The Commissioner Of Income Tax v. Sadiq Sheikh

Santosh IN THE HIGH COURT OF BOMBAY AT GOAMISC CIVIIL APPLICATION NO. 213 OF 2017IN TAX APPEAL NO.32 OF 2014 WITHMISC CIVIIL APPLICATION NO. 207 OF 2017IN TAX APPEAL NO.33 OF 2014 The Commissioner of Income Tax Versus Sadiq Sheikh … Applicant …Respondent Ms Amira Razaq, Junior Government Standing Counsel for the applicantMr N Pai, for the respondent PC:- CORAM:G.S. PATEL & NUTAN D. SARDESSAI, JJDATED:25th September 2017 1.A clarification is sought by the revenue of an order dated 2ndDecember 2015 that disposed of Tax Appeals Nos. 32 and 33 of2014. The clarification is, specifically, in respect of paragraphs 5 and8 of that order, which read thus : “5.During the course of the hearing of the aboveappeals, both the learned counsel have pointed out that inrespect of the same transaction, this Court had disposed ofTax Appeal Nos. 15 and 16 of 2014 by order dated 09.04.2014 whereby the appeals preferred by the Appellantcame to be dismissed. It is also not disputed that the factsin the present appeals and in the said appeals as well asthe parties are the same. 8.In the present appeals, taking note of the saidobservations and the findings of the fact arrived at by thelearned Tribunal on the basis of the agreements executedby the Assessee, that there was no transfer of possessionin terms of the provisions of Section 2(47) of the IncomeTax Act, in the subject year we find that the findings of thelearned Tribunal deleting the capital gains ofRs.14,05,63,839/- cannot be faulted. The findings of the factarrived at by the learned Tribunal on that count cannot bere-appreciated by this Court. The learned counselappearing for the Appellant has not shown any perversityin such findings and/or there was any misreading ofevidence on record. Admittedly, in the present cases, therewas no irrevocable licence nor the Respondents weregiven complete control of the subject premises in theAssessment Year 2008-2009 by the Respondent. Aspointed out herein above, the learned counsel appearingfor the respective parties have not disputed that in thesimilar situation the Tax Appeal Nos. 15 and 16 of 2014 havebeen dismissed. The learned counsel appearing for theAppellant has pointed out that there was no challenge tothe said judgment passed by this Court.” 2.There might have been some substance to this had it beenshown that the whole of that order depends on these twoparagraphs. Instead, we find that even if these two paragraphs arenot taken into account, the rest of the order remains unaffected. Weare, therefore, unable to appreciate how in the name of a“clarification” we could actually embark on what is to all intents and purposes a review when there is no facially apparent error made out,nor any other ground permissible in a review shown. 3.The application is, therefore, dismissed. There will be noorder as to costs. 4.Consequently Misc Civil Application No.207/2017 is alsodismissed. NUTAN D. SARDESSAI J. G. S. PATEL J.