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TMI Blog2014 (9) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... ffirmed by the Tribunal, that the appellants cannot be treated as aggrieved persons is not liable to be interfered with - the appellants have not made out a case for interference with the order of the CIT, as affirmed by the Tribunal. It may be true that penalty was levied in breach of the understanding between the parties - appellants seek to maintain an appeal against an assessment order, which was based on a concession relating to the fact as to the value of the property and, though with the condition that there would be no penalty proceedings, having regard to the penalty proceedings being cancelled, there is no ground for the appellants to maintain these appeals - Decided against assessee. - Income Tax Appeal No. 40 of 2014, Income Tax Appeal No. 41 of 2014 - - - Dated:- 19-8-2014 - K. M. Joseph, CJ And Sudhanshu Dhulia,JJ. For the Appellants : Mr. Suyash Agarwal and Mr. A. K. Sharma For the Respondent : Mr. H. M. Bhatia JUDGMENT K. M. Joseph, C.J. (Oral) Since common questions arise in these appeals, we deem it proper to dispose of the same by the following common judgment. 2. Appellants were co-owners of an ancestral property situated at Nir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue as on 01.04.1981 @ ₹ 8000 per bigha and consequential addition of ₹ 10,59,890 in computation of taxable capital gains, subject to specific condition that no penalty u/s 271 (1)(c) would be imposed in relation to addition, on subsequent imposition of penalty, the ITAT was right in holding that the appeal against the quantum u/s 143(3) dated 26.08.2009 was not maintainable as the appellant was not really aggrieved against assessment? (ii) Whether the Tribunal was right in upholding the findings of CIT (A) that the appeal filed by the assessee against the assessment order simultaneously with appeal against penalty order on 09.04.2010 was not in time and was barred by limitation, ignoring that cause of action (grievance) had arisen with the imposition of penalty u/s 271(1)(c) on 19.03.2010? (iii) Whether the ITAT was right in not condoning the delay in preferring the appeal before CIT (A) against 143 (3) order ignoring the sufficient cause for not preferring the appeal within limitation? 6. Mr. Suyash Agarwal, learned counsel for the appellants, would submit that, in the matter of appeal, which is a creature of statute, which in this case is Section 246A of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nes by deducting the cost price, as is worked out by the experts, from the sale price. Noticing that the partner had agreed to the cost price being worked out as worked out by the experts, the court took the view that the Tribunal was right in holding that no appeal lay to the Commissioner under Section 246(c) of the Income Tax Act. 10. Again, in the case of Rameshchandra and Company vs. Commissioner of Income Tax, reported in (1987) 168 ITR 375, a Division Bench of the Bombay High Court was dealing with a case of an assessment on the basis of admission by the assessee. The court, in fact, took the view that, where an assessee has made a statement of facts, he can have no grievance if the taxing authority taxes him in accordance with that statement and, if he can have no grievance, he can file no appeal. Interestingly, it is further held as follows: Therefore, it is imperative, if the assessee s case is that his statement has been wrongly recorded or that he made it under a mistaken belief of fact or law, that he should make an application for rectification to the authority which passed the order based upon that statement. Until rectification is made, an appeal is not compet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 83,000, he agreed to the addition of ₹ 15,000 but did not understand that as a consequence of this agreement the amount would be added to his income for the assessment year 1970-71. The AAC allowed the appeal of the assessee and deleted the addition of ₹ 15,000. On further appeal, the Tribunal reversed the order of the AAC on the ground that the cost of construction of the house was irrelevant to the issue before the AAC and that, in the absence of a rectification application or an affidavit explaining the circumstances which misled the assessee to give his consent to the addition, the very appeal before the AAC was incompetent. 13. It is, in the said facts, that the court took the view that it cannot be held as a matter of law that the remedy of appeal cannot be availed of by the assessee without having filed a rectification application before the Income Tax Officer. It is, further, held that the assessee was able to convince the Commissioner that the admission made by him was not binding on him and was made under a misapprehension that the amount of ₹ 15,000/- was being added for the subsequent assessment year and the Commissioner was right in reversi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant date, for the purpose of calculation of capital gains. This is not a case, which involved concession of law. It is a case, where pure question of fact as to what is the value of the land was involved. It is also relevant to notice that the appellants did not choose to make available any evidence in support of their contentions, which they seem to do now. It is also important to notice that there is no dispute that, though penalty proceedings were taken, they have all ended in penalty being cancelled. 16. We are of the view, therefore, that, generally, when an assessment is made on the basis of the consent of the parties, in view of the provision creating the right of appeal, namely, Section 246A in this case, unless there is any grievance for the party as such that the concession was wrongly recorded or that he was coerced into making such concession, which case also the appellants do not have in these cases; the order of the appellate authority, as affirmed by the Tribunal, that the appellants cannot be treated as aggrieved persons is not liable to be interfered with. In such circumstances, we are of the view that the appellants have not made out a case for interfer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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