Siddhartha Nautiyal ORDER
P.M. Jagtap, Vice President
1. By this Miscellaneous Application, the assessee is seeking rectification of the mistake alleged to have crept in the order of the Tribunal dated 11.05.2022 passed in ITA No. 2968/Ahd/2017.
2. In support of this Miscellaneous Application filed by the assessee, the learned Counsel for the assessee submitted that the main contention raised on behalf of the assessee before the Tribunal was that the assessee having not received any consideration, there was no question of any capital gain tax chargeable in her hands. He submitted that the consideration was received by the late father of the assessee and the conclusion drawn by the Tribunal in paragraph no. 8 of its order rejecting the contention of the assessee is without any basis. He submitted that in the absence of banakhat, sale deed was a proper evidence and there is nothing in the sale deed to show that the assessee, as a legal-heir of her late father, has received any consideration. He contended that the conclusion drawn by the learned CIT(A) as regards the sale consideration allegedly received by the assessee during the year under consideration is based only on presumption and without any evidence; and, the reliance of the Tribunal on the conclusion so drawn by the learned CIT(A) is clearly mistaken.
3. The learned Departmental Representative, on the other hand, invited our attention to paragraph No. 8 of the Tribunal's order and submitted that a definite view has been expressed by the Tribunal on the issue after taking into consideration all the facts of the case as well as the material available on record. He submitted that the contention raised on behalf of the assessee has been rejected by the Tribunal giving cogent reason and there is no mistake apparent from the record in the order of the Tribunal.
4. We have considered the rival submissions and also perused the relevant material available on record. It is observed that that the main contention raised on behalf of the assessee regarding non-receipt of any consideration by the assessee was considered, dealt with and rejected by the Tribunal for the following reasons given in paragraph No. 8 of its order:-
"8. As regards the assessee's appeal, the main contention raised by the learned Counsel for the assessee is that no consideration whatsoever was received by the assessee on transfer of her share in the immovable property in question. He has contended that Shri Ganpatbhai K. Patel, father of the assessee, was the original owner of the property and he had already entered into a sale transaction through banakhat dated 15.07.2000 with one Shri Hamad Ali before his death on 19.10.2010. He submitted that Shri Hamad Ali further agreed to sell the property to Shri Gopal G. Sutaria/Gopesh G. Sutaria; and, the assessee and other co-owners being legal heir of Shri Ganpatbhai K. Patel executed the sale deed on behalf of their late father merely to complete the transaction. He has contended that the assessee thus did not receive any consideration on execution of sale deed dated 28.07.2011 and she therefore cannot be held liable for any tax on capital gain arising from the said sale. We are unable to accept this contention of the learned Counsel for the assessee. It is observed that no capital gain was offered by Shri Ganpatbhai K. Patel on the sale transaction claimed to be entered through banakhat in the year 2000. As noted by the learned CIT(A) in her impugned order, there was no mention relating to any terms and conditions of banakhat stated to be entered into on 15.07.2000 in the sale deed executed on 29.07.2011. There is also nothing on record to show that the property in question was transferred by Shri Ganpatbhai K. Patel to Shri Hamad Ali on 15.07.2000 within the definition of Section 2(47) of the Act. The said property is actually transferred within the meaning of Section 2(47) of the Act only on 29.07.2011 when the sale deed was executed and registered; and, as clearly mentioned in the sale deed, the transferors were the assessee and other three co-owners being the legal heir of Shri Ganpatbhai K. Patel. Shri Hamad Ali had joined the said sale deed only as confirming party and received certain amount out of total consideration as stated therein. As regards the contention of the learned Counsel for the assessee that no consideration was received by the assessee on sale of her share in the immovable property, it is observed that a sum of Rs. 53,26,000/- was already received by Shri Ganpatbhai K. Patel in the past from Shri Hamad Ali and the said amount was adjusted against the sale consideration agreed between the parties as per sale deed dated 28.07.2011. As specifically mentioned in Clause 12 of the sale deed, the party of the second part i.e. assessee and other co-owners being sellers had agreed to give credit for the said amount as the amount paid up by the party of the first part i.e. purchaser on the execution of sale deed. In our opinion, it therefore cannot be said that there was no consideration received by the assessee and the other co-owners on transfer of property vide sale deed dated 28.07.2011."
While arriving at the conclusion as drawn in paragraph No. 8, the submissions made on behalf of both the sides as well as the relevant material available on record was duly considered by the Tribunal as mentioned clearly in paragraph no. 7 of its order. As rightly contended by learned DR, a definite view was taken by the Tribunal while rejecting the main contention of the assessee by passing a well reasoned and well discussed order. It is well settled that the scope of rectification under Section 254(2) of the Act is limited to rectify the mistakes which are apparent from the record and it is not permissible to review the decision taken by the Tribunal. In our view, what the assessee is seeking in the guise of this Miscellaneous Application is the review of the well reasoned and well considered decision taken by the Tribunal which is not permissible under Section 254(2) of the Act. We, therefore, reject the said application being devoid of any merit.
5. In the result, the Miscellaneous Application is dismissed.
Order pronounced in the open Court on 20th July, 2022 at Ahmedabad.
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