AWADHNARAYAN SINGH, MUMBAI v. DCIT 24(3), MUMBAI

MA 05/MUM/2020 | 2007-2008
Pronouncement Date: 02-03-2021 | Result: Dismissed

Appeal Details

RSA Number 0519924 RSA 2020
Assessee PAN AAZPS6963P
Bench Mumbai
Appeal Number MA 05/MUM/2020
Duration Of Justice 1 year(s) 1 month(s) 26 day(s)
Appellant AWADHNARAYAN SINGH, MUMBAI
Respondent DCIT 24(3), MUMBAI
Appeal Type Miscellaneous Application
Pronouncement Date 02-03-2021
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 02-03-2021
Last Hearing Date 16-10-2020
First Hearing Date 16-10-2020
Assessment Year 2007-2008
Appeal Filed On 06-01-2020
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH MUMBAI BEFORE S/SHRI M. BALAGANESH ACCOUNTANT MEMBER AND S/SHRI AMARJIT SINGH JUDICIAL MEMBER M.A. N O . 05 / M UM /20 20 (ARISING OUT OF ITA NO. 7363 /MUM/20 1 0 ) ( / ASSESSMENT YEAR : 20 07 - 08 ) AWADHNARAYAN SINGH B - 4 AWADH HOUSE THAKUR LAXMI SINGH ESTATE S. V. GOREGAON (W) MUMBAI - 400062. / VS. DCIT 24(3) C - 11 7 TH FLOOR BANDRA KURLA COMPLEX BANDRA (E) MUMBAI - 400051. / . / . PAN/GIR NO. : AAZPS6963P ( / APPELLANT ) / APPLICANT .. ( / RESPONDENT ) / DATE OF HEARING: 08 / 01 /202 1 /DATE OF PRONOUNCEMENT: 02 /03 / 20 21 ORDER PER AMARJIT SINGH J M THIS ORDER SHALL DISPOSE OF THE PRESENT MISCELLA N EOUS APPLICATION BEARING NO. 05 /M UM/2020 MOVED BY APP LICANT ARISING OUT OF ITA. NO . 7363 /MUM/201 0 RELEVANT TO THE A .Y. 2007 - 08 DECIDED ON DATED 02 . 03 .201 6 . 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED AN APPEAL BEARING ITA. NO.7363/MUM/2010 FOR THE A.Y. 2007 - 08 WHICH WAS DECIDED VIDE ORDER DATED 02.03.2016. THE ASSESSEE HAS TAKEN THE FOLLOWING MAIN GROUNDS READ AS UNDER.: - THE APPLICANT HAD FILED AN APPEAL NAMELY INCOME TAX APPEAL NO ITA.7363/MUM/2010 BEFORE THIS HON'BLE TRIBUNAL 'A' WHICH WAS HEARD ON 07.01.2016 AND PRONOUNCED ON THE 02.03.206. THE APPELLANT HAD FILED GROUNDS PERTAINING TO CALCULATION OF CAPITAL GAINS COST OF ACQUISITION COST OF ACQUISITION FOR COMPUTING CAPITAL GAI NS FOR THE YEAR SALE CONSIDERATION AND INTEREST UNDER SECTION 234B ON 27/10/2010. COPY OF ORIGINAL GROUND FILED IS ATTACHED AS ANNEXURE A. B. THE APPELLANT FILED AN ADDITIONAL GROUND CONTESTING THE CAPITAL GAIN IS NOT ASSESSABLE IN A.Y. 2007 - 08 SINCE THE DEVELOPMENT AGREEMENT TAKEN PLACE IN THE YEAR ASSESSEE BY: SHRI VIMAL PUNMIYA REVENUE BY: SHRI SANJAY J. SETHI (DR ) M.A. N O. 05 / M UM /20 19 A.Y.2007 - 08 2002 - 03 RELEVANT TO ASSESSMENT YEAR 2003 - 04 AND THE HONBLE TRIBUNAL TAKING A VIEW THAT ADDITIONAL GROUND WHICH GOES TO THE ROOT OF THE MATTER ADMITTED THE SAME AND PROCEED TO DISPOSE THE SAME. C. THE MAIN GR OUNDS WERE PLACED BEFORE THIS HON'BLE TRIBUNAL WAS RAISED IN RELATION TO THE CALCULATION OF CAPITAL GAINS THAT AS TO WHAT AMOUNT TO BE TAXED UNDER THE HEAD INCOME FROM CAPITAL GAINS. D. THE HONBLE TRIBUNAL PRESSED THE ADDITIONAL GROUND FILED BY THE APPLICA NT THAT THE TRANSFER OF PROPERTY TOOK PLACE IN THE YEAR RELEVANT TO THE ASSESSMENT YEAR 2003 - 04 AND HENCE THE CAPITAL GAINS ASSESSED IN A.Y. 2007 - 08 WAS NOT IN ACCORDANCE WITH THE LAW AND VIEWED THAT EVEN IF THE ASSESSEE HAS ERRONEOUSLY OFFERED THE CAPITAL GAINS IN A.Y. 2007 - 08 THE SAME CANNOT BE ASSESSED IN THAT YEAR. E. THE APPELLANT HAS RAISED AND BROUGHT IT TO THE NOTICE OF THE HON'BLE BENCH SUCH MAIN GROUNDS HOWEVER THE IMPUGNED ORDER DT. 02.03.2016 HAS NEITHER CONSIDERED THE SAID MAIN GROUNDS OF AP PEAL ON MERITS FILED BEFORE HON'BLE TRIBUNAL DATED 27.10.2010 NOR THE EVIDENCE FILED AND HAS ERRED IN PASSING AN ORDER ONLY BASED ON A SINGLE ADDITIONAL GROUND OF APPEAL. THE ORDER OF HON'BLE TRIBUNAL IS SILENT ON THE MAIN GROUNDS RAISED ON 27.10.2010 RAIS ED IN RELATION TO THE CONTENTION OF THE APPELLANT ABOUT THE AMOUNT OF CAPITAL GAIN TO BE TAXED TO THE APPELLANT AND THEREFORE HAD GIVEN RISE TO AN ERROR APPARENT FROM RECORD. THE ORIGINAL (MAIN) GROUNDS WHICH WERE RAISED ORIGINALLY ARE MENTIONED HERE UNDER : I. CALCULATION OF CAPITAL GAIN THE LD. CIT (A) ERRED IN CONFIRMING THE LONG TERM CAPITAL GAIN (LTCG) FROM TRANSFER OF PROPERTY TO THE EXTENT OF RS. 2 87 89 187/ - AS AGAINST LONG TERM CAPITAL LOSS (LTCL) OF RS. 1 04 40 000/ - COMPUTED BY APPELLANT II COST OF ACQUISITION - THE 14. CIT (A) ERRED IN ESTIMATING THE COST OF ACQUISITION OF THE PROPERTY SOLD AT RS. 2 57 42 222/ - (@160/ - PER SQ.FT) BEING THE VALUE AS ON 1/4/1981 AS AGAINST THE VALUE ADOPTED BY THE APPELLANT AT RS. 3 32 63 400/ - (@ 230/ - PER SQ.FT.) WITHOUT APPRECIATING THE EVIDENCES FILED ON RECORD M.A. N O. 05 / M UM /20 19 A.Y.2007 - 08 FAILED TO APPRECIATE THAT THE COST OF ACQUISITION CONSIDERED BY THE APPELLANT WAS SUPPORTED BY GOVERNMENT APPROVED VALUERS REPORT AND THE CIT (A) COULD NOT SUBSTITUTE VALUE AS PER HIS OWN WORKING WITHOUT PINPOINTING WHY APPROVED VALUERS REPORT SHOULD NOT BE CONSIDERED. III COST OF ACQUISITION FOR COMPUTING CAPITAL GAINS FOR THE YEAR THE LD. CIT (A) ERRED IN CONSIDERING THE PROPORTIONATE COST OF THE LAND BEING 29.21% INSTEAD OF 37.53% OF THE TOTAL AREA OF P LOT ON THE PREMISE THAT THE TRANSFER HAS BEEN EFFECTED FOR ONLY TO THAT EXTENT IV SALE CONSIDERATION WITHOUT APPRECIATING FACTS AND CIRCUMSTANCES OF THE CASE THE LD CIT (A) ERRED IN CONFIRMING THE ACTION OF AO AND HOLDING THAT THE SALE CONSIDERATION FOR T RANSFER OF PROPERTY IS TO BE BASED ON THE SALES VALUE MENTIONED IN THE AGREEMENT ENTERED BY DEVELOPER WITH PURCHASER OF RS. 7 40 98 932/ - AS AGAINST ACTUAL SALES REALIZED DURING THE YEAR OF RS. 6 37 93 770/ - FAILED TO APPRECIATE THAT THE ACCRUED CONSIDERAT ION IS TO BE COMPUTED BASED ON THE DEVELOPMENT AGREEMENT AS MUTUALLY AGREED UPON BETWEEN THE DEVELOPER AND THE APPELLANT AND NOT ON THE BASIS OF OTHER CRITERIA. V INTEREST UNDER SECTION 234B OF THE INCOME TAX ACT THE LD. CIT (A) ERRED IN CONFIRMING THE A CTION OF THE AO IN LEVYING INTEREST UNDER SECTION 234B OF THE ACT. EACH OF THE ABOVE GROUND IS INDEPENDENT AND WITHOUT PREJUDICE TO ONE ANOTHER. F. THE TRIBUNAL THEN PROCEEDED TO PASS AN ORDER SOLELY ON ADDITIONAL GROUND IN FAVOUR OF APPLICANT. G. THE APPLICANT RELIES ON THE CASE OF PARMANAND BUILDERS PVT LTD V. CIT &ANR. [2017] 390 ITR 40(BOM.)(HC) - HELD THE TRIBUNAL WAS BOUND IN LAW TO CONSIDER THE ALTERNATIVE PLEA RAISED BY THE ASSESSEE AT THE HEARING OF THE APPEALS. IN THIS CASE THE TRIBUNAL FAILED TO CONSIDER THE ORIGINAL MAIN GROUND THE MISCELLANEOUS APPLICATION POINTING OUT THE ERROR OUGHT TO BE ALLOWED. H. THE APPLICANT ALSO RELIES ON THE CASE OF ROCKLINE DEVELOPERS PVT LTD WHEREIN THE HON'BLE BOMBAY HIGH COURT VIDE ORDER DATED 14.06.20 17 REM ITTED THE MATTER BACK M.A. N O. 05 / M UM /20 19 A.Y.2007 - 08 TO THE TRIBUNAL FOR ADJUDICATION IN VIEW OF THE FACT THAT THE GROUNDS WERE NOT ADJUDICATED WHEREIN IT WAS HELD THAT NON ADJUDICATION OF GROUND IN IMPUGNED AY WOULD CONSTITUTE MISTAKE APPARENT FROM RECORD THE APPLICANT ALSO RELIES ON T HE CASE CIT VS. KESHAV FRUIT MART [1993) 199 ITR 771 (ALL) WHICH HELD THAT OMISSION TO CONSIDER A GROUND RAISED IN THE MEMORANDUM OF APPEAL BEFORE THE INCOME TAX APPELLATE TRIBUNAL IS A MISTAKE APPARENT FROM RECORD. J. THE APPLICANT ALSO RELIES ON THE CAS ES WHEREIN THE ISSUES ARE IDENTICAL TO THE CASE OF APPLICANT AND SOME OF THEM ARE: JITENDRA SHAH HELD BY HAT 'F' BENCH MUMBAI ROCKLINE DEVELOPERS PVT LTD AND LYPSA DIAMONDS HELD BY ITAT 'A' BENCH MUMBAI. ORDER CONTAINING DIRECTION OR NOT? A. THE HON'BLE TRIBUNAL IN ITS ORDER DATED 02.03.2016 MENTIONED THAT THE CAPITAL GAIN ARISING ON ENTERING OF DEVELOPMENT AGREEMENT IS NOT TAXABLE IN THE ASSESSMENT YEAR 2007 - 08 BUT TAXABLE IN A.Y. 2003 - 04. IN VIEW OF THE AFOREMENTIONED CITATION KINDLY CLARIFY THAT WHETH ER THE SAME TANTAMOUNT TO DIRECTION GIVEN BY HON'BLE TRIBUNAL OR NOT? (I) IF THE SAME IS CONSIDERED TO BE DIRECTION THEN IT APPEARS TO BE MISTAKE APPARENT FROM RECORD. SINCE THE TRIBUNAL HAS NO POWER TO PROVIDE DIRECTION FOR THOSE MATTER OTHER THAN THOSE W HICH ARE PENDING BEFORE THE HONBLE TRIBUNAL FOR THAT PARTICULAR ASSESSMENT YEAR. THEREFORE THE HON'BLE TRIBUNAL CAN PROVIDE DIRECTION ONLY FOR THE ASSESSMENT YEAR 2007 - 08 AND NOT FOR THE A.Y. 2003 - 04. IT WAS HELD BY ITAT MUMBAI BENCH D IN CASE OF ANIL SU RI V. ITO 11(1)(3) WHEREIN THE HONBLE TRIBUNAL RELIED ON THE ORDER OF THE HONBLE APEX COURT IN CASE OF ITO VS. MURLIDHARBHAGWAN DAS (SUPRA) 'WHEREIN THE APEX COURT HELD THAT THE WORD FINDING CAN BE ONLY THAT WHICH IS NECESSARY FOR THE DISPOSAL OF AN APPE AL IN RESPECT OF AN ASSESSMENT OF A PARTICULAR YEAR AND HAS FURTHER BEEN HELD THAT THE APPELLATE AUTHORITY MAY INCIDENTALLY FIND THAT THE INCOME BELONGS TO ANOTHER YEAR BUT THAT IS NOT FINDING FOR THE DISPOSAL OF AN APPEAL IN RESPECT OF THE ASSESSMENT YEA R IN QUESTION. SIMILARLY THE 'DIRECTION' HAS BEEN CONSTRUED TO MEAN A DIRECTION WHICH THE APPELLATE OR REVISIONAL AUTHORITY AS THE CASE MAY BE IS EMPOWERED TO GIVE UNDER THE SECTIONS MENTIONED THEREIN' M.A. N O. 05 / M UM /20 19 A.Y.2007 - 08 (II) IF THE SAME IS NOT CONSIDERED TO BE DIRECTION TH EN WE REQUEST YOUR HONOR TO KINDLY CLARIFY THAT WHETHER IT IS AN MERE OBSERVATION OR DIRECTION AND ALSO THE AMOUNT OF CAPITAL GAIN AND TAX THEREON AND DECIDE THE CASE AS PER THE MERITS B. THE APPLICANT THEREFORE PRAYS THAT THE HONBLE APPELLATE TRIBUNAL MA Y BE PLEASED TO: SET - ASIDE THE ORDER DATED 02.03.2016 FOR A.Y. 2007 - 08 AND HEAR THE APPEAL OF THE ASSESSEE ON MERITS ON THE GROUNDS WHICH WERE NOT CONSIDERED BY THE HON'BLE TRIBUNAL. (II) IN THE ALTERNATIVE THE ORDER DATED 02.03.2016 MAY BE RECALLED AND T HE APPEALS MAY BE DECIDED AFRESH IN CONSONANCE WITH THE PROVISIONS OF SECTION 254(2) (III) ANY OTHER RELIEF WHICH THE HON'BLE BENCH DEEMS FIT. 3. THE TRIBUNAL HAS CONSIDERED THE ADDITIONAL GROUNDS AND DECIDED IN FAVOUR OF THE APPLICANT. IN FACT THE MAIN GROUNDS ARE ALSO LIABLE TO BE DISCUSSED AND DECIDED IN VIEW OF THE DECISION OF THE PARMANAND BUILDERS PVT. LTD. VS. CIT & ANR. (2017) 390 ITR 40 (BOM)(HIGH COURT) . ACCORDING LY THE ISSUES ARE LIABLE TO BE DECIDED AND THE ORDER IS LIABLE TO BE RECALLED TO TH IS EXTENT IN THE INTEREST OF JUSTICE. 4. NOTICE GIVEN. 5. WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. THE COPY OF ORDER DATED 02.03.2016 PERUSED . W E FIND THAT THE ADDITIONAL GROUNDS HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE. AFTER DECIDING THE ADDITIONAL GROUNDS IT HAS SPECIFICALLY BEEN OBSERVED THAT THE GROUNDS RAISED BY ASSESSEE BECAME INFRUCTUOUS. SINCE THE ADDITIONAL GROUNDS HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE THEREFORE THERE IS NO A MISTAKE APPARENT ON RECORD. OBSERVATION HAS BEEN GIVEN BY HONBLE ITAT ON RECORD WHICH NOWHERE COMES WITHIN THE AMBIT OF PROVISIONS U/S 254(2) OF THE ACT. ACCORDINGLY WE ARE OF THE VIEW THAT THE PRESENT MI SCELLANEOUS APPLICATION IS M.A. N O. 05 / M UM /20 19 A.Y.2007 - 08 NOT LIABLE TO BE ALL OWED IN THE INTEREST OF JUSTICE HENCE WE DISMISSED THE PRESENT M ISCELLANEOUS. IN THE RESULT THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS HEREBY DISMISSED . ORDER WAS PRON OUNCED IN TH E OPEN COURT ON 02 /03 / 202 1 SD/ - SD / - / - ( M. BALAGANESH ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI DT: 02 /0 3 / 2021 V IJAY PAL SINGH (SR. PS) COPY TO : 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) 4 . THE CIT 5 . THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE A BENCH (TRUE COPY) BY ORDER ASSTT.REGISTRAR ITAT MUMBAI BENCHES