Seksaria Industries P.Ltd , vs Assessee

आयकर अपील य अ धकरण, मंब ु ई IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES 'E' MUMBAI सव ी आय.पी. बंसल, या यक सद य एवं ी आर.सी. शमा , लेखा सद य के सम । BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND

SHRI R.C.SHARMA , ACCOUNTANT MEMBER MA. NO.431/MUM/2014 (Arising out of ITA NO.2835/MUM/2013 ,A.Y.2009-10)

Seksaria Industries Pvt. Ltd., Income Tax Officer, 5th Floor, Seksaria Chambers, Ward 2(3)(2), Aaykar Bhavan, 139, Nagindas Master Road, Vs. MK Road, Mumbai 400020 Fort, Mumbai 400 023. PAN:AAACS 6145H (Appellant ) (Respondent)

Appellant by : Shri Y.P.Trivedi Respondent by : Shri Azghar Zain

Date of hearing : 20/03/2015 Date of pronouncement : 01/04/2015

ORDER

PER I.P.BANSAL, J.M:

Vide Miscellaneous Application filed as above, it is the case of the assessee that Tribunal has committed three apparent mistakes while delivering the decision vide order dated 31/10/2014.

2. The first mistake as pointed out in the application is that Registered Valuer's report valuing the property has been accepted to be taken into consideration but ratio of ownership as determined by the Registered Valuer has not been taken into consideration which is 45% to the lessor and 55% to the lessee. It is the case of the assessee that the same proportion should have been adopted for apportionment of value of land as on the date of sale.

2 MA. NO.431/MUM/2014 (Arising out of ITA NO.2835/MUM/2013 ,A.Y.2009-10)

2.1 The second mistake pointed out in the application is regarding value of TDR at 100%, whereas according to assessee, the same should have been taken at 60% of the TDR value adopted by the Stamp Valuation Authority.

2.2 The third mistake pointed out in the application is that Tribunal has failed to consider Ground No.1.4, according to which, for the purpose of computing capital gain TDR value could not be taken into consideration. Ground No.1.4 read as under:

1.4 The Learned CIT(A) failed to exclude value of TDR from the total valuation made by Stamp Office and computation of Capital Gains being a capital assets without any cost.

3. Arguing on the first mistake it was submitted by Ld. AR that the proportion of the ownership of the asset should be taken as per Registered Valuer's report according to which, the value has been accepted by the Tribunal as on 1/4/1981.

4. We have carefully considered such submission of Ld.AR but we find no force in such argument that simply on the basis of Registered Valuer's report, share of assessee in the impugned property was to be determined. Share of the assessee in the impugned property was taken by Stamp Valuation Authority at 60% and the same cannot be deviated. The Registered Valuer's Report was only with respect to valuation as on 1/4/1981 and not for the purpose of determining the share of the assessee. Therefore, the mistake pointed out by Ld. AR in the order is not a mistake apparent from the record as described in section 254(2) of the Act. Therefore, this contention of Ld. AR is rejected.

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5. Apropos second mistake, it is seen that while deciding the issue regarding computation of capital gain the action of the AO and Ld. CIT(A) has been upheld only on short issue that the value determined by Stamp Valuation Authority, as per provisions of section 50C would be binding upon the assessee and if it is so, it cannot be permissible for the assessee to contend that the share of the assessee in TDR value as determined by Stamp Valuation Authority would be subject matter of variation. These findings of Tribunal are recorded in para 7.5 of the order dated 31/10/2014. Moreover, for raising such contention the Ld. AR has relied upon the findings of Tribunal recorded in para 7.6 of the order and in the said para such contention has specifically been rejected. The Tribunal does not have power to review its order and the mistake pointed out by Ld. AR does not fall within the purview of section 254(2) and remedy to the assessee, if any, lies somewhere else.

5.1 Before parting with the rejection of plea of Ld. AR in respect of above two mistakes we may mention that as per trite law explained by Hon'ble Supreme Court in the case of ACIT vs. Saurashtra Kutch Stock Exchange Ltd., 305 ITR 227(SC) an error on the face of record means an error which strikes on mere looking and does not need long drawn process of reasoning on points where there may be conceivable two opinions. If the view accepted by the Court in the original judgment is one of the possible views, the case cannot be said to be covered by an error apparent on the face of the record. Therefore, the above mentioned two mistakes are not mistakes apparent on the face of the record.

6. Now coming to the third mistake, we find that this ground was specifically raised by the assessee. Though the said ground does not arise out of the order of Ld. CIT(A) and if assessee wanted to pursue such ground then the same was required to be raised as 4 MA. NO.431/MUM/2014 (Arising out of ITA NO.2835/MUM/2013 ,A.Y.2009-10)

additional ground and which is not done. However, the fact remains that neither the said ground of the assessee has been dismissed on the ground that the same does not arise out of order of Ld. CIT(A) nor same has been unadmitted as additional ground. Therefore, Ground No.1.4 remains to be undecided. Here it is the case of the Ld. AR that according to the latest decision of Hon'ble Bombay High Court in the case of CIT vs. Sambhaji Nagar Co-operative Housing Society Ltd., order dated 11/12/14, passed in Income Tax Appeal No.1356 of 2012, copy placed on record, TDR value could not be taken into consideration for computation of capital gain. According to Ld. AR, any order of the Tribunal contrary to the decision of Jurisdictional High Court either rendered earlier to the deciding the issue or subsequent thereof will give rise to mistake apparent from the record. For this purpose, reliance has been placed on the decision of Hon'ble Supreme Court in the case of ACIT vs. Saurashtra Kutch Stock Exchange Ltd., 305 ITR 227(SC), wherein it has been held that a judicial decision acts retrospectively and even where an earlier decision of the Court operated for quite sometime, the decision rendered would have retrospective effect clarifying the legal position which was earlier not correctly understood, therefore, non-consideration of existing or subsequent decision of Jurisdictional High Court or Supreme Court is a mistake apparent from the record rectifiable under section 254(2) of the Act. We find force in such contention of Ld. AR. Therefore, as Ground No.1.4 has not been decided, for adjudication thereof, we accept this part of arguments of Ld. AR.

7. In view of above discussion, for limited purpose of deciding Ground No.1.4, we recall aforementioned order dated 31/10/2014 accepting third mistake pointed out by Ld. AR. In respect of other two mistakes we have rejected the contention of Ld. AR. We order accordingly.

5 MA. NO.431/MUM/2014 (Arising out of ITA NO.2835/MUM/2013 ,A.Y.2009-10)

8. For the reasons discussed above, miscellaneous application filed by the assessee is partly allowed in the manner aforesaid.

Order pronounced in the open court on 01/04/2015 आदे श क घोषणा खल ु े यायालय म दनांकः 01/04/2015 को क गई ।

Sd/- Sd/- (आर.सी. शमा /R.C.SHARMA ) (आय.पी. बंसल / I.P. BANSAL) लेखा सद य / ACCOUNTANT MEMBER या यक सद य / JUDICIAL MEMBER मंब ु ई Mumbai; दनांक Dated 01/04/2015

आदे श क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ' / The Applicant 2. ()यथ' / The Respondent. 3. आयकर आयु*त(अपील) / The CIT(A)- 4. आयकर आयु*त / CIT

5. ,वभागीय ( त न.ध, आयकर अपील0य अ.धकरण, मुंबई / DR, ITAT, Mumbai

6. गाड फाईल / Guard file.

आदे शानस ु ार/ BY ORDER, स)या,पत ( त //True Copy//

उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai व. न.स./Vm, Sr. PS