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TMI Blog2004 (3) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... of the AO's order under s. 154 of the Act. 3. The material facts related to the issue are that the original assessment was completed by the AO under s. 143(3) of the Act. Thereafter, the AO had passed an order under s. 154 on 30th June, 2000, assessing the long-term capital gain at Rs. 29,65,646 as against long-term capital gain assessed in the assessment order under s. 143(3) at Rs. 21,99,870. The impugned order under s. 154 of the AO is reproduced below: "It appears from the assessment records that the assessee-company had claimed the long-term capital gain on the basis of the following manner: As per agreement with the developer, M/s Ajanta Housing Products Ltd. and M/s Meghna Commercial Co. Ltd., the assessee-company will rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97 : 29,65,646 30,03,179" Being aggrieved, the assessee preferred appeal before the CIT(A), who after examining the issue at length, has held that both the assessee as well as the AO have erred in computing the capital gain in respect of the land transferred to the developer as the assessee staggered the computation of capital gains in various stages and the AO failed to appreciate that the capital gains arising on transfer of 2/3rd of the land to the developer should have been computed and assessed at a single stage. The order of the AO made under s. 154 was, therefore, not acceptable to the CIT(A), who, therefore, proposed to enhance the long-term capital gain by modifying the AO's order made under s. 154 on 30th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst s. 154 order, the jurisdiction to decide appeal would be limited only with regard to the question decided by the AO by rectifying or refusing to rectify. (b) Abdul Sattar M. Mokshi vs. CIT (1988) 73 CTR (Kar) 72 : (1988) 174 ITR 368 (Kar): In this case, it was held that CIT(A) cannot do what AO himself cannot do. In the facts of the case, there was no glaring and apparent mistake in the quantum of landarea transferred to developer during the year (measured with reference to builtup area received by the appellant). According to appellant, the landarea transferred corresponded to 17 flats measuring 12,621 sq. ft. builtup area received from developer and 4 flats measuring 2,844 sq. ft. of builtup area sold to customers by appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng power under s. 154 was not justified inasmuch as the AO failed to appreciate that the capital gains arising on transfer of 2/3rd of the land to the developer should have been computed and assessed at a single stage. In other words, with regard to the addition made by the AO in his order made under s. 154, there was difference of opinion between the AO and the CIT(A). We further find that the CIT(A) has substituted his own calculation as against the calculation made by the AO in the course of deciding the appeal against the AO's order made under s. 154. On perusal of s. 154 of the Act and in the light of settled position of law with regard to the power of the rectification conferred under s. 154 of the Act, it is clear that a mistake whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of land area transferred or any change in the rate at which the property was transferred is not a matter which is amenable to jurisdiction conferred under s. 154 of the Act. As the AO himself could not enhance the area transferred by way of an order made under s. 154 of the Act, the CIT(A) cannot do the same while deciding the appeal against the order passed under s. 154 of the Act. At this stage we would like to observe that the learned Departmental Representative has not been able to put forward any reasoning or substantive argument in support of the enhancement made by the CIT(A) while deciding the appeal arising out of the AO's order made under s. 154 of the Act. In the case on hand, it is clear that the AO's computation of long-term ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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