TaxTMI 
TaxTMI 
2020 (2) TMI 1173
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....on 56(2)(vii)(b) has to be considered and that the same shall not apply to the facts of the appellant in as much as the immovable property 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....
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....de between two or more parties which is enforceable in law and therefore, the letter of allotment (and its date) cannot just be brushed aside 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: Booki....
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....ly) on casting of the 3rd basement/slab i.e. plinth Slab: (ii) Rs. 6937861/- On casting of 3rd Floor slab: ** ** **" 4.2 We have also mentioned the facts that as per the "Agreement for Sale" dated 10.09.2014, the payment of Rs. 3,00,000/- on 27.04.2012 was an earnest money deposit paid before the execution of these presents and Rs. 14,66,001/- at the time of execution of these presents, making an aggregate of Rs. 17,66,001/- i.e. (Rs. 3,00,000/- + Rs. 14,66,001/-) and Rs. 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....
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.... 2009-10 and claimed LTCG arising out of capital asset in the nature of a residential unit. The controversy between the assessee and the revenue revolves around the question as to when the assessee can be stated to have acquired the capital asset. The assessee argued that the residential unit in question 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.....
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....ram Chand Thapar & Bros. (Coal Sales) Ltd. v. State of U.P. (1976) Tax LR 1921, 1927 (SC) and CCE v. ASCU Ltd., (2003) 9 SCC 230, 232. In fact, not a single error in the impugned order has been pointed out by the applicant. What the applicant wants is a review of the order passed by the Tribunal. 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 64....