Rajesh Agarwal, Kolkata V. ITO, Ward - 36(1), , Kolkata

MA 95/KOL/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 6246 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-04-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 12-01-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Capital Gains
• Section: 50C; 22

Judgement Text

M.A NO. 95/KOL/2020 RAJESH AGARWAL, AY 2012-13 1 , A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOLKATA ( ) BEFORE . , /AND . . , ) [BEFORE SHRI J. SUDHAKAR REDDY, AM & SHRI A. T. VARKEY, JM] M.A. NO.95/KOL/2020 IN I.T.A. NO. 1979/KOL/2018 ASSESSMENT YEAR: 2012-13 RAJESH AGARWAL (PAN: ADHPA3042Q) VS. INCOME-TAX OFFICER, WD-36(1), KOLKATA. APPLICANT RESPONDENT DATE OF HEARING (VIRTUAL) 26.03.2021 DATE OF PRONOUNCEMENT 21.04.2021 FOR THE APPLICANT SHRI ANIL KOCHAR, ADVOCATE FOR THE RESPONDENT SMT. RANU BISWAS, ADDL. CIT ORDER PER SHRI A.T.VARKEY, JM THIS IS A MISC. APPLICATION PREFERRED BY THE ASSESSEE/APPLICANT AGAINST THE ORDER PASSED BY THE TRIBUNAL DATED 14.10.2020 IN ITA NO. 1979/KOL/2018. 2. BY PREFERRING THIS MISC. APPLICATION THE ASSESSEE HAS PRAYED AS UNDER: THE PETITIONER MOST RESPECTFULLY PRAYS THAT THE HONBLE MEMBERS WOULD BE PLEASED TO CONSIDER THE FACTS AND SUBMISSIONS AS DETAILED ABOVE AND GRANT NECESSARY RELIEF BY PASSING APPROPRIATE ORDER OR ORDERS ON THE ISSUES INVOLVED FOR REDUCTION IN THE RATE OF PROFIT PERCENTAGE ESTIMATED AND REMITTING THE MATTER BACK TO THE ASSESSING OFFICER FOR REDETERMINATION OF THE QUANTUM OF CAPITAL GAINS BY REFERRING THE MATTER TO THE VALUATION OFFICER U/S. 50C(2). 3. AT THE TIME OF HEARING THE ASSESSEE HAS SUBMITTED THAT WHEN PASSING THE IMPUGNED ORDER THE TRIBUNAL HAS ERRONEOUSLY NOT REMITTED THE ISSUE OF CAPITAL GAIN TO THE AOS FILE FOR REFERENCE TO THE DVO. HOWEVER, ON A PERUSAL OF THE IMPUGNED ORDER OF THE TRIBUNAL, IT IS NOTED THAT THE TRIBUNAL HAS ALREADY CONSIDERED THIS PLEA OF THE ASSESSEE AND HAS DEALT WITH IT IN PARA 6 WHICH IS AS UNDER: WE REVERT BACK TO THE ASSESSEE'S FORMER APPEAL ITA NO.19791K01L2018 RAISING THE LATTER ISSUE OF SHORT-TERM CAPITAL GAINS ADDITION AMOUNTING TO RS.2,17,61,675/- AFTER INVOKING SECTION 50C OF THE ACT. MR. KOCHAR'S ONLY PLEA IS THAT NEITHER ANY OF THE LOWER AUTHORITIES HAD MADE SECTION 50C(2) STATUTORY REFERENCE TO THE DVO WHICH HAS M.A NO. 95/KOL/2020 RAJESH AGARWAL, AY 2012-13 2 BEEN HELD AS A MANDATORY PRE-CONDITION AS PER HON'BLE JURISDICTIONAL HIGH COURT'S DECISION IN SUNIL KUMAR AGARWAL VS. CIT (2016) 372 ITR 83 (CAL). WE FIND NO MERIT IN ASSESSEE'S INSTANT TECHNICAL REMAND PLEA AS IT HAS BEEN MADE CLEAR IN THE CIT(A)'S DISCUSSION IN PARA 2 PAGE 22 THAT THIS LATTER ISSUE IS ALSO NO MORE RES INTEGRA SINCE BOTH THE LOWER AUTHORITIES HAVE FOLLOWED THE TRIBUNAL'S ORDER DATED 13.04.2018 IN ITA NOS. 10 & 271/KOL/2016 FOR THE ASSESSMENT YEAR 2011-12 IN PRECEDING ASSESSMENT YEAR(S) REGARDING THE VERY CAPITAL ASSET I.E SITUATED AT 16F, EAST TOPSIA ROAD, KOLKATA-700046. WE THUS ADOPT JUDICIAL CONSISTENCY HEREIN AS WELL TO DECLINE THE ASSESSEE'S INSTANT LATTER SUBSTANTIVE GROUND. ITS FORMER APPEAL ITA NO. 1979/KOL/2018 IS ALSO REJECTED. 4. SINCE THIS TRIBUNAL DOES NOT HAVE THE POWER TO REVIEW ITS OWN ORDER ON AN ISSUE WHICH HAS BEEN SPECIFICALLY DEALT WITH AND THE POWER VESTED WITH US ARE LIMITED TO CORRECT THE MISTAKE APPARENT ON RECORD, AND SINCE THE ASSESSEES PRAYER TANTAMOUNT TO REVIEW OF THE ISSUE WHICH HAS BEEN CONSIDERED BY THE TRIBUNAL (INCLUDING THE HONBLE HIGH COURTS DECISION) IN THE IMPUGNED ORDER, WE ARE UNABLE TO INTERFERE WITH THE ORDER OF THIS TRIBUNAL. THEREFORE, THE MISC. APPLICATION STANDS DISMISSED. 5. IN THE RESULT, THE MISC. APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 21ST APRIL, 2021. SD/- SD/- (J. S. REDDY) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 21ST APRIL, 2021 JD (SR. PS.) COPY FORWARDED TO 1. APPELLANT SHRI RAJESH AGARWAL, C/O SRI S. L. KOCHAR, ADVOCATE, 5, ASHUTOSH CHOWDHURY AVENUE, KOLKATA-19. 2. RESPONDENT - ITO, WARD-36(1), KOLKATA. 3. CIT(A)-10, KOLKATA. (SENT THROUGH E-MAIL) 4. CIT- , KOLKATA. 5. DR, ITAT, KOLKATA. (SENT THROUGH E-MAIL) TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA.