Smt P.Parvathy Amma, Trivandrum v. ACIT, Trivandrum

MA 40/COCH/2010 | 2006-2007
Pronouncement Date: 08-10-2010

Appeal Details

RSA Number 4021924 RSA 2010
Assessee PAN AEAPA6362H
Bench Cochin
Appeal Number MA 40/COCH/2010
Duration Of Justice 3 month(s) 13 day(s)
Appellant Smt P.Parvathy Amma, Trivandrum
Respondent ACIT, Trivandrum
Appeal Type Miscellaneous Application
Pronouncement Date 08-10-2010
Appeal Filed By Assessee
Bench Allotted DB
Tribunal Order Date 08-10-2010
Date Of Final Hearing 20-08-2010
Next Hearing Date 20-08-2010
Assessment Year 2006-2007
Appeal Filed On 25-06-2010
Judgment Text
IN THE INCOME TAX APPELLAT E TRIBUNAL COCHIN BEN CH COCHIN BEFORE S/SHRI N.VIJAYAKUMARAN JM AND SANJAY AR ORA AM M.P. NO. 40/COCH/2010 (ASG. OUT OF I.T.A. NO. 574/COCH/2009) ASSESSMENT YEAR: 2006-07 SMT. P.PARVATHY AMMA GOWRI SANKARAM T.C.-9/306 JAWAHAR NAGAR TRIVANDRUM. [PAN:AEAPA 6362H] VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX (H) RANGE-1 TRIVANDRUM. (ASSESSEE -APPLICANT) (REVENUE-RESPONDENT) ASSESSEE BY SHRI DALE P.KURIAN ADV.-AR REVENUE BY SHRI T.J.VINCENT DR O R D E R PER SANJAY ARORA AM: THIS IS A MISCELLANEOUS PETITION BY THE ASSESSEE -APELLANT ARISING OUT OF THE ORDER BY THE TRIBUNAL DATED 22.4.2010 DISMISSING HER APPEAL FOR THE ASSESSMENT YEAR 2006-07. 2. THE SAME DATED 25/6/2010 RAISES FOUR GROUNDS A B C & D WITH PART A FURTHER CONTAINING FOUR SUB-GROUNDS. THE TRIBUNAL IT WAS SUBMITTED BY THE LD. AR ADVERTING TO PARA 6.1 OF THE ORDER HAS WRONGLY CONCLUDED THAT T HE ASSESSEE RETURNED A NIL CAPITAL GAIN. THE SAID STATEMENT IN FACT CANNOT ALSO BE CALLED UNTRUE. THE FACT OF THE MATTER IS THAT THE CAPITAL GAINS WORKED TO RS. 69.75 LACS AND THE RET URNED NIL FIGURE WAS ONLY CONSEQUENT TO THE DEPOSIT OF RS. 80 LAKHS BY THE ASSESSEE WITH NA BARD WHICH ENTITLED IT TO A DEDUCTION FOR LIKE SUM U/S. 54 OF THE INCOME-TAX AC T 1961 ('THE ACT' HEREINAFTER) IN THE COMPUTATION OF INCOME UNDER THE HEAD (OF INCOME) `C APITAL GAINS DRAWING OUR ATTENTION TO ANNEXURES H AND I TO THE APPLICATION BEING A CO PY OF TWO BONDS ISSUED BY NABARD AND THE COMPUTATION OF TAXABLE INCOME FOR THE YEAR RESPECTIVELY. SECONDLY THE TRIBUNAL HAS NOT CONSIDERED THE EVIDENCE IN RELATION TO THE VALUATION REPORT DATED 10/10/2005 BY THE REGISTERED VALUER AS ALSO THE VALUATION OF THE PROPERTY OF SMT. USHA KUMARI A FRIEND M.P. NO. 40/COCH/2010 2 OF THE ASSESSEE IN RESPECT OF WHICH TAHSILDARS CE RTIFICATE DATED 9/10/1997 (AT PAPER- BOOK PG. 6) STOOD SUBMITTED VALUING THE SAME AS IN 1981 AT RS. 40 000/- PER CENT. ADMITTEDLY THERE IS A MISTAKE IN THE MAP SUBMITTED BY THE ASSESSEE (PB PG. 22) INASMUCH AS IT INDICATES THE SAME TO BE LOCATED AT A DISTANC E OF 1 KM. FROM THE ASSESSEES LAND. AS FOUND BY THE TRIBUNAL VIDE PARA 6.2 OF ITS ORDER T HE SAME IS LOCATED NEAR THE MEDICAL COLLEGE AND THEREFORE THE DISTANCE BETWEEN THE TW O IS OVER 6 KMS. THE ASSESSEE BY MENTIONING SO IN FACT INTENDED TO MAKE A CONVERSE INFERENCE I.E. THAT IF THE PROPERTY SITUATE SO FAR AWAY FROM THE HEART OF THE TOWN STOO D VALUED AT RS. 40 000/- AND EVIDENCE TOWARD WHICH HAS NOT BEEN DISPUTED BY THE REVENUE THE VALUE OF THE ASSESSEES PROPERTY (AS ON 1.4.1981) AT RS. 60 000/- PER CENT COULD NOT BE FAULTED WITH. AT ANY RATE THE RATE OF RS. 30 000/- PER CENT AS ADOPTED BY THE ASSESSIN G OFFICER (A.O.) AND ACCEPTED BY THE AUTHORITIES ABOVE IS HIGHLY INADEQUATE. A TRUE COP Y OF THE MAP STANDS NOW SUBMITTED AT ANNEXURE D. AGAIN NO COGNIZANCE HAS BEEN TAKEN B Y THE TRIBUNAL OF THE TWO NO OBJECTION CERTIFICATES (NOCS) DATED 16.1.1996 GRANT ED BY THE GOVERNMENT OF INDIA UNDER SECTION 269 UL(1) OF THE ACT (PB PGS. 7 & 8) EVEN AS THE SAME HAVE NOT BEEN DISPUTED BY THE REVENUE. FURTHER THE AO BEING NOT SATISFIED WITH THE ASSESSEES VALUATION IS OBLIGED TO MAKE REFERENCE TO THE VALUA TION OFFICER U/S. 55A OF THE ACT. IN OTHER WORDS IN ITS ABSENCE HE CANNOT DISPUTE THE VALUATION BY THE ASSESSEE WITHOUT FINDING THAT THE EVIDENCE/S FURNISHED IN SUPPORT WA S FACTUALLY INCORRECT AND WHICH IS NOT THE CASE. FINALLY THE NOTIFICATIONS ISSUED BY THE STATE GOVERNMENT FIXING THE VALUATION OF THE PROPERTY AT RS. 30 000/- PER CENT WHICH REPRES ENTS THE MINIMUM VALUE WITH THE ACTUAL VALUE BEING DOUBLE OR EVEN MORE HAVE NOT BE EN CONSIDERED BY THE TRIBUNAL ON THE GROUND OF IT HAVING NOT BEEN ADDUCED. A GOVERNMENT NOTIFICATION IS A PUBLIC DOCUMENT AND THE TRIBUNAL IF IN DOUBT OUGHT TO HAVE CALLED FOR THE SAME RATHER THAN DECIDING BY RELYING ON THE NON-SUBMISSION THEREOF. IN VIEW OF THE FOREGOING THE ORDER OF THE TRIBU NAL NEEDS TO BE RECALLED AND THE CASE HEARD AFRESH AND FOR WHICH THERE IS A PRECEDENCE I N THE FORM OF THE TRIBUNALS ORDER IN THE CASE OF MUTHOOT MUTUAL FUND (I.T.A. NO. 622/COCH/1994) WHEREIN THE APPEAL BEFO RE IT THOUGH INITIALLY ALLOWED IN THE ASSESSEES FAVOUR STOOD RECALLED BY THE TRIBUNAL AS THE SAME BORE FACTUAL MISTAKES (M.A. 90/B/2008). M.P. NO. 40/COCH/2010 3 3. THE LD. DR ON THE OTHER HAND WOULD SUBMIT THA T A MERE PERUSAL OF THE ASSESSEES STATEMENT OF FACTS WHICH CONTAINS 14 PARAS (OVER E QUAL NUMBER OF PAGES) WOULD ITSELF CONVINCE ONE THAT IN THE GUISE OF SEEKING RECTIFICA TION THE APPELLANT-PETITIONER HAS IN FACT MOVED A REVIEW PETITION AND WHICH THE TRIBUNAL IS NOT COMPETENT TO ENTERTAIN OR CONSIDER. THE IMPUGNED ORDER IS A WELL REASONED ORDER AND TH E ASSESSEE HAS NOT BEEN ABLE TO POINT OUT ANY MISTAKE APPARENT FROM RECORD WHICH WOULD WA RRANT A RECTIFICATION U/S. 254(2) OF THE ACT. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI AL ON RECORD. 4.1 THE GROUNDS ASSUMED BEFORE US ARE ARGUMENTAT IVE AND ALSO REPETITIVE. WE WOULD THEREFORE PROCEED TO DEAL WITH EACH OF THE `MISTAK ES REFERRED TO BY THE APPLICANT VIDE HER APPLICATION TO SEE IF ANY OF THOSE DOES INDEED CON STITUTE A MISTAKE/S APPARENT FROM RECORD MERITING THE ACCEPTANCE OF THE ASSESSEES P RAYER. HOWEVER WE WOULD AS IS INCUMBENT ON US APRIORI ADDRESS AND CONSIDER THE LEGAL ISSUES RAISED BY THE PRESENT APPLICATION. FIRSTLY THE ASSESSEES PRAYER IS FOR A RECALL OF THE ORDER. IN THIS REGARD IT NEEDS TO BE CLARIFIED THAT A `MISTAKE WOULD NOT NO RMALLY LEAD TO A RECALL OF THE ENTIRE ORDER; ITS SCOPE BEING SEVERELY LIMITED TO THE RECT IFICATION OF THE MISTAKE/S THAT ARE FOUND TO HAVE CREPT IN ITS ORDER (REFER: CIT V. ITAT 196 ITR 640 (ORISSA)). THE SECOND RECTIFICATION ORDER IS YET AN ORDER U/S. 254(2) ON LY AND CANNOT EXIST DE HORS OR INDEPENDENT OF THE EARLIER S. 254(1) ORDER WITH WH ICH IT MERGES AND WHICH STANDS AMENDED TO THAT EXTENT OR REMAINS UNAMENDED AS TH E CASE MAY BE. WE AGREE THAT THERE COULD BE CASES PARTICULARLY SINGLE ISSUE CASES WH EREIN A WRONG ASSUMPTION OF EVEN A SINGLE FACT COULD MAKE A WORLD OF DIFFERENCE AND TR ANSFORM THE DECISION SO THAT IT WOULD BECOME NECESSARY TO `RECALL THE EARLIER ORDER BY A DMITTING THE MISTAKE OF ASSUMPTION OF THE WRONG FACT AND ITS DIRECT BEARING ON THE DECISI ON AND THEN PASS AN ORDER TAKING AN OPPOSITE VIEW BASED ON THE FINDING OF THE CORRECT F ACT WHICH WOULD IN EFFECT BE RENDERED A MERE PROCEDURAL FORMALITY IN VIEW OF THE FINDING OF THE MISTAKE INCLUDING ITS IMPACT ON THE DECISION PER THE EARLIER `RECALL ORDER. THIS IS NECESSARY IF THE SCOPE OF THE RECTIFICATION PROCEEDINGS IS NOT TO BE EXCEEDED; TH E TRIBUNAL BEING INCOMPETENT TO REVIEW ITS ORDER. EVEN A WRONG FINDING OF FACT WHERE IT I S A CONSIDERED ONE COULD NOT LEAD TO IT BEING TERMED A MISTAKE MERITING RECTIFICATION. HE RE IT MAY BE PERTINENT TO STATE THAT THE M.P. NO. 40/COCH/2010 4 QUESTION OF WHETHER A FINDING IS PERVERSE IS A QUES TION OF LAW ANSWERABLE IN REVIEW PROCEEDINGS. ALSO IF THE EFFECT OF THE `SUBSTITUT ED OR `CORRECT FACT IS NOT CLEAR AND DIRECT BUT IS SUCH WHICH WOULD REQUIRE DELIBERATIO N OR A FRESH HEARING IT WOULD TAKE THE MATTER OUTSIDE THE AMBIT OF RECTIFICATION AS IT BE COMES THE SUBJECT MATTER OF REVIEW OR ON WHICH THERE COULD BE REASONABLY TWO VIEWS AND THUS DEBATABLE. SIMILARLY EVEN WHERE A FACT HAS BEEN OMITTED TO BE CONSIDERED IT WOULD NO T BY ITSELF QUALIFY TO BE A MISTAKE UNLESS AGAIN THE SAME HAS A DIRECT AND CLEAR IMPA CT ON THE DECISION AND ON WHICH THERE COULD BE NO DIFFERENT VIEW OR OPINION. THIS IS AS O THERWISE IT WOULD ITSELF BECOME A MATTER OF DEBATE AND IN ANY CASE A MATTER OF CONS IDERATION AND REVIEW. IN OTHER WORDS AN ORDER MAY NOT BE CORRECT OR A DIFFERENT VIEW IN THE MATTER MAY BE POSSIBLE BUT THAT BY ITSELF DOES NOT MAKE IT AN ORDER ELIGIBLE FOR RECAL L AND REVIEW. THE TWO CONCEPTS `WRONG AND `MISTAKEN DO NOT NECESSARILY COINCIDE. IT IS ONLY A HIGHER AUTHORITY WHICH CAN UNDER REVIEW PROCEEDINGS HOLD AN ORDER TO BE WRONG I.E. SAVE WHERE IT IS ON ACCOUNT OF A MISTAKE APPARENT FROM RECORD. IT IS ONLY CLEAR MIS TAKES OF FACT OR LAW THAT ARE AMENABLE TO RECTIFICATION U/S. 254(2). FINALLY UNEXCEPTIONALLY A MISTAKE RECTIFIABLE U/S. 254(2) UNDER ALL CIRCUMSTANCES HAS TO BE LIMITED TO ONE THAT IS BASED ON OR IS DIRECTLY INFERABLE FROM THE MATERIAL ON RECORD. AN ERROR OF JUDGMENT ON THE PAR T OF THE TRIBUNAL THUS WOULD NOT BE SUFFICIENT TO EXERCISE POWER OF RECTIFICATION U/S. 254(2). THE CASE LAW IN THE MATTER IS LEGION AND FOR WHICH WE MAY REFER TO INTER ALIA A SERIES ON THE SUBJECT REPORTED AT PAGES 564 590 640 683 AND 838 OF VOL. 196 OF ITR BEIN G ELUCIDATIVE. IN CIT V. RAMESH ELECTRIC AND TRADING CO. 203 ITR 497 (BOM.) IT STANDS HELD THAT THE FAILUR E ON THE PART OF THE TRIBUNAL TO CONSIDER AN ARGUMENT IS NOT AN ERRO R APPARENT FROM RECORD WHICH COULD BE RECTIFIED. THE TRIBUNALS ORDER IN THE CASE OF CORROSSION ROADLINES V. DY. CIT 92 ITD 181 (PUNE)(TM) RENDERED BY RELYING ON PRECEDENTS O N THE SUBJECT INCLUDING BY THE APEX COURT AND THE JURISDICTIONAL HIGH COURT BEING EXTE NSIVE ALSO BEARS REFERENCE IN THIS CONTEXT. ALSO WE FIND FROM RECORD THAT THE ASS ESSEE HAS IMMEDIATELY AFTER MOVING THE PRESENT APPLICATION MOVED THE HONBLE HIGH COURT UN DER WRIT JURISDICTION IMPLEADING THE TRIBUNAL THE SECOND APPELLATE AUTHORITY AS THE SE COND RESPONDENT CLAIMING THAT THE RIGHT TO APPEAL THERETO U/S. 260A IS NOT A VESTED RIGHT AND IT IS ONLY WHERE THE SAME INVOLVES A SUBSTANTIAL QUESTION OF LAW THAT THE SAME COULD BE INVOKED. FURTHER THE IMPUGNED ORDER M.P. NO. 40/COCH/2010 5 BEARS SEVERAL FACTUAL ERRORS AND IS PASSED BY THE TRIBUNAL WITHOUT PROPER APPLICATION OF MIND. AND EVEN AS ADMITTEDLY RECTIFICATION PROCEE DINGS STAND MOVED THEREWITH SOUGHT DIRECTIONS FROM THE HONBLE COURT IN VIEW OF THE CO ERCIVE STEPS HAVING BEEN INITIATED BY THE DEPARTMENT FOR THE RECOVERY OF ITS DUES THOUGH NO FURTHER DEMAND SHOULD HAVE ARISEN ON THE IMPUGNED ORDER. THE LD. AR DID NOT BRING THE FACT OF THE APPLICANT HAVING MOVED THE HONBLE COURT AND ITS DIRECTIONS TO THE TRIBUNA L TO OUR NOTICE AT THE TIME OF HEARING WHICH HE OUGHT TO HAVE AND WE DISCOUNTENANCE SUCH CONDUCT ON HIS PART . THE CHARGE OF NON-APPLICATION OF MIND WOULD ITSELF BEAR OUT WHAT WAS BEING ATTEMPTED TO BE BROUGHT HOME BY US PER THE FOREGOING PART OF THIS PARA. WHI LE ONE OF THE LITIGANTS THE REVENUE CONTENDS OF IT BEING A WELL REASONED ORDER; THE OTH ER STATES OF IT HAVING BEEN MADE WITHOUT DUE APPLICATION OF MIND. SUCH OPINIONS OR VIEWS AR E THUS LARGELY A MATTER OF PERCEPTION AND BY THEMSELVES OF NO RELEVANCE; WHAT ALONE IS TO BE EXAMINED OBJECTIVELY IS WHETHER THE ORDER UNDER REFERENCE BEARS ANY MISTAKE/S APPAR ENT FROM RECORD. 4.2 HAVING REVIEWED THE LAW IN THE MATTER A S WELL AS THE BACKGROUND UNDER WHICH THE PRESENT APPLICATION COMES TO BE FILED WE SHALL EXAMINE EACH OF THE SEVERAL INFIRMITIES THAT ALLEGEDLY ATTEND THE IMPUGNED ORDER FOR THEIR VALIDITY FOR AMENDMENT U/S. 254(2) AND THE RECTIFICATION IF ANY THAT REQUIRES TO BE EFFE CTED TO REMOVE OR OBLITERATE THE SAID MISTAKE/S. HOWEVER BEFORE WE PROCEED TO DO SO IT WOULD BE RELEVANT AND IN ORDER TO RECAPITULATE THE FACTS OF THE CASE. THE ASSESSEE SO LD HER LODGE COMPRISING 30.5 CENTS OF LAND SITUATE AT VANCHIYOOR VILLAGE TRIVANDRUM TAL UK DURING THE RELEVANT PREVIOUS YEAR FOR RS. 180 LACS. THE SAME STOOD RETURNED PER HER R ETURN OF INCOME FOR THE YEAR ALONG WITH OTHER INCOME COMPUTING THE INCOME UNDER THE H EAD `LONG TERM CAPITAL GAINS AT NIL AND WHICH CAME TO BE SELECTED FOR VERIFICATION PROC EDURE UNDER THE ACT. THE AO AFTER CONSIDERING EACH OF THE MATERIALS RELIED UPON BY TH E ASSESSEE IN SUPPORT OF HER CLAIM FOR FAIR MARKET VALUE (FMV) OF HER SOLD LAND AS AT 1/4/ 1981 FOUND THE ASSESSEES CLAIM OF THE ADOPTED LAND RATE AS ON 1/4/1981 AT RS. 60 000/ - PER CENT AS NOT SUBSTANTIATED WITH RELEVANT EVIDENCE/S. HE OBTAINED THE COMPARABLE LA ND RATES FROM THE OFFICE OF THE SUB- REGISTRAR TRIVANDRUM WHICH WERE FOR THE YEAR 1984 AND FOR A MAXIMUM OF RS. 20 000/- PER CENT AND FORWARDED THE SAME MENTIONING THE S URVEY NUMBERS AND OTHER PARTICULARS TO THE ASSESSEE PROPOSING TO ADOPT THE SAID RAT E. HOWEVER ALLOWING BENEFIT FOR THE M.P. NO. 40/COCH/2010 6 LOCAL FACTORS; THE ASSESSEE CLAIMING HER PLOT OF LA ND TO BE FAVOURABLY LOCATED WITH A GOOD FRONTAGE HE ASSESSED ITS VALUE AT RS. 30000/- PER CENT. THE LD. CIT(A) IN FIRST APPEAL AS WELL AS THE TRIBUNAL IN SECOND APPEAL AFTER EXAMI NING THE RESPECTIVE CASES OF THE PARTIES DECIDED IN FAVOUR OF THE REVENUE. THE TRIBUNAL REND ERED TWO FINDINGS. ONE THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE ASSESSEE H AS NOT BEEN ABLE TO SUBSTANTIATE ITS CLAIM AS TO THE ADOPTED LAND RATE AND TWO THAT TH E ESTIMATE AS MADE BY THE AO IN ITS RESPECT IS REASONABLE. 4.3 THE FIRST FACTUAL ERROR POINTED OUT BY THE ASSESSEE IS OF THE TRIBUNAL OBSERVING HER TO HAVE RETURNED NIL CAPITAL GAINS; IT BEING IN FACT A T RS. 69.75 LACS AND RESULTED IN RETURNING THE CAPITAL GAINS AT NIL ONLY DUE TO INVESTMENT IN NABARD BONDS FOR RS. 80 LACS. THE ASSESSMENT ORDER AS WELL AS THE `STATEMENT OF FACT S FORMING PART OF ITS APPEAL BEFORE THE TRIBUNAL CLEARLY STATE OF THE ASSESSEE RETURNING N IL CAPITAL GAINS. ANNEXURES H AND I ON THE BASIS OF WHICH THE CLAIM OF THE CAPITAL GAINS B EING AT A POSITIVE SUM IS BEING NOW MADE ADMITTEDLY DID NOT FORM PART OF THE TRIBUNAL S RECORD . NEITHER DID THE LD. AR EITHER QUALIFY OR EXPLAIN THE STATEMENT OF FACT ON RECORD I.E. THE ASSESSEE COMPUTING THE LONG TERM CAPITAL GAINS ARISING ON THE SALE OF HER PROPE RTY AT NIL. UNDER THE CIRCUMSTANCES WE ARE AT LOSS TO UNDERSTAND AS TO HOW A CLAIM OF THE TRIBUNAL HAVING COMMITTED A MISTAKE OR THERE HAVING OCCURRED A MISTAKE APPARENT FROM RECOR D IS BEING OR COULD BE MADE. FURTHER WITH REGARD TO THE INFERENCE DRAWN BY THE TRIBUNAL FROM THE SAID STATEMENT OF FACT THE SAME CANNOT BE FAULTED WITH AND ONLY FOL LOWS THE SAME. IN OTHER WORDS UNLESS THE SAID FACT ON RECORD IS FOUND TO BE A MISTAKE AP PARENT FROM RECORD AND RECTIFIED BY RECORDING THE `CORRECT FACT WE DO NOT SEE AS TO H OW ANY SUBSEQUENT INFERENCE OR FINDING BASED ON THE FACT AS RECORDED COULD BE DISTURBED OR IMPUGNED UNLESS OF COURSE THE SAME DOES NOT FLOW FROM THE RECORDED FACT AND WHICH IS NEITHER THE CASE NOR SO CONTENDED. FURTHERMORE EVEN AS POINTED OUT BY THE BENCH DURIN G HEARING IN THE PRESENT PROCEEDINGS THE OBSERVATIONS AT PARA 6.1 ARE ONLY PRELIMINARY O BSERVATIONS AND AS A READING OF PARAS 6.2 TO 6.3 OF THE ORDER WOULD SHOW THE ISSUE STAND S DECIDED BY THE TRIBUNAL ON THE BASIS OF THE EVIDENCE/S AS FURNISHED BY THE ASSESSE AND T HOSE RELIED UPON BY THE REVENUE EVEN AS IT DREW SUPPORT FOR ITS CONFIRMATION OF THE REVE NUES STAND FROM THE INCREASING TREND IN LAND PRICES OVER THE PAST TWO TO THREE DECADES PAR TICULARLY IN THE URBAN CENTRES. THAT IS M.P. NO. 40/COCH/2010 7 THERE IS EVEN OTHERWISE NO DIRECT OR ONE TO ONE COR RESPONDENCE BETWEEN THE FACT AS RECORDED AND THE TRIBUNALS CONCLUSION/S AS REACHED . IN OTHER WORDS EVEN IF THERE HAD BEEN A `MISTAKE IN RECORDING THE SAID FACT THE NO TICE THEREOF HAVING BEEN TAKEN BY THE TRIBUNAL ONLY FOR DRAWING SUPPORT TOWARD ITS DECISI ON WOULD NOT HAVE LED TO THE ACCEPTANCE OF THE ASSESSEES PRAYER OF RECALL; ALL IT WOULD LEAD TO IS THE DELETION OF THE SAID OBSERVATIONS BEING PERIPHERAL TO THE PRINCIPAL FIN DINGS ON WHICH THE DECISION IS BASED SO THAT IT WOULD THEN I.E. IN THAT CASE STAND SANS SUCH SUPPORT. EVEN THE AUTHORITIES BELOW DID NOT MAKE ANY REFERENCE TO THIS ASPECT IN THEIR ORDERS. 4.4 THE FIRST EVIDENCE RELIED UPON BY THE ASSESSEE IS THE VALUATION CERTIFICATE FROM THE TALUK OFFICE TRIVANDRUM DATED 9.10.1997 IN RES PECT OF 41.25 CENTS OF LAND SITUATE AT PATTOM VILLAGE TRIVANDRUM TALUK. THE SAME STATES T HAT ON ENQUIRY THE ESTIMATED VALUE OF THE SUBJECT LAND IN THE YEAR 1981 IS RS. 16.50 L AKHS I.E. AT RS. 40 000 PER CENT. THE AO FOUND THE SAME AS NOT COMPARABLE BEING SITUATE AT A DISTANCE FROM THE ASSESSEES LAND; BESIDES BEARING NO SIMILARITY WITH THE ASSESS EES LAND. THE LD. CIT(A) ENDORSED THE AOS FINDING WITH THERE BEING NO REBUTTABLE OF THE AOS FINDING; THE ASSESSEE NOT EVEN PRODUCING THE SAME BEFORE HIM. THE SAME STANDS CONS IDERED BY THE TRIBUNAL AT PARA 6.2 OF ITS ORDER FINDING NOTHING AMISS OR WRONG IN THE FI NDING OF `NON-COMPARABILITY BY THE AUTHORITIES BELOW FURTHER COMMENTING THAT THE LOCA TION MAP SUBMITTED BY THE ASSESSEE (PB PG. 22) WRONGLY SHOWED THE DISTANCE OF THE SAME (FROM THE ASSESSEES PLOT) AT 1 KM. THE ASSESSEE HAS ADMITTED TO ITS MISTAKE IN THE PRE SENT PROCEEDINGS FILING A REVISED CORRECT MAP . WITH REGARD TO THE ARGUMENT IT SUBMITS THAT IN FACT IT WAS ACTUALLY RELYING ON THE CONVERSE POSITION; THAT IF THE PROPERTY SITU ATE AT PATTOM VILLAGE I.E. OVER 6 KMS. AWAY FROM THAMPANOOR THE CITY CENTRE COULD GET RS . 40 000/- PER CENT THE PROPERTY INSIDE THE TOWN ITSELF WOULD FETCH MORE. THE ASSES SEE HAS NOWHERE URGED THAT IT HAD ARGUED THIS CONVERSE POSITION DURING THE HEARING BE FORE THE TRIBUNAL OR THAT THE AUTHORITIES BELOW HAD NOT PROPERLY APPRECIATED ITS STAND; AND W HICH COULD ONLY BE IF IT HAD STATED WHAT IT SUBMITS NOW. IN FACT EVEN IN ITS PRESENT APPLICATION THE ASSESSEE STATES IT TO BE A COMPARABLE CASE (REFER PARA 4) . AS SUCH NO MISTAKE ON THE PART OF THE TRIBUNAL CAN BE SAID TO HAVE OCCURRED; ITS ONLY FINDING IN CONCURR ENCE TO THAT OF THE AUTHORITIES BELOW BEING THAT THE MATERIAL RELIED UPON IS NOT COMPARAB LE WHICH RATHER THE ASSESSEES M.P. NO. 40/COCH/2010 8 ARGUMENT ITSELF BEARS OUT. FURTHER THE CERTIFICAT E ALSO ESTIMATES THE VALUE OF THE LAND IT PURPORTS TO ON THE BASIS OF THE `ENQUIRIES (MADE 1 7 YEARS HENCE) WHICH ASPECT OF THE MATTER STANDS ALSO DEALT WITH BY THE TRIBUNAL AT PA RA 6.2 OF ITS ORDER STATING THAT LAND PRICES ARE SUBJECT TO A VARIETY OF FACTORS SO THAT IT IS ONLY THE ACTUAL DATA QUA THE PURCHASE AND SALE PRICE OF THE LAND LOCATED IN THE VICINITY AND AS CLOSE AS POSSIBLE TO THE RELEVANT DATE I.E. 1.4.1981 WHICH WOULD CONSTITUTE THE MO ST APPROPRIATE AND THUS THE VALID BASIS OR MATERIAL TO BASE THE ASSESSMENT ON. 4.5 THE SECOND EVIDENCE IS IN THE FORM OF TWO NOCS DATED 16.1.1996 ISSUED BY THE INCOME TAX APPROPRIATE AUTHORITY BANGALORE U/S. 26 9 UL (1) OF THE ACT (PB PGS. 6 & 7). THE TRIBUNAL HAS CONSIDERED THE SAME AT PARA 6 .2 OF ITS ORDER STATING THAT THE RATE APPROVED BY THE SAID AUTHORITY IS FOR A MUCH LATER DATE I.E. APRIL 1994 AND NEITHER IS ITS VICINITY FROM THE ASSESSEES PROPERTY EITHER SPECIF IED OR DISCERNIBLE WITH REFERENCE TO THE SKETCH PROVIDED SO AS TO SEE IT FOR ITS RELEVANCE. THE ASSESSEE NOW STATES THE SAME TO BE IN FACT RELATING TO VALUE AS ON 25.9.1995 AND IS AT A DISTANCE OF 4 KMS. FROM THE THAMPANOOR CENTRAL RAILWAY STATION WHICH WE FIND T O BE LOCATED AT A DISTANCE OF 1 KM. FROM THE SUBJECT PLOT. WE FIND THE ASSESSEES STAN D AS CORRECT IN-AS-MUCH AS THE RATE APPROVED IS PER AN AGREEMENT DATED 25.9.1995 AND T O THAT EXTENT THERE IS DEFINITELY A MISTAKE BUT ONE WHICH RATHER SUPPORTS THE INFERENC E DRAWN I.E. OF IT BEING NOT COMPARABLE; THE TIME SPAN BETWEEN THE TWO VALUATION DATES INCREASING BY A FURTHER PERIOD OF 1 YEARS TO 14 YEARS. AS REGARDS THE DISTANCE THE SAME CANNOT BE TAKE INTO CONSIDERATION AT THIS STAGE THOUGH HOWEVER ONLY LENDS FURTHER CREDENCE TO THE INFERENCE DRAWN. ACCORDINGLY THE MONTH APRIL 1994 OCCUR RING AT LINE 8 & 9 (PG. 4) OF THE IMPUGNED ORDER BE SUBSTITUTED FOR THE WORDS & NUMER AL SEPTEMBER 1995. WE ARE UNABLE TO AGREE FOR ANY OTHER MISTAKE WITH REGARD T HERETO. 4.6 THE THIRD EVIDENCE RELIED UPON BY THE ASSESS EE IS WITH REFERENCE TO SECTION 55A OF THE ACT WHICH PROVIDES THAT THE ASSESSING OFFICER MAY REFER THE VALUATION OF THE CAPITAL ASSET TO A VALUATION OFFICER UNDER CERTAIN CIRCUMST ANCES. IN THIS REGARD FIRSTLY NO REFERENCE TO THE SAME WAS MADE BY THE LD. AR DURING THE HEARING OF THE APPEAL (AND FOR ASCERTAINING WHICH REFERENCE HAS ALSO MADE BY US T O THE LOG-BOOK MAINTAINED) AS WOULD M.P. NO. 40/COCH/2010 9 ALSO BE APPARENT FROM THE READING OF THE IMPUGNED O RDER AND NEITHER IT IS SO CONTENDED TO CONSIDER THIS AS OF LEADING TO A `MISTAKE (ALSO REFER: CIT V. RAMESH ELECTRIC AND TRADING CO. (SUPRA)). SECONDLY THE PROVISION DOES NOT MAKE I T MANDATORY FOR THE AO TO DO SO. AS SUCH WHERE NOT OBSERVED IT WOULD GO TO WEAKEN THE REVENUES CASE TO THAT EXTENT. IN THE PRESENT CASE HOWEVER THE AO WAS ONLY RELYI NG ON COMPARABLE DATA FROM AN AUTHENTIC SOURCE SO THAT THERE WAS NO NEED FOR THE AO TO DO SO. AND WHICH REMAINS PERHAPS FOR THAT REASON UNREBUTTED BY THE ASSESSEE . THE SAME IT MAY BE APPRECIATED IS A FACILITATIVE FACTOR; AS HELD BY THE TRIBUNAL AT PAR A 6.2 OF ITS IMPUGNED ORDER THE LAND PRICE COULD NOT BE CAPTURED BY ANY MATHEMATICAL FORMULA AND IT IS ONLY THE ACTUAL DATA ON LAND PRICES PREVALENT AT THE RELEVANT TIME AND RELEVANT AREA THAT WOULD BE PERTINENT; THE AO HAVING RELIED UPON THE CONSIDERABLE DATA FROM THE O FFICE OF THE SUB-REGISTRAR TRIVANDRUM. THE TRIBUNAL IT NEEDS TO BE APPRECIAT ED HAS TO GO BY WHAT STANDS DONE BY THE PARTIES BEFORE IT AND NOT WHAT THEY OUGHT TO H AVE OR DID NOT. 4.7 THE NEXT EVIDENCE IS THE NOTIFICATION DAT ED 4.3.1989 ISSUED BY THE STATE GOVERNMENT UNDER THE KERALA STAMP ACT 1959 DECLARI NG THE RATE OF THE PLOT AT RS. 75 000/- PER ARE WHICH IS STATED TO WORK TO RS. 30 000/- PER CENT. THE TRIBUNAL HAS DEALT WITH THE SAME AT PARA 6.2 OF ITS ORDER STATING THA T EVEN AS HELD BY THE FIRST APPELLATE AUTHORITY THE SAME DID NOT FORM PART OF THE RECORD HAVING NOT BEEN PRODUCED BEFORE THE AUTHORITIES BELOW WITH NEITHER THERE BEING AN APPL ICATION BEFORE IT FOR ADMISSION OF THE SAME AS ADDITIONAL EVIDENCE FOR IT TO CONSIDER THE SAME. EVEN SO IT WENT ON TO OBSERVE THAT THE SAME IS FOR A MUCH LATER DATE AND NEITHER IS THE EQUIVALENCE OF THE UNITS OF MEASUREMENT - `ARE AND `CENT - FURNISHED FOR IT TO BE OF RELEVANCE. THE ASSESSEE DOES NOT POINT OUT ANY FACTUAL MISTAKE IN THE SAID OBSER VATIONS AND CONSEQUENT FINDINGS BY THE TRIBUNAL. THE SAME HAD NOT BEEN PRODUCED BEFORE AN D THUS NOT CONSIDERED BY THE AUTHORITIES BELOW SO AS TO BE ELIGIBLE TO FORM PAR T OF THE TRIBUNALS RECORD AND NEITHER WAS IT SUBMITTED BEFORE IT FOR IT TO BE ADMITTED AS ADDITIONAL EVIDENCE ON JUSTIFIABLE GROUNDS. ALSO THE RATE/S THEREBY ARE FOR A MUCH L ATER DATE (1989) FOR IT TO BE OF ANY RELEVANCE. THE ASSESSEE CONTENDS OF IT BEING THE M INIMUM RATE WITH THE ACTUAL RATE BEING MORE THAN DOUBLE . THE SAME IS FIRSTLY A FRESH ARGUMENT NOT BORNE OUT BY THE RECORDS AND NEITHER DOES THE ASSESSEE CONTEND OF I T HAVING RAISED SUCH AN ARGUMENT. M.P. NO. 40/COCH/2010 10 SECONDLY IN THE ABSENCE OF THE DOCUMENT ITSELF WH ICH WAS ON THAT ACCOUNT NOT CONSIDERED EVEN BY THE AUTHORITIES BELOW NO ARGUME NT WITH REFERENCE THERE-TO COULD HOLD. THE ASSESSEE STATES THAT THE SAME BEIN G A PUBLIC DOCUMENT THE TRIBUNAL SHOULD HAVE TAKEN COGNIZANCE THEREOF. THE QUESTION IS NOT OF THE TRIBUNAL DOUBTING OR NOT DOUBTING THE EXISTENCE OF THE SAME. EVEN AS EXPLAIN ED BY IT VIDE PARA 6.3 OF ITS IMPUGNED ORDER THE ISSUE INVOLVES A FINDING/S OF FACT/S AN D WHICH CAN ONLY BE RENDERED WITH REFERENCE TO SOME MATERIAL/S BY DRAWING DIRECT OR C ORROBORATIVE INFERENCE/S. THE ARGUMENT WE ARE AFRAID TO SAY IS MISCONCEIVED. TH E TRIBUNAL IS NOT AN INTERESTED BUT A NEUTRAL BODY AND ITS SOLE PERSPECTIVE IS THE LEGAL MAINTAINABILITY OF THE APPELLANTS CASE UNDER THE GIVEN FACTS AND CIRCUMSTANCES INCLUDING THE CASE OF THE OPPOSING SIDE WHOSE STAND IT ASSAILS. THE DOCUMENT STOOD NOT CONSIDERE D AND COULD NOT HAVE BEEN SO BY THE AUTHORITIES BELOW FOR WANT OF PRODUCTION BY THE AS SESSEE. IT IN APPEAL THERE-AGAINST HAD TO SHOW TO THE HIGHER APPELLATE AUTHORITY AS TO WHA T INFIRMITY ATTENDED THE SAME. IT DID NOT AND RATHER COULD NOT; HAVING NOT DISCHARGED THE B URDEN OF PROOF BY PRODUCING THE RELEVANT (PUBLIC) DOCUMENT/S ITSELF. IT DID NOT EVE N FURNISH THE SAME BEFORE THE TRIBUNAL PRAYING FOR ITS ADMISSION IN THE CAUSE OF JUSTICE BY SHOWING PRIMA FACIE ITS RELEVANCE TOGETHER WITH THE REASONS FOR ITS EARLIER NON-PRODU CTION. IT DID NOT DO SO SO THAT THIS WAS IN FACT NEVER AN ISSUE BEFORE THE TRIBUNAL. AS SUC H IT CAN NOT EVEN ALLUDE TO ANY COMPROMISE OF ANY PRINCIPLE OF NATURAL JUSTICE BY T HE TRIBUNAL. FURTHER THE TRIBUNAL DID NOT STOP AT THIS AND THOUGH NOT OBLIGED TO CONSIDE R THE MATTER ANY FURTHER FOUND THE ASSESSEES PLEA AS EVEN OTHERWISE UN-MAINTAINABLE A S THE DOCUMENT/S ADMITTEDLY PERTAINED TO A MUCH LATER YEAR SO THAT IT WAS NOT PRIMA FACIE RELEVANT WHICH BECOMES A FINDING OF FACT RENDERED UNDER THE CIRCUMSTANCES. THE ASSESSEE HAS NOT BEEN ABLE TO SHOW ANY INFIRMITY THEREIN. INCIDENTALLY AND INTERESTINGLY WE OBSERVE THAT THE LAND RATE FOR THE RELEVANT AREA NOTIFIED IN 1989 FOR STAMP DUTY PURPO SES ADMITTEDLY MATCHES THE LAND RATE ADOPTED IN THE INSTANT CASE FOR 1/4/1981. 4.8 THE FIFTH AND LAST EVIDENCE RELIED UPON IS THE VALUATION CERTIFICATE DATED 10.10.2005 FROM A REGISTERED VALUER (PB PGS. 1 TO 5 ). THE TRIBUNAL HAS CONSIDERED THE SAME VIDE PARA 6.2 OF ITS ORDER EXAMINING IT FOR I TS VALIDITY. IT OBSERVED THE SAME TO BE ITSELF BASED ON THE OTHER EVIDENCES RELIED UPON BY THE ASSESSEE AND WHICH STOOD M.P. NO. 40/COCH/2010 11 SEPARATELY EXAMINED FOR THEIR RELEVANCE. IT FURTHE R OBSERVED THAT THE SAME STATES THE ASSESSMENT OF VALUE OF THE SUBJECT PLOT THEREBY AS BEING BY INTERPOLATION REGRESSION ENQUIRIES AND JUDGMENT. THE TRIBUNAL EVEN AS THE A UTHORITIES BELOW FOUND THE SAME OF LITTLE IMPORT FOR THE REASON OF IT BEING NOT OBJEC TIVE AND SANS ANY MATERIAL STATING OF ONLY THE ACTUAL (COMPARABLE) DATA AS BEING A VALID BASIS. THE FACT OF `INQUIRIES WHICH ARE ONLY TWO AND HALF DECADES LATER IS UNSUBSTANTI ATED. FURTHER WITH RESPECT TO INTERPOLATION AND REGRESSION IT WAS EXPLAINED THAT THE SAME CANNOT BE CONSIDERED PROPER FOR THE SIMPLE REASON THAT THE PRICE AS ON A PARTIC ULAR DATE IS AN INDEPENDENT VARIABLE WITH THE LAND PRICES NOT FOLLOWING ANY SECULAR OR CONSTA NT TREND TO BE ASSESSED BY SUCH STATISTICAL DETERMINATION. IT WAS FURTHER STATED T HAT IF A REGRESSION WAS MADE AT THE RATE OF INFLATION ON THE CURRENT PRICES NO CAPITAL GAINS W OULD ARISE. THE TRIBUNAL HAS THUS CONSIDERED THE ASSESSEES EVIDENCE AND EXAMINED IT FOR ITS VALIDITY HOLDING IT TO BE NOT SO. NOT TO SPEAK OF ANY MISTAKE THEREIN THE ASSESSEE H AS NOT BEEN ABLE TO POINT OUT ANY INFIRMITY THEREIN WHICH WE MAY CLARIFY MAY OR MA Y NOT LEAD TO THE FINDING OF A MISTAKE APPARENT FROM RECORD RECTIFIABLE U/S. 254(2) OF THE ACT. IN THIS REGARD THE ASSESSEE PLACES RELIANCE ON THE DECISION BY THE HONBLE HIGH COURT IN THE CASE OF CIT VS. SMT. CHANDRA BALAKRISHNAN (2008) 174 TAXMAN 78 (KER.) [9 DTR 177] (AT ANNEXU RE B). IN THAT CASE THE TRIBUNAL FOUND AS A MATTER OF FACT THAT THE ASS ESSEE HAD DECLARED A MUCH LOWER SALE PRICE I.E. AT RS. 18 LAKHS THAN THAT REALIZED: R S. 32.50 LAKHS. IT WAS IN THIS CONTEXT THAT THE MATTER WAS REMITTED BY THE HONBLE COURT BACK T O THE TRIBUNAL TO FACTOR IN THE FACT OF THE SUPPRESSION IN THE ASSESSEES PURCHASE PRICE AS WELL AS WAS BEING CONTENDED BY THE ASSESSEE. WE ARE UNABLE TO IN THE ABSENCE OF ANY SUCH FACTUAL FINDING WITH REGARD TO THE SUPPRESSION OF SALE PRICE IN THE PRESENT CASE AND WHICH IS EVEN OTHERWISE NOT IN ISSUE BEFORE THE TRIBUNAL TO SEE AS TO HOW THE SAID DECI SION IS OF ANY RELEVANCE. THE ONLY ISSUE IN THE PRESENT CASE WAS THE DETERMINATION OF THE FA IR MARKET VALUE AS ON 1.4.1981 AND FOR WHICH THE ASSESSEE WAS REQUIRED TO LEAD EVIDENCE IN SUPPORT OF ITS CLAIMS AS RETURNED BY HER AND WHICH IT SOUGHT TO DO BY PLACING RELIANCE ON DIFFERENT MATERIALS DISCUSSED HEREINBEFORE. THEREFORE NO FACTUAL OR LEGAL MISTA KE THUS ARISES WITH REFERENCE TO THE SAID DECISION OR THE RATIO PROPOUNDED BY THE HONBLE COU RT THEREBY IN THE FACTS AND WITH REFERENCE TO THE MATTER IN ISSUE IN THE PRESENT CAS E. IT NEEDS TO BE CLARIFIED THAT THE SUPPRESSION IN THE SALE CONSIDERATION WAS ITSELF CO NSIDERED BY THE HONBLE COURT AS M.P. NO. 40/COCH/2010 12 EVIDENCE FOR LIKE SUPPRESSION IN THE PURCHASE PRICE AS WELL. THERE IS NO SUCH CHARGE IN THE PRESENT CASE AND THE TRIBUNAL COULD NOT ASSUME ONE. DOES THE ASSSESSEE MEAN TO SAY THAT THERE HAS BEEN LIKE WISE A SUPPRESSION IN TH E SALE CONSIDERATION IN THE INSTANT CASE? EVEN SO NO COGNIZANCE THEREOF COULD BE NOW TAKEN. 4.9 BEFORE PARTING WITH THE ORDER IT WOULD ALS O BE RELEVANT TO HIGHLIGHT AN ASPECT OF THE MATTER WHICH HAS A BEARING ON THE ISSUE AT HAND. NO ADDITIONAL EVIDENCE WAS APPLIED FOR OR STANDS SUBMITTED BEFORE THE TRIBUNAL BY THE ASSE SSEE WHOSE CASE BEFORE IT REMAINS THE SAME AS BEFORE THE LOWER AUTHORITIES I.E. BASED O N THE SAME MATERIAL/S. THERE WAS NOT EVEN A CHARGE OF NON-CONSIDERATION BY THEM OF ANY M ATERIAL AS APPARENT FROM THE IMPUGNED ORDER AND WHICH EVEN IF SO WOULD HAVE TO BE PROVED. I T IS UNDER THESE CIRCUMSTANCES THAT THE ASSESSEE BEING AGGRIEVED BY THEIR ORDERS PREFERRED AN APPEAL BEFORE THE TRIBUNAL. ON CONFIRMATION OF THEIR ORDER S BY THE TRIBUNAL RELYING ON THE SAME MATERIAL IT NOW CONTENDS BEFORE THE TRIBUNAL OF IT HAVING COMMITTED A `MISTAKE. IN OTHER WORDS WHILE IT CONSIDERED THE ORDERS OF THE AUTHOR ITIES BELOW AS REQUIRING A REVIEW AND PREFERRED CONSECUTIVELY APPEALS BEFORE THE FIRST AND SECOND APPELLATE AUTHORITIES THE SAME ACTION BY THE LATTER IS ALLEGED TO CONSTITUTE A `MISTAKE EVEN AS THE SCOPE OF S. 254(2) IS NOT DIFFERENT FROM THAT OF S. 154 OF THE ACT. 5. IN VIEW OF THE FOREGOING IN OUR CONSIDERED VIEW NONE OF THE FACTUAL OR LEGAL ERRORS AS POINTED OUT BY THE ASSESSEE PER ITS PRES ENT APPLICATION IS ACTUALLY SO MUCH LESS A MISTAKE AND FURTHER ONE WHICH IS APPARENT FROM THE RECORD TO CONSIDER AMENDMENT OF THE IMPUGNED ORDER ACCORDINGLY SAVE THE TYPOGRAPHI CAL ERROR AT PARA 6.2 THEREOF AS MENTIONED AT PARA 4.5 ABOVE WHICH WE DIRECT FOR SU BSTITUTION AS POINTED OUT EARLIER. WE DECIDE ACCORDINGLY. 6. IN THE RESULT THE ASSESSEES MISCELLANEOUS APPL ICATION IS DISMISSED. SD/- SD/- (N.VIJAYAKUMARAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 8 TH OCTOBER 2010 M.P. NO. 40/COCH/2010 13 GJ COPY TO: 1. P. PARVATHY AMMA GOWRI SANKARAM T.C.-9/306 J AWAHAR NAGAR TRIVANDRUM. 2. THE ASSISTANT COMMISSIONER OF INCOME-TAX (H) RA NGE-1 TRIVANDRUM. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-I TRIV ANDRUM. 4. THE COMMISSIONER OF INCOME-TAX TRIVANDRUM. 5. D.R. I.T.A.T. COCHIN BENCH COCHIN. 6. GUARD FILE. BY ORDER (ASSISTAN T REGISTRAR) M.P. NO. 40/COCH/2010 14