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2017 (11) TMI 1634 - AT - Income TaxRectification of mistakes - valuation of capital asset - substituted the value of sale consideration with the value of sale deed for the purpose of stamp duty - not confronting the assessee regarding application of provisions of section 50C - Held that:- AO had not given any opportunity to the assessee regarding this and Ld. CIT(A) has also held that unless the assessee provides any evidence of low rates to show that his property was situated in a manner which would fetch lower rates than other comparable rates in the locality, the Assessing Officer was not bound to consider the same and in the absence of any such evidence or claim, he has upheld the action of Assessing Officer. The assessee before the Hon'ble Tribunal vide ground no. 1 has specifically taken up this issue but Hon'ble Tribunal has passed the order holding that no fresh evidence was provided by assessee but it has omitted to adjudicate on the specific ground as to whether the Ld. CIT(A) can uphold the addition u/s 50C by substituting apparent consideration with the value as per stamp duty when the assessee was never confronted. Therefore there is a mistake in the order of Hon'ble Tribunal as far as ground no. 1 is concerned, and it needs rectification as the specific grievance of assessee has not been adjudicated. As regards ground no. 2, Hon'ble Tribunal has not adjudicated this ground of appeal and has wrongly considered the ground no. 2 as second limb of the ground no. 1 and therefore it needs to be adjudicated and therefore there is a mistake in the order of Hon'ble Bench. Disallowance of expenditure - Held that:- Hon'ble Tribunal has discussed this issue at para 7 and has upheld the action of Ld. CIT(A) by concurring with the findings of Ld. CIT(A) that no specific expenditure was shown to have been incurred by the assessee through his bank account. In this regard, we find that the Assessing Officer had made the disallowance by holding that there was no cash withdrawls for making the expenditure. The Ld. CIT(A) on the other hand had held that the assessee had made cash withdrawls from his bank account but he has upheld the disallowance on the basis that the assessee had not shown to have incurred the expenditure through his bank account. Therefore, the Ld. CIT(A) has upheld the disallowance on a different premise and Hon'ble Tribunal was requested to adjudicate on this issue as to whether Ld. CIT(A) can confirm an addition on a different premise. From the findings of order of Hon'ble Tribunal, we find that Hon'ble Tribunal has not given any finding in this respect and has upheld the action of Ld. CIT(A), therefore there is apparent mistake which needs to be rectified. As regards the other mistake, the Ld. AR argued that ground no. 8 was raised specifically and the Hon'ble Tribunal was required to adjudicate as to whether the AO without affording proper opportunity and Ld. CIT(A) even after conceding on this issue erred in still upholding the additions and the Hon'ble Tribunal has dismissed this ground vide para 14 holding that the ground was general in nature whereas we find that this is not a general ground and it needed adjudication which had skipped the attention of Hon'ble Tribunal. In view of these facts and circumstances, we find that mistake has crept in the order of the Hon'ble Tribunal - Decided in favour of assessee.
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