Dr. Hridaya Mohan Lal, Hyderabad, Hyderabad v. ITO, Ward 6(2), Hyderabad, Hyderabad

MA 32/HYD/2015 | 2005-2006
Pronouncement Date: 29-04-2015 | Result: Dismissed

Appeal Details

RSA Number 3222524 RSA 2015
Assessee PAN AABCI1140F
Bench Hyderabad
Appeal Number MA 32/HYD/2015
Duration Of Justice 1 month(s) 13 day(s)
Appellant Dr. Hridaya Mohan Lal, Hyderabad, Hyderabad
Respondent ITO, Ward 6(2), Hyderabad, Hyderabad
Appeal Type Miscellaneous Application
Pronouncement Date 29-04-2015
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 29-04-2015
Assessment Year 2005-2006
Appeal Filed On 16-03-2015
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B HYDERABAD BEFORE SHRI P.M. JAGTAP ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY JUDICIAL MEMBER M.A. NO. 32/HYD/2015 (IN ITA NO. 351/H/11 ASSESSMENT YEAR: 2005-06) DR. HRIDAYA MOHAN LAL ...APPLICANT HYDERABAD. VS. INCOME TAX OFFICER WARD 6(2) ..RESPOND ENT (PAN AABCI 1140 F) APPELLANT BY : SHRI A.V. RAGHURAM RESPONDENT BY : SHRI RAJAT MITRA DATE OF HEARING : 10/04/2015 DATE OF PRONOUNCEMENT : 29/04/2 015 ORDER PER SAKTIJIT DEY J.M.: THIS MISCELLANEOUS APPLICATION IS FILED BY ASSESSEE PURPORTEDLY U/S 254(2) OF THE ACT SEEKING CLARIFI CATION OF THE ORDER PASSED BY THE TRIBUNAL IN ITA NO. 351/HYD/201 1 ON 07/01/2014. 2. AS STATED IN THE M.A. AND ALSO SUBMITTED BY LD. AR IN THE APPEAL FILED BEFORE THE TRIBUNAL ASSESSEE HAD RAISED TWO ADDITIONAL GROUNDS ONE OF WHICH IS IN RESPECT OF CL AIM OF DEDUCTION U/S 54F OF THE ACT. HOWEVER IT IS THE CO NTENTION OF ASSESSEE THAT INSTEAD OF MENTIONING SECTION 54 2 M.A. NO. 32/HYD/2015 DR. HRIDAYA MOHAN LAL INADVERTENTLY THE SECTION UNDER WHICH DEDUCTION IS SOUGHT TO BE CLAIMED WAS MENTIONED AS 54F AS A RESULT OF WHIC H IN THE ASSESSMENT ORDER PASSED IN PURSUANCE TO THE DIRECTI ON OF THE TRIBUNAL AO WHILE REJECTING DEDUCTION U/S 54F WAS ALSO DENIED THE BENEFIT U/S 54 TO ASSESSEE. LD. AR SUBMI TTED THE FACTS AND MATERIALS ON RECORD SUCH AS AGREEMENT OF SALE- CUM-GPA EXECUTED ON 17/12/2004 CLEARLY INDICATE T HE PROPERTY TRANSFERRED WAS A RESIDENTIAL HOUSE HENCE THE APPROPRIATE SECTION UNDER WHICH ASSESSEE IS ELIGIBL E FOR DEDUCTION IS SECTION 54. LD. AR SUBMITTED IN FACT ASSESSEE IN THE RETURN OF INCOME FILED FOR AY 2006-07 HAD ALSO CLAIMED DEDUCTION U/S 54F OF THE ACT WHICH HAS ALSO BEEN S TATED BY AO IN PARAGRAPH 4 OF THE ASSESSMENT ORDER. THUS IT WAS SUBMITTED BY LD. AR IN THE INTEREST OF JUSTICE CL ARIFICATION MAY BE ISSUED TO THE EFFECT THAT DIRECTION CONTAINE D IN PARAGRAPH 14 OF THE APPELLATE ORDER MAY BE CONSIDER ED AS DIRECTION RELATING TO CLAIM U/S 54 OF THE ACT. 3. LD. DR ON THE OTHER HAND SUBMITTED BEFORE US THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL AS ASSESSEE HIMSELF IN THE ADDITIONAL GROUNDS HAS RAISED THE ISSUE OF CLAI M OF DEDUCTION U/S 54F OF THE ACT. LD. DR SUBMITTED CON SIDERING SUCH GROUND RAISED BY ASSESSEE THE TRIBUNAL DIRECT ED THE AO TO CONSIDER ASSESSEES CLAIM OF DEDUCTION U/S 54F. SINCE IN COMPLIANCE TO THE DIRECTION OF THE TRIBUNAL AO HAS HELD THAT ASSESSEE IS NOT ELIGIBLE TO DEDUCTION U/S 54F AS TH E PROPERTY SOLD IS A RESIDENTIAL HOUSE THE DECISION TAKEN BY AO CANNOT BE FAULTED. 4. IN THE REJOINDER LD. AR SUBMITTED RECTIFICATIO N OF MISTAKE ENVISAGED U/S 254(2) OF THE ACT RELATES TO MISTAKE 3 M.A. NO. 32/HYD/2015 DR. HRIDAYA MOHAN LAL APPARENT ON RECORD AND NOT MISTAKE IN THE ORDER OF THE TRIBUNAL. IT WAS SUBMITTED SINCE THE MATERIALS ON RECORD CLEARLY REVEAL THE FACT THAT THE PROPERTY SOLD IS A RESIDENTIAL HOUSE AND ASSESSEE IS ELIGIBLE TO CLAIM DEDUCTION U /S 54 WHICH WAS INADVERTENTLY CLAIMED U/S 54F THE MISTAK E BEING APPARENT ON THE FACE OF RECORD IS COMING WITH THE P URVIEW OF SECTION 254(2) OF THE ACT. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIE S AND PERUSED THE MATERIALS ON RECORD. AS CAN BE SEEN FR OM THE AVERMENTS MADE IN THE M.A. AS WELL AS THE SUBMISSIO NS MADE BY ASSESSEES COUNSEL THERE IS NO ERROR IN THE ORD ER OF THE TRIBUNAL BUT THE ERROR IS BY ASSESSEE IN RAISING O F ADDITIONAL GROUND CLAIMING DEDUCTION U/S 54F IN STEAD OF U/S 5 4. THEREFORE THERE BEING NO MISTAKE IN THE ORDER OF T HE TRIBUNAL M.A. WOULD NOT BE MAINTAINABLE. HOWEVER IT IS A FACT THAT IN PARAGRAPH 4 OF THE ASSESSMENT ORDER A O HIMSELF HAS STATED THE FACT THAT ASSESSEE IN THE RETURN OF INCOME FILED FOR AY 2006-07 HAS CLAIMED DEDUCTION U/S 54 OF THE ACT AGAINST CAPITAL GAIN ARISING FROM SALE OF THE PROPE RTY IN QUESTION. MOREOVER IN PARAGRAPH 14 OF THE IMPUGNE D ORDER OF THE TRIBUNAL IT HAS BEEN OBSERVED BY THE BENCH THAT WHILE COMPUTING CAPITAL GAIN IN THE ASSESSMENT YEAR UNDER CONSIDERATION AO IS REQUIRED TO ALLOW ALL DEDUCTIO NS AND BENEFITS PERMISSIBLE UNDER THE PROVISIONS OF THE AC T WHICH ASSESSEE IS ELIGIBLE TO GET. SINCE THE ISSUE IN TH E ADDITIONAL GROUND WAS RAISED FOR THE FIRST TIME BEFORE IT THE TRIBUNAL INSTEAD OF GOING INTO THE MERITS OF THE ISSUE RAISE D THOUGHT IT APPROPRIATE TO DIRECT THE AO TO EXAMINE ASSESSEES CLAIM. THEREFORE IF ASSESSEE IS OTHERWISE ELIGIBLE FOR DE DUCTION U/S 4 M.A. NO. 32/HYD/2015 DR. HRIDAYA MOHAN LAL 54 AND IT FULFILLS ALL THE CONDITIONS OF THE SAID PROVISON THEN THERE IS NO BAR ON AO IN CONSIDERING ASSESSEES CLA IM OF DEDUCTION U/S 54 OF THE ACT. WITH THE AFORESAID OBS ERVATIONS M.A. IS DISMISSED. 6. IN THE RESULT M.A. FILED BY ASSESSEE IS DISMISS ED. PRONOUNCED IN THE OPEN COURT ON 29 TH APRIL 2015. SD/- SD/- (P.M. JAGTAP) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD DATED:29 TH APRIL 2015 KV COPY TO:- 1) DR. HRIDAYA MOHAN LAL C/O SHRI AV RAGHURAM ADVOCATE 610 6 TH FLOOR BABUKHAN ESTATE BASHEERBAGH HYDERABAD 2) ITO WARD 6(2) HYDERABAD 3) CIT(A)-IV HYDERABAD 4) CIT-III HYDERABAD 4) THE DEPARTMENTAL REPRESENTATIVE I.T.A.T. HYD .