9911796707
TMI Blog2020 (2) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... e of delivery of possession or the date of registration of document, which is relevant. In the instant case, the Agreement for Sale is dated 10.09.2014. Section 56(2)(viii)(b)(ii) clearly stipulates that where any immoveable property is received for a consideration which is less than the stamp duty value of the property by an amount exceeding ₹ 50000/-, the stamp duty value of such property as exceeds such consideration , shall be chargeable to tax in the hands of the individual or HUF as income from other sources. It is applicable from A.Y. 2014-15. Thus it is crystal clear that the aforesaid section is applicable to the instant case. In the written submission filed by the assessee before the CIT(A), it has been mentioned at page 3 that the provisions of section 56(2)(vii)(b) was introduced by the Finance Act, 2013 w.e.f. 01.04.2014 and hence, the amended provision is not applicable to the case of the assessee, since the appellant was entitled to the immovable property during the AY 2013-14. The same submission was reiterated during the course of hearing and hence, it cannot be said that it was never mentioned. The decision of the Hon'ble Supreme Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is not purchased without consideration. It is further stated that relying on the decision of the Hon'ble Bombay High Court in the case of Pr. CIT v. Vembu Vaidyanathan [2019] 101 taxmann.com 436/261 Taxman 376/413 ITR 248 it was contended that the applicant acquired/purchased/received the immovable property on the date of the issue of letter of allotment namely 27.04.2012 and hence the provisions of un-amended Act shall not be applicable. It is stated that therefore, there is a mistake apparent from record. It is argued that the backbone of the issue that the provisions of section 56(2)(vii)(b) are not applicable is founded on the argument that the immovable property is received without consideration. It is further submitted by the Ld. counsels that the Tribunal has decided the case of the appellant on the touchstone of the amended provisions of section 56, namely, section 56(2)(vii)(b)(ii) ; however, the AR argued the appeal considering the pre-amended provisions of section 56(2)(vii)(b)(ii) and contended that the same are not applicable to the facts on hand in as much as the receipt of immovable property in the case of the appellant is without consideration. Also it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side in the manner as done by the Tribunal. It is stated that the Tribunal has referred to a decision of National Cement Mines Industries Ltd. v. CIT [1961] 42 ITR 69 SC which was not referred to by any litigating party and hence, could not have been relied on without giving an opportunity to the parties to the litigation. It is thus submitted by the Ld. counsels that there are mistakes apparent from record in the impugned order of the Tribunal which should be rectified under the provisions of section 254(2) of the Act. II 3. On the other hand, the Ld. DR submits that there is no mistake apparent from record in the impugned order passed by the Tribunal. He submits that the Tribunal has no power to review its order in the garb of section 254(2) of the Act. III 4. We have heard the rival submissions and perused the relevant materials on record. The reasons for our decisions are given below. We have mentioned at para 7.2 of the impugned order the Letter of Allotment dated 27.04.2012 which reads as under: 'Re: Booking of Flat No. 2901 on 29th Floor in C Wing of the building Metropolls Residences situated at C.T.s. No. 866/B, Village Ambivali, Andhe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ** ** 4.2 We have also mentioned the facts that as per the Agreement for Sale dated 10.09.2014, the payment of ₹ 3,00,000/- on 27.04.2012 was an earnest money deposit paid before the execution of these presents and ₹ 14,66,001/- at the time of execution of these presents, making an aggregate of ₹ 17,66,001/- i.e. (₹ 3,00,000/- + ₹ 14,66,001/-) and ₹ 70,64,007/-, being the balance of the purchase price to be paid by the purchasers in the manner and by instalments mentioned therein. 4.3 In the instant case, there is no dispute that the Agreement for Sale is dated 10.09.2014. We have held that the Letter of Allotment dated 27.04.2012 which has been produced at para 4 hereinabove cannot be considered as the date of execution of agreement by any stretch of imagination. In this context, we have relied on the judgment of the Hon'ble Supreme Court in Alapati Venkataramiah v. CIT Alapati Venkataramiah v. CIT (1965) 57 ITR 185 (SC), CIT v. Podar Cements Pvt. Ltd. (1997) 226 ITR 625 (SC), wherein it is held that once the executed documents are registered, transfer will take place on the date of execution of documents and not on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was acquired on the date on which the allotment letter was issued by the builder which was on 31.12.2004. The AO however contended that the transfer of the asset in favour of the assessee would be complete only on the date of agreement which was executed on 17.05.2008. The Hon'ble High Court referring to the CBDT Circular No. 471 dated 15.10.1986 and No. 672 dated 16.12.1993 held that it can thus be seen that the entire issue was clarified by the CBDT in its abovementioned two Circulars dated 15.10.1986 and 16.12.1993. In terms of such clarifications, the date of allotment would be the date on which the purchaser of a residential unit can be stated to have acquired the property. There is nothing on record to suggest that the allotment in construction scheme promised by the builder in the present case was materially different from the terms of allotment and construction by DDA. In that view of the matter, CIT(A) and Tribunal correctly held that the assessee had acquired the property in question on 31.12.2004 on which the allotment letter was issued. We have specifically stated at page 11 of the impugned order that in the instant appeal,the issue is not the allotment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Tribunal is a creature of the statute. The Tribunal cannot review its own decision unless it is permitted to do so by the statute. The Hon'ble Supreme Court has held in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji AIR 1970 SC 1273 that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. It is a settled law that the Tribunal has no power to review its order in the garb of section 254(2) of the Act as held in CIT v. Globe Transport Corpn. [1992] 195 ITR 311 (Raj) (HC), CIT v. Roop Narain Sardar Mal [2004] 267 ITR 601 (Raj) (HC), CIT v. Devilal Soni [2004] 271 ITR 566 (Raj) (HC), Jainarain Jeevraj v. CIT [1980] 121 ITR 358 (Raj.) (HC), Prajatantra Prachar Samiti v. CIT [2003] 264 ITR 160 (Orissa) (HC), CIT v. Jagabandhu Roul [1984] 145 ITR 153 (Orissa) (HC), CIT Anr. v. ITAT Anr. [1992] 196 ITR 640 (Orissa) (HC), Shaw Wallace Co. Ltd. v. ITAT Others [1999] 240 ITR 579 (Cal) (HC), CIT v. Suman Tea Plywood Industries Pvt. Ltd. [1997] 226 ITR 34 (Cal) (HC), ITO v. ITAT Anr. [1998] 229 ITR 651 (Pat.) (HC), CIT Anr. v. ITAT Anr. [1994] 206 ITR 126 (AP) (HC), ACIT v. C. N. Ananthram [20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
