INCOME TAX OFFICER, WARD-1, UDUPI V. MR. M.N. RAJENDRA KUMAR, UDUPI

MA 7/BANG/2025

AI Insights

The case involves a miscellaneous application filed by the Revenue against an ITAT order in the assessee's case. The Revenue contended that the ITAT order was not acceptable due to several reasons, including the non-consideration of admissions made by the assessee under section 132(4) of the IT Act and reliance on material evidences found during search and survey operations. The assessee, represented by Smt. Sheetal Boarkar, Advocate, argued that the Revenue had already filed an appeal before the Hon'ble Jurisdictional High Court, which was dismissed, and thus, the present application was not maintainable. The Tribunal agreed with the assessee's arguments and dismissed the application.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 714594 (ITAT-BANGALORE)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-08-2025
• Appeal Filed By: Department
• Order Result: Dismissed
• Assessment Year: 2012-2013
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBRAMANIAN S
• Assessee Lawyers: SHEETAL BOARKAR
• Keywords: Tax effect; Retraction

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL ‘B’ BENCH: BANGALORE BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI PRAKASH CHAND YADAV, JUDICIAL MEMBER MA No. 7/Bang/2025 [In ITA No. 2259/Bang/2019] Assessment Year: 2012-13 The Income Tax Officer, Ward -1, Udupi. Vs. Mr. MN Rajendra Kumar, 1-276, PO 721, Pulkeri, Karkala – 574 104. Udupi District. PAN – AFOPK 5638 K APPELLANT RESPONDENT Assessee by : Smt. Sheetal Boarkar, Advocate Revenue by : Shri Subramanian S, Addl. CIT(DR) Date of hearing : 13.06.2025 Date of Pronouncement : 05.08.2025 O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: The Revenue has filed a miscellaneous application in this case. It contends that the order passed by the ITAT in the assessee’s case in ITA No. 2259/Bang/2019 dated 24 August 2020 is not acceptable. 2. The relevant submissions made by the Revenue in the miscellaneous application for non-acceptance of the ITAT order are as under: Printed from counselvise.com MA No.7/Bang/2025 Page 2 of 4 . “The order of the Hon’be ITAT,\"C\" Bench, Bangalore order in ITA No. 2258 to 2264/Bang/2019 dated 24/08/2020 is not acceptable due to the following: 1. The Hon'ble ITAT has not considered the fact that the AO has made the additions based on the admission made by the assessee u/s 132(4) of the IT Act. 2. The Hon'ble ITAT has not considered the fact that the assessee has retracted from the admission made u/s 132(4) only after 18 months and the retraction cannot be accepted as sufficient time leas elapsed. 3. The Hon'ble ITAT has not taken into consideration the fact that the additions have been made by the AO by relying upon the material evidences found during the course of search and survey operations. 4. The Hon'ble ITAT has not appreciated the facts on record and also not considered to give direction for making additions in the hands of the firm, if it so assessable. In view of the above, a Miscellaneous Application is filed before the Hon'ble Income Tax Appellate Tribunal , Bengaluru Bench, Bengaluru.” 3. At the time of hearing, the learned DR strongly supported the contents of the miscellaneous application filed by the Revenue. 4. On the other hand, the learned AR submitted that the Revenue had already filed an appeal against the ITAT's order before the Hon’ble Jurisdictional High Court. The Hon’ble High Court disposed of the appeal in Tax Appeal No. 258 of 2021 by order dated 23 September 2024. The appeal was dismissed on account of a lower tax effect. After this dismissal, the Revenue filed the present miscellaneous application on 18 February 2025. The learned AR contended that the Revenue has already availed of the remedy by filing an appeal before the Hon’ble High Court. Therefore, the Revenue is precluded from filing the present miscellaneous application before the ITAT. If the Revenue was aggrieved by the ITAT order on account of any apparent mistake, it should have approached the Tribunal first for rectification. But the Revenue consciously filed an appeal before the Hon’ble Jurisdictional High Court. This clearly shows that there was no apparent mistake in the ITAT's Printed from counselvise.com MA No.7/Bang/2025 Page 3 of 4 . order. Therefore, the present miscellaneous application deserves to be dismissed. 5. The learned AR also submitted that the time limit for filing the miscellaneous application by the Revenue has already been expired. Therefore, the same cannot be entertained now. 6. We have heard the rival contentions of both parties and examined the materials available on record. It is a fact that the Revenue filed an appeal against the ITAT order before the Hon’ble Jurisdictional High Court. The appeal was dismissed by the Hon’ble High Court vide order dated 23 September 2024 in Income Tax Appeal No. 258 of 2021. The dismissal was on account of the lower tax effect. After the dismissal of the appeal, the Revenue filed this miscellaneous application before the ITAT on 18 February 2025, after a substantial delay. 6.1 It is also not disputed that the Revenue approached the Hon’ble Jurisdictional High Court against the ITAT's finding on first occasion. This indicates that there was no mistake in the ITAT order as contemplated under section 254(2) of the Act. On this ground alone, the miscellaneous application filed by the Revenue deserves to be dismissed. 6.2 Without prejudice to the above, there is no mention of any apparent mistake or pointed out by the Revenue in the miscellaneous application. What has been stated in the application, as reproduced above, is that the order of the ITAT is not acceptable for certain reasons. Such a miscellaneous application does not specify any apparent mistake in the ITAT order. Therefore, in the absence of any apparent mistake, Printed from counselvise.com MA No.7/Bang/2025 Page 4 of 4 . the present miscellaneous application filed by the Revenue deserves to be dismissed. 6.3 Without prejudice to the above, it is also noted that there is a substantial delay in filing the miscellaneous application. After upholding of the ITAT order by the Hon’ble High Court, the Revenue filed the present miscellaneous application. This action of the Revenue suggests that it is trying to get relief either from the Hon’ble High Court or from the ITAT by filing this application. In our considered opinion, the Revenue cannot pursue two parallel remedies under different forums. In view of the above, we hold that the present miscellaneous application filed by the Revenue deserves to be dismissed. 7. In the result, the miscellaneous application filed by the Revenue is hereby dismissed. Order pronounced in court on 5th day of August, 2025 Sd/- Sd/- (PRAKASH CHAND YADAV) (WASEEM AHMED) Judicial Member Accountant Member Bangalore Dated, 5th August, 2025 / vms / Copy to: 1. The Applicant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR, ITAT, Bangalore. 6. Guard file By order Asst. Registrar, ITAT, Bangalore Printed from counselvise.com "