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TMI Blog2024 (6) TMI 1443X X X X Extracts X X X X X X X X Extracts X X X X ..... f appeal before this Tribunal being ITA No.461/AHD/2017 which was disposed off vide order dt 11.10.2018 wherein relief to the extent of RS. 30 lacs u/s 54Fwas allowed. The applicant submits that in consequence to this order the computation of taxable capital gains has gone substantial reduction and as a consequence, the quantum of penalty would also get reduced even presuming for the sake of argument though not admitting the merits of the matter/case/penalty. 5. The applicant submits that the order of the Tribunal passed in said ITA dt 11.10.2018 was filed with office of Tribunal on 12.02.2020 and with respondent on 13.02.2020. However the Tribunal has failed to take into consider the same while disposing the penalty appeal. 6. Under the above facts and circumstances, the applicant submits that the order passed by the Hon'ble Tribunal may be recalled and the appeal may be fixed for fresh hearing for disposal, otherwise it would cause great injustice and hardship to the applicant without any cause attributable to it." 3. The Ld DR vehemently opposed the application of the assessee. 4. Heard both the parties on the issue. The assessee vide the present application seeks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to claim of exemption u/s 54EC/54F which was confirmed by the ITAT in its order passed in ITA No.2094/Ahd/2018. 7. The order passed by the ITAT in quantum appeal of the assessee in ITA No. 461/Ahd/2017dated 11.10.2018 reveals that its claim to exemption of capital gains u/s 54F of the Act to the tune of Rs.30lacs was allowed by the ITAT. 8. The ITAT dealt with the issue of claim of exemption under section 54F of the Act at para-6 of its order and found that the claim was disallowed for the reason that new house was not purchased within the stipulated time as prescribed under the law. But it went to hold that since the assessee had invested Rs.30 lakhs in the said property within stipulated period prescribed under section 54F of the Act, therefore, the assessee was eligible to deduction of exemption under section 54F to the extent of Rs.30 lakhs. Accordingly, the ITAT partly allowed the assessee's appeal. The relevant para-6 of the order of the ITAT in the quantum proceedings is produced hereunder: "6. We have heard both the sides and perused the material on record carefully. The assessing officer has not allowed the claim of deduction u/s. 54F of the act stating that the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty transferred in his favour by filing a suit for specific performance and therefore, without hesitation we can say that some right, in respect of the said property, belonging to the appellants had been extinguished and some right had been created in favour of the vendee/transferee, when the agreement to sell had been executed. 24. Thus, a right in respect of the capital asset, viz. the property in question had been transferred by the appellants in favour of the vendee/transferee on 27th December, 2002. The sale deed could not be executed for the reason that the appellants had been prevented from dealing with the residential house by an order of a competent court, which they could not have violated. 25. In view of the aforestated peculiar facts of the case and looking at the definition of the term 'transfer" as defined under Section 2(47) of the Act, we are of the view that the appellants were entitled to relief under Section 54 of the Act in respect of the long term capital gain which they had earned in pursuance of transfer of their residential property being House No. 267, Sector 9-C, situated in Chandigarh and used for purchase of a new asset/residential house. 26. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to the Bench while hearing the penalty appeal and non-consideration of the same tantamounted to error in the order of the ITAT, we find from perusal of the case records that the order was very much filed during the course of hearing. 12. From the records before us, pertaining to the present appeal, we find that vide letter dated 11.2.2020 addressed to the Hon'ble VicePresident, ITAT seeking early hearing in the matter, the assessee had submitted that the quantum appeal of the assessee had been disposed of by the ITAT in ITA No.461/Ahd/2017 granting relief to the assessee to the extent of Rs.30 lakhs. The contents of the said application read as under: Name of the appellant Smt Maya K. Dharwani Ahmedabad. PAN : AEFPD 1506 D A.Y : 2013-14 Order appealed against Order U/s.250 passed on 25-72018byCIT(A)-7, A'bad MAY IT PLEASE THE HON. VICE PRESIDENT The above named applicant has filed on 09-10-2018 appeal against the appellate order passed u/s.250 on 25-07-2018 for A.Y.2013-14 by CIT(A)-7 Abad, being ITA No.2094/Ahd/2018 whereby the appellant has challenged (i) the PENALTY IMPOSED U/S 271(1)(C) OF Rs. 12,77,200/- . 2.0 The applicant states tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the effect of the same in penalty proceedings would still tantamount to mistake apparent from the record. The fact remains that in the quantum proceedings, the assessee has been granted relief to the tune of Rs.30 lacs allowing exemption u/s. 54F of the Act to the said extent against capital gains returned and confirming penalty on this addition which stands deleted by the ITAT, is clearly impermissible in law. There cannot be any case for penalizing the assessee for an offence which has been found to have not been committed at all, and therefore, the confirmation of penalty on this aspect i.e. on the addition which stood deleted by the ITAT, was in any case a mistake which was eligible for rectification under section 254(2) of the Act. It is a clear and apparent mistake and the MA filed by the assessee needs to be allowed, which we hold so. We, therefore, of the view that present MA needs to be allowed. Accordingly, we allow the MA filed by the assessee. The order passed in ITA No.2094/Ahd/2018 dated 31/10/22 is recalled and the Registry is directed to list the above appeal of the assessee in the ordinary course of hearing. 16. In the result, the MA of the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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