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TMI Blog2024 (6) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... EME COURT] which laid down that the tenancy right is a capital asset and its surrender would attract section 45 and the gains would be assessable under the head Capital Gains . In our humble understanding the same is unconnected to the present case. It is surprising to note that even after a passage of ten years, no attempt was taken to knock the doors of the High Court on substantial question of law, if any, as pleaded by the assessee. The assessee has taken numerous adjournments on some pretext or otherwise. The conduct is a clear pointer to the hollowness of the contention of the applicant assessee who is perhaps trying his luck. In the course of proceedings, the learned Counsel for the assessee even hinted that he is in the process of filing additional evidences to buttress his claim and requested our leave to this aspect. We have anxiously gone through the ITAT Rules, 1963, and found that there is no procedure so prescribed. Accordingly, his request was out rightly rejected. It seems that the prime objective of the assessee to reargue the matter all over again and to rehear the averments already made once again. It is pertinent to note that the learned Counsel for the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee by Shri. Thakare was in the exclusive domain of Maharashtra Land Revenue Tribunal short form (MLRT) Under Section 48 of BTALA (Pg 52 of the Paper book). It could be determined only on 15/11/2008. The compensation was determined at Rs. 87,50,000/- when the land was transferred by Damodar Govindrao Thakare to Mr. Nishant Gandhi on 15/11/2008 (Pgs 24-29 of the Paper Book) by mutual agreement between the assessee as consentor, Thakre as Seller, and Gandhi as Purchaser, as provided in Section 48 and approved by the Maharashtra Land Revenue Tribunal when it allowed the party to withdraw the pending application for determination of compensation. 3. The Hon'ble ITAT held that said compensation was income from other sources assessable in the A.Y. 2009-10 and held that the amount was assessable as it was received during the financial year 2008-09. The Tribunal also held that since the compensation is to be received from Thakare as per the BTALA as he has entitled to receive Rs. 7,200/- as discussed by the AO the assessee had no right to receive any money from Nishant Gandhi in the Year 2008-09 and the claim of the assessee the sum received by him at Rs. 87,50,000/- was capit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... casual or non recurring receipt u/s 56 vide N. A Mody V/s S. A. L. Narayan Raw, CIT 61 ITR 428. 5. Actually, the Hon'ble Tribunal followed its own Special bench decision in the batch of cases, reported under Cadel Waving Mills Pvt. Ltd V/s C.LT 217 ITR (AT) 51 (Bom) (SB). This was overruled by the Bombay High Court in 249 ITR 265 (Bom) which was finally upheld by the Supreme Court referred above in 273 ITR 257. The Supreme Court also held that the definition of 'income' in section 2(24) is an inclusive definition. It adds several artificial categories to the concept of income but, on that account, the expression income does not lose its natural connotation. Anything which can be properly described as income is taxable under the Act unless it is exempted under one or the other provisions of the Act vide Entil Webber v/s Commissioner of Income Tax 200 ITR 483 (SC). To the same extent the Bombay H.C in Cadel Waving Mills Pvt. Ltd's referred above stated that Section 14 of the IT Act apply only if the receipt accrues on revenue account either in the general sense or under the extended meaning given under the Act. A capital receipt does not come within the ambit of IT A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily accepted as evidence as per the decision of the Supreme Court in the Case of Shaktivel (Dead Through LR's) Vs. Venugopal Pillai AIR 2000 SC 2633. The amount of 4,38,50,000/- which is a consolidated single sale price of the land, a capital asset cannot be split into two different items of income and tax it under two totally different heads of income. This is repugnant to the basic structure of taxation of income. That is to say the amount received by Thakare as Capital Gain and amount received by assessee as income under other sources out of a single transaction of transfer of ownership no splitting is permissible under the income tax at all under two different heads. Therefore, it necessarily indicates that this amount of Rs. 87,50,000/- was consideration for the vesting of ownership in Govindrao Thakre and is a capital receipt under Section 45 and is taxable as a capital gain when the transfer took place which according to the assessee is 30/07/1975 and the assessment year being 1976-77. Further registered document has a great sanctity and this sanctity cannot be allowed to be lost without following the proper procedure vide Shanti Budhiya Vesta Patel and others V/s. Nirma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... error apparent on the face of the record which the High Court has to consider while dealing with Writ Petition U/A 226 of the Constitution . It was also held that, it was very difficult to define an error apparent on the face of record precisely, scientifically and with certainty. All these discussions are only to show the mistake apparent from record needs some argument which depends on the facts of each case. 10. C. In the case of Hari Vishnu Kamath V/s Syed Ahmad Ishaque and other AIR 1955 SC 233 a constitution bench of The Supreme Court referred to the decision of Justice Chagla in Batuk K. Vyas Vs. Surat Borough Municipality, AIR 1953 Bom 133, that no error can be said to be apparent on the face of the record if it is not manifest, self evident or requires an examination or argument to establish it. The court admitted that there might be cases in which one Judge may consider the error apparent, patent and self evident but may not be considered by another Judge. The court also held that an error apparent on the face of record cannot be defined exhaustively there being an element of indefiniteness inherent in its very nature and must be left to be determined judicially on the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embur Pvt. Ltd. 273 ITR 257 and that the mistake is so obtrusively glaring that it needs to be rectified by holding that the amount of 87,50,000/- is a capital receipt assessable under the head capital gain and the transfer of the ownership took place on 30/7/1975 and the said amount received cannot be brought under other sources in view of the decision in CIT V/s D. P. Sandu Brothers Chembur Pvt. Ltd. 273 ITR 257 in the assessment year 2009-10. It is prayed accordingly. 3. From the above, it appears that the applicant assessee is trying to conduct a review of the order already passed without pointing out any mistake apparent from the order. The Tribunal had evaluated the facts and circumstances of the case when it originally dismissed the appeal of the assessee whether the Tribunal was on merits or otherwise while dismissing the appeal is not a matter which calls for determination in these proceedings. If the assessee is aggrieved by the merits of the Tribunal while dismissing the appeal, it is at liberty to pursue its remedy in accordance with law. The observations made by us in this order are, therefore, findings to our decision on the exercise of jurisdiction under section 254( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Samtel Color Ltd. (supra) was cited before it by the assessee but through oversight it had missed out the said judgment while dismissing the appeal filed by the assessee on the question of admissibility/allowability of the claim of the assessee for enhanced depreciation under s. 43A. One of the important reasons for giving the power of rectification to the Tribunal is to see that no prejudice is caused to either of the parties appearing before it by its decision based on a mistake apparent from the record. 13. Rule of precedent is an important aspect of legal certainty in rule of law. That principle is not obliterated by s. 254(2) of the IT Act, 1961. When prejudice results from an order attributable to the Tribunal's mistake, error or omission, then it is the duty of the Tribunal to set it right. Atonement to the wronged party by the Court or Tribunal for the wrong committed by it has nothing to do with the concept of inherent power to review. In the present case, the Tribunal was justified in exercising its powers under s. 254(2) when it was pointed out to the Tribunal that the judgment of the co-ordinate Bench was placed before the Tribunal when the original order came to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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