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Dr. Arvind S. Phadke,, vs Assessee

Income Tax Appellate Tribunal20 February 2015

Ratio decidendi

The rule this decision rests on

The Tribunal may rectify, under section 254(2) of the Income Tax Act, 1961, a mistake apparent from the record in its earlier order where that order has inadvertently recorded the Assessing Officer's decision on an issue contrary to what the assessment order actually shows, and the rectification corrects the recorded facts and the operative direction so that they accord with the record; the mistake is one apparent from the record because it is demonstrable from the assessment order and the undisputed date of investment, and the Departmental Representative's concession that such errors fall within section 254(2) was accepted.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE INCOME TAX APPELLATE TRIBUNALPUNE BENCH "A", PUNEBEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBERAND MS. SUSHMA CHOWLA, JUDICIAL MEMBERMA No.74/PN/2014(Arising out of ITA No.236/PN/2013)(Assessment Year : 2008-09)

Dr. Arvind S. Phadke, 799/A, Bhandarkar Road, Pune - 411 004. PAN : ABQPP0889B .... Appellant

Vs.

Addl. Commissioner of Income Tax, Range- 5, Pune. .... Respondent

Assessee by : Mrs. M. N. Kulkarni Department by : Mr. B. C. Malakar Date of hearing : 06-02-2015 Date of pronouncement : 20-02-2015

ORDER

PER G. S. PANNU, AM

By way of the present Miscellaneous Application, assessee has

contended that certain mistakes apparent from record within the meaning of

section 254(2) of the Income Tax Act, 1962 (in short "the Act") have crept into

order of the Tribunal dated 30.04.2014.

2. The Miscellaneous Application reads as under :-

"Honourable Bench has noted the Facts in Para 5 of the Order. In brief those are, Assessee has made Investment U/s 54EC as under.

On 28.03.2008 Rs. 50 Lakhs in Bonds of NHAI On 22.08.2008 Rs. 50 Lakhs in Bonds of REC ltd Assessee claimed the date of Transfer of property U/s 2(47) of IT Act 1961, as date of handing over possession to purchaser i.e. 01.03.2008. Whereas Assessing Officer preponed the same to 13.09.2007 being date of Registration of Development Agreement. CIT (A) confirmed Assessing Officer's action resulting both the investments U/s 54 EC beyond six months from the date of alleged transfer 13.09.2007.

Honourable Bench is pleased to confirm the date of transfer as 01.03.2008 as claimed by the Assessee.

2 MA No.74/PN/2014 However, in Para 5 of the Order, Honourable Bench may be through inadvertence has mistaken in noting "As per the Assessing Officer, the investment in the bonds of NHAI made on 28.03.2008 of Rs. 50 Lakhs was within the specified period"

In fact in Para 4.4 and 4.11 of the Assessing Officer's Order, he has clearly stated that they are out of time and not eligible for exemption. Also there are typographical errors of date of Purchase of REC bonds, wrongly taken as 28.02.2008 against correct date 22.08.2008 Because of mistaken understanding that Assessing officer has allowed claim of investment in NHAI bonds, invested on 28.03.2008, in Para 20 of the ITAT Order Appellant's claim only in respect of REC bonds of Rs. 50 Lakhs is allowed.

Appellant in fact also has relied on Pune ITAT decision in case of Kirankumar Popatlal Shah ITA No 285/Pn/2013 dated 31.01.2014 There is mistake apparent on Statement in ITAT Order that 'Assessing Officer has allowed claim of NHAI Bonds purchased on 28.03.2008' in fact has not allowed.

Since Assessing Officer & CIT (A) have not allowed the deduction for the Claim of Purchase of NHAI Bonds, the same need be adjudicated by the Honourable Bench.

Appellant prays for adjudication in respect of the same."

3. The first mistake pointed out by the assessee is that in para 5 of the

order, the date of investment in the bonds of REC Ltd. has been noted as

28.02.2008, which is incorrect. It is submitted that the correct date is

22.08.2008. In this context, reference has been made to the discussion in the

assessment order to substantiate that the date of investment of Rs.50,00,000/-

made in the bonds of REC Ltd. is indeed 22.08.2008. Secondly, it is pointed

out that in para 5 itself, the Tribunal has wrongly noted that the investment

made in the bonds of NHAI on 23.02.2008 of Rs.50,00,000/- was held by the

Assessing Officer within the period prescribed in section 54EC of the Act. In

this context, the Ld. Representative for the assessee pointed out that the

Assessing Officer denied the claim of deduction u/s 54EC of the Act in relation

to both the investments i.e. investment made in the bonds of NHAI on

28.03.2008 of Rs.50,00,000/- as well as the investment of Rs.50,00,000/-

made in the bonds of REC Ltd. on 22.08.2008. In this manner, it is pointed out

that the CIT(A) had also sustained the action of the Assessing Officer denying 3 MA No.74/PN/2014

the claim of deduction u/s 54EC of the Act with respect to both the

investments.

4. The aforesaid errors in para 5 of the order of the Tribunal pointed out by

the applicant have not been contested or controverted by the Ld.

Departmental Representative.

5. In-fact, assessee had made investment of Rs.50,00,000/- in the bonds

of REC Ltd. on 22.08.2008. The aforesaid claim of the assessee was denied

on the ground that the property giving rise to capital gains was transferred on

13.09.2007 and therefore the investments made for claiming exemption u/s

54EC of the Act were not made within six months from the said date of

transfer i.e. 13.09.2007. The claim of the assessee was that the date of

transfer of property has to be understood as 01.03.2008 and therefore both

the investments were within the period of six months from the date of transfer

and thus eligible for the claim of exemption u/s 54EC of the Act. The Tribunal

in its order dated 30.04.2014 (supra) upheld the plea of the assessee that the

date of transfer of the property is to be understood as 01.03.2008 and as a

consequence, the impugned investments in the bonds of NHAI and REC Ltd.

qualified for exemption u/s 54EC of the Act. However, the Tribunal

inadvertently considered that the investment of Rs.50,00,000/- made in the

investment of NHAI bonds on 28.03.2008 stood allowed by the Assessing

Officer. The Tribunal merely directed for the allowance of deduction u/s 54EC

of the Act in relation to the investment of Rs.50,00,000/- made in the bonds of

REC Ltd. on 22.08.2008. Therefore, on this aspect also, the assessee has

pointed out that the error needs to be corrected.

4 MA No.74/PN/2014

6. Ostensibly, the Ld. Departmental Representative converged with the

stand of the assessee that the aforesaid mistakes are within the purview of

section 254(2) of the Act.

7. As a consequence, we direct the following modification in the order of

the Tribunal dated 30.04.2014 (supra).

8. The following portion of para 5 :

"5. .................... As per the Assessing Officer, the investment in the bonds of NHAI made on 28.03.2008 of Rs.50,00,000/- was within the specified period whereas the balance investment of Rs.50,00,000/- made in the bonds of REC Ltd. on 28.02.2008 was beyond the period prescribed in section 54EC of the Act. Accordingly, he allowed exemption to the extent of Rs.50,00,000/- relating to the investment in the bonds of NHAI and the balance of Rs.50,00,000/- invested in the bonds of REC Ltd. on 28.02.2008 was denied. The CIT(A) has also sustained the action of the Assessing Officer on the ground that the investment made in the bond of REC Ltd. of Rs.50,00,000/- on 22.08.2008 was not within six months from the date of transfer of asset, and accordingly claim of Rs.50,00,000/- was denied. The assessee is in appeal before us on the aforesaid issue."

shall be substituted by the following :

"5. ..................... As per the Assessing Officer, the investments in the bonds of NHAI made on 28.03.2008 of Rs.50,00,000/- and Rs.50,00,000/- in the bonds of REC Ltd. on 22.08.2008 was beyond the period prescribed in section 54EC of the Act. Accordingly, he disallowed exemption relating to the investment in the bonds of NHAI and REC Ltd. The CIT(A) has also sustained the action of the Assessing Officer and accordingly, the assessee is in appeal before us on the aforesaid issue."

9. Similarly, following portion appearing in para 20 of the order :

"20. .................. In this view of the matter, the investments in the bonds of REC Ltd. of Rs.50,00,000/- made by the assessee on 22.08.2008 is within the period of six months from the date of transfer as prescribed in section 54EC of the Act and accordingly the assessee is eligible for deduction of Rs.50,00,000/- u/s 54EC of the Act also."

5 MA No.74/PN/2014 shall be substituted by the following :

"20. .................. In this view of the matter, the investments in the bonds of NHAI and REC Ltd. of Rs.50,00,000/- made by the assessee on 28.03.2008 and 22.08.2008 respectively are within the period of six months from the date of transfer as prescribed in section 54EC of the Act and accordingly the assessee is eligible for deduction of Rs.1,00,00,000/- u/s 54EC of the Act.

10. As a consequence, the Miscellaneous Application is allowed, as above.

Order pronounced on 20 th February, 2015.

Sd/- Sd/- (SUSHMA CHOWLA) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER

Pune, Dated: 20 th February, 2015. Sujeet

Copy of the order is forwarded to: - 1) The Assessee; 2) The Department; 3) The CIT(A)-III, Pune; 4) The CIT-III, Pune; 5) The DR "A" Bench, I.T.A.T., Pune; 6) Guard File.

By Order //True Copy//

Assistant Registrar I.T.A.T., Pune

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