Income Tax Appellate Tribunal - Amritsar
Hari Singh Ex- Mla, Zira vs Assessee on 11 April, 2014
IN THE INCOME TAX APPELLATE TRIBUNAL
AMRITSAR BENCH; AMRITSAR.
BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER
AND SH. B.P.JAIN, ACCOUNTANT MEMBER
M.A.No.09(Asr)/2013
(Arising out of I.T.A. No.394(Asr)/2013)
Assessment year:2007-08
PAN :AYOPS9612C
Sh. Hari Singh, Ex-MLA vs. Income Tax Officer,
Makhu Road, Zira. Range III(2), Ferozepur
(Appellant) (Respondent)
Appellant by: Sh.P.N.Arora, Advocate
Respondent by:Sh.Tarsem Lal ,DR
Date of hearing: 11/04/2014
Date of pronouncement: 15/04/2014
ORDER
PER BENCH ;
This Miscellaneous Application is filed by the assessee against our order dated 31.10.2013 passed in ITA No.394(Asr)/2013 for the assessment year 2007-08. The Misc. Application filed by the assessee is reproduced for the sake of convenience as under:
"This Misc. Application arises out of the order of the ITAT, Amritsar Bench, Amritsar, in ITA No.394(Asr)/2013 dated 06.11.2013.2 MA No.09(Asr)/2014
In this connection, it may be pointed out that in this case grounds of appeal Nos. 2 & 3 were specifically raised before the Tribunal but the Tribunal has not adjudicated n these issues. The same are reproduced hereunder:
"2. Whether ld. CIT(A) on his own disallowing the deduction allowed under 54F of the Income Tax Act, 1961 to the tune of Rs.66,00,000/- is right, without the seeing the assessment record by using his powers empowered under section 251(1)(a) of the Act without affording the reasonable opportunity of being heard to the assessee and which is also a limitation on the CIT(A) before using the powers under the above provisions of the Act. Under section 251(2) of the Act with the plea that the year of construction is very important. But the ld. CIT(A) has said in his order that I have gone into the assessment record but to my mind the ld. CIT(A) Bathinda has never seen the assessment record. Had the ld. CIT(A) seen the assessment record he might had found the year of construction and year completion and the source of investment (copy of written reply filed for explaining the expenditure during the assessment proceedings for claiming the deduction u/s 54F of the Act dated 16.11.2010 and 18.12.2010, Map passed from MC, Zira and Valuation report from SDO, PWD, Ferozepur, Completion certification received from the MC, Zira and affidavit from Sh.Hari Singh that I do not have any other house which forms part assessment record all the photocopy attached and also submitted before the CIT(A) with paper book.).
The details of calculations are given as under: Total sale consideration in cash as well as in kind are Rs.1,65,00,000/- + two flats costing Rs.2,02,50,000/- =Rs3,67,50,000 Less initial cost of construction Rs. 10,00,000 Balance amount Rs.3,57,50,000 Less deduction u/s 54 allowed by the ITO and Disallowed by the CIT(A) (Rs.30,00,000 on 5.3.2010 and Rs.36,00,000 on 4.5.2007) Balance which was brought to capital gain tax Rs.2,91,50,000 by ITO 3 MA No.09(Asr)/2014 But CIT(A) disallowed the deduction 54F by using powers assigned u/s 251(1)(A) but has forgotten the restriction imposed by the law under the same section i.e. 251(2) of reasonable opportunity before enhance income of the assessee. If wrong, then the appeal of the assessee may kindly be accepted.
3. That the CIT(A), Bathinda is not right in disallowing the deduction u/s 54F of to the tune of Rs.66,00,000/- on the receipt basis against the total claim of the assessee i.e. 20976162.15 (cost of construction Rs.70,09,220/- as per valuation report of the SDO, PWD Department, Zira and cost of land as per revenue record amount to Rs.1,39,66,842/15) since CIT(A) has on his own disallowed the deduction u/s 54 of the Act by using the powers empowered u/s 251(1)(a) of the Act, without affording any reasonable opportunity of being heard which is to be provided to the assessee u/s 251(2). The assessee submitted the following documents only then A.O. was got satisfied and allowed the deduction u/s 54F of the Act on the following documents. The AO has also himself has discussed regarding the submission of these documents in orders at page 5 & 6 of the assessment orders as explained below:
a) The assessee submitted the Map of the house which was got passed from the MC, Ferozepur.
b) That the completion certificate from MC, Zira c) The valuation of the SDO, PWD Zira d) The expenditure of Rs.66,00,000 received consideration from
TATA and HARSH BUILDERS plus Rs.409220 out of person agricultural income thus totaling Rs.70,09,220/-.
e) That an affidavit from Sh. Hari Singh that I do not have any other house.
If even it is admitted the ld. CIT(A) disallowed the deduction rightly been allowed even then his hands of CIT(A) are tight with the restriction imposed for providing the proper opportunity to the assessee to explain his position u/s 251(2) of the Act before the disallowing the deduction, in my case no proper opportunity was given to me. Hence, deduction disallowance by the CIT(A) u/s 54F of 4 MA No.09(Asr)/2014 the Act without providing reasonable and proper opportunity to the assessee may kindly be allowed."
These grounds of appeal were argued and in the written submissions both the points were agitated but without going into the facts and merits of the case as well as the legal proposition raised by the appellant in appeal regarding limitation of section 251(2) has not been considered while deciding the issues in para-7 of the order of ITAT dated 31/10/2013.
Thus, these points may kindly be considered and all the relevant mention facts & as referred above may be taken into consideration as requested above as these are mistakes apparent from record and calls for rectification. This Misc. Application is within the time and Misc. Application fee receipt of Rs.50/- is enclosed herewith. It is prayed that this Misc. Application may kindly be entertained."
2. The Ld. counsel for the assessee, Mr. P.N.Arora, Advocate, read the Misc. Application and made a pray that it is a mistake apparent from record and calls for rectification.
3. The Ld. DR, Mr. Tarsem Lal, on the other hand, opposed the same and argued that the order of the Ld. CIT(A) has merged with the order of the Tribunal and the Tribunal has already dealt with the issue raised in the Misc. Application in para 7 at PB 106 & 107 of the order. Therefore, there is no mistake apparent from record and the ld. counsel for the assessee under the garb of Misc. Application wants to get the order reviewed, which power does not vests with the Tribunal.
5 MA No.09(Asr)/2014
4. We have heard the rival contentions and perused the facts of the case. The issue raised in the Misc. Application by the assessee, has already been dealt with in our order dated 31.10.2013 and now the issue raised by the Ld. counsel for the assessee tantamount to review of our order, which is not permissible under the law. Therefore, the Misc. Application filed by the assessee is dismissed.
5. In the result, MA No.09(Asr)/2014 filed by the assessee is dismissed.
Order pronounced in the open court on 15th April, 2014.
Sd/- Sd/-
(H.S. SIDHU) (B.P. JAIN)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated: 15th April, 2014
/SKR/
Copy of the order forwarded to:
1. The Assessee:Sh. Hari Singh Ex-MLA Zira.
2. The ITO Wad III(2), Amritsar.
3. The CIT(A), Amritsar.
4. The CIT, Amritsar.
5. The SR DR, ITAT, Amritsar.
True copy By order (Assistant Registrar) Income Tax Appellate Tribunal, Amritsar Bench: Amritsar