ALI AKBAR SAMI CHOUDHARI,MUMBAI V. THE DEPUTY COMMISSIONER OF INCOME TAX 23(1), PIRAMAL CHAMBER, MUMBAI

MA 228/MUM/2024

AI Insights

The case revolves around a miscellaneous application by the assessee, Ali Akbar Sami Choudhari, concerning an earlier Tribunal decision (ITA No. 455/Mum/2024) related to the assessment year 2015-16. The application highlighted that the Tribunal had overlooked a decision from a Co-ordinate Bench which was pertinent to the case. This decision involved the Runwal Group, where it was established that the addition made by the Assessing Officer (AO) based on a statement from Shri Sandeep Runwal was not accepted by the Runwal Group and was subsequently deleted by the Tribunal in a related case. The Tribunal acknowledged the oversight and rectified the mistake by recalling the original order for a fresh decision, ensuring that all relevant materials and precedents were considered.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 28544 (ITAT-MUMBAI)
• Duration Of Justice: 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-11-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-11-2024
• Assessment Year: misc
• Appeal Filed On: 17-10-2024
• Other Referred Cases: Honda Siel Power Products Ltd. vs. CIT [2007] 295 ITR 466 (SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIR ASIF KARMALI; DR
• Assessee Lawyers: RAKESH JOSHI; AR
• Keywords: Set aside; Opportunity of being heard
• Section: 254(2)

Judgement Text

" | आयकर अपीलीय अिधकरण \fा यपीठ, मुंबई | IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, MUMBAI BEFORE SHRI NARENDRA KUMAR BILLAIYA, HON’BLE ACCOUNTANT MEMBER & SHRI SANDEEP SINGH KARHAIL, HON’BLE JUDICIAL MEMBER M.A. No. 228/Mum/2024 A/o I.T.A. No. 455/Mum/2024 Assessment Year: 2015-16 Ali Akbar Sami Choudhari TPS-3, 1st Floor Basuri Apartments Pali Naka Bandra (W) Mumbai - 400050 [PAN: ABVPC9898A] Vs DCIT – 23(1), Mumbai Dr. SS Rao Marg, Parel Mumbai - 400012 अपीला थ\u0016/ (Appellant) \u0017\u0018 यथ\u0016/ (Respondent) Assessee by : Shri Rakesh Joshi, A/R Revenue by : Shir Asif Karmali, Sr. D/R सुनवाई की तारीख/Date of Hearing : 08/11/2024 घोषणा की तारीख/Date of Pronouncement : 12/11/2024 आदेश/O R D E R PER NARENDRA KUMAR BILLAIYA, AM : This miscellaneous application by the assessee is directed towards the order of the Tribunal in ITA No. 455/Mum/2024 dated 17/05/2024 pertaining to AY 2015-16. 2. In its petition, the assessee brought to the notice of the Tribunal that during the course of the argument it was brought to the notice of the Bench that the addition was made by the AO relying on the statement of Shri Sandeep Runwal, director of Runwal Developers Pvt. Ltd., recorded u/s 132(4) of the Act. It was also brought to the notice of the Bench that Runwal Group has not accepted the said declaration of M.A. No. 228/Mum/2024 2 figure of on-money, and challenged the addition in appellate proceedings and the Tribunal has deleted the said addition made solely on the basis of estimation and copy of the decision of the Tribunal was also supplied. 3. The ld. Counsel before us pointed out that inadvertently, the decisions of the Co-ordinate Bench, lost sight of the Tribunal while deciding the appeal. Therefore, a mistake apparent on record has crept which needs rectification u/s 254(2) of the Act. Per contra, the ld. D/R could not point out any factual error in the submissions made by the ld. Counsel. 4. We have given a thoughtful consideration to the contents of the miscellaneous application and have also considered the original order of the Tribunal in ITA No. 455/Mum/2024. The findings of the Tribunal read as under:- “10. In the statement of Shri Sandeep Runwal the list is attached wherein Shri Sandeep Runwal has given the details of cash received on sale of flats at various projects of the Runwal Group with names of the customers and the exact amount. The name of the assessee is at Sl.No.21 for the Flat No. 501 at Runwal Elegante which shows the cash receipt by Runwal Group of ₹.82,13,261/-. The contention of the counsel that it is merely an estimation defies all commercial logic because an estimated figure is always a complete figure. But the figure mentioned hereinabove is so accurate that it cannot considered as an estimated figure. Most important fact is that the recipient i.e., seller has admitted of having received a cash component of the transaction. Therefore, it is reasonable to conclude that the payee must have made the said payment. The undisputed fact is that the assessee has in fact purchased the flat from Runwal Group. When the purchase is not in dispute, the payment is not dispute then in all probability the cash component is also correct. The seller has admitted of having received on-money which is the income of the seller and no prudent business man would offer income which it has never earned / received. The decision of the Coordinate Benches are misplaced in as much as each case has to be decided on the facts of its own and since in the case in hand the income has been assessed in the hands of the seller applying the principles of preponderance of probability on the facts of the case in hand, we do not find any reason to interfere with the findings of the Ld.CIT(A).” M.A. No. 228/Mum/2024 3 5. A perusal of our record shows that the assessee had filed a case- law paper book which had the order of the Co-ordinate Bench in the case of Runwal Develper Pvt. Ltd. in ITA No. 5621/Mum/2017 for AY 2015- 16, dated 20/12/2017. 6. We find that this order of the Co-ordinate Bench was not considered by the Tribunal when the original order was passed and the Tribunal committed a mistake in not considering the material which was already on record. This mistake needs to be rectified u/s 254(2) of the Act as per the decision of the Hon’ble Supreme Court in the case of Honda Siel Power Products Ltd. vs. CIT reported in [2007] 295 ITR 466 (SC). The relevant findings read as under:- “13. \"Rule of precedent\" is an important aspect of legal certainty in rule of law. That principle is not obliterated by section 254(2) of the Income-tax Act, 1961. When prejudice results from an order attributable to the Tribunal's mistake, error or omission, then it is the duty of the Tribunal to set it right. Atonement to the wronged party by the court or Tribunal for the wrong committed by it has nothing to do with the concept of inherent power to review. In the present case, the Tribunal was justified in exercising its powers under section 254(2) when it was pointed out to the Tribunal that the judgment of the coordinate bench was placed before the Tribunal when the original order came to be passed but it had committed a mistake in not considering the material which was already on record. The Tribunal has acknowledged its mistake, it has accordingly rectified its order. In our view, the High Court was not justified in interfering with the said order. We are not going by the doctrine or concept of inherent power. We are simply proceeding on the basis that if prejudice had resulted to the party, which prejudice is attributable to the Tribunal's mistake, error or omission and which error is a manifest error then the Tribunal would be justified in rectifying its mistake, which had been done in the present case. Conclusion: 14. For the aforestated reasons, the impugned judgment of the High Court is set aside and the order passed by the Tribunal allowing the rectification application filed by the assessee is restored. Consequently, the appeal is allowed with no order as to costs.” M.A. No. 228/Mum/2024 4 7. Finding parity of facts, we recall the order of the Tribunal in ITA No. 455/Mum/2024 for fresh adjudication after affording reasonable opportunity of being heard to both the sides. The Registry is directed to list the appeal in due course of time. 8. In the result, miscellaneous application filed by the assessee is allowed. Order pronounced in the Court on 12th November, 2024 at Mumbai. Sd/- Sd/- (SANDEEP SINGH KARHAIL) (NARENDRA KUMAR BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, Dated 12/11/2024 * * * *SC SrPs SC SrPs SC SrPs SC SrPs आदेश की \u0015ितिलिप अ\u001aेिषत /Copy of the Order forwarded to : 1. अपीलाथ\u001c / The Appellant 2. \u0015\u001dथ\u001c / The Respondent 3. संबंिधत आयकर आयु\" / Concerned Pr. CIT 4. आयकर आयु\" ) अपील ( / The CIT(A)- 5. िवभागीय \u0015ितिनिध ,आयकर अपीलीय अिधकरण, मुंबई /DR,ITAT, Mumbai, 6. गाड& फाई/ Guard file. आदेशानुसार/ BY ORDER, TRUE COPY Assistant Registrar आयकर अपीलीय अिधकरण ITAT, Mumbai "