ACIT, CHENNAI v. M/s. Emgeeyar Pictures Pvt. Ltd., CHENNAI

IN THE INCOME TAX APPELLATE TRIBUNAL CHENNAI BENCH D : CHENNAI [BEFORE SHRI HARI OM MARATHA JUDICIAL MEMBER AND SHRI ABRAHAM P GEORGE ACCOUNTANT MEMBER] M.P.NOS.173 & 174/MDS/2010 [ARISING OUT OF S.P.NO.20/MDS/2010 & I .T.A NOS.327 & 328/MDS/2010] ASSESSMENT YEARS : 2003-04 & 2004-05 THE ACIT MEDIA CIRCLE I CHENNAI VS M/S EMGEEYAR PICTURES PVT. LTD D DHANDAPANI STREET T. NAGAR CHENNAI 600 017 [PAN AABCE1440J] (PETITIONER) (RESPONDENT) PETITIONER BY : SHRI B. SRINIVAS RESPONDENT BY : SHRI N. DEVANATHAN O R D E R PER HARI OM MARATHA JUDICIAL MEMBER: THESE MISCELLANEOUS PETITIONS HAVE BEEN FILED BY THE REVENUE IN RESPECT OF THE TRIBUNAL ORDER DATED 31.5 .2010 IN S.P.NO.20/MDS/2010 & I.T.A.NO. 327 & 328/MDS/2010 FOR ASSESSMENT YEARS 2003-04 AND 2004-05. 2. THE REVENUE SEEKS THE RECALL OF THE ENTIRE ORDER FOR FRESH CONSIDERATION. THE REASONS FOR FILING THESE PETITI ONS U/S 254(2) HAVE BEEN MENTIONED BY THE REVENUE AS UNDER: 1. FROM THE ORDER OF THE CIT(A) IN INCOME-TAX ACT 1961 NO.226/06-07 DATED 22.07.2008 IT IS SEEN THAT THE I SSUE OF TAXABILITY OF CAPITAL GAIN IN THE YEAR OF ACCOUN T WAS NOT ADJUDICATED BY THE CIT(A). HENCE THE HON'BLE TRIBUNAL ERRED IN ADMITTING THIS ISSUE INSTEAD OF REMANDING IT BACK TO THE CIT(A). M.P 173 & 174/10 :- 2 -: 2. THE ASSESSEE ON ITS OWN ADMITTED CAPITAL GAINS DURING THE A.YS 2003-04 AND 2004-05 IN THE RETURN O F INCOME FILED BY IT. THE ASSESSEE HAS ONLY CHALLENG ED THE ADOPTION OF GUIDELINE VALUE AS FAIR MARKET VALU E OF THE PROPERTY @ ` 85/- PER SQ.FT. DECIDED BY THE HON'BLE ITAT D BENCH VIDE ORDER IN INCOME-TAX ACT 1961 NO.2196/MDS/08 DATED 26.06.2009 AND NOT THE TAXABIL ITY OF CAPITAL GAINS. HENCE THE ASSESSEE CANNOT CLAIM ANY GRIEVANCE AGAINST ITS OWN ADMISSION. 3. FROM THE PERUSAL OF THE ASSESSMENT ORDER IT IS S EEN THAT THOUGH THE AGREEMENT FOR DEVELOPMENT OF THE PROPERTY WAS ENTERED INTO WITH BUILDERS DURING THE F.Y.2000-01 THE UNDIVIDED SHARE OF LAND (USL) WAS TRANSFERRED TO THE PURCHASER DURING THE MONTH OF MA RCH 2003 AND CAPITAL GAINS ARISING OUT OF ITS TRANSFER WAS ASSESSED DURING THE A.Y. 2003-04. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE LD.D R HAS REPEATED THE REASONS TAKEN IN THE PETITION BUT THE LD.AR HA S OBJECTED TO THE RECALL OF THE ORDER ON THE GROUND THAT THESE MISCEL LANEOUS PETITIONS IF ALLOWED WOULD AMOUNT TO REVIEW OF THE TRIBUNAL ORD ER WHICH IS NOT PERMISSIBLE IN LAW. AFTER CONSIDERING THE RIVAL SU BMISSIONS IN THE LIGHT OF THE RECORD WE ARE ALSO OF THE CONSIDERED OPINIO N THAT THESE PETITIONS CANNOT BE ALLOWED BECAUSE THE SHEER PERUSAL OF THE GROUNDS MENTIONED IN THESE PETITIONS EVINCE THAT THE PETITI ONER WANTS US TO RE- WRITE THE ORDER BY WAY OF REVIEW WHICH IS NOT PERMI SSIBLE U/S 254(2) OF THE ACT. CONSEQUENTLY THERE BEING NO MERIT IN THE SE MISCELLANEOUS PETITIONS THE SAME STAND DISMISSED. M.P 173 & 174/10 :- 3 -: 4. IN THE RESULT THE MISCELLANEOUS PETITIONS FIL ED BY THE REVENUE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18.2. 2011. SD/- SD/- (ABRAHAM P GEORGE) ACCOUNTANT MEMBER ( HARI OM MARATHA ) JUDICIAL MEMBER DATED: 18 TH FEBRUARY 2011 RD COPY TO: PETITIONER/RESPONDENT/CIT(A)/CIT/DR