TMI Blog2011 (3) TMI 1644X X X X Extracts X X X X X X X X Extracts X X X X ..... rtner of the firm and retired from the firm were as follows: 1. Assessee and Mr. Rakesh Kumar Wadhwan entered into a partnership under a deed of partnership dated 01.08.2005 for the purpose of development of the property. 2. The name of the firm so formed was M/S. D.S. Corporation. 3. On 16th September 2005, another deed of admission cum partnership of partners was executed admitting Smt. Hemlata S. Shetty as partner of the firm. 4. On 23.09.2005, the firm M/s. D.S. Corporation purchased from one Mr. Percival Joseph Pereira the property for a consideration of ₹ 6.50 crores. The said plot was occupied by 81 tenants. The stamp duty officer valued the said plot, which was occupied by 81 tenants, at that time at ₹ 6,50,00,000/- and the stamp duty was paid on the basis of the said valuation. The conveyance was duly registered. 5. On 26.09.2005, another deed of admission cum reconstitution of partnership was executed. The following 2 more partners were admitted to the partnership :- 1) Prithvi Realtors Capital Private Limited 2) Shri Sarang R. Wadhwan 6. The firm thereafter applied to the Maharashtra Tourism Development Corporation L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,40,48,088/- being the sum standing in her capital account. She retired from the firm D.S. Corporation as and from 27.03.2006. 11. As on 31.3.2006, the capital account of the Assessee in the firm M/s. D.S. Corporation showed the following position: Opening balance as on 1-4-2005 nil- Deposits during the previous year Rs. 4,45,00,000 Interest ₹ 26,85,963 Profit on revaluation ₹ 30,87,98,087 Total ₹ 35,59,84,050 Thus as on 31.03.2006 the sum standing to the credit of his capital account was ₹ 35,59,84,050/-. 12. On 22.05.2006, the Assessee retired from the partnership firm and was paid the sum standing to the credit of his capital account. But for the revaluation of the asset, the capital account of the partner would not have shown a sum of ₹ 35,59,84,050/-. To the extent of ₹ 30,87,98,087/- the capital account has been artificially increased just to ensure that the retiring partner is paid consideration standi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of section 45(4) of the Act had categorically observed that under section 45(4) charge to capital gain tax can only be in the hands of the partnership. 5. The Tribunal has not followed the decision of the Hon'ble Bombay High Court in the case of Prashant Joshi (supra) by observing that the Hon'ble Bombay High Court had not considered in the said decision the earlier decision in the case of N.A. Mody (supra). According to the Assessee, it was not open to the Tribunal to say so and by doing so, the Tribunal which is a subordinate body has sat in appeal over the judgment of High Court. Thus the Tribunal by disagreeing with the view expressed by the Hon'ble High Court has committed a mistake which is apparent from the record. 6. The Tribunal did not consider the argument of the learned counsel for the Assessee that whatever is received by an Assessee from the firm cannot be taxed in the hands of the partner in view of the scheme of taxation of firms which exempts the share of profits received by a partner from a firm from taxation in the hands of the individual partner. According to the Assessee this argument raised by the learned counsel for the Assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the face of the record. In this regard he referred to the decision of the Hon'ble Delhi High Court in the case of Kelvinator of India Ltd. 256 ITR 1 (Del) (FB) wherein in the context of reopening of a concluded assessment on a mere change of opinion of the A.O., it was held that if a possible view is taken then that view cannot be sought to be reviewed by resorting to the powers under section 147 for reopening assessment. It was also submitted by the learned D.R. that the decision in the case of Smt. Parul Dave (supra) was never discussed by the learned Counsel for the Assessee in the course of hearing of the appeal. In any event according to him the said decision was not applicable as it was a case of mere revaluation of assets and there was no retirement. He relied on the decision of the Hon'ble Supreme Court in the case of Sun Engineering 198 ITR 297 (SC) for the proposition that one cannot pick and choose sentences from a judgment divorced from the context in which the said judgment was rendered. He submitted that the decision in the case of Prashant Joshi (supra) was a case on validity of initiation of reassessment proceedings and therefore not relevant to the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the hands of the firm, Reassessment notice on this ground in the case of partner was found to be unsustainable. In fact, the treatment of the payment in the hands of the firm would not even otherwise be a relevant information for judging the character of receipt in the hands of partner. Since the reasons recorded were not sustainable, the notice was held to be not valid. The mode of retirement of the partner in that case was not the same as in the case of the Assessee before the Tribunal. In fact, we have in para 38 of our order explained that the mode of retirement will be relevant and thereafter we have examined the mode of retirement of the partner and applied the ratio laid down by the Hon'ble Bombay High Court in the case of N.A. Mody (supra). The allegation in the M.A. that the Tribunal has refused to follow the decision of the Hon'ble Bombay High Court in the case of Prashant S. Joshi by observing that the Hon'ble Court had not considered an earlier judgment on the issue and that it was not open to a subordinate Court/Tribunal to disagree with the decision of Hon'ble High Court, is not correct. The view expressed by the Tribunal in para 52 of its order is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious order. If the error or mistake is one which could be established only by long-drawn arguments or by way of process of investigation and research, it is not a mistake apparent from the record. Unless there is manifest errors which are obvious, clear and self-evident, the Tribunal cannot recall its previous order in an attempt to rewrite the same. Failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on the record, although it may be an error of judgment. The Tribunal cannot in exercise of its power of rectification look into some other circumstances which would support or not support its conclusion. The Tribunal cannot redecide the matter and it has no power to review its order. The Tribunal has no power to rectify a decision on debatable point of law. The Tribunal does not have the power to review its own decision except what is authorised under section 254(2). A decision on debatable point of law is not a mistake apparent from the record. 14. The circumstances under which Tribunal can exercise powers under section 254(2) are where the Tribunal has overlooked the relevant material on record. In such a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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