Pukhraj Devi Pansari , Jaipur vs Assessee

Jh vkj-ih-rksykuh] U;kf;d lnL; ,oa Jh Vh-vkj-ehuk] ys[kk lnL; ds le{k BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM

M.A. No. 40/JP/2014 (Arising out of vk;dj vihy la-@ITA No. 1117/JP/2011) fu/kZkj.k o"kZ@Assessment Year : 2008-09

Smt. Pukhraj Devi Pansari cuke The ACIT A-7, Showroom, Agra Vs. Circle- 5 Road, Sethi Colony, Jaipur Jaipur

LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ABOPP 9651 M vihykFkhZ@Appellant izR;FkhZ@Respondent

fu/kZkfjrh dh vksj ls@ Assessee by : Shri S.L. Poddar, Advocate jktLo dh vksj ls@ Revenue by :Smt. Neena Jeph, JCIT

lquokbZ dh rkjh[k@ Date of Hearing : 22/05/2015 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 12/06/2015

vkns'k@ ORDER PER R.P. TOLANI, JM

This is assessee's Miscellaneous Application arising out of the

order of ITAT dated 11-07-2014 u/s 254(2) of the Act praying for

rectification of mistakes u/s 254(2). Ld. AR of the assessee referred to

para 4.7 at page 7 of order which reads as under:-

'' 4.7 We have heard the rival contentions and perused the materials available on record. Section 50C of the Act has two limbs. The first limb provides that in case of 2 M.A. No. 40/JP/2014 Smt. Pukhraj Devi Pansari vs. ACIT, Circle- 5, Jaipur .

difference between DLC rate and actual consideration, the higher of them is to be adopted as a sale consideration for computation of capital gain. The second limb provides that where the assessee claims before the AO that DLC rate is excessive than fair market value then the AO in that case may refer the valuation of the asset to the DVO. It has been admitted by the assessee's counsel that no dispute about unreasonableness of the DLC rate was raised before the Sub-Registrar. From the record which emerges from the order of the ld. CIT(A) and contents whereof are not disputed by assessee's counsel, it emerges that the AO informed the assessee about the applicability of Section 50C of the Act and the written submissions of the assessee are considered. In the submissions filed, there is no mention of any reasons about the DLC rate being excessive to fair market value and on top of it there is no whisper of any objection. From the perusal of the records and the order of the ld. CIT(A), we are of the considered view that due opportunity was given to the assessee and no objection is raised either orally or in writing before the AO. This fact clearly emerges from the fact that the assessee's counsel has signed on order sheet and this fact is not disputed by the assessee's counsel. Thus we are of the view that it cannot be held that the assessee was not given an opportunity of being heard.

Apropos the case laws:-

(i) Sharda Devi vs. ITO, Ward- 1(4), Jaipur Bench (supra) In that case the assessee clearly objected by mentioning that DLC rate was excessive and the assessee's rate was comparable to fair market value. Under these conditions, ITAT has set aside the issue.

(ii) A Shaik Mohindeen vs. ITO, Chennai Bench (supra) 3 M.A. No. 40/JP/2014 Smt. Pukhraj Devi Pansari vs. ACIT, Circle- 5, Jaipur .

In this case also, the assessee was not given an opportunity whereas in the case before us, an effective chance is given to the assessee.

(iii) Sunil Kumar Agarwal vs. CIT (Cal.) (Supra ) In this case the conveyance deed contained the recital that apparent consideration was the highest prevailing market price. In conveyance deed of the assessee, no such recitals are mentioned Thus the case laws cited by the assessee are clearly distinguishable and it does not help the cause of the assessee. Hence in view of the above facts and circumstances of the case, we are inclined to uphold the order of the ld. CIT(A) and the appeal of the assessee dismissed.''

2.1 By this Miscellaneous Application, assessee has contends

following mistakes apparent from the above mentioned order (supra).

(i) The Hon'ble ITAT have observed on page 4 in para 4.2 that'' the ld. CIT(A) thus concluded that this order sheet entry proposing to adopt Section 50C is signed by the assessee.'' The perusal of the order sheet nowhere discloses any proposal for adopting 50C by the ld. AO. On the same date i.e. 20-12-2010, the sale deed is perused, 50c is applied and assessment proceedings are completed. Hence, had there been any proposal, there would have been opportunity for the same.

(ii) On page 7 para 4.7, it has been observed that the order of the Hon'ble ITAT that ''it emerges that the Assessing Officer informed the assessee about the applicability of Section 50C of the Act.'' It is submitted that the perusal of the order sheet only discloses a finding of the ld Assessing Officer where he has concluded that ''the difference amount of Rs. 43,56,000/- is added back.' The ld. Assessing Officer neither asked for the reply of the assessee 4 M.A. No. 40/JP/2014 Smt. Pukhraj Devi Pansari vs. ACIT, Circle- 5, Jaipur .

nor waited for the same. He just rushed through his finding and concluded the assessment proceedings by making the addition.

(iii) In view of the aforesaid facts and circumstances of the case gross injustice has been done to the assessee in not providing an opportunity before applying provisions of Section 50C. This has escaped attention to the Hon'ble ITAT on account of creping of a mistake in the appreciation of the order of the ld. CIT(A).''

2.2 According to the assessee, these mistakes constitute apparent from

record. Therefore, the order may be recalled. The reliance is placed as

under:-

(i) Honda Siel Power Products Ltd. vs. CIT (2007), 165 Taxman 307 (SC).

(ii) ACIT vs. Saurastra Kutch Stock Exchange Ltd. (2009) 173 ITR 322 (SC)

2.3 The ld. DR on the other hand contends that the assessee's

Miscellaneous Application clearly amounts to review of the well reasoned

order of the ITAT which is not permissible u/s 254 (2) of the Act.

2.4 We have heard the rival contentions and perused the materials

available on record. It may be mentioned that in form 36 i.e. memo of

appeal, assessee has raised following ground before us in this behalf.

5 M.A. No. 40/JP/2014 Smt. Pukhraj Devi Pansari vs. ACIT, Circle- 5, Jaipur .

''1. Under the facts and circumstances of the case, the ld. CIT(A) has erred in confirming the addition of Rs. 43,56,000/- in computing the capital gain income on the basis of DLC rate without considering the submission of the assessee.''

2.5 A perusal of the written submission filed by the assessee on

18-08-2011 before the ld. CIT(A) does not indicate of any reference for

valuation to DVO. Accordingly, ld. CIT(A) decided the appeal after

considering the written submission which does not contain any request

for reference to DVO. The case laws cited before us have been duly

considered in the order. Hence, there exists no apparent mistake as

alleged by the assessee in point No. (i) in MA. As regards MA mistake

no. (ii), it is an inference of the ld. AR which cannot constitute mistake

apparent from record. Similarly MA mistake no. (iii) also, there is no

apparent mistake as orders cannot be recalled because only it cause

injustice to the assessee. In view thereof, we do not find any mistake

much less apparent mistake in the ITAT order (supra) or from the record

as raised by the assessee. Thus the Miscellaneous Application of the

assessee is dismissed.

6 M.A. No. 40/JP/2014 Smt. Pukhraj Devi Pansari vs. ACIT, Circle- 5, Jaipur .

3.0 In the result, the Miscellaneous Application of the assessee is

dismissed.

Sd/- Sd/- ¼Vh-vkj-ehuk½ ¼vkj-ih-rksykuh½ (T.R. Meena) (R.P.Tolani) ys[kk lnL;@ Accountant Member U;kf;d lnL;@Judicial Member

Tk;iqj@Jaipur fnukad@Dated:- 12/06/2015

*Mishra

vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:

1. vihykFkhZ@The Appellant- Smt. Pukhraj Devi Pansari, Jaipur

2. izR;FkhZ@ The Respondent- The ACIT, Circle- 5, Jaipur

3. vk;dj vk;qDr¼vihy½@The CIT(A).

4. vk;dj vk;qDr@ The CIT

5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur

6. xkMZ QkbZy@ Guard File (MA No.40/JP/2014)

vkns'kkuqlkj@ By order,

lgk;d iathdkj@ Assistant. Registrar