the shares. 3.3 At Para 144, the contention of the Applicant that the benefit, if any, is only in capital field has been rejected by holding that 'here it is not a case of acquisition of shares per se, albeit it is a case where assessee had acquired benefit in the interest in the immovable properties held by AJL. Further, at Para 145, the contention of the Applicant that no benefit or perquisite within the meaning of section 28(iv) can arise in case of a discounted purchase has also been rejected by holding that 'This argument of the Id. Sr. Counsel for the assessee persists on the assumption that, what were being acquired were the shares of AJL. As already stated herein above, the entire exercise was to have the control and enjoyment of the properties of AIL and, therefore, the appellant has realized the benefit in the real terms.... Further, at Para 146, it is stated that the judgements cited by the Applicant are also not relevant since this is not a case of acquisition of shares or any other assets at discounted price. Similarly, at Para 147 of the order, the contention of the Applicant that even if it is assumed that the shares of All so acquired by the Applicant are business assets and should be recorded as stock-in-trade even in that case, no profit can be said to be arisen by merely valuation of shares has also been rejected on similar basis. It is held therein that 'This argument is again based on the premise that it is a case of acquisition of shares at a discounted price. Similar findings have also been given for the following contentions: • The said transaction can be taxed only if covered u/s. 56(2)(vila)/(x); • Only real income can be taxed. 3.4 The Applicant most humbly submits that the law which is supported by various decisions apply regardless of whether the asset acquired is shares or the assets of AJL. It is submitted that if the corporate veil is lifted, the effect of MA No. 85/Del/2022 Young Indian vs. ACIT 7 the transaction is that the Applicant has acquired the assets of AJL for a sum of Rs. 50,00,000/-. It is submitted that even for this transaction, all the foregoing contentions and decisions are equally relevant even if it is held that the Applicant has acquired the assets of AJL. 3.5 It is accordingly submitted that non-consideration of this contention of the Applicant is a mistake apparent from record, which ought to be rectified. Accordingly, the Applicant humbly requests the Hon'ble Tribunal to adjudicate upon the said contention of the Applicant as it goes to the root of the matter and prays that all the contentions raised by the Applicant be reconsidered for determining the taxability u/s. 28(iv) on the discounted purchase of assets of AJL 3.6 Reliance is again placed on the following decisions, wherein it is held that non adjudication of the contention raised by the assessee is a mistake apparent from record:  ACIT vs. Saurashtra Kutch Stock Exchange Ltd. (262 ITR 146)(Guj), affirmed by Hon'ble Apex Court in 173 Taxman 322;  Shahid Atiq vs. ITO (97 ITD 22)(DEL);  Stock Exchange vs. ACIT (68 TTJ 610)(AHD). 3.7 In view of the above, the Applicant prays that the Hon'ble Tribunal may be pleased to rectify the aforesaid inadvertent error by recalling the captioned Order in its entirety or in part and/ or pass such supplemental order as the Hon'ble Tribunal may deem fit under the foregoing facts and circumstances. IV. GROUND NO. V, VI and XII ADDITION U/S. 28(iv) NOT ADJUDICATING CERTAIN OTHER CONTENTIONS OF THE APPLICANT. Submission of the Applicant: 4.1 The Applicant humbly submits that in the course of the hearing, the Applicant had raised the following contentions in respect of this Ground, namely:  No benefit has been demonstrated by the Revenue, which the Applicant has actually received by acquisition of shares of AIL. FMV of assets of AJL cannot be regarded as benefit. Benefit if any which can be taxed u/s 28(iv) is only the value of usufruct from the property and not the capital value of the property itself. (Para 5.905.94, 5.103.12 of the written submissions);  Decisions of Delhi ITAT in 12AA registration cancellation matter (Page 63-121 of Revenue PB-I) and the Delhi High Court in the case of The MA No. 85/Del/2022 Young Indian vs. ACIT 8 Associated Journals Limited vs. Land & Development Office (LPA 10/2019 & CM Nos. 566/2019 & 649/2019) (Page 154-216 of Revenue PB-II dated 17.01.2022) cannot be referred to and relied upon, since those decisions are based on the very allegations made in the impugned order. This is circuitous in nature amounting to deciding the merits of findings of AO based on his findings itself. (Para 5.103.3 of the written submissions). 4.2 However, on perusal of the Tribunal's order, it is observed that the Hon'ble Tribunal has not adjudicated upon said contentions of the Applicant. It appears that this aspect has skipped the attention of the Hon'ble Tribunal since there is no adjudication on the said contention of the Applicant. It is most humbly submitted that non-adjudication of the said issue is a mistake apparent from record, which ought to be rectified. Accordingly, the Applicant humbly requests the Hon'ble Tribunal to adjudicate upon the said contentions of the Applicant as they go to the root of the matter. 4.3 Reliance is again placed on the following decisions, wherein it is held that non adjudication of the contention raised by the assessee is a mistake apparent from record:  ACIT vs. Saurashtra Kutch Stock Ltd. (262 ITR 146)(Guj), affirmed by Hon'ble Apex Court in 173 Taxman 322;  Shahid Atiq vs. ITO (97 ITD 22)(DEL);  Stock Exchange vs. ACIT (68 TTJ 610)(AHD). 4.4 In view of the above, the Applicant prays that the Hon'ble Tribunal may be pleased to rectify the aforesaid inadvertent error by recalling the captioned Order in its entirety or in part and/ or pass such supplemental order as the Hon'ble Tribunal may deem fit under the foregoing facts and circumstances. V. GROUND NO. V, VI and XII - ADDITION U/S. 28(iv) - VARIOUS ERRONEOUS FINDINGS WHICH ARE APPARENT FROM THE RECORD Submissions of the Applicant: 5.1 On perusal of the Tribunal's order, it is noticed that:  At Para 126, it is stated as under: "126....Because, not a single instance of carrying out any charitable activities was found to be carried out right from the year 2011 till the cancellation of its charitable status or till the passing of the impugned assessment order." MA No. 85/Del/2022 Young Indian vs. ACIT 9  At Para 127, it is stated as under: "127. As observed above, if we analyze these contentions raised by the Special Counsel on behalf of the Revenue that all these narratives were build when certain enquiries/investigation started in the year 2015. Had it been the intention to carry out charitable activities only, then there was no need for the appellant to suo moto surrender its charitable activities or registration certificate vide its letter dated 21.03.2016. If the appellant itself believes that it was no longer carrying out charitable activities, ostensibly the only inference which can be drawn is that the appellant company had acquired the stake of AJL only to enjoy the benefits of huge properties owned by the AJL which was granted or licensed by various Governments from time to time for publication business which operation has already ceased to exist or suspended for a substantial time in the year 2008 itself."  At Para 130, it is stated as under: "130.... First of all, there is not a single instance starting from its inception till the passing of cancellation order by the Id. CIT (E) u/s 12AA, where it has been found that any charitable activities have been carried out;  At Para 131, it is stated as under: 131........ It is not case here that a company is being acquired by a company which is having similar line of business so as to augment its own business or there is some business interest in such acquisitions. Here, this is not a case at all. This chain of events definitely leads to only one conclusion that it is nothing but a masquerade and make-believe arrangement which has been given a cloak of charity and to believe that it was purely for the purpose of charitable activities to promote ides of democratic and secular society.  At Para 141, it is stated as under: "141. The word 'benefit' is occurring in section 28(iv) means some kind of adventure or gain or had same value or acquire any interest in any land, chattel, etc. Thus, the benefit is nothing but any form of adventure and here the adventure is clearly getting the underlying huge properties situated all over the country by stroke of one transaction and to enjoy the benefits of all those properties in future." 5.2 As would be observed, in the foregoing Paras, it has been held by the Hon'ble Tribunal that: MA No. 85/Del/2022 Young Indian vs. ACIT 10  The Applicant has not carried out any charitable activity;  The entire narrative of furtherance of objects of AJL was created only after investigation was initiated against the Applicant and it was an afterthought;  That by surrendering the 12AA registration, the Applicant itself believes that it no longer was carrying out charitable activities;  It is not a case here that AJL is having similar line of business as the Applicant or that its acquisition would augment the business interest of YI. 5.3 In this regard, kind attention is invited to Paras 5.13 to 5.27 of the written submissions filed by the Applicant, wherein the Applicant has:  Demonstrated that various preparatory activities were undertaken for revival of and starting its publication activity between 2011 to 2016, wherefrom it is clear that the Applicant had commenced operations towards its charitable objects immediately after acquiring shares of AJL and that it is not an afterthought or something which commenced only after investigations started against the Applicant;  Proved that publication activity had commenced in FY 2016-17 itself which is before the reopening notice was even issued or the cancellation proceedings had commenced.  Given details of even latest publication activities being conducted from the Mumbai property of AJL;  Demonstrated that the article published are in line with the stated objects of democracy etc.  Referred to the certificate issued by Audit Bureau of Circulations and the report of Google showing outreach of the online portals operated by AJL since November 2016 which clearly shows that the publication business has revived and is running.  Pointed out that in the annual accounts of the Applicant for AY 2011-12 itself, the intention of the Applicant behind acquiring shares of AJL was clearly mentioned in the notes to accounts which certainly shows that this cannot be an afterthought, MA No. 85/Del/2022 Young Indian vs. ACIT 11  Also, even the MoA of AJL was immediately amended in 2011 to include in its objects clause same object clause as that of the Applicant. 5.4 Hence, it is submitted that the conduct of the Applicant clearly supports the aforesaid intention of the Applicant and there is no reason to allege that the intention of the Applicant was anything else or that the aforestated object is an afterthought. 5.5 Accordingly, it is submitted that the observation in the foregoing Paras that the Applicant has not undertaken any activity towards its charitable objects or that the said narrative is an after- thought are completely incorrect statements which is apparent from the records. 5.6 Further, the fact that the MoA of AJL was immediately aligned with the objects of the Applicant, which to start with were similar in nature also demolishes the finding at Para 131 of the Tribunal's order that "It is not case here that a company is being acquired by a company which is having similar line of business so as to augment its own business or there is some business interest in such acquisitions. Here, this is not a case at all." It is submitted that in fact, in this case, it is clear that the interest of the Applicant and AJL were aligned for using the publication activity towards the objects of the Applicant, which is clear from the documents on record and the conduct of the party. 5.7 Kind attention is also drawn to Para 5.75 of the written submissions wherein it has been submitted that the allegation that Shri Rahul Gandhi and Smt. Priyanka Gandhi Vadhera also purchased addition 47,513 and 2,62,411 shares of AJL through Rattan Deep Trust and Janhit Nidhi Trust, respectively is an incorrect statement. 5.8 Kind attention is also invited to the Application dated March 21, 2016 filed by the Applicant for surrender of 12AA registration (Page 1 of PB-1 filed by the Applicant), wherefrom the reason for the surrender has been clearly mentioned. No where in the said letter, the Applicant has mentioned that reason for surrender is that it does not want to continue with its charitable activities. It is submitted that 12AA registration is not mandatory for the purpose of carrying out charitable activity. The Applicant, even after the said surrender, continues to remain a section 25 company, which by its very nature can do only charitable activities. Merely because an entity chooses not to claim the benefit of tax exemption u/s. 11 does not mean that it ceases to be a charitable entity. It is accordingly submitted that the finding in Para 127 of the Tribunal's order that 'Had it been the intention to carry out charitable MA No. 85/Del/2022 Young Indian vs. ACIT 12 activities only, then there was no need for the appellant to suo moto surrender its charitable activities or registration certificate vide its letter dated 21.03.2016' ought to be revisited and considered in light of the fact that the Applicant still holds valid section 25 licence and that the stated reasons for filing the said letter for surrender of registration." is a mistake apparent from record. 5.9 Lastly, at Para 141 of the Tribunal's order, it has held that 'benefit' as occurring u/s. 28(iv) means 'any form of adventure. It is humbly submitted that the said statement is contrary to the provisions of the law and accordingly, is a mistake apparent from record. 5.10 In view of the foregoing facts on record, it is humbly submitted that the observation made at foregoing Paras of the Tribunal's order are factual mistakes which are apparent from the records and ought to be rectified. 5.11 In view of the above, the Applicant prays that the Hon'ble Tribunal may be pleased to rectify the aforesaid error by recalling the captioned Order in its entirely or part and/ or pass such supplemental order as the Hon'ble Tribunal may deem fit under the foregoing facts and circumstances. VI. GROUND NO. VII, VIII, IX: VALUATION OF AIL's PROPERTIES ERRONEOUS FINDINGS WHICH ARE APPARENT FROM RECORD Submissions of the Applicant: 6.1 The Applicant humbly submits that on perusal of the Tribunal's order, it has been observed as under:  At Para 185, the comparable sale instance considered by the DVO for the New Delhi property has been upheld by stating that "It has already been pointed out that both, Bahadur Shah Zafar Marg and Tolstoy Marg fall in the same zone i.e., Zone A. The nature of property is commercial."  At Para 189, the 21% increment rate applied by the DVO while computing the FMV of New Delhi property has been upheld by stating that "Insofar as the appellant's objection to 21% of increase to the value from year to year applied by the DVO, we find that the DVO has taken this basis on the basis of CBDT Circular as cited by him in his report which states that monthly increase of 1.5% or 2% may be adopted which works out to be in the range of 18% to 24% of annual average, which DVO has taken at 21% which appears to be justified." MA No. 85/Del/2022 Young Indian vs. ACIT 13 6.2 In this regard, it is humbly submitted that on perusal of the DVO's report for the New Delhi property (Page 400-411 of PB I), it is clear that the DVO has neither stated the two properties/area are in same zone nor referred to any CBDT circular for justifying the rate of 21% applied by him. As is clear from Page 406 of PB I, the DVO has mentioned that the two area fall under same Category 'A'. It is submitted that the same is not equal to being in same Zone since 'Category' under the Delhi ready reckoner has nothing to do with the geographical location. It is submitted that based on just same category, comparable instance of any property cannot be applied to another property. As submitted during the course of hearing, there is a distance of atleast 4km between the two areas. It is accordingly, submitted that the finding that the two area fall under same 'zone' is a mistake apparent from record. Further, at page 406 of PB I, the DVO has also clearly mentioned that the comparable sale instance considered by him is that of a 'residential property. It is accordingly, submitted that the finding in the afore-quoted Para 185, that the property is commercial is also a mistake apparent from record. 6.3 Also, as stated above, the DVO report does not cite any CBDT circular for justifying the increment rate of 21% applied by the DVO. At Page 58, 1 sentence of the assessment order, the DVO has in reply to the objections of the Applicant, first time, summarily referred to some 'CBDT guideline' without even mentioning its citation or without providing its extract. Hence, the relevant document or even its reference is not on record for verification. 6.4 Kind attention is also invited to Para 182 of the Tribunal's order, wherein it is held that the decision of the Supreme Court in CIT v. P.N. Sikand (107 ITR 922)(SC) is not applicable 'on facts as here it is not a transfer of the property to a different owner albeit AJL continued to be owner and value is to be seen as benefit arising to Yl as discussed above. Further, in Para 183, it is held that "the 50% unearned increase which is payable to L&DO does not alter or reduce the price of the property. It is at best how the sale price is to be appropriated. The seller will get the full price of the property not withstanding that he has to part with a part of that price to some statutory authority. But this parting of unearned increase arises only in a situation where the ownership of the property is getting transferred to a third party. In the facts of this case which are very peculiar, there is no transfer of ownership." 6.5 In this regard, the Applicant humbly submits that the said observations are completely contrary to the findings in the said decision of the Hon'ble Supreme Court. Even in the case before the Supreme Court, it was not a of transfer of land by the assessee, but a case of valuation for the purpose of MA No. 85/Del/2022 Young Indian vs. ACIT 14 wealth tax wherein valuation has to be done on year on year basis and not only on transfer. The Supreme Court considering the unearned increase clause categorically held that "in determining the value of the leasehold interest of the assessee in the land for the purpose of assessment to wealth-tax, the price which the leasehold interest would fetch in the open market were it not encumbered of affected by the burden or restriction contained in clause (13) of the lease deed, would have to be reduced by 50 per cent of the unearned increase in the value of the land on the basis of the hypothetical sale on the valuation date." 6.6 In other words, the Supreme Court held that where there is encumbrance attached to a property, the value which the property would fetch in the open market would have to be adjusted for such encumbrance. It is submitted that since there are similar restrictions even in the present case, the said decision is squarely applicable to the present case and accordingly, not following this binding decision is a mistake apparent from record, which ought to be rectified. 6.7 In view of the foregoing facts on record, it is humbly submitted that the foregoing observations made by the Hon'ble Tribunal are mistake apparent from the records and ought to be rectified. 6.8 In view of the above, the Applicant prays that the Hon'ble Tribunal may be pleased to rectify the aforesaid inadvertent error by recalling the captioned Order in its entirely or part and/ or pass such supplemental order as the Hon'ble Tribunal may deem fit under the foregoing facts and circumstances. For such act of kindness and justice, the Applicant shall ever remain grateful to the Hon'ble Tribunal. Additional Ground VII. GROUND NO. VII, VIII, IX: VALUATION OF AJL'S PROPERTIES - NON ADJUDICATION OF CLAIM OF INCORRECT DEPRECIATION COMPUTED BY DVO IN RESPECT OF NEHRU BHAWAN (LUCKNOW PROPERTY) Submissions of the Applicant: 7.1 The Applicant humbly submits that during the course of the hearing, the Applicant had contended that while computing the Fair Market Value of Nehru Bhawan, the DVO has wrongly considered depreciation from the year 2007 even though the building was actually constructed in the year 1981. To support this contention, the Applicant had filed the copies of inauguration MA No. 85/Del/2022 Young Indian vs. ACIT 15 photographs at pages 1526 and 1527 of PB-V from which it is clear that the property was inaugurated on 15.4.1981. Further supporting documents were also filed at pages 1521 to 1525 of PB V. Further, the observation of GAA Valuers, Registered Valuers in this regard was also filed at Page 1455 of PB IV, Para 5. The written submissions on the said ground is at Paras 6.77 to 6.77.4 (Page 162) of the Written Submissions filed before the Hon'ble Tribunal. 7.2 Similar relief was also claimed by the Applicant for Nehru Manzil, second building in the Lucknow Property (Para 6.71 of written submissions). 7.3 0n perusal of the Tribunal's order, it has been observed that at para 201 (page 505 of the order), the Hon'ble Tribunal has allowed the claim of the Applicant by stating that the depreciation has Been wrongly computed by the DVO and has accordingly directed to the AO to re-compute the valuation after considering the correct year of construction. 7.4 A fair reading of the order should suggest that this observation should apply to both Nehru Manzil as well as Nehru Bhawan. However, since in the said Para 201, reference has been made only to the year 1986-87 which is the year of construction of Nehru Manzil, the AO has while passing the order giving effect, allowed correct depreciation only in respect of Nehru Manzil and ignored the correct year of construction of Nehru Bhawan, i.e. the year 1981. 7.5 The Applicant humbly submits that if one reads the said Para 201 as applicable only to Nehru Manzil, then Tribunal's order is silent on the aforesaid contention of the Applicant about wrong depreciation computed for Nehru Bhawan. 7.6 This being a mistake apparent from record, the Applicant requests that a clarification be issued that the deprecation ought to be recomputed even for Nehru Bhawan after considering 1981 as the year of construction for the said property. 7.7 In view of the above, the Applicant prays that the Hon'ble Tribunal may be pleased to rectify the aforesaid inadvertent error by recalling the captioned Order in its entirety or in part and/ or pass such supplemental order as the Hon'ble Tribunal may deem fit under the foregoing facts and circumstances.” 2. It would be relevant to reproduce the provisions of section 254(2) of the Income Tax Act, 1961 (the “Act”) for the sake of convenience:- MA No. 85/Del/2022 Young Indian vs. ACIT 16 “(2) the Appellate Tribunal may, at any time within six months from the end of the month in which the order was passed, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub- section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer : ....” 3. Scope of Section 254(2) of the Act On plain reading of section 254(2) of the Act, the Appellate Tribunal could resort to rectify its order when there is any mistake apparent from record from the face of the order. This mistake/error should be apparent, not requiring detailed verification of facts or any long drawn process of reasoning of arriving at the conclusion. In our considered opinion the mistake/error in the order of the Tribunal should be patent, obvious and not requiring any application of mind thereon. The Hon’ble Supreme Court in the case of Honda Siel Power Products Ltd. vs. CIT reported in 295 ITR 466 (SC) had addressed the scope of power of rectification in the following manner:- “12. As stated above, in this case we are concerned with the application under section 254(2) of the 1961 Act. As stated above, the expression "rectification of mistake from the record" occurs in section 154. It also finds place in section 254(2). The purpose behind enactment of section 254(2) is based on the fundamental principle that no party appearing before the Tribunal, be it an assessee or the Department, should suffer on account of any mistake committed by the Tribunal. This fundamental principle has nothing to do with the inherent powers of the Tribunal. In the present case, the Tribunal in its Order dated 10-9-2003 allowing the Rectification Application has given a finding that Samtel Color Ltd.’s case (supra) was cited before it by the assessee but through oversight it had missed out the said judgment while dismissing the appeal filed by the assessee on the question of admissibility/allowability of the claim of the assessee for enhanced depreciation under section 43A. One of the important reasons for giving the power of rectification to the Tribunal is to see that no prejudice is caused to either of the parties appearing before it by its decision based on a mistake apparent from the record. 13. ....... We are not going by the doctrine or concept of inherent power. We are simply proceeding on the basis that if prejudice had resulted to the party, which prejudice is attributable to the Tribunal’s mistake, MA No. 85/Del/2022 Young Indian vs. ACIT 17 error or omission and which error is a manifest error then the Tribunal would be justified in rectifying its mistake, which had been done in the present case.” 4. The Hon’ble Supreme Court in the case of ACIT vs. Saurashtra Kutch Stock Exchange Ltd. Reported 305 ITR 227 (SC) had observed as under:- “24. There is, however, no dispute by and between the parties that if there is a 'mistake apparent from the record' and the assessee brings it to the notice of the Tribunal, it must exercise power under sub-section (2) of section 254 of the Act. Whereas the learned counsel for the revenue submitted that in the guise of exercise of power under sub- section (2) of section 254 of the Act, really the Tribunal has exercised power of 'review' not conferred on it by the Act, the counsel for the assessee urged that the power exercised by the Tribunal was of rectification of 'mistake apparent from the record' which was strictly within the four corners of the said provision and no exception can be taken against such action. ..... 37. In our judgment, therefore, a patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the face of the record means an error which strikes on mere looking and does not need long-drawn-out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no Court would permit it to remain on record. If the view accepted by the Court in the original judgment is one of the possible views, the case cannot be said to be covered by an error apparent on the face of the record.” 5. The mistake in the order of the Tribunal can be of fact or of law, but it has to be a mistake apparent from the face of the record and the order. Hence any mistake which require long drawn process of reasoning or any issue which are amenable to divergent opinions on detailed application of mind to arrive at a conclusion cannot fall within the ambit of mistake MA No. 85/Del/2022 Young Indian vs. ACIT 18 apparent from record warranting rectification under section 254(2) of the Act. There can be an error of judgement on the part of the Tribunal, which could be corrected only by the process of appeal provided in the Act under section 260A of the Act. The same cannot be done by taking recourse to section 254(2) of the Act. Hence in a particular order of the Tribunal in the facts and circumstances of that case, a conclusion / inference is drawn by the Tribunal, if such conclusion / inference is not palatable to the parties or the parties are in disagreement with the inference / conclusion drawn, in our considered opinion, the remedy does not lie under section 254(2) of the Act and the parties should carry the matter in further appeal to the Hon’ble High Court under section 260A of the Act. 6. The Hon’ble Jurisdictional High Court in the case of Baljeet Jolly vs. CIT reported in 113 Taxman 38 (Del) while interpreting the scope of power of rectification under section 254(2) of the Act had held as under: “5. A bare look at section 254(2) makes it clear that a 'mistake apparent from the record' is rectifiable. In order to attract the application of section 254(2), the mistake must exist and the same must be apparent from the record. The power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended. 'Mistake' means to take or understand wrongly or inaccurately; to make an error in interpreting; it is an error; a fault, a misunderstanding, a misconception. 'Apparent' means visible; capable of being seen; easily seen; obviously; plain. A mistake which can be rectified under section 254(2) is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. The language used in section 254(2) makes it clear that only, amendment to the order passed under section 254(1) is permissible where it is brought to the notice of the Tribunal that there is any mistake apparent from the record. In our view amendment of an order does not mean obliteration of the order originally passed and its substitution by a new order: What the assessee intends to do in the present case is precisely the substitution of the order, which according to us, is not permissible under the provisions of section 254(2) and, therefore, the Tribunal was MA No. 85/Del/2022 Young Indian vs. ACIT 19 justified in holding that there was no mistake apparent on the face of the record. Where an error is far from self-evident, it ceases to be an apparent error. It is no doubt true that a mistake capable of being rectified under section 254(2) is not confined to clerical or arithmetical mistakes. On the other hand, it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. As observed by the Apex Court in Master Construction Co. (P) Ltd. v. State of Orissa (1966) 17 STC 360, an error which is apparent on the face of the record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law. Similar view was also expressed in Satyanarayan Laxminarayan Hegde v. Malikarjun Bhavanappa Tirumale AIR 1960 SC 137. It is to be noted that the language used in Order XLVII, rule 1, of the Code of Civil Procedure, 1908, is different from the language used in section 254(2). Power is given to various authorities to rectify any 'mistake 'apparent from record'. In the Code of Civil Procedure, the words are "an error apparent on the face of the record". The two provisions do not mean the same thing. The power of Tribunal in section 254(2) to rectify "any mistake apparent from the record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of "an error apparent on the face of the record" - TS. Balaram, ITO v. Volkart Bros. (1971) 82 ITR 50 (SC). Mistake is an ordinary, word, but in taxation laws, it has a special significance. It is not an arithmetical or clerical error alone that comes within its purview. It comprehends errors which, after a judicious probe into the record from which it is supposed to emanate, are discerned. The word 'mistake' is inherently indefinite in scope, as what may be a mistake for one may not be one for another. It is mostly subjective and the dividing line in border areas is thin and indiscernible. It is something which a duly and judiciously instructed mind can find out from the record. In order to attract the power to rectify under section 254(2) it is not sufficient if there is merely a mistake in the orders sought to be rectified. The mistake to be rectified must be one apparent from the record. A decision on a debatable point of law or disputed question of fact is not a mistake apparent from the record. The plain meaning of the word `apparent' is that it must be something which appears to be so ex facie and it is incapable of argument or debate. It, therefore, follows that a decision on a debatable point of law or fact or MA No. 85/Del/2022 Young Indian vs. ACIT 20 failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectification.” 7. The Hon’ble Bombay High Court in the case of Ramesh Electric and Trading Company case reported in 77 Taxman 43 (Bom) while examining the scope of power of rectification under section 254(2) of the Act had held as under:- “6. Under section 254(2) of the Income-tax Act, 1961, the Appellate Tribunal may, "with a view to rectifying any mistake apparent from the record", amend any order passed by it under sub-section (1) within the time prescribed therein. It is an accepted position that the Appellate Tribunal does not have any power to review its own orders under the provisions of the Income-tax Act, 1961. The only power which the Tribunal possesses is to rectify any mistake in its own order which is apparent from the record. This is merely a power of amending its order. The extent of this power of rectification was considered by the Supreme Court as far back as in 1971 in the case of T.S. Balaram, ITO v. Volkart Bros. [1971] 82 ITR 50 . The Supreme Court said (headnote): "A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record." This view of the Supreme Court has held the field for a long time, and has been followed by other High Courts. Thus, for example, in the case of V.P. Minocha, ITO v. ITAT [1977] 106 ITR 691, the Gujarat High Court relying upon T.S. Balaram's case (supra), said that a decision given by the Tribunal on a debatable point of law cannot be subsequently considered as showing any mistake apparent from the record which the Tribunal could consequently rectify. Similarly, the Madras High Court in the case of CIT v. R. Chelladurai [1979] 118 ITR 108 , said that the Tribunal's power under section 254(2) is not to review its earlier order but only to amend it with a view to rectifying any error apparent from the record. The Court held that, in the case before it, the Tribunal had no power or authority to interfere with the quantum of penalty in exercise of its power of rectification. In the case which is before us, it is obvious that the Tribunal's earlier order of June 9, 1975, was based on the merits of the case. Various arguments were advanced before the Tribunal by the assessee in support of its contention that the commission of Rs. 54,000 which was paid to Neeta Electric Corporation MA No. 85/Del/2022 Young Indian vs. ACIT 21 was a genuine payment made in the course of business dealings for purchases effected by Neeta Electric Corporation on behalf of the assessee-firm. After examining all the circumstances, the Tribunal came to the conclusion that the payment of Rs. 54,000 was not a genuine business payment. The only grounds on which the Tribunal has subsequently purported to "rectify" its order of June 9, 1975, are ( i) that the Income-tax Officer had wrongly calculated the percentage of profit of the assessee-firm while holding that the business transaction with Neeta Electric Corporation was not a genuine business transaction, and (ii) that it overlooked the argument of the assessee to the effect that, if the amount of Rs. 54,000 was taxed in the hands of the assessee as also in the hands of Neeta Electric Corporation, it would amount to double taxation. These two arguments, according to the Tribunal, were overlooked by it while passing the earlier order, and, hence, it purported to exercise its power of rectification by re-examining all the circumstances relating to this transaction and upholding it. Clearly, this could not have been done in the exercise of any power of rectification. In the present case, in the first order, there is no mistake which is apparent from the record at all. The Tribunal was required to decide whether the commission payment of Rs. 54,000 was deductible under section 37 of the Income-tax Act. After examining the circumstances, the Tribunal came to the conclusion that it was not so deductible. The Tribunal cannot, in exercise of its power of rectification, look into some other circumstances which would support or not support its conclusion so arrived at. The mistake which the Tribunal is entitled to correct is not an error of judgment but a mistake which is apparent from the record itself. No such mistake was apparent from the record. In fact, we doubt if this sort of an exercise could have been done by the Tribunal even if it had the power of review. The Tribunal has, patently, far exceeded its jurisdiction under section 254(2) of the Income-tax Act in redeciding the entire dispute which was before it in this fashion, and the Tribunal has committed a gross and inexplicable error for reasons which we fail to understand. 7. Mr. Inamdar, learned advocate for the assessee, drew our attention to a judgment of the Madhya Pradesh High Court in the case of CIT v. Mithalal Ashok Kumar [1986] 158 ITR 755. The Madhya Pradesh High Court said that the Tribunal can correct its mistake by rectifying the same in case it is brought to its notice that the material which was already on record before deciding the appeal on merits was not considered by it. It, however, said that this will depend on the facts of each case. And whether it amounts to a review or rectification will depend on the facts of each case. In our view, these wide observations do not accord with the decision of the Supreme Court on this point in T.S. Balaram 's case (supra). Similarly, the decision of the Allahabad High Court in the case of Laxmi Electronic Corporation Ltd. v. CIT [1991] MA No. 85/Del/2022 Young Indian vs. ACIT 22 188 ITR 398 to the effect that if the Tribunal fails or omits to deal with an important contention affecting the maintainability/merits of an appeal, it must be deemed to be a mistake apparent from the record which can be rectified by the Tribunal by its subsequent order, is also, in our view, in the teeth of the Supreme Court judgment in the case of T.S. Balaram's (supra). In fact, we find that the decision in the case of T.S. Balaram's (supra), was not brought to the attention of the learned Judges who decided the above case. In our view, the power of rectification under section 254(2) of the Income-tax Act can be exercised only when the mistake which is sought to be rectified is an obvious and patent mistake which is apparent from the record, and not a mistake which requires to be established by arguments and a long drawn process of reasoning on points on which there may conceivably be two opinions, as has been shown in the present case. Failure by the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on the record, although it may be an error of judgment. In the present case, the alleged failure, at least on one count, is attributed by the assessee to the Income-tax Officer and not the Tribunal. In our view, the Tribunal had no jurisdiction under section 254(2) to pass the second order. 8. The questions, therefore, are answered as follows: Question No. 1: In the affirmative and in favour of the revenue. Question No. 2: The Tribunal was not justified in allowing the commission of Rs. 54,000 as a deduction under section 37 of the Income-tax Act, in view of the fact that it had no jurisdiction to pass the second order on November 6, 1975. The respondent to pay to the applicant costs of the reference.” 8. It would also be relevant to address the observations made by the Hon’ble Supreme Court recently in the case of CIT vs. Reliance Telecom Ltd. reported in 440 ITR 1 (SC). The Hon’ble Apex Court held as under:- “3.1 We have considered the order dated 18-11-2016 passed by the ITAT allowing the miscellaneous application in exercise of powers under section 254(2) of the Act and recalling its earlier order dated 6-9-2013 as well as the original order passed by the ITAT dated 6-9-2013. 3.2 Having gone through both the orders passed by the ITAT, we are of the opinion that the order passed by the ITAT dated 18-11-2016 MA No. 85/Del/2022 Young Indian vs. ACIT 23 recalling its earlier order dated 6-9-2013 is beyond the scope and ambit of the powers under section 254(2) of the Act. While allowing the application under section 254(2) of the Act and recalling its earlier order dated 6-9-2013, it appears that the ITAT has re-heard the entire appeal on merits as if the ITAT was deciding the appeal against the order passed by the C.I.T. In exercise of powers under section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of section 254 of the Act with a view to rectifying any mistake apparent from the record only. Therefore, the powers under section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. While considering the application under section 254(2) of the Act, the Appellate Tribunal is not required to re-visit its earlier order and to go into detail on merits. The powers under section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. 4. In the present case, a detailed order was passed by the ITAT when it passed an order on 6-9-2013, by which the ITAT held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under section 254(2) of the Act. If the Assessee was of the opinion that the order passed by the ITAT was erroneous, either on facts or in law, in that case, the only remedy available to the Assessee was to prefer the appeal before the High Court, which as such was already filed by the Assessee before the High Court, which the Assessee withdrew after the order passed by the ITAT dated 18-11-2016 recalling its earlier order dated 6-9-2013. Therefore, as such, the order passed by the ITAT recalling its earlier order dated 6- 9-2013 which has been passed in exercise of powers under section 254(2) of the Act is beyond the scope and ambit of the powers of the Appellate Tribunal conferred under section 254(2) of the Act. Therefore, the order passed by the ITAT dated 18-11-2016 recalling its earlier order dated 6-9-2013 is unsustainable, which ought to have been set aside by the High Court. 5. From the impugned judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to relook/revisit the order, it must be for limited purpose as permitted by section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but ITAT had the jurisdiction and within its powers it may pass an MA No. 85/Del/2022 Young Indian vs. ACIT 24 erroneous order and that such objections had not been raised before ITAT. 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors section 254(2) of the Act. As observed hereinabove, the powers under section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that. Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case. 7. In view of the above and for the reasons stated above, the impugned common judgment and order passed by the High Court as well as the common order passed by the ITAT dated 18-11-2016 recalling its earlier order dated 6-9-2013 deserve to be quashed and set aside and are accordingly quashed and set aside. The original orders passed by the ITAT dated 6-9-2013 passed in the respective appeals preferred by the Revenue are hereby restored.” (emphasis supplied by us) 9. The Ld. AR before us made elaborate arguments by referring to the tabulation containing the various issues on which, in the opinion of the assessee, there were certain errors. The Ld. Special Counsel for the Revenue gave his rebuttal to the chart in the same order in which the alleged errors in the order of the tribunal were addressed by the Ld. AR in tabular form. The Ld. Special Counsel for the Revenue also gave his rebuttal to the various arguments advanced by the Ld. AR from his chart in tabular form. For the sake of convenience, the various issues ground wise containing alleged MA No. 85/Del/2022 Young Indian vs. ACIT 25 errors in the order of the Tribunal as stated by the Ld. AR and their rebuttal given by the Ld. Special Counsel for the Revenue are tabulated (in italics) as under:- S.No. Ground raised in M.A. Rebuttal of Ld. Special Counsel for the Revenue 1. Ground No. I: Order passed without jurisdiction - not adjudicating on the contention that even if the exemption ward had jurisdiction at the time of issuance of notice u/s. 148, since the cancellation order of the CIT(E) dated 26.10.2017 was passed before completion of reassessment, the AO had no jurisdiction to pass the impugned order. a. The Applicant humbly submits that during the course of the hearing, the Applicant had pointed out that the registration of the Applicant u/s. 12AA was cancelled by the CIT(E) vide order bearing F. No. CIT(E)/12A/2017-18 dated October 26, 2017, withdrawing exemption u/s. 11 with retrospective effect from AV 2011-12 onwards. Para 17 records the argument of the Assessee. Para 21 records the response of the Revenue. Paras 22, 23 contain the findings of the ITAT, after considering the rival submissions. There is no mistake apparent from record. Para 22 clearly records that the A.O. had valid jurisdiction not only to initiate the proceedings under Section 148 but also to pass the order of assessment. MA No. 85/Del/2022 Young Indian vs. ACIT 26 The copy of the cancellation order is at Pages 3 to 24 of the PB-I. It was accordingly contended that even if the AO had valid jurisdiction at the time of issuance of reopening notice in January 2017, certainly, at the time of passing of the assessment order in December 2017, the AO had no jurisdiction over the Applicant as the registration of the Applicant was retrospectively cancelled by the CIT(E) prior to the said date. The said contention is also mentioned at para 2.5 of the written submissions filed by the Applicant ("written submissions"). b. On perusal of the Tribunal order (Para 22), it is observed that the jurisdiction of the AO has been upheld on the basis that on the date of issuance of reopening notice, the jurisdiction remained with the exemption ward since the suo moto surrender made by the Applicant prior to that date is irrelevant. However, it is observed that the fact that the registration of the Applicant was MA No. 85/Del/2022 Young Indian vs. ACIT 27 cancelled retrospectively by the CIT(E) during the course of reassessment itself and the contention that the order passed by the AO subsequent to this cancellation was without jurisdiction has not been considered while passing the order. The Tribunal's order is silent on the said contention of the Applicant. It is evident that the said contention has skipped the attention of the Hon'ble Bench while dictating the order. It is most humbly submitted that this is an apparent mistake which ought to be rectified. c. The Applicant submits that non consideration as well as non-adjudication of a vital contention of the Applicant amounts to mistake apparent on record and the same ought to be rectified. In this regard, kind attention is drawn to the decision of the Gujarat High Court in the case of ACIT vs. Saurashtra Kutch Stock MA No. 85/Del/2022 Young Indian vs. ACIT 28 Exchange Ltd. (262 ITR 146)(Guj), which has been affirmed by Hon'ble Apex Court in 173 Taxman 322. d. In view of the above, the Applicant prays that the Hon'ble Tribunal may be pleased to rectify the aforesaid inadvertent error by recalling the captioned Order in its entirety or in part and/ or pass such supplemental order as the Hon'ble Tribunal may deem fit under the foregoing facts and circumstances. 2. Ground No. II: Reopening of assessment is bad in law - not considering various contentions raised by the Applicant. a. The Applicant humbly submits that during the course of the hearing, the Applicant had contended that the reopening is bad in law since the reasons were recorded only after obtaining approval from the CIT(E). This is clear from the fact that the reasons were not even signed or signed only as draft before the approval (Para 3.2 to 3.13 of the written submissions). Further, the reasons of 10.1.2017 have been signed only after obtaining approval which Paras 24-36 record the arguments of the Assessee. Para 37-47 records the response of the Revenue. Paras 48-58 contain very exhaustive findings of the ITAT, after considering the rival submissions. There is a finding of the ITAT that the judgements relied upon by the Applicant are not applicable to the facts of the case (Para 58). There is no mistake apparent from record. MA No. 85/Del/2022 Young Indian vs. ACIT 29 shows that the reasons were finalised and recorded only after approval (Paras 3.15 to 3.18 of the written submissions) and were based on borrowed satisfaction (Para 3.19 to 3.22 of the writtensubmissions). It was accordingly submitted that since there is no independent and proper recording of reasons by the AO as per provisions of law, the reopening is bad in law. b. The Applicant had also contended that if the reasons dated 9.1.2017 are held to be the reasons recorded then, the said reason were never shared with the Applicant since what was provided to the Applicant during reassessment was only the reasons dated 10.1.2017 and therefore, even for this reason the reopening is bad in law (Para 3.14 of the written submissions). For each of these propositions, the Applicant has relied on various judicial pronouncements as also cited in the said written submissions. c. On persual of the Tribunal's order, it is observed that the said ground has been MA No. 85/Del/2022 Young Indian vs. ACIT 30 adjudicated on the basis that the contention and grievance of the Applicant is only that the reasons sent to CIT(E) for approval were signed as draft which shows the tentativeness of the same (Para 53 at Page 108 of the Tribunal's order). It has accordingly been held that since these reasons were signed though as draft, the reopening is valid. d. In this regard, it is humbly submitted that the said contention is only one of the many contentions raised by the Applicant. The Tribunal's order is completely silent on the validity of the first unsigned reasons as filed by the Revenue at pages 5-44 of the Revenue PB. Further, the contention of the Applicant that the reasons dated 10.1.2017 has been finalised based on borrowed satisfaction and that if the reasons of 9.1.2017 are the valid reason (as has been held by the Hon'ble Tribunal), then since the same were never provided to the Applicant, the reopening is bad in law, have not been considered/adjudicated. e. It is reiterated that the MA No. 85/Del/2022 Young Indian vs. ACIT 31 contention of the Applicant is that the reasons were not 'recorded' before sending for approval and not simply that the reasons sent for approval were signed as draft. In this regard, kind attention is again invited to Para 3.30 of the written submissions filed by the Applicant, wherein too the Applicant had clarified that the "grievance of the Appellant is not that the reasons sent to the CIT(E) is not signed but that the reasons are not recorded by the AO before seeking the approval." f. Therefore, it is humbly submitted that the first reasons as appearing in the file of the AO and which is unsigned, are the most relevant for the purpose of this ground. In fact, as pointed out during the hearing and also stated at Page 1 of LPB V, (Para 1.1), during inspection of the AO's file, it was found that there was not even any order sheet in the file of the AO stating about recording of any reasons and sending the same for approval to the CIT(E). Further, even the inward / outward register of the AO and the CIT(E) were not provided for inspection though asked for [Page 1 of MA No. 85/Del/2022 Young Indian vs. ACIT 32 LPB V, (Para 1.2). g. It is accordingly humbly submitted that in this case, the fact of existence of unsigned reason and a mere draft reason clearly shows that reasons were not properly recorded and that first there was approval and then finalisation of reasons. The manner in which the present assessment has been reopened clearly shows that the AO has not properly and independently recorded his reasons before reopening the assessment. h. However, it appears that this aspect has also skipped the attention of the Hon'ble Tribunal since there is no adjudication on the said contention of the Applicant. It is most humbly submitted that non-adjudication of the said issue is a mistake apparent from record, which ought to be rectified. 3. Ground No. V, VI and XII - Addition u/s. 28(iv) - not adjudicating on the contention of the Applicant that even if corporate veil is lifted and it is held that the Applicant has acquired the assets of AJL, even in that case, all the contentions raised by the The grounds raised in the M.A. merely reiterate the arguments advanced before the Hon’ble ITAT which were duly considered. Paras 93-99 record complete arguments MA No. 85/Del/2022 Young Indian vs. ACIT 33 Applicant and the decisions relied upon by the Applicant would still be relevant since the same would apply regardless of whether the asset acquired is shares or assets. a. The Applicant humbly submits that during the course of the hearing, the Applicant had raised various contentions about taxability u/s. 28(iv) of the alleged benefit arising on acquisition of shares of AJL and relied upon several judicial pronouncements in support of the said contentions (Pages 1-10 of LPBVII as well as Para 5.105 to 5.190 of the written submissions). The Ld. DR had argued that these contentions and decisions are not applicable since the premise of the Applicant is that what was acquired was the shares of AJL whereas the case of the Revenue is that the Applicant has acquired the real estate assets of AJL. In reply to this contention, it was pointed out during the hearing that even if it is assumed that the Applicant had acquired the assets of AJL (and not the shares), even in that case all the propositions and contentions and decisions replied by the Applicant of the Applicant. Paras 100-112 record the response of the Revenue. Paras 113, 115 of the Impugned Judgement records that not only has the rival contentions been considered, but also the findings given in the impugned order as well as the materials referred to. There is no mistake apparent from record. Para 146 categorically records as to how the judgements are not applicable to the peculiar facts of the case. MA No. 85/Del/2022 Young Indian vs. ACIT 34 would still apply since the said principles would apply regardless of whether the asset is share or an immovable property. The said contention is also captured at Paras 5.157- 5.159 of the written submissions filed by the Applicant. b. However, on perusal of the Tribunal's order, it is observed that the Hon'ble Tribunal has summarily rejected all the contentions of the Applicant on the same basis that these propositions and decisions are not applicable since what the Applicant has acquired are the assets of AJL and not the shares. c. At Para 144, the contention of the Applicant that the benefit, if any, is only in capital field has been rejected by holding that 'here it is not a case of acquisition of shares per se, albeit it is a case where assessee had acquired benefit in the interest in the immovable properties held by AJL.' Further, at Para 145, the contention of the Applicant that no benefit or perquisite within the meaning of section 28(iv) can arise in case of a MA No. 85/Del/2022 Young Indian vs. ACIT 35 discounted purchase has also been rejected by holding that 'This argument of the Id. Sr. Counsel for the assessee persists on the assumption that, what were being acquired were the shares of AJL. As already stated herein above, the entire exercise was to have the control and enjoyment of the properties of AJL and, therefore, the appellant has realized the benefit in the real terms .... ' Further, at Para 146, it is stated that the judgements cited by the Applicant are also not relevant since this is not a case of acquisition of shares or any other assets at discounted price. Similarly, at Para 147 of the order, the contention of the Applicant that even if it is assumed that the shares of All so acquired by the Applicant are business assets and should be recorded as stock-in-trade even in that case, no profit can be said to be arisen by merely valuation of shares has also been rejected on similar basis. It is held therein that 'This argument is again based on the premise that it is a case of acquisition of shares at a discounted price'. Similar findings have also been given for the following contentions: MA No. 85/Del/2022 Young Indian vs. ACIT 36  The said transaction can be taxed only if covered u/s. 56(2)(viia)/(x);  Only real income can be taxed. d. The Applicant most humbly submits that the law which is supported by various decisions apply regardless of whether the asset acquired is shares or the assets of All. It is submitted that if the corporate veil is lifted, the effect of the transaction is that the Applicant has acquired the assets of All for a sum of Rs. 50,00,000/-. It is submitted that even for this transaction, all the foregoing contentions and decisions are equally relevant even if it is held that the Applicant has acquired the assets of AJL. e. It is accordingly submitted that non-consideration of this contention of the Applicant is a mistake apparent from record, which ought to be rectified. Accordingly, the Applicant humbly requests the Hon'ble Tribunal to adjudicate upon the said contention of the Applicant as it goes to the root of the MA No. 85/Del/2022 Young Indian vs. ACIT 37 matter and prays that all the contentions raised by the Applicant be reconsidered for determining the taxability u/s. 28(iv) on the discounted purchase of assets of All. 4. Ground no. V, VI AND XII - Addition u/s. 28(iv) - not adjudicating certain other contentions of the applicant. a. The Applicant humbly submits that in the course of the hearing, the Applicant had raised the following contentions in respect of this Ground, namely:  No benefit has been demonstrated by the Revenue, which the Applicant has actually received by acquisition of shares of AJL. FMV of assets of AJL cannot be regarded as benefit. Benefit if any which can be taxed u/s 28(iv) is only the value of usufruct from the property and not the capital value of the property itself. (Para 5.90 - 5.94, 5.103.12 of the written submissions);  Decisions of Delhi ITAT in 12AA registration This ground simply disputes the findings given by the Hon’ble ITAT, which is beyond the scope of M.A.The entire reasoning given represents the perception of the Applicant that the ITAT has committed an error of judgement in reaching such a finding. These arguments cannot be re-agitated as it would amount to seeking a review of the findings. MA No. 85/Del/2022 Young Indian vs. ACIT 38 cancellation matter (Page 63-121 of Revenue PB-I) and the Delhi High Court in the case of The Associated Journals Limited vs. Land & Development Office (LPA 10/2019 & CM Nos. 566/2019 & 649/2019) (Page 154- 216 of Revenue PB-II dated 17.01.2022) cannot be referred to and relied upon, since those decisions are based on the very allegations made in the impugned order. This is circuitous in nature amounting to deciding the merits of findings of AO based on his findings itself. (Para 5.103.3 of the written submissions). b. However, on perusal of the Tribunal's order, it is observed that the Hon'ble Tribunal has not adjudicated upon said contentions of the Applicant. It appears that this aspect has skipped the attention of the Hon'ble Tribunal since there is no adjudication on the said contention of the Applicant. It is most humbly submitted that non-adjudication of the said issue is a mistake apparent from record, which ought to be rectified. Accordingly, the Applicant MA No. 85/Del/2022 Young Indian vs. ACIT 39 humbly requests the Hon'ble Tribunal to adjudicate upon the said contentions of the Applicant as they go to the root of the matter. 5. GROUND NO. V, VI AND XII- Addition u/s. 28(iv) -various erroneous findings which are apparent from the record. a. A perusal of Paras 126, 127, 130, 131 and 141 shows that it has been held by the Tribunal that: -  The Applicant has not carried out any charitable activity;  The entire narrative of furtherance of objects of AJL was created only after investigation was initiated against the Applicant and it was an afterthought;  That by surrendering the 12AA registration, the Applicant itself believes that it no longer was carrying out charitable activities;  It is not a case here that AJL is having similar line of business as the Applicant or that its acquisition would augment the business This ground simply disputes the findings given by the Hon’ble ITAT, which is beyond the scope of M.A. The entire reasoning given in Para 5.2. onwards (of the M.A.) represents the perception of the Applicant that the ITAT has committed an error of judgement in reaching such a finding. These arguments cannot be re-agitated as it would amount to seeking a review of the findings. MA No. 85/Del/2022 Young Indian vs. ACIT 40 interest of YI. b. In this regard, kind attention is invited to Paras 5.13 to 5.27 of the written submissions filed by the Applicant, wherein the Applicant has:  Demonstrated that various preparatory activities were undertaken for revival of AJL and starting its publication activity between 2011 to 2016, wherefrom it is clear that the Applicant had commenced operations towards its charitable objects immediately after acquiring shares of AJL and that it is not an afterthought or something which commenced only after investigations started against the Applicant;  Proved that publication activity had commenced in FY 2016-17 itself which is before the reopening notice was even issued or the cancellation proceedings had commenced.  Given details of even latest publication activities being conducted from the Mumbai property of AJL; MA No. 85/Del/2022 Young Indian vs. ACIT 41  Demonstrated that the article published are in line with the stated objects of democracy etc.  Referred to the certificate issued by Audit Bureau of Circulations and the report of Google showing outreach of the online portals operated by AJL since November 2016 which clearly shows that the publication business has revived and is running.  Pointed out that in the annual accounts of the Applicant for AY 2011-12 itself, the intention of the Applicant behind acquiring shares of AJL was clearly mentioned in the notes to accounts which certainly shows that this cannot be an afterthought,  Also, even the MoA of AJL was immediately amended in 2011 to include in its objects clause same object clause as that of the Applicant. c. Hence, it is submitted that the conduct of the Applicant clearly supports the aforesaid intention of the Applicant and there is no reason to allege that the intention of the Applicant MA No. 85/Del/2022 Young Indian vs. ACIT 42 was anything else or that the aforestated object is an afterthought. d. Accordingly, it is submitted that the observation in the foregoing Paras that the Applicant has not undertaken any activity towards its charitable objects or that the said narrative is an after­thought are completely incorrect statements which is apparent from the records. e. Further, the fact that the MoA of AJL was immediately aligned with the objects of the Applicant, which - to start with - were similar in nature also demolishes the finding at Para 131 of the Tribunal's order that "It is not case here that a company is being acquired by a company which is having similar line of business so as to augment its own business or there is some business interest in such acquisitions. Here, this is not a case at all." It is submitted that in fact, in this case, it is clear that the interest of the Applicant and AJL were aligned for using the publication activity towards the objects of the Applicant, which is clear from the MA No. 85/Del/2022 Young Indian vs. ACIT 43 documents on record and the conduct of the party. f. Kind attention is also drawn to Para 5.75 of the written submissions wherein it has been submitted that the allegation that Shri Rahul Gandhi and Smt. Priyanka Gandhi Vadhera also purchased addition 47,513 and 2,62,411 shares of AJL through Rattan Deep Trust and Janhit Nidhi Trust, respectively is an incorrect statement. g. Kind attention is also invited to the Application dated March 21, 2016 filed by the Applicant for surrender of 12AA registration (Page 1 of PB-1 filed by the Applicant), wherefrom the reason for the surrender has been clearly mentioned. Nowhere in the said letter, the Applicant has mentioned that reason for surrender is that it does not want to continue with its charitable activities. It is submitted that 12AA registration is not mandatory for the purpose of carrying out charitable activity. The Applicant, even after the said surrender, continues to remain a section 25 company, which by its very nature can do MA No. 85/Del/2022 Young Indian vs. ACIT 44 only charitable activities. Merely because an entity chooses not to claim the benefit of tax exemption u/s. 11 does not mean that it ceases to be a charitable entity. It is accordingly submitted that the finding in Para 127 of the Tribunal's order that 'Had it been the intention to carry out charitable activities only, then there was no need for the appellant to suo moto surrender its charitable activities or registration certificate vide its letter dated 21.03.2016' ought to be revisited and considered in light of the fact that the Applicant still holds valid section 25 licence and that the stated reasons for filing the said letter for surrender of registration.' is a mistake apparent from record. h. Lastly, at Para 141 of the Tribunal's order, it has been held that 'benefit' as occurring u/s. 28(iv) means 'any form of adventure'. It is humbly submitted that the said statement is contrary to the provisions of the law and accordingly, is a mistake apparent from record. 6. Ground no. VII, VIII, IX: Valuation of AJL's properties - erroneous findings which are apparent from This ground simply disputes the findings given by the Hon’ble ITAT, which is beyond the scope of M.A. The entire MA No. 85/Del/2022 Young Indian vs. ACIT 45 record. a. The Applicant humbly submits that on perusal of the Tribunal's order, it has been observed as under:-  At Para 185, the comparable sale instance considered by the DVO for the New Delhi property has been upheld by stating that "It has already been pointed out that both, Bahadur Shah Zafar Marg and Tolstoy Marg fall in the same zone i.e., Zone A. The nature of property is commercial."  At Para 189, the 21% increment rate applied by the DVO while computing the FMV of New Delhi property has been upheld by stating that "Insofar as the appellant's objection to 21% of increase to the value from year to year applied by the DVD, we find that the DVD has taken this basis on the basis of CBDT Circular as cited by him in his report which states that monthly increase of 1.5% or 2% may be adopted which works out to be in reasoning represents the perception of the Applicant that the ITAT has committed an error of judgement in reaching such a finding. These arguments cannot be re-agitated as it would amount to seeking a review of the findings. There is no instance of any apparent mistake of fact or law. MA No. 85/Del/2022 Young Indian vs. ACIT 46 the range of 18% to 24% of annual average, which DVD has taken at 21% which appears to be justified." b. In this regard, it is humbly submitted that on perusal of the DVO's report for the New Delhi property (Page 400-411 of PB I), it is clear that the DVO has neither stated the two properties/area are in same zone nor referred to any CBDT circular for justifying the rate of 21% applied by him. As is clear from Page 406 of PB I, the DVO has mentioned that the two area fall under same Category 'A'. It is submitted that the same is not equal to being in same Zone since 'Category' under the Delhi ready reckoner has nothing to do with the geographical location. It is submitted that based on just same category, comparable instance of any property cannot be applied to another property. As submitted during the course of hearing, there is a distance of atleast 4km between the two areas. It is accordingly, submitted that the finding that the two area fall under same 'zone' is a mistake apparent from record. Further, at page 406 MA No. 85/Del/2022 Young Indian vs. ACIT 47 of PB I, the DVO has also clearly mentioned that the comparable sale instance considered by him is that of a 'residential property'. It is accordingly, submitted that the finding in the afore- quoted Para 185, that the property is commercial is also a mistake apparent from record. c. Also, as stated above, the DVO report does not cite any CBDT circular for justifying the increment rate of 21% applied by the DVO. At Page 58, l51 sentence of the assessment order, the DVO has in reply to the objections of the Applicant, first time, summarily referred to some 'CBDT guideline' without even mentioning its citation or without providing its extract. Hence, the relevant document or even its reference is not on record for verification. d. Kind attention is also invited to Para 182 of the Tribunal's order, wherein it is held that the decision of the Supreme Court in CIT v. P.N. Sikand (107 ITR 922)(SC) is not applicable 'on facts as here it is not a transfer of the property to a different owner albeit AJL MA No. 85/Del/2022 Young Indian vs. ACIT 48 continued to be owner and value is to be seen as benefit arising to YI as discussed above'. Further, in Para 183, it is held that "the 50% unearned increase which is payable to L&DD does not alter or reduce the price of the property. It is at best how the sale price is to be appropriated. The seller will get the full price of the property not withstanding that he has to part with a part of that price to some statutory authority. But this parting of unearned increase arises only in a situation where the ownership of the property is getting transferred to a third party. In the facts of this case which are very peculiar, there is no transfer of ownership." e. In this regard, the Applicant humbly submits that the said observations are completely contrary to the findings in the said decision of the Hon'ble Supreme Court. Even in the case before the Supreme Court, it was not a case of transfer of land by the assessee, but a case of valuation for the purpose of wealth tax wherein valuation has to be done on year-on-year basis and not only on transfer. The Supreme Court MA No. 85/Del/2022 Young Indian vs. ACIT 49 considering the unearned increase clause categorically held that "in determining the value of the leasehold interest of the assessee in the land for the purpose of assessment to wealth-tax, the price which the leasehold interest would fetch in the open market were it not encumbered of affected by the burden or restriction contained in clause (13} of the lease deed, would have to be reduced by 50 per cent of the unearned increase in the value of the land on the basis of the hypothetical sale on the valuation date." f. In other words, the Supreme Court held that where there is encumbrance attached to a property, the value which the property would fetch in the open market would have to be adjusted for such encumbrance. It is submitted that since there are similar restrictions even in the present case, the said decision is squarely applicable to the present case and accordingly, not following this binding decision is a mistake apparent from record, which ought to be rectified. g. In view of the foregoing MA No. 85/Del/2022 Young Indian vs. ACIT 50 facts on record, it is humbly submitted that the foregoing observations made by the Hon'ble Tribunal are mistake apparent from the records and ought to be rectified. h. In view of the above, the Applicant prays that the Hon'ble Tribunal may be pleased to rectify the aforesaid inadvertent error by recalling the captioned Order in its entirely or part and/ or pass such supplemental order as the Hon'ble Tribunal may deem fit under the foregoing facts and circumstances. 7. Additional ground no. VII, VIII, IX: Valuation of AJL's properties- non adjudication of claim of incorrect depreciation computed by DVO in respect of Nehru Bhawan (Lucknow property). a. The Applicant humbly submits that during the course of the hearing, the Applicant had contended That while computing the Fair Market Value of Nehru Bhawan, the DVO has wrongly considered depreciation from the year In this ground, the Applicant is simply seeking to interpret the findings of the Hon’ble ITAT in view of the manner in which the effect to the order has been given by the A.O. This is again not a mistake apparent from record. The only recourse available is to file appeal against the order of the A.O. MA No. 85/Del/2022 Young Indian vs. ACIT 51 2007 even though the building was actually constructed in the year 1981. To support this contention, the Applicant had filed the copies of inauguration photographs at pages 1526 and 1527 of PB-V from which it is clear that the property was inaugurated on 15.4.1981. Further supporting documents were also filed at pages 1521 to 1525 of PB V. Further, the observation of GAA Valuers, Registered Valuers in this regard was also filed at Page 1455 of PB IV, Para 5. The written submissions on the said ground is at Paras 6.77 to 6.77.4 (Page 162)of the Written Submissions filed before the Hon'ble Tribunal. b. Similar relief was also claimed by the Applicant for Nehru Manzil, second building in the Lucknow Property (Para 6.71 of written submissions). c. On perusal of the Tribunal's order, it has been observed that at para 201 (page 505 of the order), the Hon'ble Tribunal has allowed the claim of the Applicant by stating that the depreciation has been wrongly computed MA No. 85/Del/2022 Young Indian vs. ACIT 52 by the DVO and has accordingly directed to the AO to recompute the valuation after considering the correct year of construction. d. A fair reading of the order should suggest that this observation should apply to both Nehru Manzil as well as Nehru Bhawan. However, since in the said Para 201, reference has been made only to the year 1986-87 which is the year of construction of Nehru Manzi!, the AO has while passing the order giving effect, allowed correct depreciation only in respect of Nehru Manzil and ignored the correct year of construction of Nehru Bhawan, i.e., the year 1981. e. The Applicant humbly submits that if one reads the said Para 201 as applicable only to Nehru Manzil, then Tribunal's order is silent on the aforesaid contention of the Applicant about wrong depreciation computed for Nehru Bhawan. f. This being a mistake apparent from record, the Applicant requests that a MA No. 85/Del/2022 Young Indian vs. ACIT 53 clarification be issued that the deprecation ought to be recomputed even for Nehru Bhawan after considering 1981 as the year of construction for the said property. g. In view of the above, the Applicant prays that the Hon'ble Tribunal may be pleased to rectify the aforesaid inadvertent error by recalling the captioned Order in its entirety or in part and/ or pass such supplemental order as the Hon'ble Tribunal may deem fit under the foregoing facts and circumstances. 10. In the light of the aforesaid arguments made elaborately on each of the issues by both the parties by referring to their respective submissions and placing reliance on various decisions thereon and in the light of the legal position discussed by us at the beginning of the order regarding the scope of power of rectification under section 254(2) of the Act, let us now proceed to examine whether any error arises in the order of the Tribunal in respect of each of the issues raised by the assessee in its Miscellaneous Application. 11. With regard to Issue No. 1 raised by the assessee in its Miscellaneous Application, we find that the Tribunal after recording and considering the submissions advanced on behalf of the assessee and the Revenue, had observed as under:- MA No. 85/Del/2022 Young Indian vs. ACIT 54 “DECISION ON GROUND NO.1 22. We have heard the rival submissions and also perused the relevant facts on record. The appellant’s contention has been that, firstly, since it has surrendered its registration u/s 12A and 12AA vide letter dated 21.03.2016, therefore, it was no longer an entity that required exemption u/s 11 and consequently DIT (E) or ACIT (E) did not had jurisdiction at the time of issuance of notice u/s 148 on 10.01.2017. Secondly, once the assessee had raised the objection before the AO regarding its jurisdiction then it was incumbent upon the AO to refer the matter to higher authorities for determining the correct jurisdiction. However, we are unable to subscribe to the contention raised by the ld. Senior Counsel for the appellant before us for the reason that, it is an undisputed fact that after granting of registration u/s 12A/12AA by the ld. DIT (E) vide certificate & order dated 09.05.2011, thereafter the assessee has been regularly filing its return with Directorate of Exemption including the AY 2011-12. Upto the stage of issuance of notice u/s 148 on 10.01.2017, ld. CIT (E) had not passed any order cancelling the registration which was granted to the appellant u/s 12AA and withdrawing the exemption u/s 11 though from AY 2011-12 onwards. Since grant of registration till the cancellation of registration, the jurisdiction of the AO lies with Exemption circle, therefore, at the time of issuance of notice u/s 148 the jurisdiction was with Exemption circle. The registration has been cancelled even for the assessments relevant for those assessment years for which it had claimed exemption. The assessment for AY 2011-12 has been reopened in the period when statutorily the appellant was holding certificate of registration u/s 12A/12AA. Once company has been recognized as a charitable institution by grant of registration u/s 12A, then such registration can be cancelled only by an authority under the law and not by voluntary act of the assessee. The act of suo motto surrender of registration is neither permissible under the law nor is dependent upon the voluntary act of the assessee. Even if the assessee had filed letter surrendering its registration, it has no consequence till competent authority acts upon it and accepts the surrender letter and passes the order of cancellation. The order of cancellation of registration is a statutory order which is based on the foundation of certain facts coming on record during the breach of conditions for which registration was granted and such a breach cannot be reckoned from voluntary surrender of registration. The entire process has to be followed in accordance with the statute. Merely because the assessee had filed a letter on 21.03.2016 surrendering its registration u/s 12A or giving its benefit of section 11, does not mean that from the date of the letter, the jurisdiction of the AO automatically got changed. As stated above, at the time of issuance of notice u/s 148, the ACIT or DCIT, Circle Exemption, New Delhi had the valid jurisdiction not only to initiate the proceedings u/s 148 but also pass the assessment order. MA No. 85/Del/2022 Young Indian vs. ACIT 55 23. Insofar as the contention raised by the appellant that, since the assessee had challenged jurisdiction, it was incumbent upon the AO to refer it to the higher authorities in terms of section 124(4). Such a contention is not tenable on the present facts for the reason that the jurisdiction over the assessee lied with the AO, Exemption Circle by virtue of provisions contained u/s 120 of the Act, because here it is a case of jurisdiction assumed by granting registration by the Income-tax Department on the application filed by the assessee which falls within the definition of “class of assessee and class of cases” as defined under clauses (c) & (d) of sub-section (3) of section 120. The appellant ostensibly falls into a specific category of cases and it is not open for the assessee on its own remove itself from specific category of cases and then contend that it should have been assessed by different Assessing Officer. The matter of jurisdiction is not by the choice of the assessee albeit it depends upon the specific provisions contained in sections 120 & 124. Thus, we do not find any merits in the contention raised in ground no.1 that Assessing Officer did not had jurisdiction either to issue notice or pass assessment order and the same is thus dismissed.” 11.1 From the aforesaid findings of the Tribunal, it is evident that the Tribunal had already addressed the grievance of the assessee raised in its Miscellaneous Application. We find that the Tribunal had elaborately dealt with the arguments advanced by the assessee in this regard. We note that the arguments of the assessee had been considered point wise by the Tribunal and in our view, the order had to be viewed holistically to understand whether there is any mistake apparent from record. What is required to be seen in the proceedings under section 254(2) of the Act is that whether the mistake is glaring, apparent, patent, obvious and not requiring any long drawn process of reasoning to arrive at the conclusion. Section 254(2) of the Act do not permit dissecting the order of the Tribunal line by line as long as the facts are correct, provision of law is correctly applied and / or there is application of mind by the Bench on the impugned issue. The Ld. AR was not able to point out any error / mistake that is falling under the aforesaid category of apparent mistake. In our considered opinion, the assessee is only seeking to review the order passed by the Tribunal qua this issue, which is not permissible under section 254(2) of the Act in MA No. 85/Del/2022 Young Indian vs. ACIT 56 the light of the aforesaid judicial pronouncements and hence the plea of the assessee is hereby dismissed. 12. The Issue No. 2 raised by the assessee in its Miscellaneous Application by stating that the arguments advanced in support of quashing of reopening of assessment has not been properly addressed by the Tribunal. But we find that the Tribunal had addressed the grievance in the following manner:- “DECISION ON VALIDITY OF REOPENING U/S 147/148 AS RAISED IN GROUND NO.2 48. We have heard the rival contentions and also perused the relevant findings given in the impugned order as well as material referred to before us. In short, the ld. Senior Counsel for the appellant has challenged the reopening of the assessment on the ground that approval from the CIT(E) u/s 151 has been obtained prior to the recording of reasons on following three counts: firstly, first reasons were not signed; secondly, second reasons were merely a draft and hence was tentative; and lastly, the third reason is not the reason which was recorded by the AO on which approval was given by the competent authority u/s 151 of the Act. 49. In the paper book filed by the Revenue, we find that there is a letter dated 09.01.2017 written by ACIT (E), Circle 1(1), New Delhi to CIT (E) sending proposal for reopening u/s 147 wherein he has enclosed the prescribed proforma for initiating the proceedings u/s 147/148 along with reasons running into 24 pages. The last paragraph of the said reasons mentioned as under :- “In this case the four years but not more than six years have elapsed from the end of the assessment year under consideration and income chargeable to tax which has escaped assessment is more than Rs.1 lakh necessary sanction to issue notice u/s 148 of the Act has been obtained from the Commissioner of Income Tax (Exemption), Delhi vide letter on F.No.____________ under amended provisions of section 151 of the Act w.e.f. 01.06.2015. (Saket Singh) Asstt. Commissioner of Income Tax Circle 1 (1), Exemptions, New Delhi.” 50. There is no signature of ACIT as it is enclosed with the letter signed by him dated 09.01.2017 sent through proper channel of JCIT. MA No. 85/Del/2022 Young Indian vs. ACIT 57 Thereafter, a prescribed form of reasons recorded and sanction of approval form was sent to ld. CIT (E), who has granted approval on the reasons which was sent to him which is placed in the paper book from pages 45 to 76. However, from the perusal of the documents placed in the paper book pages 45 to 76, at page 46, we find that there is a letter dated 10.01.2017 wherein JCIT (E), Range 1, Delhi has written a letter to CIT (E) sending the proposal from AO dated 09.01.2017 for reopening the case of Young Indian u/s 147 along with the proforma and annexed with the letter of AO dated 09.01.2017. The prescribed form for recording of reasons contains the satisfaction of the JCIT on the reasons recorded by the ACIT stating that it is a fit case for reopening u/s 147, wherein JCIT has given very elaborate reasons agreeing with the reasons recorded by the AO; and then in Item 13, the Ld. CIT (E) has given his satisfaction observing that the reasons recorded by the AO as per annexure sent by him alongwith the format, is proper and gave his approval on being satisfied on the reasons recorded that it is a fit case for issue of notice u/s 148. Further, it is seen that approval has been granted by the Ld. CIT (E) on 10.01.2017 and along with it, there are detailed reasons given by him for granting approval and his satisfaction on the reasons recorded by the AO which is placed at page 52 of the paper book. Pages 53 to 76 contain reasons recorded and at the last page, the AO has appended his signature and date 09.01.2017 mentioning it as a draft. Scanned copy of last page of said reasons is reproduced hereunder:- MA No. 85/Del/2022 Young Indian vs. ACIT 58 51. Thereafter, the copy of reasons which were given to the appellant/assessee, scanned copy of last page of the reasons is as under :- MA No. 85/Del/2022 Young Indian vs. ACIT 59 52. For reopening a case u/s 147, first and foremost condition is that the AO must have ‘reason to believe’ based on some tangible material or information that income chargeable to tax has escaped assessment for any assessment year. Once he has entertained his reasons to believe, then he has to serve a notice u/s 148 in accordance with the law requiring him to furnish return of income. But before issuing of notice u/s 148 he has to record his ‘reasons to believe’ in writing. But after reasons are recorded and before issuance of notice, MA No. 85/Del/2022 Young Indian vs. ACIT 60 AO has to get sanction or approval by the higher authorities as defined in section 151 and that authority after being satisfied with the reasons recorded submitted by the AO, a notice u/s 148 is issued to the assessee, which triggers the process of assessment and reassessment. 53. Here in this case, AO vide his letter dated 09.01.2017 had sent a proposal for reopening u/s 147 to the CIT (E). The proposal letter was sent along with ‘reasons recorded’ which was forwarded to CIT (E) vide letter dated 10.01.2017, through JCIT, Income-tax Range 1, Delhi who has signed his satisfaction on the reasons recorded by the AO. Not only that, in prescribed format of recording the reasons and sanctioning of approval, the JCIT have given his detailed reasons about his satisfaction on the reasons recorded by the AO. Thereafter, CIT (E) again vide Annexure-1 has given very elaborate satisfaction on the reasons recorded and granted approval of issuance of notice u/s 148. Now from the perusal of the reasons annexed while seeking approval from the CIT (E), we find that the AO (ACIT, Circle 1(1), Delhi) as incorporated above, has appended his signature and put the date 09.01.2017 and has mentioned as ‘draft’. It has not been disputed by the appellant that the reasons which were sent for approval to the CIT (E) and the reasons which were supplied to the assessee are different, albeit they are verbatim the same except for mentioning of sanction letter number. The contention of the ld. Senior Counsel for the assessee before us is that, since AO while seeking approval of JCIT and CIT (E) has mentioned it as a ‘draft’ (which is also evident from scanned copy incorporated above), therefore, in his opinion, it is unsigned and tentative reasons and, therefore, it is not a reasons recorded at all in the eyes of law because only duly signed reasons recorded can be sent for approval. 54. First of all, from the bare perusal of “reasons recorded” by the Assessing Officer, it seen that he has appended his signature on the ‘reasons recorded’ sent to the higher authorities which is final reasons from his side albeit he has mentioned before signing it “DRAFT”. This word draft does not mean that either the ‘reasons recorded’ by the AO are tentative or was subject to any correction. Insofar as AO is concerned, he has sent his final ‘reasons recorded’ for seeking approval and has left the approval letter number blank on which immediately after getting the approval he has communicated to the assessee which is evident from the last page of the reasons communicated to the assessee as incorporated above. 55. We are unable to comprehend as to what is the infirmity either in the ‘reasons recorded’ by the Assessing Officer or the reasons which were sent for approval along with covering letter of the AO and prescribed proforma which are duly signed. It cannot be said that it is not a ‘reasons’ at all or it is unsigned ‘reasons recorded’. It is not a case that the reasons recorded sent for approval are unsigned or there is no signature at all of the AO. He has clearly put his signature with the MA No. 85/Del/2022 Young Indian vs. ACIT 61 date which shows that the reasons were recorded on 09.01.2017. Mentioning of the word ‘draft’ does not lead to inference that it is either unsigned or it is tentative. It is a draft sent to JCIT and CIT (E) for their approval which higher authorities have duly given on being satisfied with the reasons recorded by the AO. 56. Before us, ld. Special Counsel for the Revenue has submitted that now as a matter of practice, the Assessing Officers in the last paragraph mention about seeking of approval and sanction from the higher authorities. We do not find that, this practice be said to be against the provisions of law, in fact when reasons are communicated to the assessee, it should contain the entire detail and information as to what are the reasons recorded and; secondly, whether the reasons recorded have been duly approved and sanctioned by the higher authorities u/s 151 of the Act. Suppose in case, higher authorities did not deem fit or they are not satisfied with the ‘reasons recorded’ by the AO, they can disapprove the reasons and then reasons recorded are just mere paper kept in the file and entire proceedings is dropped. Ld. Special Counsel informed that the word ‘draft’ has been mentioned by the AO along with his signature which were sent for approval, was only to complete the letter number of the approval giving factum of sanction by the CIT (E). In any case, the reasons communicated to the assessee along with notice u/s 148 which duly bears the signature of the AO which also gets the sanction/approval of the CIT (E) on such reasons, alone are to be taken into consideration for deciding or adjudicating the validity and legality of the proceedings. It is not a case here that there is no proper approval or sanction of the higher authorities u/s 151 or reasons have not been recorded by the AO before issuance of notice u/s 148 or there is any iota of change in the ‘reasons recorded’ which have been approved by the higher authorities and which was communicated to the assessee. All the judgments which have been cited and relied upon by the ld. Senior Counsel for the assessee are cases where mostly reasons recorded did not contain the signatures of the AO at all. On the contrary, in this case, reasons which was sent for approval to the Ld. CIT (E) clearly bore the signature of the AO and only thereafter JCIT and CIT (E) has given their approval in a very elaborate and speaking order. Thus, we are unable to subscribe to the contentions raised by the ld. Senior Counsel for the assessee before us that, unsigned reasons by the AO were sent for approval before the CIT (E) and same is rejected. 57. The next line of argument of the ld. Sr. Counsel for the assessee is that, approval has been given by the ld. CIT (E) in a mechanical manner. Again, what is required under the law is that JCIT or CIT or any other authorities mentioned in section 151 has to be satisfied on the ‘reasons recorded’ by the AO that it is a fit case for issuance of notice u/s 148. The satisfaction of the CIT depends upon whether the reasons recorded are in accordance with law and AO had any reason to believe that any income chargeable to tax has escaped assessment. If MA No. 85/Del/2022 Young Indian vs. ACIT 62 the reason recorded itself has no substratum to stand on its own, i.e., not in accordance with law or on based on some incorrect facts and dehors the material on which reason to believe has been entertained, and then if the ld. JCIT or ld. CIT have merely granted approval without having considering the reasons, facts and information contained in the reasons, then it can be said that approval has been granted in a very mechanical manner. Here in this case, not only the JCIT but also the CIT (E) have recorded their approval in a very detailed manner. The approval / satisfaction of the ld. CIT (E) for the sake of ready reference is reproduced as under: - “ I have carefully examined the proposal of the Assessing Officer (AO), and the reasons recorded by the Assessing Officer for initiating action u/s 147 of the Income Tax Act,1961 in the case of Young Indian for the A.Y.2011-12 and recommendation of JCIT. It is seen that Young Indian (YI) purchased an interest free loan of Rs. 90 Crores (approx.) from Indian National Congress/ All India Congress Committee (AICC) alleged to have been given to MIs Associated Journal Limited by making payment of only Rs. 50 lakh to the AICC, in contravention to its objects. YI was founded in the month of Nov. 2010, just 23 days prior to assignment of the above loan, with a nominal capital of Rs. 5 Lakh. The Young Indian did not even have any funds of its own for purchase of alleged loan of Rs. 90 Crore of the AICC YI took an interest bearing loan of Rs 100 Crore from M/s Dotex Merchandise Private Limited of Kolkata. A survey u/s 133A of the I. T. Act, conducted on M/s Dotex Merchandise Pvt. Ltd. revealed that M/s Dotex Merchandise Pvt. Limited was engaged in providing accommodation entries. Subsequent enquiries made in respect of loan transaction between YI and M/s Dotex Merchandise Pvt. Ltd. reinforces this finding. It has been revealed that the loan of Rs. 1 crore was given to MIs Young Indian, a newly incorporated company with a small capital base of only Rs. 5 lakh without any guarantee. M/s. Young Indian made a provision for payment of interest of Rs. 1,72,603 on this loan in its Balance sheet for the year ending on 31.03.2011. Apparently no TDS has been applied on such payment. Perusal of Return of Young Indian filed with ROC for F.Y. 2013-14 shows unsecured 10C'ln of Rs. 1 crore M/s Dotex Merchandise Pvt. Ltd. is standing as it is and it has not been repaid. As per Balance sheet of Young Indian for the year ending on 31.03.2014, even provision for interest to be paid on unsecured loan has not been made for the F.Y.2013-14. All the facts mentioned above and in the note of the Assessing MA No. 85/Del/2022 Young Indian vs. ACIT 63 Officer shows unsecured loan of Rs. 1 cr. an accommodation entry which has neither been repaid nor any interest paid on it. No prudent businessman will give the loan to any unrelated party without expecting any return of such investment. Immediately after the assignment of loan by the AICC to the Young Indian, on 16.12.2010, the said loan was converted into equity by the AJL, on 26.02.2011, resulting in holding of 99% of the total issued capital of the AJL by Young Indian. AJL allotted the shares to Young Indian 'in lieu of recently purchased asset i.e., Rs. 90 Crore (purchased for a sum of Rs. 50 Lakhs} which has resulted in takeover of assets of the AJL, fair market value which would need to be ascertained. AO has formed his belief that income amounting to Rs. 1 crore on account of unexplained cash credits and other income in the nature of benefit or perquisite, whether convertible in to money or not, arising from the business or exercise of a profession, on account of allotment of Shares of Associated Journal Limited, valuation of which is to be made, has escaped assessment in the hands of Young Indian. I am satisfied, on the reasons recorded by the Assessing Officer, that it is a fit case for the issue of notice u/s 148. Sd/- (RAMESHWAR SINGH) Commissioner of Income Tax (Exemptions) New Delhi. 10.1.2017” 58. After considering the aforesaid satisfaction of the CIT (E) accompanied with the detailed reasons recorded by the AO as incorporated (supra), it cannot be held prima facie that there was no application of mind or that the approval has been given in a mechanical manner. Ld. CIT (E) has given his detailed reasons as to why he was satisfied with the proposal of the AO. Accordingly, the contention raised by the ld. Sr. Counsel is rejected. The judgments which have been relied upon by him clearly not applicable on the facts of the present case and, therefore, we do not find it imperative to discuss these case laws. ...... MA No. 85/Del/2022 Young Indian vs. ACIT 64 62. Insofar as whether publication of newspaper of AJL was closed w.e.f. 02.04.2008 or was temporarily suspended, is a matter of inferences which can be drawn from the facts and material on record. Here it is a matter of fact that, neither at the time of seeking registration not it has been found subsequently till the cancellation of registration by the CIT (E) in the year 2017, the publication business of AJL even had started. Whether it was a temporary suspension or publication of the newspaper was closed w.e.f. 02.04.2008, it is not a primary factor to quash the reasons recorded by the AO, because the fact of the matter was that there was no publication of newspaper for a substantial long time at least till the time of recording of the reasons. Though assessee had tried to demonstrate that certain process was initiated indicating to revive the publication business but there was no substantial restarting of publication of newspaper. Thus, it cannot be held that AO has recorded any wrong finding of fact in the reasons recorded. ..... 65. We have also perused the annual report of the company and the information which was sought u/s 133 (6) of the parties to the transaction and also about the loan taken from Dotex which are as per the certificate and enquiry conducted on the said company, it was found that earlier it was involved in providing hawala entries. Whether this information can lead to any conclusive finding or not is not relevant but what is required at the time of recording the reasons and entertaining reasons to believe is, whether prima facie based on such information or material coming on record, AO had bonafide reasons to believe that income chargeable to tax has escaped assessment. At the time of recording the reasons, AO does not have to prove the escapement of income only his prima facie reason to believe. From a bare perusal of AO’s detailed reasons running into 24 pages, there is sufficient material to hold that AO had prima facie reasons to believe especially, the manner in which appellant has taken over the properties of AJL through whatever scheme and how the entity AICC, AJL and Young Indian had common control or management to device such alleged scheme and how the assessee has got benefit by getting the entire shareholding and underlying assets of AJL by merely paying paltry sum of Rs.50,00,000/-. This itself shows strong prima facie reasons to believe for any prudent person that there is definitely escapement of income. It is not a case that it was merely a pretext taken by the Assessing Officer for making roving and fishing enquiry without any basis or material on record. AO has duly applied his mind after incorporating various material and information coming on record and after independently examining the same, he has recorded the reasons. We do not find any infirmity or illegality either in the recording of the reasons or assuming jurisdiction or reopening the case u/s 147 or issuance of notice u/s 148. Thus, we do not find any substantial merit in the contention raised by the appellant before us nor do any of the MA No. 85/Del/2022 Young Indian vs. ACIT 65 judgments cited and relied upon before us have any application on the present facts. We reiterate that the AO has to have only prima facie reasons to believe based on tangible material or information which, here in this case, there was sufficient material to entertain reasons to believe that entire transaction right from the incorporation of the appellant company till acquiring of 99.999% of shares of AJL and getting control of huge assets of AJL merely for a sum of Rs.50,00,000/-. At least, this factum itself is sufficient to clothe the AO in entertaining reasons to believe and acquiring the jurisdiction u/s 148. We further notice that very recently, Hon’ble Supreme Court in the case of DCIT (Central Circle) Vs M/s M R Shah Logistics Pvt. Ltd order dtd 28 th March 2022, held that reopening of the assessment u/s 147 is valid if there is tangible material for the same and the sufficiency of such material cannot be subject to judicial review. Accordingly, ground no.2 raised by the appellant is dismissed.” 12.1 From the above, it is evident that the Tribunal had addressed all the facets of the arguments advanced on account of reopening of assessment under section 147 of the Act. Merely because the decision is not palatable to the Ld. AR nor he is in disagreement with the view taken by the Tribunal, it does not give rise to a mistake apparent from record warranting rectification under section 254(2) of the Act. On the contrary, we find that the Tribunal had elaborately considered and discussed all the arguments of the Ld. AR qua this issue raised in Miscellaneous Application. Hence in the light of aforesaid judicial pronouncements, we hold that there is no mistake apparent from record within the meaning of section 254(2) of the Act. Hence the plea of the assessee is hereby dismissed. 13. With regard to Issue No. 3 raised by the assessee in its Miscellaneous Application, the Ld. AR before us fairly stated that all the arguments advanced by the assessee’s counsel had been already dealt with by the Tribunal in its order and hence there is no mistake apparent from record in terms of section 254(2) of the Act. In view of this, we refrain to go into the grievance of the assessee mentioned in the Miscellaneous Application qua this issue. Accordingly, the plea of the assessee qua this issue is dismissed. MA No. 85/Del/2022 Young Indian vs. ACIT 66 14. With regard to Issue No. 4 raised by the assessee in the Miscellaneous Application, we find that the Tribunal after recording and considering the submissions advanced on behalf of the assessee and the Revenue, had observed as under:- “113. We have heard the rival contentions, perused the relevant finding given in the impugned order and the material referred to before us. Though we have incorporated the relevant portion of assessment order wherein AO has brought to tax the entire transaction under the provisions of section 28(iv) and how the benefit has arisen to the appellant company from the aforesaid transaction right from assigning of loan of more than Rs.90.21 crores for a sum of Rs.50,00,000/- and acquiring 9.021 crores shares thereby getting the share holding of more than 99% in the company. However, in the very succinct manner, the case of AO and his observations are being summarized in brief:-  The Assessee had entered into a fraudulent transaction to enjoy the benefits embodied in the business assets of AJL.  The alleged loan of Rs. 90.21 crores was an artificially inserted steps in the form of a paper entry of an amount which was sufficient for allotment of 99% shares of AJL.  The motive to earn income by way of benefit from underlying assets of 99% shares of AJL was so strong that the assessee engaged itself in fraudulent activity. The sole purpose of transaction leading to acquisition of shares was to derive several types of benefits from underlying business properties of AJL.  Legal provisions and case laws in discussed in Para 16.2, wherein the A.O. has arrived at the following conclusions: - o The word 'business' is of wide importance and in fiscal statutes, it must be construed in a broad rather a restricted sense. Mazagaon Dock Ltd vs CIT (1958) 34 ITR 368' 376 (SC) o Business is an activity capable of producing a profit which can be taxed. CIT v. Lahore Electric Supply Co. Ltd., (1966) 60 ITR 1, 5 (SC) o The word business is a word of large and indefinite importance. It is same thing which occupies attention and labour of a person for purchase of earning profit. o The word 'business' has more extensive meaning than the word 'trade'. o The activities which constitute carrying on business need not necessarily consist of activities by way of trade, commerce or manufacture or activities in the exercise of a profession of vocation nor it be concerned with several individual or concern. MA No. 85/Del/2022 Young Indian vs. ACIT 67 o A single and isolated transaction outside the assessee's line of business has been held to be falling within the definition of business as being 'adventure in the nature of trade'. o The question therefore whether a particular source of income is business or not must be decided according to out ordinary notion as to what a business is. o The repetition or frequency of activity though at times a decisive factor, is by no means an infallible test. Conversely, a single transaction may constitute business under the definition of the word in Section 2(14). o The value or benefit whether convertible in money or not arising from the business or exercise of profession as stipulated in Section 28(iv) is also profit and gains of business.  Significant facts and circumstances of the case having bearing on characterization of benefits arising out of the business transaction of takeover of properties of AJL:- o The purchase of 99% shares of AJL by assessee was not an ordinary transaction of investment but the transaction involving several steps (as many as 9 steps) as a adventure in the nature of trade. (Para 17) o The transaction was a part of well-devised scheme involving series of steps with the intention to earn significant benefit as embodied in business assets of AJL. o The assessee undertook a series of steps over a period of time and these steps had culminated during the year under consideration to achieve a pre-meditated objective of taking over of AJL in order to get several benefits from business assets of AJL having fair market value of Rs. 413.41 crore as well as to derive the value from these properties. o These intermediary steps on paper were artificially inserted in the ell-devised scheme leading to takeover of AJL by allotment of 99% shares of AJL without even getting the real estate properties transferred in the name of the assessee but the transaction resulted in accrual of benefits from value of real estate business and properties to the assessee. o The transactions were devised and carried out which represented an 'adventure in the nature of trade' and would squarely fall within the definition of the term business as appearing in Section 2(13). o It is amply clear from the analysis of the steps that even though the transaction of getting benefit from properties of AJL by takeover of AJL was one transaction, however, it involved several steps, some real and some fraudulent, with the real and distinct intent of enjoying the benefit of the properties from the day of incorporation of the assessee.  The assessee enjoyed the following benefits: - Benefit of underlying value of shares of AJL;  Benefit of right to enjoy the business assets of AJL MA No. 85/Del/2022 Young Indian vs. ACIT 68  Benefit of income from real estate business of AJL; and  Benefit of rental income of several crores from letting out of business assets of AJL. o The FMV of these business properties on date of takeover of AJL's business properties captures the benefits accrued to the assessee during the year under consideration. o Even though the benefit of Rs. 413.41 crore is in the form of FMV of immovable properties used as business assets, it does not alter the nature of income which is revenue in nature. o Since the assessee has taken control and management of AJL by allotment of 99% shares of AJL and has not carried out any activity during the year except for the transaction of taking over of AJL which was in the nature of adventure in the nature of trade, all the benefits embodied in the business assets having fair market value of Rs.413.41 crore has accrued to the assessee during year under consideration. o The assessee has actually started enjoying business income by way of benefit accrued to it during year under consideration by occupying and using their business assets for real estate business and having full control over even entry and exit in the premises of the business assets.  Whether the assessee holds the share simplicitor or has the right to direct enjoyment of benefit arising from business assets of AJL: - o The assessee company was granted registration u/s 12A by the Commissioner of Income Tax (Exemptions) subject to various conditions and registration of the association u/s 25 of the Companies Act, 1956 was also subject to several conditions. o During the course of assessment proceedings, it was revealed that the assessee company had not carried out any activities in furtherance of above referred to object. o It is a matter of record that only expenditure incurred by the assessee company during year under consideration was to purchase a non-existent loan of Rs. 90.21 crore through a fraudulent transaction and in subsequent assessment years the only expenditure incurred by the assessee company was to create provision for interest expenditure allegedly meant to pay interest on loan of Rs. 1 crore taken from a hawala entry operator in Kolkata. o The other expenditure is admittedly incurred on fee for auditor, preliminary expenditure, written off, etc. and this expenditure cannot be held to be for the purpose of the object of the company. o In view of the above, the claim of the assessee that the assessee company was carrying out its stated object is factually incorrect and the assessee company as proved above had never engaged in the activities of promoting democratic values by incurring expenditure. o Reference is made to the findings of the CIT(E) dated 26.10.2017- MA No. 85/Del/2022 Young Indian vs. ACIT 69  Whether the assessee holds the share simplicitor or has the right to direct enjoyment of benefit arising from business assets of AJL: - o The profits and gain from business in form of benefits to assessee having value of Rs.413.41 crores under Section 28(iv) has accrued to the assessee during the year under consideration and is taxable as income from profit and gains from business. o It is not a case of hypothetical income, but in this case quantification of benefit as derived and accrued to the assessee has already been determined and the assessee had already started enjoying the benefit of possessing and using these commercial assets during the year under consideration.  Whether the benefit accrued to the assessee is in the nature of Revenue: - o All the properties of AJL were commercial assets of the real estate business of AJL and substantial business income has been generated from commercial use of these properties by way of sale or let out of property. Accordingly, the nature of benefit flowing from these properties (which do not represent capital assets but constitutes commercial assets) was revenue in nature. o It is to clarify that the business assets of AJL have remained in the legal ownership of AJL only, but enjoyment of several types of benefit embodied in these commercial assets stands transferred to the assessee. o The decision with regard to mode, manner and extent of exploitation of these business assets of AJL rests with the assessee.  Conclusion:- o Such benefit from the adventure constitutes profits and gains of the business within the meaning of section 28(iv) of the Act and would be regarded as income chargeable to tax under the provisions of the Act as the benefit in the form of fair market value of the properties of Rs. 413.41 crore arising to the assessee from the adventure in the nature of trade of takeover the assets of AIL by way of allotment of its 99% shares following several steps including a fraudulent transaction. o Income of the assessee for the year under consideration u/s 28(iv) has been computed at Rs.413.41 crore i.e., FMV of business assets of the AJL which best represents the value of several benefits arising to the assessee from the transaction. 114. Though Ld. CIT (A) has by and large endorsed the view of the AO, however, in sum and substance, his findings are summarized in the following manner:-  Steps revolving around pre-meditated transaction as well as a schematic diagram representing the transaction (as discussed in A.O.'s order) as has been extracted above MA No. 85/Del/2022 Young Indian vs. ACIT 70  It was concluded by the AJL that the transaction was a pre-planned scheme with several steps and the real purpose of the transaction of allotment of 99% shares of AJL was to enjoy the benefit from the business assets of the assessee.  Piercing of corporate veil: - o It was also noted that even though AJL continues to be a legal entity with the legal right to hold properties in it name, the true character of the transaction has to be judged by looking at the reality after removing or piercing the veil of these transactions since the circumstances of the case justify such an exercise.  Reliance placed on Karanpura Development Co. Ltd. v. CIT, 44 ITR 362 (SC), Workmen, Associated Rubber Industry Ltd. v. Associated Rubber Industry ltd., 157 ITR 77 (SC), Union of India & Ors. v. Playworld Electronics Pvt. Ltd. & Anr, 184 ITR 308 (SC), Harsh Win Chadha v. DCIT, Circle-1(1), International Taxation, 2011 135 TT J 513 (Del).  Adventure in the nature of trade: - o The AO has brought enough facts and surrounding circumstances on record which validate the fact that the real purpose of the artificially inserted step in the transaction involving purchase of non-existent loan from the AICC and allotment of 99% shares of the AJL in reality was only to transfer the underlying value of shares and value of transfer of full right over benefit arising from properties of the AJL without having paid any amount to AJL as well as taxes to the government. o It also validates the fact that the artificially inserted steps had no business purpose except for hiding the true nature of income earned by the assessee and evading taxes on income earned by the assessee on the takeover of business properties of AJL. o This is further substantiated by the unfair reporting of its financials by the assessee like non-reporting value of 9.021 crore shares of AJL in its balance sheet on the ground of insignificant investment. However insignificant, investment has to be reported in the balance sheet. o Since it was clear from the facts that sole purpose of the transaction leading to acquisition of shares of AJL was to derive several benefits from the underlying business properties, it was held that the impugned transaction was intended to maximize profit and to earn income as reflected in the several benefits embodied in the business assets of AJL.  It was also noted that the transactions were facilitated by, directors of the assessee and the target company, i.e., AJL. The AO has analyzed what constitutes 'adventure in the nature of trade' and has concluded by relying on the decision of the Hon'ble Supreme Court in the case of Venkatswami Naidu & Co. vs. CIT (35 ITR 594).  On valuation and reference to DVO: - MA No. 85/Del/2022 Young Indian vs. ACIT 71 o Once it is established that the real purpose of the transaction was to take over the assets and enjoy the benefits, for determining the value of the benefit, the AO proceeded to value the properties by referring the same to the DVO, after discussing in detail the legal provisions for referring a matter to DVO, since the balance sheet of the AJL did not reflect the true picture of the FMV of the properties. o The FMV of the properties which represented the value of the benefit under section 28(iv) was valued at Rs. 413.41 crores and in view of the fact that the valuation reports submitted by the appellant now are not being admitted as additional evidence, there appears to be no reason to deviate as such from the said valuation.  Whether Section 56(2) (viia) of the Act applies? o As regards the contention of the appellant that the said transaction can only fall under section 56(2)(viia), as has been observed by the AO in the third and the fourth remand reports by giving comments on merits on the valuation of shares under Rule 11 UA, this is not a case a case of a simple purchase or acquisition of shares of the AJL by the assessee. o The case under consideration is also not that of a simple allotment of shares. As has been discussed above, it is a case of conversion of an alleged loan into shares and when the real intent of the scheme is looked at after removing or piercing the veil of these transactions, it is seen that the scheme of takeover of the AJL by the assessee involved several pre-meditated and artificially inserted steps which had no purpose except for the intention of earning benefit from commercial properties of the AJL without paying any taxes, be it in the form of capital gains or in the form of stamp duty which would have to be paid at the time of transfer of ownership of the properties. o The scheme led to the take-over of the AJL for the purpose of enjoying the rights in the property by having 100% ownership of the property, i.e., legal ownership of the AJL and its high value business assets. For the same reason the cases relied upon by the appellant in support of its contention that the provisions of section 28(iv) are not applicable and the provisions of section 56 would be applicable will not apply in this case where the AO has given finding of facts and analysed the real purpose of the transaction. ....... 119. Thus, the contention of showing the bonafide intention for acquiring almost entire stake in AJL has been demolished by the Tribunal on the basis of material and facts brought on record. 120. Another very important fact in this entire chain of events and on this issue, is the judgment of Hon’ble Delhi High Court in case of AJL wherein, in the first instance, there was first judgment dated 21.12.2012, passed by Hon’ble Single Judge in the Writ Petition MA No. 85/Del/2022 Young Indian vs. ACIT 72 filed by the AJL against the notice sent by Land Development Office for vacation of the property known as ‘Herald House’, 5A, Bahadur Shah Zafar Marg, New Delhi, wherein the Hon’ble High Court categorically noted that at the time of inspection by the LDO, no press activity was carried out by the AJL in the said property and in fact, the property was rented out to various commercial establishments. The Hon’ble High Court has taken note of inspection committee report and has given a categorical finding that no such printing press was functioning and only National Herald Weekly newspaper was published for the first time on 24.10.2017 which too was outsourced from elsewhere. No such press activity of the editorial team was discernible when the inspection of the premises was taken in the presence of Chairman of AJL and no such evidences were produced either before the inspection committee or before the Hon’ble High Court, that before the proceedings were initiated, substantial publication activity had been started. The court also noted that the dominant purpose of leasing out the properties to AJL for publication has now practically lost. 121. Thereafter, the judgment passed by Hon’ble Single Judge was challenged by way of an appeal before the Hon’ble Division Bench of Delhi High Court in LPA 10/2019 & CM 566 & 649 of 2019. Hon’ble Delhi High Court speaking through Hon’ble Chief Justice again after considering the entire gamut of material brought on record and the arguments placed by both the parties has not only upheld the judgment passed by Hon’ble Single Judge but also made certain important observations which are completely germane to the issue in hand before us. These observations and the findings of the Hon’ble High Court clearly clinch the issue to demolish the whole arguments which has been canvassed before us to show that everything was done with a very bonafide and clear intention just to promote objects of Young Indian. For the sake of ready reference, following extracts of Hon’ble High Court is reproduced as under:- “46. ....................As far as the assertion made with regard to the transfer of shares of AJL to Young India and the share holdings of Young India and various other issues connected thereto are concerned, they are based on certain facts stated in the show cause notice issued by the Income Tax authorities on 15th June, 2018 and even if show cause notice is ignored, they do form part of the facts stated by co- ordinate Bench of this Court while deciding three writ petitions decided on 10th September, 2019, that is, W.P.(C) No.8482/2018 and other connected matters which were filed by the shareholders of Young India while challenging the action taken by the Income Tax authorities. There is no whisper or serious challenge to these factual aspects by the appellant. They do not say, even orally, that these facts stated and relied upon by the respondents are false, incorrect, fabricated, untrue etc. They only say that certain facts have been stated without filing a counter affidavit. If the facts so stated, cognizance of which have been taken by the writ Court, are based on materials available in MA No. 85/Del/2022 Young Indian vs. ACIT 73 proceedings held before the L&DO and by a co-ordinate Bench of this Court in a writ petition, we see no reason as to why we cannot take cognizance or judicial notice of these facts and proceed to consider them for deciding the lis in question, particularly, when there is no specific or categorical denial of them even orally before us at the time of hearing. Xxxxxxxxxxxxxxx 48. The first objection of the appellants were to the finding recorded by the learned writ Court in the impugned order passed on 22nd December, 2018 pertaining to there being no press activity in the premises in question, that is, finding in para-17 of the impugned order. The facts that have come on record clearly shows and it is an admitted position if we analyse the show cause notices issued to the appellants on 10th October, 2016 replied to the same on 19th November, 2016, the second show cause notice dated 5th April, 2018, the third show cause notice dated 18th June, 2018 and the fourth show cause notice dated 24th September, 2018 and the series of replies filed by the appellants on 19th November, 2016, 7th April, 2018, 16th July, 2018 and 9th October, 2018 along with the communication made by Sh. Motilal Vora on 26th September, 2018 available at page-406 of the paper book that between the period from the year 2008 to 2016, the appellant themselves admitted that there was no publication of the newspaper from the premises in question or from any other place and it was only after the inspection of the premises was conducted for the first time on 26th September, 2016 that indication was made about commencement of newspaper publication for 2016 - 2017. 49. In this regard, we may take note of the communication made by Sh. Motilal Vohra on 26th September, 2016 at page-406 of the paper book. In this communication reference is made to an inspection noticed dated 15th September, 2016 and it indicates that one Sh. Ravi Dayal is authorized to be present as a representative of AJL at the time of inspection at 11 A.M. on 26th September, 2016. That apart, as requested in the notice issued, certified copies of the sanctioned plan and occupation certificates were also submitted with this letter. The letter further states that the basement and the fourth floor of the building are being used for press and offices of the lessee and surprisingly the letter further says "I am pleased to inform you that the Associated Journals Ltd. has taken steps to resume newspaper publication. Towards this objection an Editor-in-Chief was appointed in August, 2016" and the letter further says that preparations are in full swing to resume publication of the newspaper in the current financial year 2016-17. Referring to this letter, the learned Solicitor General had argued that this letter was written only for pre-empting the authorities so that they are not surprised if no printing activities are found in the premises. In fact, Sh.Tushar Mehta is right in contending that MA No. 85/Del/2022 Young Indian vs. ACIT 74 this was an attempt by the appellants and, in fact, an admission by them that no printing activity was being carried out in the premises at that point of time. That apart, when we go through the four show cause notices available on record issued on 10th October, 2016, 5th April, 2018, 18th June, 2018 and 24th September, 2018 and the reply filed thereto, we find that various breaches were pointed out in all these show cause notices and they were replied to by the appellant company and the cumulative admitted position that can be made out from the reading of these documents are as under. Xxxxxxxxxxxxxxxx 50. When the premises was inspected on 26th September, 2016, no press activity was being carried out in the area. Press activity and publication of the newspaper was suspended right from the year 2008 and all the employees were granted VRS. After the communication dated 26th September, 2016 was made by Sh. Motilal Vohra digital publication of the English Versions of the newspaper, National Herald commenced from 4th November, 2016. 51. Digital version of Urdu edition Qaumi Awaz commenced on 12th August, 2017. Digital version of Navjivan, that is, Hindi version commenced on 28th August, 2017 and the print weekly newspaper, National Herald Sunday resumed publication from 24th September, 2017 and it is the case of the appellants that these newspapers were printed in a press at Noida. Finally the printing of Hindi weekly newspaper Navjivan commenced publication on 14th November, 2018 and the necessary license and authorization for the purpose of publication indicated hereinabove was granted by the Registrar of Newspapers for India on 21st November, 2017 available at page-581 is a certificate of registration issued by Sh. K. Ganeshan, Registrar of Newspaper for India giving registration certificate for a newspaper titled “National Herald Sunday”. Accordingly, it is clear that publication of the newspapers commenced after a gap of eight years as is indicated hereinabove. If this is the factual position, it can very well be concluded that on 26th September, 2016 when the first inspection took place, admittedly, there was no printing of press or publication activity and the digital versions in English commenced publication only on 14th November, 2016, that is, about one and half month after the inspection took place on 26th September, 2016. Even though in the breach notice dated 10th October, 2016, there is no mention of there being no press activity but the admitted position is that when this notice was issued on 10th October, 2016 after inspection on 26th September, 2016 and the admission of Sh.Vohra on 26th September, 2016 that there is no printing activity, three other show cause notices were issued as have been detailed hereinabove and in the final show cause notice issued, that is, MA No. 85/Del/2022 Young Indian vs. ACIT 75 24th September, 2018 before taking the impugned action there is a mention about no press activity being carried out in the premises when the first inspection was ordered on 26 th September, 2016. Xxxxxxxxxxxxxxxx 57. The next issue which was vehemently canvassed before us on behalf of the appellant was with regard to the transfer of shareholding from AJL to Young India. It is the case of the appellant that mere transfer of shareholding cannot be a ground for holding that to be change of ownership or transfer of the lease. Placing reliance on the judgment of Bacha F. Guzdar (supra) detailed submissions were made by Dr. Singhvi to emphasize that a shareholder only acquires a right to participate in the profit of the company. He gets no interest in the property of the company and even if the shareholders of the company do have some voice in administering the affairs of the company, but their interest is limited to sharing the profits of the company and the company, a juristic person, which is distinct from the shareholders still owns the property. It is argued that in the backdrop of this legal position even if some of the shares of the company have been transferred that would not mean that the ownership of the leased premises also get transferred to Young India Ltd. It was emphasized that the ownership still remains even on such transfer with AJL and the said transfer would not have any effect on the ownership or transfer of the leased premises. To consider this aspect of the matter, we are required to take note of the shareholding pattern of both the companies and the manner in which the transactions have taken place and further in case the lifting of the veil theory is applied, what would be its effect with regard to the issue in question. 58. Indian National Congress sometimes referred to as AICC had advanced a loan of Rs.90 crores to AJL. The loan was advanced on the condition that the amount shall be utilized by AJL to write off their accumulated debts and to recommence publication of its newspaper. As per the facts recorded by the co-ordinate Bench of this Court in its decision rendered on 10th September, 2018 in W.P.(C) 8482/2018, the books of account of AJL from 1st April, 2010 to 31st March, 2011 showed an outstanding debt of Rs.88,86,68,976/- and it ultimately became Rs.90,21,68,980/- as on 15th December, 2010. On 13th August, 2010, an application was made for incorporation of a charitable non-profit company (a company under Section 25 of the Companies Act named Young India). The application was in Form 1A with the competent statutory authority and on 18th November, 2010 Young India was incorporated and on 18.11.2010 license was granted and ultimately on 23rd November, 2010 Young India was incorporated with Sh. Suman Dubey and Sh. Sam Pitroda as its founder Directors. This company had an authorized share capital of 5,000 shares of Rs.100/- MA No. 85/Del/2022 Young Indian vs. ACIT 76 each valued at Rs.5,00,000/- and the paid up share capital was 1100 shares of Rs.100/- each valued at Rs.1,10,000/- and the company at that point of time had two shareholders, (a) Shri Sam Pitroda - 550 shares valued at Rs.100/- each and (b) Shri Suman Dubey - 5,000 shares valued at Rs.100/- each. On 13th December, 2010, the first Managing Committee Meeting of Young India took place and Shri Rahul Gandhi was appointed as its Director, namely, a non-shareholder and Shri Motilal Vora and Shri Oscar Fernandes as ordinary members. Within five days thereafter, that is, on 18th December, 2010, by a deed of assignment the loan of Rs.90 crores and odd outstanding in the books of Indian National Congress as recoverable from Associated Law Journals for the period 2002 to 2011 was transferred to Young India. Three days thereafter, on 21st December, 2010, a Board Meeting of AJL called for an EGM which was subsequently held on 24th December, 2010 and on the said date a loan of Rs.1 crore was received by Young India from another company M/s Dotex and thereafter on 28th December, 2010 i.e. within a week a formal deed of assignment was executed by AICC assigning the loan of Rs.90 crores in favour of Young India. Immediately thereafter on 21st January, 2011, an EGM of Associated Law Journal was held approving fresh issue of 9.021 crores shares to Young India and on 22nd January, 2011 i.e. on the next day the second Managing Committee of Young India was held in which Smt. Sonia Gandhi, Mr. Motilal Vohra and Mr. Oscar Fernandes were appointed as Directors and the 550 shares of the existing shareholders of Young India - Suman Dubey and Sam Pitroda were transferred to Smt.Sonia Gandhi and Mr.Oscar Fernandes and on the same day fresh allotment of Young India shares were made in the following manner: (a) 1,900 shares having paid up value of Rs.1,90,000/- to Shri Rahul Gandhi, (b) 1,350 shares with a paid up amount of Rs.1,35,000/- in the name of Smt. Sonia Gandhi, (c) 600 shares with a paid up value of Rs.60,000 in the name of Sh. Motilal Vohra and (d) 50 shares with a paid up value of Rs.5,000 in the name of Sh.Oscar Fernandes and after issuance of PAN by the Income Tax Department a bank account was opened by Young India with Citibank on 14th February, 2011 and the cheque issued by M/s Dotex for Rs.1 crore was deposited in the Young India Bank account on the said day and on 26th February, 2011 Young India issued a cheque of Rs.50 lakhs to AICC as consideration for assignment of Rs.90 crore debt payable by ALJ to AICC. On the same day, i.e., 26th February, 2011, ALJ allotted 9,02,16,899 equity shares to Young India in pursuance to the AGM Meeting decision held on 21st January, 2011 and the ALJ Board Meeting on 26th February, 2011 and thereafter Young India applied for exemption under Section 12-A on 29th March, 2011 and on 9th May, 2011 the Income Tax Authorities granted the exemption with effect from the F.Y. 2010-11. 59. Be that as it may, by the aforesaid transaction that had taken place Young India acquired beneficial interest on AJL’s property which on the said date was valued at more than Rs.400 MA No. 85/Del/2022 Young Indian vs. ACIT 77 crores on payment of a sum of Rs.50 lakhs to AICC. This, according to the respondent, if viewed in the backdrop of the purpose of transfer lease and the modus operandi adopted is nothing but a devise to transfer the property held on lease from the Government by AJL, Young India which became 99% or rather 100% shareholder of AJL. With these facts, we now propose to examine the judgments relied upon by both the parties to evaluate the legal implication and the principles culled out from these judgments and examine their applicability in the present factual matrix to decide the issue of breach of conditions of the lease on this count. 60. In the case of Bacha F. Guzdar (supra) relied upon by Dr. Singhvi, a Constitution Bench of the Supreme Court has taken note of certain judgments with regard to corporate identity and a legal position with regard to the rights to property of a company, a juristic person, and the relationship of a shareholder with the company and its property, as canvassed by Dr. Singhvi and as observed by the Hon’ble Supreme Court the principle indicates that a shareholder acquires a right to participate in the profit of the company but he does not acquire any right or interest in the assets of the company. It has been held that by investing money in the purchase of shares the shareholder does not get any right to property of the company though he acquires a right in the profits if and when the company decides to divide it. Even though the shareholder of the company have the sole determining voice in administering the affairs of the company and are entitled to as provided in the Articles of Association to declare the dividends and distribute the profits of the company but their right individually or collectively is nothing more than participating in the profits of the company, it is held that the company is a juristic person and is distinct from the shareholders. In fact, it is the company which owns the property and not the shareholder. The judgment further goes to say that there is nothing in the Indian Law to warrant the assumption that the shareholder who by his share buys any interest in the property of the company which is a juristic person entirely different from the shareholder. This in fact is the law laid down by the Constitution Bench of the Supreme Court in the aforesaid case. 61. It was vehemently argued by Dr. Singhvi that once this is the accepted legal position that is culled out on a perusal of the law laid down by the Constitution Bench, then by no stretch of imagination can it be argued that on transfer of shares of AJL to Young India Ltd., there is transfer of ownership or lease or property as contemplated in clause 13(3) of the lease in question. By referring to the judgment in the case of Monsanto Manufacturers (supra) and the terms and conditions of the lease deed which prohibited transfer in the said case and by comparing it to clause XIII(3) of the lease deed in question, we were told that in the absence of there being any specific prohibition permitting transfer of ownership of shares or change in the Article of Memorandum, the MA No. 85/Del/2022 Young Indian vs. ACIT 78 finding recorded with regard to transfer of ownership of the property recorded by the learned writ Court and the competent authority is unsustainable. The principles laid down in judgment of the Supreme Court in M/s K.G. Electronics (supra) and by this Court in DDA v. Human Care Medical Charitable Trust were also relied upon to canvass this contention. 62. On a consideration of the argument as canvassed by Dr. Singhvi, at the first instance, the same looks very attractive and the findings recorded may look to be unsustainable and perverse, however, it is an equally settled principle of law that in public interest and for assessing the actual nature of a transaction or the modus operandi employed in carrying out a particular transaction, the theory of lifting of the corporate veil is permissible and a Court can always apply this doctrine to see as to what is the actual nature of transaction that has taken place, its purpose and then determine the question before it after evaluating the transaction or the modus operandi employed in the backdrop of public interest or interest of revenue to the State etc. The theory and doctrine of lifting of corporate veil had been considered by the Supreme Court in the case of Gotan Lime Stone (Supra) and in the said case, judgments in the case of Vodafone (supra) and Skipper Construction (supra) etc. have been taken note of and in para 30, specific reference has been made to the Constitution Bench judgment in the case of Bacha F. Guzdar (supra). After referring to most of the judgments including the judgment in the case of Bacha F. Guzdar (supra) relied upon by Dr.Singhvi is referred to and finally the consideration to be made is culled out in para 19 of the judgment in the following manner: "19. As already stated, the question for consideration is whether in the given fact situation the transfer of entire shareholding and change of all the Directors of a newly formed company to which lease rights were transferred by a declaration that it was mere change of form of partnership business without any transfer for consideration being involved can be taken as unauthorised transfer of lease which could be declared void." 63. Thereafter, the learned Court proceeds to discuss various issues and takes note of the fact that the transaction in fact technically does not sell the lease right but only shares are transferred and in para 24, it has been held that the principle of lifting of corporate veil as an exception to the distinct corporate personality of a company and its member is recognized not only to unravel tax evasion but also to protect public interest which is of paramount importance and to prevent a corporate entity in attempting to evade legal obligation. It has been held by the Hon’ble Supreme Court after relying upon an earlier judgment in the case of Workmen vs. Associated Rubber Industries, (1985) 4 SCC 114 that this doctrine is employed to prevent device and to avoid MA No. 85/Del/2022 Young Indian vs. ACIT 79 welfare legislation. After observing so, various judgments of this Court including Skipper Construction (supra) and the judgment of the House of Lords in the case of Salomon v. Salomon, 1897 AC 22 is taken note of and the cardinal principle laid down in the case of Salmon v. Salmon (supra) with regard to the company being a different person altogether from its subscribers is taken note of and it is observed that since after the judgment of Salmon (supra) the Courts have recognized several exceptions to the rule laid down in Salmon (supra) and one of the relevant exception is that when a corporate personality is being blatantly used as a cloak for fraud or improper conduct or where the protection of public interest is of paramount importance or where the company has been formed to evade obligation imposed under the law, the theory which has been described by certain jurists as peeping behind the corporate veil is employed and in para 27 and 29, the Hon’ble Supreme Court goes to determine the doctrine in the following manner: "27. It is thus clear that the doctrine of lifting the veil can be invoked if the public interest so requires or if there is allegation of violation of law by using the device of a corporate entity. In the present case, the corporate entity has been used to conceal the real transaction of transfer of mining lease to a third party for consideration without statutory consent by terming it as two separate transactions--the first of transforming a partnership into a company and the second of sale of entire shareholding to another company. The real transaction is sale of mining lease which is not legally permitted. Thus, the doctrine of lifting the veil has to be applied to give effect to law which is sought to be circumvented. xxx xxxxxx 29. It is also well settled that mining rights are vested in the State and the lessee is strictly bound by the terms of the lease. [Orissa Mining Corpn. Ltd. v. Ministry of Environment and Forests(2013) 6 SCC 476, para 58; State of T.N. v. Hind Stone, (1981) 2 SCC 205, para 1; Monnet Ispat& Energy Ltd. v. Union of India, (2012) 11 SCC 1, para 41; AmritlalNathubhai Shah v. Union of India, (1976) 4 SCC 108; Geomin Minerals & Mktg. (P) Ltd. v. State of Orissa, (2013) 7 SCC 571. Ed.: See also Thressiamma Jacob v. Deptt. of Mining & Geology, (2013) 9 SCC 725 : (2013) 4 SCC (Civ) 559.] Cases of Arun Kumar Agrawal v. Union of India [Arun Kumar Agrawal v. Union of India, (2013) 7 SCC 1] (Vedanta case), Balco Employees' Union v. Union of India [Balco Employees' Union v. Union of India, (2002) 2 SCC 333] (Balco case) and Vodafone International Holdings BV v. Union of India[Vodafone International Holdings BV v. Union of India, (2012) 6 SCC 613 : (2012) 3 SCC (Civ) 867] cited by the learned counsel for the respondent have no application to the present case once real transaction is found to be different from the apparent transactions. In fact, the principle of law laid down in Vodafone case [Vodafone MA No. 85/Del/2022 Young Indian vs. ACIT 80 International Holdings BV v. Union of India, (2012) 6 SCC 613 : (2012) 3 SCC (Civ) 867] that the court can look to the real transaction goes against the respondent." 64. Finally in para 31, it is held by the Hon’ble Supreme Court that while discerning the true nature of the entire transaction, the Court is not to merely see the form of the transaction which is of sale of shares but also the substance which is the private sale of a mining right avoiding legal bar against transfer of sale rights. In fact, the learned Court deals with the issue in para 31 in the following manner: "31. ....Thus, while discerning the true nature of the entire transaction, the court has not to merely see the form of the transaction which is of sale of shares but also the substance which is the private sale of mining rights avoiding legal bar against transfer of sale rights circumventing the mandatory consent of the competent authority. Consent of competent authority is not a formality and transfer without consent is void. The minerals vest in the State and mining lease can be operated strictly within the statutory framework. There is nothing to rebut the allegation that receipt of Rs 160 crores styled as investment in shares is nothing but sale price of the lease. No precedent has been shown permitting such a private sale of a mining lease for consideration without any corresponding benefit to the public." 65. If we consider the transaction in the present case in the backdrop of the aforesaid principles laid down by the Hon’ble Supreme Court, we have no hesitation in holding that the purpose for which the doctrine of lifting of the veil is applied is nothing but a principle followed to ensure that a corporate character or personality is not misused as a device to conduct something which is improper and not permissible in law, fraudulent in nature and goes against public interest and is employed to evade obligations imposed in law. If that is the purpose for which the doctrine of lifting of the veil is to be employed and if we see the transaction that has taken place in the present case with regard to how the transfer of shares between AJL and Young India took place, we find that within a period of about three months, that is, between 23rd November, 2010 to 26th February, 2011, Young India was constituted. It took over the right to recover a loan of more than 90 Crores from All India Congress Committee for a consideration of Rs.50 Lakhs, thereafter replaced the original shareholders of Young India by four new entities including Sh. Moti Lal Vohra, Chairman of AJL and Young India after acquiring 99% of shares in AJL, became the main shareholder with four of its shareholders acquiring the administrative right to administer property of more than 400 Crores. Even though Dr. Singhvi had argued that there is nothing wrong in such a transaction and it MA No. 85/Del/2022 Young Indian vs. ACIT 81 is legally permissible, but if we take note of the principles and the doctrine for which the theory of lifting of the corporate veil has received legal recognition, we have no hesitation in holding that the entire transaction of transferring the shares of AJL to Young India was nothing but, as held by the learned writ Court, a clandestine and surreptitious transfer of the lucrative interest in the premises to Young India. In fact, the contention of Dr. Singhvi has to be rejected and rightly so was rejected by the Single Judge even though without applying the principle of lifting of the corporate veil. In case the theory of lifting of the corporate veil, as discussed hereinabove, is applied and the transaction viewed by analyzing as to what was the purpose for such a transaction, the so called innocent or legal and permissible transaction as canvassed before us, in our considered view, is not so simple or straight forward as put before us, but it only indicates the dishonest and fraudulent design behind such a transaction as laid down in various judgments referred to not only in the case of Gotan Lime Stone Khanij Udyog (P) Ltd. (supra) but also in the case of Union Territory of Estate Officer, UT, Chandigarh vs. S.C. Information Technologies, (2016) 12 SCC 582, Skipper Construction (supra), wherein also the theory has been applied after considering the principle laid down in Salomon (supra) and in para 28, in the case of Skipper Construction (supra), the law has been crystallized in the following manner: "28. The concept of corporate entity was evolved to encourage and promote trade and commerce but not to commit illegalities or to defraud people. Where, therefore, the corporate character is employed for the purpose of committing illegality or for defrauding others, the court would ignore the corporate character and will look at the reality behind the corporate veil so as to enable it to pass appropriate orders to do justice between the parties concerned. The fact that Tejwant Singh and members of his family have created several corporate bodies does not prevent this Court from treating all of them as one entity belonging to and controlled by Tejwant Singh and family if it is found that these corporate bodies are merely cloaks behind which lurks Tejwant Singh and/or members of his family and that the device of incorporation was really a ploy adopted for committing illegalities and/or to defraud people." 66. Apart from the aforesaid judgments, there are various other judgments which have been brought to our notice wherein the said theory of lifting of the corporate veil has been approved and we have no hesitation in holding that the transfer in question, if analyzed in the backdrop of the principles as discussed hereinabove, we see no error in the findings recorded by the learned writ Court to hold that the transfer in question comes within the prohibited category under clause XIII (3) of the lease agreement.” MA No. 85/Del/2022 Young Indian vs. ACIT 82 [Emphasis in bold is ours] 122. The Hon’ble High Court have further held that the breach was continuing right from the year 2008 till commencement of digital publication on 14.11.2016 and went on to hold that this court has no hesitation in holding that the breach of there being no publication activity or paper publication for a long period stands established. Though, this would come within the purview of the breach of terms and conditions of the license, their Lordships have held that admittedly printing activities and publication of newspapers was not carried out in the premises when the inspection took place initially on 26.09.2016 and not even when second inspection took place on 09.10.2018. Regarding transfer of shares/property from AJL to YI and the manner in which entire transaction was done has been frowned upon by the Hon’ble Court by stating that it was a clandestine and surreptitious transfer of the lucrative interest in the premises to Young India. After applying the principle of lifting of the corporate veil, their Lordships have held that “the transaction viewed by analyzing as to what was the purpose for such a transaction, the so called innocent or legal and permissible transaction as canvassed before us, in our considered view, is not so simple or straight forward as put before us, but it only indicates the dishonest and fraudulent design behind such a transaction......”. 123. The sequitur of the findings and observations of Hon’ble High Court in the case of AJL clearly demolishes the so called intention and the contention of the appellant wherein the court has taken note of identical facts as discussed here in this order and have categorically held that;  The share holding pattern of both the companies, i.e., AJL & YI and the manner in which the transaction has taken place, principle of lifting of corporate veil is clearly applicable;  Their Lordships have narrated the entire factum of advancing of loan of Rs. 90 crores by AICC to AJL and the manner in which it has been assigned to YI for a meager sum of Rs. 50 lakhs, brings the entire transaction within the ambit of some kind of colourable device because YI had acquired beneficial interest on AJL’s properties which have been valued for more that 400 crores on a meager payment of Rs. 50 lakhs to AICC. It has been further observed that modus operandi is nothing but a device to transfer the property held on lease from the Government to AJL to YI, which became almost 100% shareholder of AJL.  Their Lordships have also considered the judgment of Hon’ble Supreme Court in the case of Bacha F. Guzdar (supra) which has been strongly relied by the assessee before us and held that though the principle laid down by the constitutional Bench of Hon’ble Supreme Court cannot be in dispute and it is an accepted principle of law, however, in the public interest and for assessing the actual MA No. 85/Del/2022 Young Indian vs. ACIT 83 nature of transaction or modus operandi employed in carrying out a particular transaction, the theory of lifting of the corporate veil is permissible and the court can always apply this doctrine to see as to what is the actual nature of transaction that has taken place, its purpose and then determine the question before it after evaluating the transaction or the modus operandi employed in the backdrop of public interest or interest of revenue to the State. The principle of lifting of corporate veil is an exception to the corporate personality of a company, but can be resorted to unravel tax evasion to public interest, which is of paramount interest to prevent a corporate entity in attempting to evade legal obligation. If a corporate personality is being blatantly used as a cloak for fraud or improper conduct or where the protection of public interest is undermined and the company has been formed to evade imposition of revenue under law, the principle of lifting of corporate veil is justified to be applied.  In para 65 of the judgment, it has been clearly held that the transaction which has taken place and the manner there has been transfer of shares between the AJL and YI between the period of three months starting from 23.11.2010 to 26.02.2011 itself shows that the entire transaction of transferring the shares to YI was nothing but a clandestine and surreptitious transfer of lucrative interest to the premise of YI. The Hon. court has come down very heavily in stating that the entire transaction is not only dishonest, but also fraudulent design. 124. The Tribunal also considering the entire facts on record and noting down all the contention concluded as under :- 114 The aforesaid observations and findings of the Hon’ble jurisdictional High Court clearly have a binding precedence because not only it proves that the conduct of the assessee company right from the incorporation of YI till the application for registration u/s. 12AA before the DIT (E), was not to carry out any charitable activity, but to acquire huge assets of hundreds crores of Rs for a negligible amount. Seeking a status of charitable institution and to get registered under welfare legislation like section 12A/12AA, with such kind of conduct clearly indicates that it is a misuse of law and some kind of colourable device. This is perpetuated by the fact that all these transactions were completely hidden from the Income-tax Department and DIT (E) while seeking the registration u/s. 12AA. If all these things are put in perspective, then the contention of the ld. Special Counsel and ld. CIT (E) is to be believed that it is only when the Investigation Wing and Income-tax Department started making certain investigation and enquiries and also looking to the fact that no genuine activity was carried out for the period of five years, the assessee may have been prompted to surrender its registration u/s. 12AA. MA No. 85/Del/2022 Young Indian vs. ACIT 84 115 There is another angle which ponders us is that, if no activities were carried out by YI towards charitable activity between the period 2011 to 2016, then why so much of clamour that assessee should be recognized as charitable institution qua that period only should have the benefit of registration u/s. 12AA for this period of five years, i.e., from the assessment year 2011-12 to A.Y. 2016-17 and post 21 st March 2016, the assessee itself chose to surrender its registration and willingly give up its charity status under the Income Tax Act. If both YI and AJL are non-profitable company, then why such a dispute on cancellation from retrospective date. 116 Before us, the ld. counsel had very strongly objected to refer and rely upon the judgments of Hon’ble Delhi High Court as cited (supra) on the ground that, Hon’ble Supreme Court in SLP No.7345/2019 had stayed the further proceedings pursuant to the High Court order vide order dated 05.04.2019. The relevant directions of the Hon’ble Supreme Court read as under: “There shall be stay of the further proceedings pursuant to High Court’s order.” Not only that, it has been strongly contended that once the operation of the order has been stayed then either the said judgment should not be taken into cognizance or the matter should be adjourned sine dine till the matter stands decided by the Hon’ble Apex Court. We are unable to accept such a plea raised by the ld. counsel for the assessee for the reason that firstly, the Hon’ble Supreme Court had stayed further proceedings pursuant to High Court’s order, which was Eviction of the property situated at 5A, Bahadur Shah Zafar Marg leased to AJL. Thus, in our opinion, what have been stayed are any further proceedings pursuant to the order of Hon’ble High Court and not the entire finding arrived at by the Hon’ble Court. It is a settled principle of law reiterated by Hon’ble Supreme Court in the case of Shree Chamundi Mopeds Ltd. vs. Church of South India Trust Association CSI Cinod Secretariat, Madras (1992) 3 SCC 1, that distinction has to be made between quashing of order and stay of operation of order because quashing of order results in restoration of position as it stood on the date of passing of the order whereas the stay of operation only means that it would not be operative on the date of passing of the stay order, but it does not mean that the said order has been wiped out from existence. The relevant observations read as under: “10. In the instant case, the proceedings before the Board under ss. 15 and 16 of the Act had been terminated by order of the Board dated April 26, 1990 whereby the Board, upon consideration of the facts and material before it, found that the appellant-company had become economically and commercially non-viable due to its huge accumulated losses and liabilities and should be wound up. The appeal filed by the appellant-company under Section 25 of the Act against said order dated MA No. 85/Del/2022 Young Indian vs. ACIT 85 January 7, 1991. As a result of these orders, no proceedings under the Act was pending either before the Board or before the Appellate Authority on February 21, 1991 when the Delhi High Court passed the interim order staying the operation of the Appellate Authority dated January 7, 1991. The said stay order of the High Court cannot have the effect of reviving the proceedings which had been disposed of by the Appellate Authority by its order dated January 7, 1991. While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending. We are, therefore, of the opinion that the passing of the interim order dated February 21, 1991 by the Delhi High Court staying the operation of the order of the Appellate Authority dated January 7, 1991 does not have the effect of reviving the appeal which had been dismissed by the Appellate Authority by its order dated January 7, 1991 and it cannot be said that after February 21, 1991, the said appeal stood revived and was pending before the Appellate Authority. In that view of the matter, it cannot be said that any proceedings under the Act were pending before the Board or the Appellate Authority on the date of the passing of the order dated August 14, 1991 by the learned Single Judge of the Karnataka High Court for winding up of the company or on November 6, 1991 when the Division Bench passed the order dismissing O.S.A. No. 16 of 1991 filed by the appellant-company against the order of the learned Single Judge dated August 14, 1991. Section 22(1) of the Act could not, therefore, be invoked and there was no impediment in the High Court dealing with the winding up petition filed by the respondents. This is the only question that has been canvassed in Civil Appeal No. 126 to 1992, directed against the order for winding up of the appellant-company. The said appeal, therefore, fails and is liable to be dismissed.” MA No. 85/Del/2022 Young Indian vs. ACIT 86 [Emphasis in bold is ours] 117 Thus, it has been clearly held that staying the operation of the order of the Court does not mean that the said order does not exist in law. Hon’ble Bombay High Court in Nilkamal Limited vs. Union Territory of Dadar & Nagar Haveli, in criminal writ petition No. 3794 of 2014, after referring to various judgments including that of Shree Chamundi Mopeds Ltd. (supra) held that even if a decision of the High Court is stayed by the Apex Court, the subordinate courts are bound by the same unless the decision is set aside by the Apex Court. Accordingly, the High Court directed the Magistrate to follow the judgment of High Court unless and until it is set aside by the Hon’ble Apex Court. 118 In view of the aforesaid law, the contention raised by the ld. counsel is hereby rejected. Even otherwise, also here it is not the case that the order of the Hon’ble High Court has become non-operative, albeit the consequences of eviction pursuant to the directions of Hon’ble High Court, has been stayed and not the order. The ld. counsel has also relied upon the judgment of Delhi High Court in the case of Bhushan Steel (supra) and of Calcutta High Court in the case Exide Industries Ltd. (supra) where the order has been stayed by Hon’ble Supreme Court, and in Subsequent judgment, Hon’ble Delhi High Court has not followed the said order. Such a plea and reference does not come to aid for the reason that in the judgment of Delhi High Court (Bhushan Steel) it has been held that the Sales Tax Subsidy is the Revenue receipt and the Hon’ble Supreme Court had admitted the SLP and the entire order was stayed. Here situation and direction are not similar. Further the judgment of Hon’ble Calcutta High Court in Exide Industries Ltd.(supra), wherein the provisions of section 43B(f) was declared unconstitutional where also SLP was filed before the Hon’ble Supreme Court the entire operation of the order was stayed. In any case, once the jurisdictional High Court has passed the judgment which has not been set aside or reversed by Hon’ble Supreme Court, then for lower courts within its jurisdiction constitutes a binding precedence specifically when the judgment has been rendered on similar facts and transaction as held by the Hon’ble Supreme Court in the case of Shree Chamundi Mopeds Ltd. (supra), wherein Hon’ble Supreme Court has clearly held that the order of the Appellate Authority where the operation has been stayed continue to exist in law. We are clearly bound by the observations and findings of the Hon’ble jurisdictional High court. 119 Most of these documents, though submitted at the rejoinder stage, are in nature of clarifications to the submissions made by the ld. DR and the letters written to DDIT in 2014 and certain notices issued by LDO, but none of the documents filed impinge upon our finding in MA No. 85/Del/2022 Young Indian vs. ACIT 87 any manner as given above, because none of these documents prove that acquisition of AJL by the assessee company was for carrying out any charitable activities in pursuance of its objects nor any such activity was carried during the relevant period. Accordingly, these additional evidences, as filed by the assessee, though are taken on record, but we do not deem fit to adjudicate on each and every document for the reasons given in the foregoing paragraphs. 120 One of the key contentions raised by the ld. counsel before us is that the ld. CIT(E) does not have the power to cancel the registration from retrospective date and any such cancellation can only be prospective, i.e., from the date of passing of the order and in support of which certain decisions have also been relied upon. From a bare reading of Section 12AA (3) it is seen that, section provides that where a trust or an institution has been granted registration and if subsequently, Pr. CIT or CIT is satisfied that the activities of the trust are not genuine or are not carried out in accordance with the objects of the trust, he may cancel the registration by way of an order in writing. Consequently, if there is violation of any such conditions, then the registration so granted can be cancelled by the CIT. Nowhere, the Statute envisages that the cancellation cannot be retrospective or it has to be necessarily prospective. What it provides that the Commissioner has statutory powers to cancel the registration u/s. 12A/12AA if he finds reason to believe that the activities of the assessee are not in line with its objects or the activities carried out by the assessee are not genuine in nature. If from the date when registration has been granted, the assessee has not carried out any activity in line with its objects or the activities carried out are not genuine, then from that date itself, the registration can be cancelled because it is only when the knowledge of such breach come to the notice of the Commissioner, then he has the power to cancel the registration from the date he notices the infringement. The cancellation of registration, whether with retrospective effect or prospective, depends upon the facts and circumstances of the case and the Commissioner has power to cancel the registration from the time when such breach has occurred. Suppose, if the assessee after grant of registration carries out its activities in accordance with its objects and the activities are also genuine then the assessee is entitled for benefits of section 12AA; and if from a particular period or year, the activities are found to be either non-genuine or not carried out in accordance with its stated objects, then the Commissioner can cancel the registration from the date or period when such non genuineness is found. Hon’ble Madras High Court in the case of Prathyusha Educational Trust (supra) have clearly reiterated this proposition, relevant text of which has been already incorporated above, wherein their Lordships have held that it a misnomer to sate that the order is MA No. 85/Del/2022 Young Indian vs. ACIT 88 retrospective or retroactive and the order of the cancellation of registration even passed on subsequent date would take effect from the year when cause of action arose. 121 Here, in this case, as we have gathered from the material facts on record and discussed in detail, the assessee at the time of seeking registration itself has concealed the material facts and not disclosed the entire events of transactions which had undergone from the date of inception of assessee company till the grant of registration and one of the conditions on which the registration has been granted stood violated from the day one and therefore, under these circumstances, the ld. CIT(E) was fully justified in law and on facts in cancelling the registration from the date of granting of registration itself, i.e., from the assessment year 2011-12. Secondly, here in this case it has been found that even after grant of registration u/s. 12AA, no genuine activities have been carried out by the assessee either in furtherance of its objects or otherwise, which can be held to be for charitable purpose because one of the so called purpose of acquiring AJL was not carried out at all. Otherwise, also, we have already discussed and given our categorical findings that till the grant of registration and surrender made by the assessee, no worthwhile activities were carried out by AJL. In fact, what it turns out to be is that, the assessee has acquired AJL, a company that owns property worth hundreds of crores from which the AJL had been enjoying only rental income. Clearly, AJL, which had been earning rental income, cannot be held that its activities were aligned with the objects of the assessee company or through AJL; it was carrying out activities in pursuance of its objects qua that period. Hence, in that sense, the assessee’s activities cannot be held to be genuine. Thus, the cancellation of registration u/s 12AA by the Ld. CIT (E) from A.Y. 2011-12 is upheld. 122 Accordingly, in view of our findings given above, we hold that the ld. CIT (E) was justified in cancelling the registration from the assessment year 2011-12, because none of the activities of the assessee was carried out in accordance with its objects nor its activities can be held to be genuine. Consequently, the appeal of the assessee is dismissed. 123 In the result, the appeal is dismissed.” 125. Thus, if we test the arguments of the appellant before us in line with the judgments of Hon’ble Delhi High Court in the case of AJL as well as the order of the Tribunal in the case of YI, appellant company, the entire contention that these transactions were nothing but to promote the objects of Young Indian has been rejected and frowned upon by the Hon’ble jurisdiction High Court as well as by the Tribunal. In wake of MA No. 85/Del/2022 Young Indian vs. ACIT 89 these findings, now what is required to be seen is the underlying substance for entire process of acquisition of shares of AJL, whether there was some other dominant purpose for acquiring the entire stake of AJL? From the sequence of events which have been discussed in the earlier part of the order and the finding of fact arrived by this Tribunal on the same set of transactions in the case of assessee as well as the findings of fact and observations of Hon’ble Delhi High Court based on various judicial jurisprudence, it is clearly established that, the corporate entity of AJL stands pierced and in fact what has been acquired by the appellant company is the underlying assets to acquire huge properties by the AJL and to get commercial benefit derived from such properties. It is very difficult to fathom that all these transactions which have been purported to be portrayed within legal framework to show that what is apparent is also real, which has been found to be incorrect. 126. If we succinctly analyse the sequence of events, then it can be seen that, the appellant company was incorporated on 23.11.2010 and the first step which has been taken was the assignment of loan of Rs.90.21 crores by AICC to Young Indian by journal entry; and then this loan has been assigned on a very paltry sum of Rs.50,00,000/-, which too appellant did not had the funds when the loan was assigned. Subsequently, after two -three months, an account was opened in the name of appellant company and loan is received from a Kolkata based company named Dotex for a sum of Rs.1 crore and that amount is given to AICC for assignment of loan. Immediately thereafter, the entire shareholding of AJL is allotted, i.e., 9.021, crore equity shares in lieu of assignment of loan of Rs.90.21 crores. Simultaneously the authorized share capital of AJL was raised to Rs.10 crores from Rs.1 crore. It is not a case here that by acquiring the entire stake in AJL, the appellant company has infused certain funds to revive the business or any finance was arranged to raise capital of AJL so that it can revive its business. This itself goes to substantiate the conclusion and finding of the Assessing Officer that the entire scheme was to acquire the assets of AJL by the appellant company and there was no other motive, which has been clamored by the appellant that it was purely for charitable purposes. Because, not a single instance of carrying out any charitable activities was found to be carried out right from the year 2011 till the cancellation of its charitable status or till the passing of the impugned assessment order. 127. As observed above, if we analyze these contentions raised by the Special Counsel on behalf of the Revenue that all these narratives were build when certain enquiries/investigation started in the year 2015. Had it been the intention to carry out charitable activities only, then there was no need for the appellant to suo moto surrender its charitable activities or registration certificate vide its letter dated 21.03.2016. If the appellant itself believes that it was no longer carrying out charitable activities, ostensibly the only inference which can be drawn is that the appellant company had acquired the stake of AJL only to enjoy the benefits of huge MA No. 85/Del/2022 Young Indian vs. ACIT 90 properties owned by the AJL which was granted or licensed by various Governments from time to time for publication business which operation has already ceased to exist or suspended for a substantial time in the year 2008 itself. 128. As noted above, the Hon’ble Delhi High Court had pierced the corporate veil after detailed observation in paras 62 to 65 as incorporated (supra), wherein they have observed that when a corporate personality is being blatantly used for fraud or improper conduct or where the protection of interest is of paramount importance or where the company has been formed to evade obligation imposed under the law, the corporate veil can be pierced. In para 65, Hon’ble High Court have precisely noted these very transactions which came into the scanner of the authorities and held that, “if we see the transaction that has taken place in the present case with regard to how the transfer of shares between AJL and Young Indian took place, we find that within a period of three months, that is, between 23 rd November, 2010 to 26 th February, 2011, Young Indian was constituted and took over the right to recover a loan of more than Rs.90 crores from AICC for a consideration of Rs.50,00,000/- and thereafter replaced the original shareholders of Young Indian by four new entities including Shri Moti Lal Vohra, Chairman of AJL and Young India after acquiring 99% of shares in AJL, became the main shareholder with four of its shareholders acquiring the administrative right to administer the property of more than Rs.400 crores.” The observation as noted above in bold clearly highlights that there is no distinction between two entities and corporate veil of AJL was rightly pierced. In fact, Hon’ble High Court had gone to the extent holding “we have no hesitation in holding that entire transaction of transferring shares of AJL to Young Indian was nothing but a clandestine and suspicious transfer of the liquidated interest in the premises to Young Indian and it only indicates dishonest and fraudulent design behind this transaction.” These are strong observations of Hon’ble Division Bench of Hon’ble Delhi High Court based on same material facts before them and transaction involved in this case. Thus, nothing is left to support the contention of the appellant which has been stated before us. 129. The entire submissions made on behalf of the appellant before us are that appellant company being a section 25 company, any alleged gain which the company could have derived could never be distributed as dividend by the appellant, therefore, no motive was to undertake such transaction to derive any benefit or gain. The ld. Sr. Counsel has also referred that shareholders of AJL had passed a unanimous resolution on January 21, 2016 to get the company registered under section 8 of the Companies Act, 2013, the effect of which is that, even AJL is prohibited from declaring dividend or distributing or paying any amount to its members. The properties of AJL itself were subject to various covenants and the company is not allowed to sell or dispose off its assets which MA No. 85/Del/2022 Young Indian vs. ACIT 91 were received with the purpose of utilization in the publishing business. Insofar as this contention that unanimous resolution has been passed to get the AJL converted into section 8 entity has been dealt with by this Tribunal in assessee’s own case (supra) wherein it has been dealt in the following manner :- “108. Much emphasis has been laid by the ld. counsel that AJL has converted itself into a Section 8 company under the Companies Act 2013 in January, 2016, i.e., as a non-profit company, to carry out the objects of Young Indian and the objects of AJL were aligned with that of Young Indian. Such a contention is of no consequence for the reason that, firstly, it is an admitted fact that till date, the assessee had not been granted license by ROC as Section 8 Company; and secondly, all these events have neither been stated by the assessee before the ld. CIT (E) and are post 2016. The amendment in MoA of AJL in the year 2011 is again of no consequence because till the year 2016, no such activity has been carried out by Young Indian through AJL. In any case, we are in tandem with the contention of the ld. Special counsel that merely adopting the changes in MoA does not make the company a Section 8 Company or a non-profitable company, because it is always open for the Board of Directors to amend its MoA and become a profitable company at any time and sweet will. Thus, acquisition of AJL to further the objects of the assessee company as purported by the ld. counsel, is not acceptable.” 130. The contention that appellant being section 25 Company and, therefore, there is no alleged gain which could have been distributed in the form of dividend to shareholders, does not lead to an inference that entire transaction which has been undertaken was for motive of charity or towards its objects. First of all, there is not a single instance starting from its inception till the passing of cancellation order by the ld. CIT (E) u/s 12AA, where it has been found that any charitable activities have been carried out; and secondly, the formation of the appellant company and change of Directors and taking over the AJL within short span of 2 – 3 months itself shows that the intention was purely to acquire the properties and assets of AJL. Whether the benefit of acquisition of the properties would have come in the form of dividend to the shareholders or not, is not relevant, because what is relevant is the real intention behind the entire scheme of acquiring the AJL. We have already noted above and it is again reiterated that nowhere the appellant company had carried out its objects through some other agencies or any other publication house when that was purported to be the dominant object that only through publication the charitable objects of the appellant company would have been pursued or achieved. As highlighted by the ld. Spl. Counsel for the Revenue, if we see the relationship between key position holders who were holding high positions in AICC, as well as in the appellant company and having some beneficial interest directly or indirectly in AJL, then it can be safely inferred that they themselves have treated these two entities as MA No. 85/Del/2022 Young Indian vs. ACIT 92 transparent and have not maintained veil of separate corporate entity, which now they are trying to portray. 131. One has to see from the angle of third-party scenario, whether in case of some third-party comparable instance and amongst unrelated entities, can such transaction between the parties will happen where; one party assigns the loan of more than Rs.90 crores for a paltry sum of Rs.50,00,000/- to other; and for the same paltry amount, the entire shareholding of a company who owed the debt of Rs. 90 crores is transferred to a newly formed company who is not into same or any kind of business, along with all the underlying assets of that company which is being taken over and the worth of those assets are running into hundreds of crores and that to be of a company which has suspended all its publication activities; and the company whose shares are being acquired were no longer into the business of publication. It is not case here that a company is being acquired by a company which is having similar line of business so as to augment its own business or there is some business interest in such acquisitions. Here, this is not a case at all. This chain of events definitely leads to only one conclusion that it is nothing but a masquerade and make-believe arrangement which has been given a cloak of charity and to believe that it was purely for the purpose of charitable activities to promote ides of democratic and secular society. Here a company was taken over with huge underlying assets for allegedly promotion of its objects which otherwise stopped carrying out its publication activity and later on also, it was a non-starter when shares were acquired. Such make-believe arrangement cannot convince any prudent mind or judicial conscience. Thus, the contention raised by the ld. Sr. Counsel for the assessee is without any merits and is therefore unacceptable. 132. Another strong contention which has been raised that merely be acquiring shares of a company shareholders would not become owners of the company and in this regard, decision of Hon’ble Supreme Court in the case of Mrs. Bacha F. Guzdar vs. CIT 27 ITR 1 and also the judgment of Rustom Cawasjee Cooper vs. UOI (1970) 1 SCC 248 and Carew & Co. Ltd. vs. UOI 46 CC 121 (SC) has been relied upon. This line of argument has already been dealt by the Hon’ble Delhi High Court and also by the Tribunal in paragraphs noted (supra). Thus, this contention has no locus- standi in the light of the binding judicial precedents, because the corporate veil has been pierced and the separate juridical identity of two entities has been blurred, therefore, the principle laid down in the aforesaid judgments of Hon’ble Supreme Court is not applicable to the present facts. 133. It has also been contended before us that the judgment of Hon’ble Delhi High Court was neither with regard to income-tax proceedings nor under the Income-tax Act, albeit under the Land Development Act and clause III (xiii) Lease Deed of the transfer. This contention again is not acceptable because though primary issue may MA No. 85/Del/2022 Young Indian vs. ACIT 93 have been related to under the breach of terms of lease; however, Hon’ble High Court has discussed and related the entire transaction which are the same transaction involved in the present matter and the Hon’ble High Court have clearly lifted the corporate veil for these transactions as already noted above. 133. Another very important argument which has been taken before us is that, till today, Income-tax department has never lifted the corporate veil of AJL in the Income-tax matters and the entire rental income is being taxed in the hands of AJL and not the appellant and the depreciation of the same are taken in the computation of income of the AJL. What has been done in the subsequent years or whether the Department has pierced or lifted the corporate veil or not, we are not going into this aspect insofar as the present proceedings are concerned and the transactions which are subject matter and dispute before us. The said transaction which has been judicially frowned upon by the courts and after a detailed finding based on material and facts coming on record, the corporate veil has been pierced, then what is required to be seen is that, the benefit of such transfer has arisen to company or not. At least as of now the judgment of Hon’ble Delhi High Court subsists and we cannot take a different view as the same is binding upon us. 134. Now, we come to the legal proposition raised by the appellant before us as to whether, by way of acquisition of shares any benefit has been arisen to the appellant company which can be taxed under section 28(iv). It has been contended that section 28(iv) applies only to benefit arising out of business which is not in existence in the present case, because the appellant is section 25 Company and not engaged in a business whatsoever and the appellant is not involved in business of shares and immovable properties and in support, various judgments have been cited which have been taken note in the foregoing paragraphs while dealing with the appellant’s submissions. It has also been contended that receipt of shares arose on account of a non-business-related one-off transaction and, therefore, the receipt of shares was not liable to be taxed as ‘business income’ nor it can be regarded as ‘adventure in the nature of trade’ to fall under section 28(iv). Again, in support, catena of judgments relied upon before us, especially the judgment of Hon’ble Supreme Court in the case of Janki Ram Bahadur Ram 57 ITR 21 wherein it was held that mere discounted purchase cannot mean that the assessee was involved in any adventure in the nature of trade to attract the provisions of section 28. 135. Again, the same line of argument is taken that when appellant is itself section 25 company and no dividend income has been distributed by the appellant and there are huge losses in AJL, therefore, the intention was never to earn business income by acquiring the shares or by selling said shares and assets. MA No. 85/Del/2022 Young Indian vs. ACIT 94 136. Now again, if we go by the entire sequence of events and the manner in which entire transaction has taken place which has been reiterated time and again in the foregoing paragraphs of this order, we have already held that the intention was never to take over the entire AJL to run publication business merely to promote its object of promoting ideas of democratic and secular society in youth. The AJL whose publication business was stopped or suspended was having income from commercial exploitation of the properties all across the country and once the entire company was taken over by the appellant company, all the underlying assets have also been acquired. Once the corporate veil has been lifted and the interested parties have been found to be in collusion with each other to give huge benefit of hundreds of crores of property to the appellant company, the only inference which can be drawn is that all which has been tried to showcase the picture was just phantasmagorical illusion and not real. Even if the appellant company did not had any intention of carrying on business of shares or properties when the shares were acquired but neither it was for promotion of its objects also. Otherwise, there is no way this transaction can be looked from prism of simple acquisition of shares for promoting charitable objects other than that a company has been formed only for taking over the entire properties of the AJL and nothing else. Neither the appellant company had carried out any activities either charitable or otherwise, except that the formation of this appellant company was only and only for the purpose of acquiring of properties of AJL. Thus, there was a clear-cut benefit which has come to the appellant company in the form of assets which are various immovable properties spread all over the country owned by the AJL. 137. Now let us analyse, whether the said benefit can be taxed Section 28 (iv) of the Act, which reads as under :- “28. Profits and gains of business or profession ............ (iv) the value of any benefit or perquisite, whether convertible into money or not, arising from business or the exercise of a profession; ...............” The aforesaid section stipulates that there should be benefit or perquisite whether convertible into money or not, arising from business or exercise of a profession. Thus, section 28 seeks to bring to tax income arising from business or profession in all its dimensions. The expression business has been defined in sub-section (13) of section 2 which means as under :- “(13) “business” includes any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture.” MA No. 85/Del/2022 Young Indian vs. ACIT 95 138. The definition of business is inclusive and has therefore, wide connotation and its contours cannot be limited by this definition. One very important facet which has been included in the definition is the term, any adventure or concern in the nature of trade or commerce. It may not mean carrying out trade or commerce or manufacture per se but any activity which has some trapping of a trade, commerce or manufacture would fall within the ambit of expression in the nature of trade or commerce. It could mean that adventure can be a pecuniary risk or a venture or a speculation or commercial enterprise or something which might be carried out in future and may not be present. Certain decisions have been cited by the AO and ld. Special Counsel on behalf of the Revenue which has been incorporated above and heavy reliance has been placed on G. Venkataswami Naidu and Co. vs. CIT 35 ITR 594 (SC) and also judgment of Janki Ram Bahadur Ram vs. CIT 1965 AIR 1898. These judgments explain this concept and lay down the principle that how in such circumstances a venture or transaction can be considered as adventure in the nature of trade or commerce. 139. The adventure in the nature of trade is something where a person undertakes an adventure which may result into gain or profit immediately or may be in future. It is not necessarily that such an adventure undertaken is for immediate gain. The Courts have held that where any transaction falls within the meaning of ‘in the adventure in the nature of trade or commerce’ or not, depends upon the facts of the case. It has also been held that even one single or isolated transaction can satisfy the description of an adventure in the nature of trade and profit transaction bears some indication of a trade. If we analyse the judgements cited before us, then following principles emerge:  An adventure in the nature of trade need not be business itself. Any activity akin to business may be taken to be adventure in the nature of trade.  A single transaction may also constitute adventure in the nature of trade. There need not be regularity or repetitiveness in the activity.  No hard and fast rule can be laid down in this regard as it has to be understood on the facts and circumstances of each case.  The activity alleged/claimed adventure in the nature of trade need not be allied to the already existing activity of the assessee.  In the circumstances and the facts as in the present case, it is the duty of the court to see where ingenuity is expended to avoid taxing and get behind the smoke screen of welfare legislation and discover the true state of affairs. 140. Now, we will deeply analyze the facts, then here is a company which has been formed and was found to have carried out only one activity, i.e., takeover of a company having huge immovable properties which are otherwise were commercially exploited by the said company for its own business and profession. A company which is formed in October MA No. 85/Del/2022 Young Indian vs. ACIT 96 2010 and was closely associated with AJL and AICC through their managing personnel and its stake holders and within days of its formation one of the entity, i.e., AICC offered to sell/assign its receivables worth Rs.90.21crores from AJL in favour of the appellant who at that point of time did not even not had money to undertake a transaction. AICC has offered its huge assets (loan of Rs.90.21 crores) for a mere sum of Rs.50,00,000/-) and the appellant company did not have any resources to pay the same when the loan was assigned. It was only after assignment of the loan of Rs.1 crores which was raised from Kolkata based company; out of that, amount of Rs.50,00,000/- has been paid for acquiring assets worth Rs.90 crores. Before that, AJL had already closed its publication business and was having income only from commercial exploitation of property and was not able to pay the loan, which if had taken from any commercial bank or financial institution would have been obliged to liquidate its debt first. A newly formed Company (YI) buys the loan even before any loan was received. In fact, appellant had not even opened its bank account when the loan was assigned for Rs.50,00,000/-. Such a transaction, we already observed above, is beyond any prudence in any comparable third-party scenario, where any person would do that. The AICC immediately extinguished its receivables worth Rs.90.21 and instead of getting amount of Rs.50,00,000/- from AJL had assigned the receivables in favour of a new Company and the entire stake in AJL of more than 99% has been taken over by that company in one stroke. All these transactions have been frowned upon and held to be a colourable device by the Hon’ble Delhi High Court, wherein it has been held that the real intention was to get the possession of the assets of AJL and enjoy these properties which are situated in major cities of the country. This clearly shows that the intention of the appellant was to enjoy the benefits by commercial exploitation of these properties and to acquire the benefit of these properties which is nothing but adventure in the nature of trade which can be carried out at some future point of time. It is also very clear from the fact that this was the only activity done swiftly within a period of 3 – 4 months, which appellant had carried out in all these years starting from 2010 till date. 141. The word ‘benefit’ is occurring in section 28(iv) means some kind of adventure or gain or had same value or acquire any interest in any land, chattel, etc. Thus, the benefit is nothing but any form of adventure and here the adventure is clearly getting the underlying huge properties situated all over the country by stroke of one transaction and to enjoy the benefits of all those properties in future. 142. The entire hypothesis of the appellant which has been canvassed before us that, since it is a case of acquisition of shares simplicitor at lower rate, therefore, this transaction cannot be brought to tax u/s 28(iv). This hypothesis has clearly been demolished looking to the entire scheme of design under which transactions have been executed. Therefore, we MA No. 85/Del/2022 Young Indian vs. ACIT 97 agree with the contention of the Department that benefit has been derived by this transaction which could be brought to tax u/s 28 (iv). 143. Before us, ld. Sr. Counsel for the assessee has taken various facets of the arguments stating that the so-called benefit could not have been taxed under the provisions of section 28(iv). His first limb of argument, that the appellant has acquired shares of AJL and not the assets of the AJL. We have already discussed above that here is not the case of acquisition of shares albeit entire assets of AJL, because nature of transaction undertaken has already been opined upon by the Hon’ble Delhi High Court and by us in the foregoing paragraphs. 144. Another argument of Ld. Counsel was that, if the appellant is regarded as owner of AJL, benefit if any is only in the capital field and, therefore does not cover u/s 28(iv). It has been contended that acquiring of shares even if it is held that assessee acquired assets at a discounted price which is benefit to the appellant the same is purely in capital in nature, because appellant had no intention of selling the shares for any profit in future. We are unable to appreciate such a contention on the peculiar facts of the case, because here it is not a case of acquisition of shares per se, albeit it is a case where assessee had acquired benefit in the interest in the immovable properties held by AJL. The acquisition of shares is merely a step in the entire adventure, which we have already held in the nature of trade and commerce. The benefit has arisen in this year only, the moment the whole transaction had taken place right from purchase of an asset in the form of loan from AICC for a sum of Rs.50,00,000/- and in lieu of that, the whole shares of AJL have been acquired which was nothing but to get entire interest of the immovable assets of AJL. This we are stating on the strength of our finding given above as well as the observation and the finding of Hon’ble Delhi High Court as cited (supra). 145. Again, it has been contended that there is no benefit or perquisite within the meaning of section 28(iv), because, here in this case, the purchases cannot give rise to income u/s 28) (iv) even if it was discounted over the market place. This argument of the ld. Sr. Counsel for the assessee persists on the assumption that, what were being acquired were the shares of AJL. As already stated herein above, the entire exercise was to have the control and enjoyment of the properties of AJL and, therefore, the appellant has realized the benefit in the real terms when the acquisition was over and how the benefit would be dealt with or property in future is not something to be seen at this stage. With this reasoning, the contention raised by the ld. Sr. Counsel for the assessee before us, that the provisions of section 28(iv) would not apply when the shares/assets are sold, is rejected. 146. We are not discussing the judgments which have been cited before us in view of our findings herein above which is based on the peculiar facts and circumstances of the case as it is not a case of acquisition of MA No. 85/Del/2022 Young Indian vs. ACIT 98 shares or any other assets at a discounted price. Therefore, these judgments are not discussed. 147. Another limb of argument is that even if it is assumed that the shares of AJL so acquired by the appellant are business assets and should be recorded as stock-in-trade even in that case, ld. Sr. Counsel submitted that no profit has said to be arisen by merely valuation of shares. He has further contended that there is certain accounting principle that stock-in-trade has to be recorded in the books at their cost or market value, whichever is lower. This argument is again based on the premise that it is a case of acquisition of shares at a discounted price. Here, it is a case of acquisition of properties in the garb of these transactions which has not only resulted of having these properties immediately after the acquisition of the transaction but also in future whereby exploitation of these properties would lead income in the nature of trade and business. It is a case of valuation of stock-in-trade and, therefore, the judgment of Hon’ble Supreme Court in the case of Chainrup Sampatram v. CIT 24 ITR 481 has no application in the present facts of the case or the judgment of Hon’ble Supreme Court in the case of CIT vs. Hindustan Zinc Ltd. 291 ITR 391. 148. Another limb of argument which has been vehemently argued before us that when there is a specific provision under the Act that section 56(2)(viia) for taxing the gain of shares then the general provisions cannot be applied mainly because the specific provision is not made applicable to the relevant assessee. First of all, the provisions of section 56(2)(viia), at the very outset, is not applicable, because the assessee being section 25 company which falls within the ambit and definition of a company in which public are specially interested in section 2(18)(iiaa). Even the ld. Sr. Counsel has agreed that this provision is not applicable but his case was that such transactions will fall u/s 56(2)(viia) and not section 28(iv). However, we have already held that how the entire transaction has led to benefit arising from adventure in the nature of trade so as to fall within section 28(iv) and section 56(2)(viia) has no applicability at all. Accordingly, the judgments which have been cited before us have no relevance. 149. Ld. Sr. Counsel on behalf of the assessee had also pointed out that now there is a specific provision brought into the statute to cover such nature of transaction u/s 56(2)(x) which has been brought in the statute w.e.f. 01.02.2017 and, therefore, if the legislature intended to cover such transaction u/s 28(iv), there is no requirement of bringing it within the taxable ambit under the deeming provisions of section 56(2)(x). We disagree with him because, the provisions of either section 56(2)(viia) or 56(2)(x) deal with the situation where transaction is made for no consideration or lower consideration and someone transferring the assets to the other. This is a case where the properties are being taken control of under a scheme and designed to acquire the shares of a company under a pre-planned scheme with the connivance of amendment of AJL and AICC. MA No. 85/Del/2022 Young Indian vs. ACIT 99 We have already noted above that the applicability of section 28(iv) and benefit derived thereon is due to peculiar facts and circumstances of this case and nature of transaction has been undertaken which has resulted into the benefit of the appellant company in the form of huge immovable properties held by the AJL. 150. Now, coming to the last limb of the arguments that here it is not the case of real income albeit a notional income, therefore, the real income can be taxed. Here in this case, we have already held that the benefit which has arisen as a consequence of adventure in the nature of trade where benefit has been derived in the non-mandatory form i.e.,v in the form of immovable properties of AJL during the year which is taxable u/s 28(iv) and, therefore, it is an income, which has arisen to the assessee, taxable u/s 28(iv). 151. Thus, in view of our discussion above, we hold that the Department has rightly taxed the amount during the year under section 28(iv) of the Act.” 13.1. From the perusal of the aforesaid findings of the Tribunal, it could be noticed that the Tribunal had heavily relied on the findings and observations made by the Tribunal in the case of the assessee’s appeal with regard to cancellation of registration under section 12AA of the Act and also the observations of the Hon’ble Delhi High Court with regard to the very same set of facts qua the lifting of corporate veil thereon. In our considered opinion, when a subordinate authority to High Court follows the observations of a superior court and makes an order, no error could be attributed in the said order of the Tribunal, much less an error / mistake apparent from record warranting rectification under section 254(2) of the Act. This is a clear case of Ld. Counsel for the assessee not being in agreement with the view taken by the Tribunal in the main appeal, which he is seeking to review in the Miscellaneous Application proceedings, which is not permissible in the eyes of law. Besides the above, we find that the Tribunal had passed a speaking order considering all the relevant facts. Even for the sake of argument, non-consideration of one of the argument of the party will not lead to conclude that the order of the Tribunal suffers from the apparent mistake. Once the Tribunal had taken note of the submissions of the parties which contains all the arguments, MA No. 85/Del/2022 Young Indian vs. ACIT 100 which fact is not disputed by the Ld. AR before us, and the Tribunal had apparently considered the same on a broader perspective while deciding the issue, it cannot be construed that the order passed by the Tribunal suffers from an apparent error warranting rectification thereon. At the cost of repetition, we hold that dissecting the order of the Tribunal line by line is not permissible so long as facts are correct, provision of law is correctly applied and / or there is application of mind by the Bench on the impugned issue. If there is any further grievance for either of the parties, the legal recourse for the same would be in appeal before the Hon’ble High Court under section 260A of the Act and not in rectification proceedings under section 254(2) of the Act before this Tribunal. Hence the arguments advanced by the Ld. AR qua this issue is hereby dismissed. 14. With regard to Issue No. 5 raised by the assessee in the Miscellaneous Application, we find that the relevant observations of the Tribunal are in Paragraphs 126, 127, 130, 131 and 141 which are already reproduced above while addressing Issue No. 4. For the sake of brevity, the same are not reproduced here again. To buttress the findings of the Tribunal, the Ld. AR before us relied on page 56 of his written submissions in para 5.13 listing out the series of charitable activities carried out by AJL. But we are concerned with charitable activities, if any, carried out by the assessee herein and not by AJL. Hence the arguments put forth by the Ld. AR in this regard does not advance the case of the assessee in the Miscellaneous Application proceedings, as it only conveys the disagreement with the view taken by the Tribunal. Either way, if the same are to be acceded to in the present proceedings, it would only amount to review which is not permissible in law. Hence the arguments advanced by the Ld. AR qua this issue is hereby dismissed. 15. With regard to Issue No. 6 raised by the assessee in the Miscellaneous Application, we find that the Tribunal in this regard had observed as under:- MA No. 85/Del/2022 Young Indian vs. ACIT 101 “172. Now, we come to the property-wise valuation done by the AO and the objections raised by the appellant in that regard. DELHI PROPERTY (5A, HERALD HOUSE, BAHADURSHAH ZAFAR MARG, NEW DELHI.) 173. AO referred the matter to the DVO to determine the valuation of 5A, Herald House, Bahadurshah Zafar Marg, New Delhi who determined the FMV at Rs.201.84 crores as on 26.02.2011. DVO determined the FMV of the land by adopting the comparable sale instance method and the value of the built up area on the land was determined on the basis of CPWD Plinth Area Rates for Delhi as in 2007 as a base 100 duly updated by cost inflation index, while allowing depreciation taking into account the age of structure. The DVO has taken plot No.5, Tolstoy Marg, New Delhi as a comparable sale instance to determine the FMV on 26.02.2011 for the reason that the property is situated in a same classified zone and a comparable location and appropriate adjustment has been made to iron out any possible difference in the properties between two locations. This was confronted to the appellant by the AO. The appellant has filed its objections which have been noted in page 57 of the assessment order in the following manner:-  The Value of Rs. 14,45,000/- per square meter is a gross exaggeration based on a 3* Multiple applied to a property on Tolstoy Marg which itself is in far better location and commercially far more valuable than the property being valued.  DVO has taken Rs. 4,81,669.64 per square meter assuming that this is a residential property and has used a multiplication factor of 3* for commercial use. Instead of using this approach, the DVO should take comparable commercial properties in that area.  Plot No.5 Tolstoy Marg is at a distance of approx. 4 km. from the property being valued and is a significantly more commercially attractive locality with higher far than the property being valued. Therefore, not comparable.  Tolstoy Marg building transaction took place on 10.03.2008 that is 35 months prior to the date of valuation of this property. This period (2008-2011) is inflated by DVO at the rate of 21% per annum which is exorbitant and not in line with market inflation which is much less, i.e. closer to 5% per annum.  Plot size (land area) as given in Para 5.1 and in Annexure B is = 1347.696 square meters. The constructed Area on the Ground Floor 1779.08 square meters as given in Annexure Ai and used for calculation purposes by DVO is factually incorrect as it is MA No. 85/Del/2022 Young Indian vs. ACIT 102 physically impossible for the Ground Floor to have 32% higher area than the plot size itself. This is clearly erroneous.  The cost of construction are factually incorrect. As per Govt. of Delhi Gazette Notification No. F.l(281)/Regn. Br./HQDiv.com/09/45 dated 4, February 2011 the cost of construction for "A" category properties is Rs. 14,960 per square meter multiplied by factor for the building completed in the years 1960-69 that is 0.6 which would come Rs. 8,976 per square meter. The values taken by DVO are wrongly exaggerated and inflated and are 2.5-3* the relevant value.  DVO Report omits the reports in public domain on the Restrictive Clauses which are reported to apply to this property.  Electrical installation, Water Supply and Sanitary Installation rates vary according to DVO report and are lower for basement and higher for ground floor and upper floors. This is clearly erroneous. 174. The objection of the appellant was forwarded to the DVO who has given his response which is reproduced as under :-  The method adopted is appropriate in absence of the detailed physical inspection being permitted by the assessee.  As per Revenue Department, Govt. of NCT of Delhi notifications, minimum land Rates of commercial lands are adopted 3 times of residential land rates.  No comparable sale instance is available in this office for a commercial property in that area.  The property under reference is located on Bahadur Shah Jafar Marg, which is a very wide road and very close to ITO Chauraha, one of the most prominent places in Delhi. The Tolstoy Marg is much narrower than Bahadur Shah Zafar Marg.  CBDT guidelines provides for 18% to 24% per annum increase. Accordingly, 21% per annum has been adopted.  As per the information contained in your letter dtd. 13.07.2017, Megganine Floor Area was 7376.22 Sqft and the Ground Floor Area was 11773.69 Sqft. The Assessee did not permit inspection. Under the circumstances, Megganine floor area was added to the Ground floor area and valuation report was prepared accordingly. MA No. 85/Del/2022 Young Indian vs. ACIT 103  The calculations given by the Assessee are based on the minimum rate of construction for stamp duty purposes. The valuation report however is based upon the CPWO plinth area rates.  The basements are normally used for parking and/ or storage purposes. Hence as per practice, lower rates of Electric Installation, Water supply & Sanitary Installation etc. are adopted for basements than upper floors. A normal practice has been adopted in valuation report, in absence of the property inspection.  It is not clear as to how part tenancy impacts the FMV of the property.” 175. The AO, after considering the objections of the appellant as well as the comments of the DVO has taken the value of the property at Rs.201.84 crores. 176. First objection raised by the appellant is that DVO ought to have considered the circle rate instead of adopting ‘comparable sale instance method’ especially in the absence of any proper comparable instance and contended that the ready reckoner rates for the concerned property was readily available and circle rates for Delhi were released vide Notification dated 04.02.2011 which also falls within the same month i.e. valuation date. 177. Its matter of fact that the property at 5A, Herald House, Bahadurshah Zafar Marg, New Delhi is situated at one of the most prime locations of Delhi, wherein various high value commercial establishments are there, with a very high market value of rentals and huge commercial viability. For such places, the circle rates are only representative of the value purely for the purpose of stamp duty and no- way especially in Delhi, the circle rates in various zones are indicative of true or actual market value of the property. The circle rate only provides for a uniform rate for a very vast area and extends to those areas also which may have areas or localities having higher or lower commercial value or depends upon actual market value in open market of the given locality. For instance, in the same zone, there will be high potential commercial area and also other areas which do not have either any commercial potentiality or locational advantage or are residential or institutional or underdeveloped pockets. In such a situation, circle rate cannot be the benchmark to determine the FMV of the property in Delhi. Then in such a situation, comparable sale instance certainly gives a far better indication of the actual realizable value of the property (in the proximity of the said property in the same zone). Even if we take the sale instance adopted by the DVO at Tolstoy Marg which is a residential property, the same was sold and transacted at a much higher price than the rate of prescribed circle rate of the area. MA No. 85/Del/2022 Young Indian vs. ACIT 104 This itself goes to prove that, the circle rates are not FMV, specifically in such zones of Delhi with the very posh residential localities and those having very high commercial value which cannot be benchmarked with the circle rates. On the contrary, the property 5A, Herald House, Bahadurshah Zafar Marg, New Delhi is situated at very high commercial area of Delhi with big commercial establishment and offices. This property is on perpetual lease and, therefore, it has a very high potential market value in the open market in that area. It would be very difficult to fathom that such a huge property with vast land area and a lot of built-up area having been rented to big corporate entities, it would be too difficult to believe that FMV of the property should be valued at a circle rate which is applicable for a vast zone consisting of different localities including, residential, and under developed pockets and with no or low commercial value which has been contended before us to be adopted. 177.1 It is very interesting to note here that, nowhere either in the written submissions nor in the course of hearing or as a matter of fact in the registered valuer’s report, has the appellant come out with, what should be the value of the said property, according to them. Instead of that, they have sought to point out various objections and infirmities in the DVO’s valuation report rather than giving what would be FMV of such property according to them. At least, the appellant should have come up with certain proper valuation benchmark and to compare so as to determine the FMV of the said property with suitable justification rather than merely pointing out various objections and defects in the DVO’s report. 178. The valuation is always based on fair estimate which is in turn based on certain calculations and workings under prescribed formulas and methods either as per CPWD rate or as per comparable sales instance method etc. In the absence of any value shown by the appellant, it is very difficult to either accept various objections raised by the assessee on DVO’s report or to accept contention that the circle rate alone should have been adopted, which in Delhi for most of the zones are not determinative of actual market rate which are manifold higher. 179. Here in this case, it needs to be appreciated that only the basement and first floor of the property was earlier allocated to specific use for publication business prior to the closure of newspaper business and there are no other restrictions which disables the appellant for renting out on high commercial value. Even these restrictions are open to waiver with the consent of the lessor and it is not very uncommon to find changes in the said land use. For the remaining part, the only restriction is that it may not be used for hotel/ restaurant and other commercial uses are in fact permitted. MA No. 85/Del/2022 Young Indian vs. ACIT 105 180. The Appellant has contended that there is a ban on the transfer of the property and further that in the event of the transfer 50% of the unearned increase would have to be given to L&DO. Reference was made to Clause (III)(13) of the Perpetual Lease Deed dated 10.01.1967 which provides that the land cannot be transferred without approval and L&DO shall be entitled to a claim of 50% of the unearned increase. Reliance has been placed on the decisions of Hon’ble S.C. in the case of CIT v. P.N. Sikand, 107 ITR 922 (SC) where it was held that where there is a restrictive covenant on the property, the fair market value of the land would have to be reduced by the unearned increase stipulated in the lease deed. 181. After considering the submissions of the Appellant and also of the Revenue in this regard, we find that it is incorrect to suggest that there are any worthwhile restrictions on the use of the property. The DVO, while inspecting the premises, found as a matter of fact that the property was being used as a commercial property without any such restrictions as are sought to be argued at this stage. Besides, the restrictions, if any, are only to the extent that the building shall not be used for running a cinema or a restaurant or any activity which is noisy or offensive. These are very normal restrictions and this does not suggest that the character of the property would change for the purposes of valuation. Looking at the nature of restrictions placed on the use of the property, as discussed above, it is very clear that the nature of the property remains commercial and it does not render any other character nor does it support the arguments of the Ld. Senior Counsel for the Appellant that the DVO should have treated as a non- commercial property and ought to have applied a multiplying factor of two and not three. 182. As discussed above, the nature of the property being commercial, situated in a highly commercial area of Delhi, the DVO has rightly applied the multiplying factor ‘3’ to take into consideration these factors. In the absence of any effective restrictive clause, the cases relied upon by the Ld. Senior Counsel for the Appellant are not applicable and the plea deserves to be rejected and we do accordingly. The judgment relied upon by the appellant on CIT v. P.N. Sikand (supra) is not applicable on facts as here it is not a transfer of the property to a different owner albeit AJL continued to be owner and value is to be seen as benefit arising to YI as discussed above. 183. Now coming to the other limb of the argument that 50% of the unearned increase is payable to L&DO, it is found that the same is payable only at the time of transfer of the ownership. In the first place the clause only stipulates the entitlement of the Lessor. As a matter of fact, there are no such instances of transfer in this case for all these years. The rights of the authority are of unascertainable nature and are dependable on future policies of the government from time to time as MA No. 85/Del/2022 Young Indian vs. ACIT 106 well as the conduct of the assessee. In the peculiar facts of this case, no credit for the same is permissible at the point of working out benefits which the Appellant derives from these set of transactions which are in the nature of an adventure in the nature of trade. The 50% unearned increase which is payable to L&DO does not alter or reduce the price of the property. It is at best how the sale price is to be appropriated. The seller will get the full price of the property not withstanding that he has to part with a part of that price to some statutory authority. But this parting of unearned increase arises only in a situation where the ownership of the property is getting transferred to a third party. In the facts of this case which are very peculiar, there is no transfer of ownership. By a devise, which is colourable in nature, the Appellant has taken over complete control over AJL and after piercing the corporate veil, one may find that the Appellant is in complete control and enjoyment of this property. The legal ownership may still vest with AJL hence it is not a case where in considering the value of the benefit flowing to the Appellant, there is any case for deduction of 50% of unearned increase being payable, if at all, to L&DO. 184. It is precisely for the above reason that the case of P.N. Sikand (supra) would not be applicable. In the case of P.N. Sikand (supra) the Hon’ble Supreme Court was examining the value for wealth tax purposes where the ownership vested with the assessee. In the present case, legal ownership vests with AJL but control and enjoyment comes at a benefit to the Appellant. We are of the view that the Appellant cannot get any benefit from the aforesaid decision. The contentions made in this regard are therefore rejected. 185. The Appellant has also objected to the fact that the sale instance of a property at Tolstoy Marg is taken which is not the right comparable. We have taken into consideration the observation of the DVO to the effect that there were no clear available sale instances in that area and therefore the rate for the nearby area has been taken and suitable adjustment has been made thereto. We do not find any infirmity in this approach of the DVO. As pointed out earlier, neither the Appellant nor the registered valuer whose services were taken to raise objections against the value determined by the DVO has indicated any value to the property which according to them was the right value on the given date. No sale instance has been pointed out to suggest that the DVO should have taken this sale instance and not that sale instance. In the absence of any instance which could have been relevant, it would not be correct to point fingers at the sale instance which the DVO could find out and rely on, and make an unsubstantiated argument that the approach of the DVO was not correct. It has already been pointed out that both, Bahadur Shah Zafar Marg and Tolstoy Marg fall in the same zone i.e., Zone A. The nature of property is commercial. The DVO has already given a discount of 5% for these factors. Under these MA No. 85/Del/2022 Young Indian vs. ACIT 107 circumstances, we do not find any merit in these contentions and these are accordingly rejected. 186. The action has been taken by the L&DO for the reason that it was not being used for press activity rather, it was used for other commercial purposes, without their "consent". It appears that the authorities were not even informed of the gross violations and hence the authorities initiated the action. However, this would not suggest that the property was not open for commercial use or the multiplying factor needs to be lowered on that account. The contentions of the appellant in this regard are not tenable. 187. As regards the objection of the appellant that the area of the ground floor has not been correctly taken, the Assessing Officer has already pointed out that due to non-cooperation by the assessee and lack of relevant details, the area of mezzanine floor was clubbed with the first floor. However, it makes no difference to the total value of the property. 188. Thus, we hold that firstly, the circle rate which has been proposed by the appellant to be applied here in this case for valuing the property is not acceptable, because circle rate are not the right benchmark in all cases for determining the actual market value of property in Delhi especially where the property is located. Here it is found as a matter of fact that even in the sale instance of residential property at Tolstoy Marg, the sale rate was many times higher than the circle rate. In any case, Bahadurshah Zafar Marg and Tolstoy Marg fall in the same zone i.e., Zone – A for the purpose of circle rate and if the property at Tolstoy Marg has been sold at a much higher price than the circle rate, then ostensibly the circle rate cannot be held to be applicable for the property at Bahadurshah Zafar Marg. Bahadurshah Zafar Marg also which is near to ITO and has big commercial establishments having high commercial value, therefore, the value of Bahadurshah Zafar Marg at any day would never be much lower than the Tolstoy Marg. 189. Insofar as the appellant’s objection to 21% of increase to the value from year to year applied by the DVO, we find that the DVO has taken this basis on the basis of CBDT Circular as cited by him in his report which states that monthly increase of 1.5% or 2% may be adopted which works out to be in the range of 18% to 24% of annual average, which DVO has taken at 21% which appears to be justified. 190. The contention that DVO has erroneously made 21% increase per year by adopting the rate of sale of Tolstoy Marg property which was sold in the year 2008 for arriving at the value in the year 2011, we do not find any reason for such objection because, firstly, Bahadurshah Zafar Marg is a much better location having very high commercial value and in any case, DVO has given suitable discount of 5% for this reason. MA No. 85/Del/2022 Young Indian vs. ACIT 108 The DVO has also pointed out that this was the nearest sale instance available. 191. Thus, considering the entire facts and material on record and in the absence of appellant itself giving any FMV, we do not find any infirmity in the valuation of the DVO which has been adopted by the AO and accordingly the valuation of Rs.201.84 crores for the Delhi property, i.e., 5A, Herald House, Bahadurshah Zafar Marg, New Delhi is confirmed. PATNA PROPERTY ...... PANCHKULA PROPERTY ..... VALAUTION OF NEHRU BHAWAN AND NEHRU MANZIL OF LUCKNOW PROPERTY 195. The DVO has determined the valuation of the properties at Lucknow known as ‘Nehru Bhawan’ and ‘Nehru Manzil’ constructed in the year 2006-07 and 1997-98 at Rs.40,59,06,400/- and Rs.64,23,51,100/- as on 26.02.2011 & 13.07.2017 respectively. The land of both the properties have been valued at circle rate notified by the State Government and FMV of building was determined on the basis CPWD plinth area rate at the relevant point of time. As observed by the AO, the DVO has made the valuation in the following manner :-  DVO has considered circle rate of the land for computation of value. He has considered circle rate as at 1.8.2010 and 5.8.2013 and worked out an average. He has further added 10% for prime location and 10% for two side road., thereby arriving at circle rate of Rs. 30,000 per sqm.  Accordingly, the value of land is arrived at 6469.33 sqm x Rs. 30,000 = Rs. 19,40,79,900/-.  Further, the value of Nehru Bhawan and Nehru Manzil – two building on the plot has been determined using CPWD Plinth Area rates of Delhi 2007.  Also, For Nehru Bhawan, depreciation has been computed from 2007 and the value has been determined at Rs. 13,45,57,383/- whereas for Nehru Manzil, it is computed from 1998 and the value has been determined at Rs. 7,72,69,100.  Accordingly, value of Lucknow property is determined at Rs.40,59,06,400/- (19,40,79,900 + 13,45,57,383 + 7,72,69,100) 196. First objection of the appellant before us is that DVO has considered circle rates of 2010 and 2013 and then arrived at the circle MA No. 85/Del/2022 Young Indian vs. ACIT 109 rate of 2011, even though the circle rate of 2011 was available. Moreover, DVO has taken the circle rate of Kaiser Bagh Circle as available on the valuation date. However, we do not find any significant difference in the circle rate of 2010 and 2013 and circle rate of 2011. The circle rate applied is of Kaiser Bagh circle, zone in which the property of the appellant was situated. The DVO has increased circle rate by 10% on the ground that the property was situated at prime location which is evident as it has two side roads. There is no infirmity if the DVO has increased 10% of the circle rate if the area is situated in a better location i.e., two side roads and commercial use. 197. Another contention is raised that this property was given on rent to Rajiv Gandhi Charitable Trust and, therefore, the most appropriate method would be Rent Capitalisation method and the factor of existence of tenant should be taken into consideration. This objection does not have any merit. Moreover, the DVO has adopted the land and building method by taking the FMV by taking circle rate of the land and CPWD plinth rate for construction. 198. However, there is one more important objection raised by the appellant that a certain portion of Nehru Manzil was sold by the company and same was not in its possession. Nine out of two hundred shops were sold and, therefore, the value for the portion of the property which was not in possession of AJL is to be deducted. This contention of the appellant deserves to be accepted and accordingly, we direct the AO that while giving effect to this order he will give proportionate deduction for the shops which were already sold and the balance value of the property should be adopted as per the DVO’s report. 199. One of the objections raised is that proper adjustment has not been made for half constructed and poorly maintained and dilapidated structure of the property and should be computed while taking consideration of the status of the land as it impacts marketability of the said property. Further, it was pointed out that construction of building of Nehru Manzil was stopped in 1986-87 and same could not be completed. All those factors should have been taken into consideration. We find that DVO has given 22% discount on the unfinished property which, according to the appellant, was not correct because the said structure is not equipped with necessary infrastructure and mechanical & plumbering services. Even the completion certificate from the local authorities was not obtained. Even if we accept all the contentions, which have been raised then again no quantification has been given by the appellant that how much deduction the appellant has contemplated nor the same has been mentioned by approved registered valuer. 200. However, in the interest of justice and taking note of all such objections, we hold that instead of 22% deduction, a deduction of 30% should be given. Accordingly, the appellant would get relief of extra 8% MA No. 85/Del/2022 Young Indian vs. ACIT 110 on the value adopted by the DVO on the valuation adopted for Nehru Manzil. 201. There is another objection which merits acceptance by us that the depreciation has been wrongly considered from year 1997-98, whereas the building was constructed much earlier. It has been shown before us that building was constructed in the year 1986-87 and not in 1997-98, therefore, we agree that depreciation of the building should be allowed from year 1986-87. Thus, the AO is directed to compute the valuation as done by the DVO subject to following deductions :- (i) Allow proportionate deduction for shops which stood sold prior to the date of valuation; (ii) Instead of giving deduction of 22% as done by the DVO on partly constructed building, give deduction of 30%; and (iii) Depreciation should be allowed from AY 1986-87. MUMBAI PROPERTY ...... 219. In view of the aforesaid discussion on the valuation of the properties, the values of the five properties are as under: (i) Delhi Property, 5A, Herald House, Bahadurshah Zafar Marg, New Delhi, is valued at Rs.201.84 crores; (ii) Patna property is valued at Rs.4,90,89,795/-; (iii) Panchkula property is valued at Rs.32,25,60,000/-; (iv) Lucknow property is valued subject to our directions given to the AO; and (v) Mumbai property is valued at Rs. 120,44,44,480/- Accordingly, the aforesaid additions are confirmed.” 15.1. From the above, it could be seen that the Tribunal had independently dealt elaborately the method of valuation of each property belonging to AJL and the basis of the same. Wherever, the assessee is eligible for reduction in the valuation adopted by the Assessing Officer, the same has been duly granted by the Tribunal and finally the valuation to be adopted in respect of each property has also been summarised by the Tribunal supra. Much emphasis was laid by the Ld. AR before us on the decision of the Hon’ble Supreme Court in the case of CIT vs. P N Sikand reported in 107 ITR 922 (SC) stating that the said decision has not been considered in the right perspective by the Tribunal. We have gone through the said decision and MA No. 85/Del/2022 Young Indian vs. ACIT 111 also the observations made by the Tribunal with regard to the applicability of the said decision to the facts of the assessee’s case, especially in paragraphs 182, 183 and 184 reproduced supra, by making a categorical observation that there is no transfer of ownership in the instant case by AJL, that the legal ownership vests with AJL and by virtue of control and enjoyment the benefit arises to the assessee. With these observations, the Tribunal had concluded that the decision of Hon’ble Supreme Court supra would not be applicable to the facts of the assessee. At best, the view of the Tribunal on the applicability of the decision of Hon’ble Supreme Court supra could be construed as an error of judgement but not an error apparent from record warranting rectification under section 254(2) of the Act. Hence the arguments advanced by the Ld. AR qua this issue is hereby dismissed. 15.2. Further we find that the Ld. AR before us vehemently argued that the Tribunal had recorded that the DVO for the purpose of valuation of properties wherein pegging up rate of 21% year on year was based on CBDT guidelines and that no such guidelines were placed on record. In this regard, we find that the Ld. Special Counsel for the Revenue brought to our notice the said CBDT guidelines which specifically provides for escalation of prices year on year by adopting the rate of 18 to 24% and that the DVO had adopted the average rate of 21%. The DVO had taken the average pegging rate at 21% which has been taken note by the Tribunal while deciding the grounds raised on the aspect of valuation of properties. Hence we do not find any error in the said order of the Tribunal warranting any rectification under section 254(2) of the Act. Hence the arguments advanced by the Ld. AR qua this issue is hereby dismissed. 16. With regard to Issue No. 7 raised by the assessee by way of an Additional Ground seeking clarity on the allowability of Depreciation on properties, at the outset, we find that the Tribunal had in principle agreed for grant of depreciation on properties. However, the Ld. AO while giving effect to the MA No. 85/Del/2022 Young Indian vs. ACIT 112 order of the Tribunal had apparently granted depreciation only for one property viz. Nehru Manzil. Hence the assessee is forced to raise this issue by way of an additional ground. We are in agreement with the same and proceed to admit this additional ground, though effectively it is only an offshoot of the original ground raised on allowability of depreciation. This issue is adjudicated by us in this Miscellaneous Application Proceedings only to provide clarity of thought and understanding of the order passed by this Tribunal earlier on the limited issue of claim of depreciation on properties which is not granted to the assessee. 16.1. We find that the Tribunal had while addressing the issue of valuation of properties had duly summarised in the last by giving certain directions to the Ld. AO for giving effect thereto in Para 201 of the order reproduced above. While doing so, though elaborate observations were made by the Tribunal with regard to each of the property i.e Nehru Manzil and Nehru Bhawan (Lucknow) , while summarising the issue, the Tribunal mentioned only about grant of depreciation for Nehru Manzil property. No finding whatsoever was given in crystal clear terms for Nehru Bhawan (Lucknow) property. 16.2. Hence the additional ground raised by the assessee is in order and we direct the Ld. AO to grant depreciation in the following manner:- a) On Nehru Manzil property – Depreciation to be granted from Asst Year 1986-87 onwards b) On Nehru Bhawan (Lucknow) Property – Depreciation to be granted from Asst Year 1981-82 onwards 16.3. To the extent of our directions mentioned in para 16.2. above, the Tribunal Order dated 31.3.2022 stands modified. We are conscious of the fact that the decision of Hon’ble Supreme Court in the case of Reliance Telecom Ltd referred supra does not curtail the power of the Tribunal under MA No. 85/Del/2022 Young Indian vs. ACIT 113 section 254(2) of the Act to modify its order. Accordingly, the Issue no. 7 raised by the assessee in its Miscellaneous Application is hereby allowed to above extent. 17. In the result, the Miscellaneous Application of the assessee is partly allowed. Order pronounced in the open court on 22 nd December, 2023 sd/- sd/- (M. BALAGANESH) (ASTHA CHANDRA) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 22/12/2023 Veena Copy forwarded to - 1. Applicant 2. Respondent 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, New Delhi Date of dictation Date on which the typed draft is placed before the dictating Member Date on which the typed draft is placed before the Other Member Date on which the approved draft comes to the Sr. PS/PS Date on which the fair order is placed before the Dictating Member for pronouncement Date on which the fair order comes back to the Sr. PS/PS Date on which the final order is uploaded on the website of ITAT Date on which the file goes to the Bench Clerk Date on which the file goes to the Head Clerk The date on which the file goes to the Assistant Registrar for signature on the order Date of dispatch of the Order