MATRUASHISH CO. OP. HSG SCOIETY,AHMEDABAD V. THE DCIT, CIRCLE-5(2)(1), AHMEDABAD

MA 60/AHD/2024

AI Insights

The case revolves around the Miscellaneous Application filed by Matruashish Co. Op. Housing Society against the Deputy Commissioner of Income Tax concerning the assessment year 2016-17. The primary issue was the deduction of Rs. 2,80,00,000 granted by the Assessing Officer, which was later challenged by the PCIT under Section 263 of the Income Tax Act. The Tribunal's earlier decision on 22.12.2023 had supported the PCIT's view, leading to the present application by the assessee seeking a recall of that order. The Tribunal dismissed the application, reiterating that the review of the order was outside the scope of the Miscellaneous Application proceedings and that all arguments and precedents had been adequately considered in the original decision.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 473948 (ITAT-AHMEDABAD)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-02-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2016-2017
• Other Referred Cases: Jaykumar B. Patil 236 ITR 469(SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RIGNESH DAS
• Assessee Lawyers: BIREN SHAH
• Keywords: Capital Gains

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, AHMEDABAD BEFORE SMT. ANNAPURNA GUPTA, ACCOUNTANT MEMBER & SHRI SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER M.A. No.60/Ahd/2024 in I.T.A. No.49/Ahd/2021 (Assessment Year: 2016-17) Matruashish Co. Op. Housing Society, 606, 6th Floor, Abhijit Complex No. 1 Nr. Mithakali Six Road, Ellisbridge, Ahmedabad-380006 Vs. Deputy Commissioner of Income Tax, Circle-5(2)(1), Ahmedabad [PAN No.AADAM2914P] (Appellant) .. (Respondent) Appellant by : Shri Biren Shah, A.R. Respondent by: Shri Rignesh Das, Sr. D.R. Date of Hearing 06.12.2024 Date of Pronouncement 14.02.2025 O R D E R PER SIDDHARTHA NAUTIYAL - JUDICIAL MEMBER: The present Miscellaneous Application has been filed by the assessee in ITA No. 49/Ahd/2021 dated 22.12.2023 for the Assessment Year 2016-17. 2. In this case, the order passed by the Tribunal, which is a subject matter of the present Miscellaneous Application, the issue for consideration was whether Ld. PCIT in the 263 proceedings has correctly held that the Assessing Officer erred in granting deduction of Rs. 2,80,00,000/- while computing capital gains on transfer of property, thereby making the assessment order as being erroneous and prejudicial to the interest of the Revenue. In the detailed findings given on facts in M.A No.60/Ahd/2024 (in ITA No. 49/Ahd/2021) Matruashish Co. Op. Housing Society vs. DCIT Asst.Year –2016-17 - 2– the order of Tribunal dated 22.12.2023, the Tribunal held that the PCIT was correct both in facts as well as in law in holding that the Assessing Officer had erred in granting deduction of Rs. 2,80,00,000/- on account of transfer cost paid by the assessee society to it’s retiring members. On consideration of the facts of the assessee’s case, the Tribunal held that the payment of Rs. 2,80,00,000/- was only made with a view to reduce the sale consideration and such payment was not genuine, accordingly, in light of these facts Tribunal held that the order passed by Ld. PCIT under Section 263 of the Act, setting-aside the assessment order as erroneous and prejudicial to the interest of the Revenue was correct. 3. The assessee has filed the present Miscellaneous Application, seeking recall of the order passed by Tribunal dated 22.12.2023. On going through the various grounds raised by the assessee in the present application, we are of the considered view that the present Miscellaneous Application has been filed only with a purpose of seeking “review” of the order passed by the Tribunal dated 22.12.2023, in which all the relevant facts and judicial precedents cited by the assessee during the course of arguments were dealt with in great detail. The Tribunal, after taking into consideration the arguments of the assessee and taking into consideration various judicial precedents cited by the assessee, came to the considered conclusion that order passed under Section 263 of the Act by Ld. PCIT, was correct in law and hence liable to be upheld. It is a well settled principle that “review” of order is outside the scope of Miscellaneous Application proceedings. M.A No.60/Ahd/2024 (in ITA No. 49/Ahd/2021) Matruashish Co. Op. Housing Society vs. DCIT Asst.Year –2016-17 - 3– 4. Another point raised in the present Miscellaneous Application is that the decision of Jaykumar B. Patil 236 ITR 469(SC) was not confronted to the assessee. However, we observe that the order which is a subject matter of the present Miscellaneous Application is not based on the order of Jaykumar B. Patil, refer to above. The assesse had cited several decisions in support of his contention that since the assessee had filed an appeal before Ld. CIT(A) against the assessment order, the order of the Assessing Officer merged with that of Ld. CIT(A) and therefore, Ld. PCIT could not have proceeded with a case under Section 263 of the Act. However, while passing the order dated 22.12.2023, the Tribunal gave a specific finding that the case law relied upon by the assessee with respect to “Doctrine of Merger” were not applicable to assessee’s particular set of facts. Further, in the said order the Tribunal noted that the issue for consideration while passing the 263 order was on an altogether different footing as compared to the subject matter of appeal before Ld. CIT(A) and therefore, the “Doctrine of Merger” did not apply to assessee’s particular set of facts. The Tribunal, in the aforesaid order passed before citing the order of Jaykumar B. Patil on “Doctrine of Merger” had already concluded that the principle of “Doctrine of Merger” did not apply to the assessee is set of facts and that assessee’s case was further supported by the decision of Jaykumar B. Patil. The Tribunal, while passing the order had already held that “Doctrine of Merger” did not apply to issues which were not the subject matter of appeal before Ld. CIT(A) and on such issues, the Ld. PCIT can proceed under Section 263 of the Act. However, even before citing the above M.A No.60/Ahd/2024 (in ITA No. 49/Ahd/2021) Matruashish Co. Op. Housing Society vs. DCIT Asst.Year –2016-17 - 4– decision of Jaykumar B. Patil supra, the Tribunal had already concluded on this issue. Accordingly, we are of the view that this argument of the assessee is liable to be rejected. 5. In the result, the Miscellaneous Application filed by the assessee is dismissed. This Order pronounced in Open Court on 14.02.2025 Sd/- Sd/- (ANNAPURNA GUPTA) (SIDDHARTHA NAUTIYAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 14.02.2025 Tanmay, Sr. PS TRUE COPY आदेश की Ůितिलिप अŤेिषत/Copy of the Order forwarded to : 1. अपीलाथŎ / The Appellant 2. ŮȑथŎ / The Respondent. 3. संबंिधत आयकर आयुƅ / Concerned CIT 4. आयकर आयुƅ(अपील) / The CIT(A)- 5. िवभागीय Ůितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाडŊ फाईल / Guard file. आदेशानुसार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपीलीय अिधकरण, अहमदाबाद / ITAT, Ahmedabad 1. Date of dictation 11.02.2025 2. Date on which the typed draft is placed before the Dictating Member 11.02.2025 3. Other Member………………… 4. Date on which the approved draft comes to the Sr.P.S./P.S 11.02.2025 5. Date on which the fair order is placed before the Dictating Member for pronouncement 14.02.2025 6. Date on which the fair order comes back to the Sr.P.S./P.S 14.02.2025 7. Date on which the file goes to the Bench Clerk 14.02.2025 8. Date on which the file goes to the Head Clerk…………………………………... 9. The date on which the file goes to the Assistant Registrar for signature on the order…………………….. 10. Date of Despatch of the Order…………………………………… "