Income Tax Appellate Tribunal - Hyderabad
Sri Rajender Pershad Tejprakash,, ... vs Department Of Income Tax on 20 June, 2014
IN THE INCOME TAX APPELLATE TRIBUNAL
HYDERABAD BENCH 'A', HYDERABAD
BEFORE SHRI B.RAMAKOTAIAH, ACCOUNTANT MEMBER
AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER
Misc. Appln. No.59/Hyd/2014
(in ITA No.1715/Hyd/2013)
(Assessment year 2009-10)
Income Tax Officer Ward 9(2), V/s Shri Rajender Pershad Tejprakash,
Hyderabad Hyderabad
(PAN ABIPT 3968 M )
(Applicant) (Respondent)
Applicant by : Shri Kiran Katta DR
Respondent by : Shri K.A.Saiprasad
Date of Hearing 20.06.2014
Date of Pronouncement 20.06.2014
ORDER
Per Saktijit Dey, Judicial Member:
By this Miscellaneous Application, Revenue has requested for rectification/recall of the order of the Tribunal dated 30.8.2013 in appeal, ITA No.1715/Hyd/2013 of the assessee, for the assessment year 2009- 10, on the ground that certain mistakes apparent from the record have crept into the same.
2. It is stated in this application at the outset, narrating facts of the case, that during the year under consideration, assessee sold 1224.50 sq. ft. of RCC structure and 544 sq. ft. of area with ACC Sheds, out of total area of Acres 2-2 Gts. Land, for a total consideration of Rs.1,62,50,000 and claimed the gain arising out of this transaction as exempt, on the ground that the land in question is an agricultural land. The Assessing Officer while completing the assessment under S.143(3) determined the income of the assessee at Rs.1,64,78,190, disallowing the assessee's claim with regard to exemption in respect of the above 2 MA No.59/Hyd/2014(ITA No.1715/Hyd/13) Shri Rajender Pershad Tejprakash, Hyderabad transaction of sale of property. On appeal, the CIT(A) observing that the land in question is not an agricultural land, confirmed the addition made by the Assessing Officer. On further appeal, the Tribunal following the decision of the coordinate bench in the case of Smt. T. Urmila V/s. ITO(57 SOT 90)(URO) held that since the land was not within 8 KM of any municipality; HADA was not a local body the land question is not a capital asset as defined u/s. 2(14)(iii)(a) of the Act. It was consequently held that the land sold by the assessee is an agricultural land and not incidence of capital gains arose. It is stated in the present application that the land in question is situated in Tondapally Village, which is within 5 KM distance of Shamshabad Municipality, a municipality notified by the Government in Gazette Notification Dated 6.1.1994. As per this Notification, Shamshabad is a notified municipality and Thondapally Village is within 5 KM of Shamshabad, and accordingly, the land in question, though comes within the jurisdiction of HADA for the purpose of municipal administration, it is also within 5 KM of a notified municipality and accordingly the land is to be treated as capital asset as per provisions of S.2(14)(iii)(b) of the Act. Inasmuch as this fact appears to have not been considered at any stage of the proceedings in this case, the present Miscellaneous Application has been filed. Reiterating the averments made in the present application, learned Departmental Representative requested for rectification/recall of the order of the Tribunal dated 30.8.2013.
3. The Learned counsel for the assessee, on the contrary, opposing the contentions of the assessee, submitted that there is no mistake apparent from record, and as such, the present application is devoid of merit.
4. We have heard the parties and perused the material available on record, in the light of the averments made in the present application 3 MA No.59/Hyd/2014(ITA No.1715/Hyd/13) Shri Rajender Pershad Tejprakash, Hyderabad and the order of this Tribunal dated 30.8.2013. As stated by the applicant itself in the penultimate para of the present application, the fact stated in para 5 of the present application, viz. the land in question situated in Thondapally Village, is within 5 KM distance of Shamshabad municipality, a Municipality notified by the Government in Gazette Notification Dated 6.1.1994, has not been considered at any stage of the proceedings in this case. When such a fact has not been considered at any stage of the proceedings starting from assessment proceedings till the disposal of appeal by this Tribunal, obviously that fact, not forming part of the record and not pleaded by either of the parties earlier, has not been considered by the Tribunal in its order dated 30.8.2013. In the circumstances, it cannot be said that there is any mistake apparent from record in the order of this Tribunal dated 30.8.2013 on account of non- consideration of such a fact brought on record for the first time during the present proceedings under S.254(2) of the Act. By bringing on record a new fact/material and thereby making out a new case, the Revenue is merely seeking a review of the order of the Tribunal dated 30.8.2013, Since such a review is not permissible in these proceedings under S.254(2) of the Act, the scope of which is confined to mere rectification of mistakes apparent from record, the present application of the Revenue is devoid of merit, and as such, it is liable to be rejected. We reject the same accordingly.
5. In the result, Revenue's Miscellaneous Application is rejected.
Order pronounced in the court on the conclusion of hearing on the Miscellaneous Application on 20.06.2014 Sd/- Sd/-
(B.Ramakotaiah) (Saktijit Dey)
Accountant Member. Judicial Member.
Dt/- 20th June, 2014
4 MA No.59/Hyd/2014(ITA No.1715/Hyd/13)
Shri Rajender Pershad Tejprakash,
Hyderabad
Copy forwarded to:
1. Income Tax Officer Ward 9(2), Hyderabad
2. Shri Rajender Pershad Tejprakash, H.No.22-6-85, Machili Kaman, Hyderabad
3. Commissioner of Income-tax(Appeals) VI, Hyderabad
4. Commissioner of Income-tax V, Hyderabad
5. Departmental Representative ITAT Hyderabad B.V.S.