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2017 (1) TMI 995 - BOMBAY HIGH COURT

2017 (1) TMI 995 - BOMBAY HIGH COURT - [2017] 391 ITR 395 - Admission of additional evidence by the tribunal - Validity of Chamber Summons - appellant seeks to introduce further evidence by way of an Arbitral award which is in the nature of a consent award - eligibility to Section 54F - there is an allotment letter but not construction was made - amount not deposited in the Capital Gain account with Bank - Held that:- The amendment now sought and which seeks to include the copy of the arbitral a .....

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above present Chamber Summons as part of the amendment sought by at paragraph xv on page 6 of the appeal paper book are the very same documents which were filed before the Tribunal along with the Additional Evidences Paper Book. In our view, the amendment sought is impermissible. We are not inclined to allow the Chamber Summons and we therefore declare Chamber Summons as dismissed. - Chamber Summons No. 335 of 2015, Income Tax Appeal No. 314 of 2013 - Dated:- 12-1-2017 - M. S. Sanklecha And A. K .....

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y settled and compromised through arbitration award. HERE TO ANNEXED AND MARKED AS EXHIBIT 'L' IS COPY OF AWARD DATED 09.05.2014. (xvi) Thereafter award is implemented by executing sale deeds of flats allotted. APPELLANT CRAVES LEAVE TO REFER AND RELY UPON SALE DEEDS DATED 27.12.2014 WHEN PRODUCED. In effect what the appellant also seeks is the inclusion in the appeal paper book of a copy of an Arbitral award dated 9th May, 2014.The Chamber Summons is opposed by Mrs. Bharucha on behalf o .....

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ioner that as per Section 54F the assessee was supposed to construct a residential house within three years or purchase a residential house within two years of receipt of sale proceeds of a capital asset in order to avail the benefit of the said Section and to save himself from the payment from capital gains tax. The admitted position is that within the period allowed in law, the assessee had not entered into any agreement to purchase the flat(s) nor did he construct a residential house. It was .....

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of filing his return. 3. It was the assesee s case before the Tribunal that having booked the flat on 9th floor of C wing of the project known as Abrol Vastu Park, the building did not receive the necessary sanction and hence the flats were not constructed. The contention of the assessee that he had invested a sum of ₹ 1.33 crores before the due date for filing the return, was rejected since subclause (4) of Section 54 entailed that the amount of net consideration received (in this case pu .....

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o file a compilation described as Additional Evidences Paper Book . The compilation enclosed inter alia the original commencement certificate dated 29th July, 2003 as updated on 7th September, 2010, Occupancy Certificate for wings A and B , some correspondence and Sketch plan of flats. The said application came to be considered by the Tribunal at a hearing on 8th October, 2012 after which impugned order dismissing the appeal came to be passed. The present appeal in which the Chamber Summons has .....

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rder, without dealing with the fate of the application made by the appellantasessee seeking inclusion of additional evidence could not have utilized the additional documents sought to be relied upon without expressly permitting such evidence to be filed as part of the appeal before the Tribunal. If the Tribunal were to allow the additional evidence, the appellant would have had the opportunity to explain how the appellant had complied with Section 54. 6. In the present Chamber Summons the appell .....

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e building known as Abrol Vastu Park. The agreements for sale dated 20th November, 2008 in respect of flat no.901 to 903 in wing C stood cancelled, terminated and revoked. Mr. Shah further submitted that pursuant to the said award, agreements for sale in respect of the aforesaid alternate premises flat nos. 2005 and 2006 have been entered into. He therefore submitted that the transaction to acquire premises originally contemplated and in respect of which exemption had been sought has now been co .....

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13. This agreement was not before the Court nor does the appellant-assessee seek to rely upon the same. This agreement is entered into more than a year after the impugned order has been pronounced by the Tribunal and provided for the parties to settle their disputes by reference to arbitration. The fact that the appellant assessee gave up his original claim under the agreements for sale dated 24th November, 2008 in respect of the three flats on the 9th floor of wing C becomes evident from clause .....

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idence can be lad under provisions of Order 41 Rule 27 of the Code of Civil Procedure, 1908 by inviting the Court's attention to a subsequent event of vital importance cutting at the root of the appellant's right to continue his appeal. He relied upon the passage in Patterson v/s. State of Alabama (1934) 295 US 600 which was quoted with approval in Lachmeshwar Prasad Shukla v/s. Keshwar Lal Chaudhri 1940 FCR 84(85) and submitted that the document now sought to be introduced into this app .....

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. Anant R. Deshpande (AIR 1973 SC 171), he submitted that Courts can take notice of subsequent events and if the Court finds that because of altered circumstances like devolution of interest, it is necessary to shorten litigation and if the original relief had become inappropriate, the Court can take notice of new developments. Mr. Shah submitted that in such a situation it is necessary to take notice of changed circumstances which will have the effect of doing complete justice between the parti .....

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Mr. Shah then relied upon the decision of Assam Hindu Mission Upper Nawprem v/s. Smt. Elaboris Tron AIR 1999 Gauhati 39 in support of his submission that when additional evidence is admitted the other side should be given an opportunity to review it. In this behalf he relied upon the observations of the Court in paragraph 10. However, we find that this decision is not relevant for the consideration of the present Chamber Summons since it deals with procedure before the Tribunal which had relied .....

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