TMI Blog2019 (5) TMI 1381X X X X Extracts X X X X X X X X Extracts X X X X ..... decision, regarded the land sold as not appurtenant to the Feed Mill, while the assessee states of the same being a part and parcel of the factory building sold . Further, it may also be that the ld. CIT(A) considers so as land, if regarded as part of the units sold, would be subject to provision of section 50B, in which case no indexation benefit would be available to the assessee and, two, only the net worth, as certified by an Accountant, of the relevant undertaking (i.e., excluding the plant and machinery of the other unit), allowed as a deduction. It is for these reasons that the ld. CIT(A) states it to raise a contentious issue and, in any case, covered u/s. 154(1A). Rectification u/s 154 - the correct commercial rate to be applied is ₹ 15,000 per marla, as the Collector had himself applied the said rate - HELD THAT:- The assessee s letter dated 09.01.2018 is, to that extent, a separate application, since undisposed. It is open for the assessee to, where so advised, seek disposal of the said application dated 09.01.2018. I say so, i.e., where so advised as, as it appears, it may be of no consequence. The value (out of the total consideration of ₹ 280 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond appeal (in ITA No. 284/Asr/2017) is in respect of confirmation of the penalty u/s. 271(1)(c) levied by the Assessing Officer (AO) for the said year on 13/3/2015, by the ld. CIT(A) vide his order dated 03/02/2017. 2.1 The facts, briefly stated, are that the assessee-company sold its feed mill Unit during the relevant year for a lump-sum consideration of ₹ 280 lacs (vide sale deed dated 10.01.2006), returning short-term capital gain (STCG) at ₹ 2,09,00,417. In the view of the AO, it is only the Written Down Value (WDV) of the said Unit (at ₹ 44.93 lacs) and not of the total assets (i.e., ₹ 71 lacs), i.e., inclusive of the other (poultry farm) Unit as well, that could be deducted in computing the STCG. Two, as the assessee had sold land (measuring 5 kanals, 8.53 marlas), purchased on 17.11.1981, along with, the capital gain attributable thereto would require being worked out separately. He, accordingly, vide order dated 19.12.2008, computed long-term capital gain (LTCG) (on land) at ₹ 26,98,636 and STCG (on other assets) at ₹ 207.92 lacs, i.e., at a total of ₹ 234.91 lacs. The assessee had, in his view, thus understated cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50C could not have been invoked as a sale was a composite sale. (b) The land sold was appurtenant to the feed mill, and not, as stated, not appurtenant thereto, so that the capital gain could not be separately computed. Qua the first issue, the ld. CIT(A) held that the issue being now raised was not the subject matter of appeal and, consequently, not adjudicated u/s. 250 in the first instance. As regards the second ground, the same raised a contentious issue, i.e., which was debatable and, thus, outside the purview of section 154. The same was, even otherwise, covered u/s. 154 (1A) of the Act. Aggrieved, the assessee is in second appeal, raising the following issues: (i) the parent order being dated 15.01.2014, the impugned order could not have been passed after 31.3.2018, and is thus barred by time u/s. 154(7); (ii) the impugned order being passed outside the time limit of six months specified u/s. 154(8), is non-est, so that the assessee s appeal be deemed as accepted; (iii) the circle rate (of land) could not be applied as it is a case of a composite sale; and, without prejudice, ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory provision is mandatory or directory has to be ascertained not only from the wording of the statute but also from nature and design of the statute and the purpose which it seeks to achieve. Herein the time frame under sub-section (2) of Section 12AA of the Act has been so provided to exclude any delay or lethargic approach in the matter of dealing with such application. Since the consequence for non-compliance to the said time frame has not been spelt out in the statute, this Court cannot hold that the said time-limit is mandatory in nature nor the period of six months has been couched in negative words. Most of the time negative words indicate a mandatory intent. This Court is also of the opinion that when public duty is to be performed by the public authorities, the time-limit which is granted by the Statute is normally not mandatory but is directory in the absence of any clear statutory intent to the contrary (See: Montreal Street Railway Company vs. Normandin , AIR 1917 Privy Council 142 at page 144). Here there is no such express statutory intent, nor does it follow from necessary implication. For this reason we cannot accept the contention of the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised at (iv) above is the application of the correct rate. Where the rate applied is not the correct rate, the same is a mistake apparent from record. There is, however, nothing on record to show that the rate is ₹ 15,000, which aspect itself was disputed during hearing by the ld. Sr. DR, Sh. Charan Dass. Be that as it may, the said mistake , i.e., that the rate applied is not correct, is admittedly not a part of the assessee s application dated 15.5.2017 disposed of by the ld. CIT(A) vide the impugned order. The same, where so, is a mistake separate and distinct from the other mistakes raised by the assessee per its said application. The same stands raised before the ld. CIT(A) vide application dated 09.01.2018 (PB pgs. 6-7). In-as-much as the same raises a new mistake, independent of the other mistakes, the same cannot be regarded as a revision of the application dated 15.5.2017, as Sh. Lal would state on the scope of the said application. The assessee s letter dated 09.01.2018 is, to that extent, a separate application, since undisposed. It is open for the assessee to, where so advised, seek disposal of the said application dated 09.01.2018. I say so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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