TaxTMI 
TaxTMI 
TaxTMI 
2024 (6) TMI 869
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....tural Lands (Vidarbha Region) Act of 1958 (Short form BTALA) which came into effect from 30/12/1958 applied. This is a legislation based on the principle that the land should belong to the tiller and ownership should vest in him. The appellant assessee was owner of certain agricultural lands which was a capital asset of the assessee located in the areas mentioned in section 2(14) (iii) (a) and (b) of the Income Tax Act situated in Nagpur district in village Ranala. The lands were leased to a tenant by name Damodar Govindrao Thakre who was cultivating as tenant on the appointed day that is 28/8/1958. The assessee got the tenancy surrendered to him by execution of a surrender deed dated 04/04/59 and took possession on 04/11/59 (Pg 2 of the paper book) and was himself cultivating the land from that date. By the operation of BTALA the ownership was statutorily divested under section 49B of the BTALA and the divestiture took place on 30/07/1975 and Shri Damodar Thakre became the full owner of the said lands from that date under section 49B of BTALA (Pg. 8, 9, 10 and 63 of the Paper Book). The power to determine the compensation payable to the assessee by Shri. Thakare was in the exclusi....
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....ment Trust Ltd. V/s CIT 42 ITR 49 that if the income from a source fell within a specific head, the fact that it might indirectly be covered by another head would not make the income taxable under the later head. (See also CIT v/s Chugandas and Co. 55 ITR 17 (SC)). On the application of these two binding decisions the amount of Rs. 87,50,000/- was income from capital gains only and chargeable in assessment year 1976-77. No further discussion or argument is necessary. However for completeness of the matter following supplementary submissions are made. 4. The Transfer of capital asset either by an act of parties or by operation of law attracts Section 45 of the Income Tax Act and as income under capital gain. That being so, it cannot be treated as casual or non-recurring receipt and subjected to tax u/s 56. Even if the income cannot be chargeable u/s 45 it would still impose tax under the residuary head is unacceptable. It cannot be taxed at all. Vide S. G. Mercantile Corp. Pvt. Ltd. V/s CIT 83 ITR 700 (SC). Further it would be illogical against the language of the sec 57 that everything exempted from Capital gain by the statute could be taxed as casual or non recurring receipt u/s....
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....s 30/07/1975) no compensation was determined under Section 48 of BTALA till the sale deed was executed on 15/11/2008. Thus, it was determined only at the time of transfer by Thakare to the Nishant Gandhi on 15/11/2008 by mutual consent and agreement between the assessee, Thakare and Nishant Gandhi. The reliance of the Tribunal on the order of the A.O that only Rs, 7200/- was receivable by the assessee under section 47 of BTALA was not correct. The AO or any other authority under the IT Act had no right to determine the compensation at 7200/ or to speculate on what the said amount would be. It is the exclusive privilege of the MLRT to determine under Section 48 of BTALA and no other authority in the country has a power to interfere or usurp the powers of that authority. The registered sale deed between Thakare and Gandhi mentions the payment of Rs. 87,50,000/- to the assessee in pages (24-29 of the paper book) out of the sale price of Rs. 4,38,50,000/- which document is a registered document indicating that the money paid about Rs. 87,50,000/- is the liability of Thakare to be paid to the assessee u/s 47, 48 of the BTALA and the documents has to be necessarily accepted as evidence a....
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....and also vide R. N. Gosain V/s Yashpaldhir (1992) 4 SCC 683. 10. The following extracts culled from the various decisions of the SC laying down the principle that a mistake of law is a mistake apparent from the record, this is only to stress the obvious position of law and the Tribunal (ITAT) is bound to rectify its order on that basis. 10. A. "It is however, well established that if the Supreme Court has construed the meaning of any Section, then any decision to the contrary given by any other authority must be treated as an error apparent on the record." Poothundu Plantations Pvt. Ltd. Vs. Agricultural ITO 221 ITR 557-560 (SC). 10. B. In the case of T. S. Balaram ITO V/s Volkart Brothers and others 82 ITR 50 the Supreme Court considered the powers u/s 154 of the Income Tax Act similar to the power u/s 254 (2) of the same Act and stated that the power of the officer to correct a mistake apparent from the record is undoubtedly not more than that of the High Court to entertain a Writ Petition on the basis of the error apparent on the face of record. In other word those words "a mistake apparent from the record" were considered as a meaning similar to the words, "an error appar....
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.... would be a mistake apparent from the record notwithstanding the complexity of the issues involved". The basic principle is thus clear "The mistake apparent from record means an obvious and patent or a glaring and obvious mistake. Hotly debatable issues are excluded. Hardly debatable issues are included. The issues may be complicated, yet the mistake may be simple. It is a mistake apparent from record. The test is not the complexity of the issues but the simplicity of the mistake." 10. F. In ACIT V/s Surashtra Kutch Stock Excnange Ltd. 305 ITR 227 the Supreme Court stated at pg 236 that, " it is very difficult to define an error apparent on the face of record precisely, scientifically and with certainty." 10. G. The reference to the above cases dealing with the "mistake apparent from record" or "error on the face of the record" was only for the purpose of showing that some argument may be required to explain the mistake apparent from record which are not debatable issues. 11. To Sum-up it is submitted that the order of the Tribunal is contrary to the law laid down by the Supreme Court, in the cases of Singhai Rakesh Kumar V/s Union of India 247 ITR 150 and CIT V/s D. P. Sandu....
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....rocess 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. 5. The scope and power of rectification has been succinctly culled out in the case of Honda Siel Power Products Ltd. v/s CIT, [2007] 295 ITR 466 as follows:- "12. As stated above, in this case we are concerned with the application under s. 254(2) of the 1961 Act. As stated above, the expression "rectification of mistake from the record" occurs in s. 154. It also finds place in s. 254(2). The purpose behind enactment of s. 254(2) is based on the fundamental principle that no party appearing before the Tribunal, be it an assessee the Department should suffer on account of any mistake committed by the Tribunal. This fundamental principle has nothing to do with the inherent powers of the Tribunal. In the present case, the Tribunal in its order dt. 10th Sept., 2003 allowing the rectification app....