2019 (5) TMI 1381

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

..../5/2017 for assessment year (AY) 2006-07, claiming amendment of the appellate order dated 15/01/2014 partly allowing the assessee's appeal contesting its assessment u/s. 143(3) of the Act dated 19/12/2008 for the said year. The second appeal (in ITA No. 284/Asr/2017) is in respect of confirmation of the penalty u/s. 271(1)(c) levied by the Assessing Officer (AO) for the said year on 13/3/2015, by the ld. CIT(A) vide his order dated 03/02/2017. 2.1 The facts, briefly stated, are that the assessee-company sold its' feed mill Unit during the relevant year for a lump-sum consideration of Rs. 280 lacs (vide sale deed dated 10.01.2006), returning short-term capital gain (STCG) at Rs. 2,09,00,417. In the view of the AO, it is only the Written Dow....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....864/- based on its cost price of Rs. 3192/-] and thereby separately working out net assessable short term capital gain of Rs. 2,07,92,053/- [Rs. 25285500 less Rs. 4493446/- cost price of depreciable assets] against the declared short term capital gain of Rs. 2,09,00,272/-, resulting into under-statement of capital gain to the tune of Rs. 25,90,272/-, subject to the finding that the AO may ensure that for working out short term capital gain, set off of WDV of all and entire Plant & machinery, building, etc. should be given instead of only of feed unit as poultry (unit) and feed units were part of same poultry farm as one unit. In the totality of facts and circumstances, I am of the considered opinion that the AO's action being in order does ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ed order being passed outside the time limit of six months specified u/s. 154(8), is non-est, so that the assessee's appeal be deemed as accepted; (iii) the circle rate (of land) could not be applied as it is a case of a composite sale; and, without prejudice, (iv) the correct commercial rate to be applied is Rs. 15,000 per marla, as the Collector had himself applied the said rate. 3. I have heard the parties, and perused the material on record. 3.1 Grounds (i) and (ii) assail the impugned order as barred by time and, thus, non-est. The same are without merit and, in fact, self-defeative. This is as the only implication of the same being time-barred is that the assessee's application u/s. 154 dated 15/5/2017 is still un-disposed. The ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....der: `We are unable to uphold such contention. In our view the period of six months as provided in sub-section (2) of section 12AA is not mandatory. Though the word 'shall' has been used, but it is well known that to ascertain whether a provision is mandatory or not, the expression 'shall' is not always decisive. It is also well known that whether a statutory provision is mandatory or directory has to be ascertained not only from the wording of the statute but also from nature and design of the statute and the purpose which it seeks to achieve. Herein the time frame under sub-section (2) of Section 12AA of the Act has been so provided to exclude any delay or lethargic approach in the matter of dealing with such application. Since the cons....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ld. 3.2 The third (iii) aspect, as itself stated by the assessee in its' Ground 6, is the subject matter of appeal, on which a conscious decision has been taken by the ld. CIT(A) while passing the appellate order. The only course therefore available, where the said adjudication is considered erroneous, is for the effected party to take the matter in further appeal. True, the ld. CIT(A) has, in arriving at his decision, regarded the land sold as not appurtenant to the Feed Mill, while the assessee states of the same being a part and parcel of the 'factory building sold'. That, however, does not mean that his decision would be different had he not regarded it as so. In fact, the AO, whose action he upholds, does not state so; though yet as....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....d before the ld. CIT(A) vide application dated 09.01.2018 (PB pgs. 6-7). In-as-much as the same raises a 'new' mistake, independent of the other mistakes, the same cannot be regarded as a revision of the application dated 15.5.2017, as Sh. Lal would state on the scope of the said application. The assessee's letter dated 09.01.2018 is, to that extent, a separate application, since undisposed. It is open for the assessee to, where so advised, seek disposal of the said application dated 09.01.2018. I say so, i.e., 'where so advised' as, as it appears, it may be of no consequence. The value (out of the total consideration of Rs. 280 lacs) imputed to the other assets is the balance after deducting that ascribed to land. As such, a change in the ....