M/S SHAHA ASHOKKUMAR G. RATHOD,GOKAK V. INCOME TAX OFFICER, WARD - 1, GOKAK

MA 4/PAN/2024

AI Insights

The case revolves around a Miscellaneous Application filed by M/s Shah Ashokkumar G Rathod seeking to recall and rectify an earlier order of the Income Tax Appellate Tribunal, which had dismissed their appeal. The applicant contended that the Tribunal had failed to consider certain judicial precedents which were crucial to their case. The Tribunal, however, found that these precedents had been duly considered in their previous ruling and that the applicant's claims did not constitute a mistake apparent from the record, which is necessary for rectification under section 254(2) of the Income Tax Act.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 30144 (ITAT-PANAJI)
• Duration Of Justice: 9 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-12-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: WT(D)
• Next Hearing Date: 29-11-2024
• Assessment Year: 2015-2016
• Appeal Filed On: 07-02-2024
• Other Referred Cases: CIT Vs SK Srigiri & Bros, M/s Abbas Shabuddin Saheb Vs ITO, ACIT Vs Saurashtra Kutch Stock Exchange Ltd, CIT Vs ITAT, CIT Vs Ramesh Electric & Trading Co
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHWINIHOSMANI LD.
• Keywords: Unexplained investment
• Section: 254(2); 13

Judgement Text

" ॥ आयकर अपीलीय न्यायाधिकरण, पणजी न्यायपीठ, पणजी में॥ ITAT-Panaji Page 1 of 4 IN THE INCOME TAX APPELLATE TRIBUNAL, PANAJI BENCH, PANAJI BEFORE HON’BLE SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER AND SHRI G. D. PADMAHSHALI, ACCOUNTANT MEMBER आयकर अपील सं. / MA No. 004/PAN/2024 (Arising out of ITA No. 011/PAN/2019) निर्धारण वर्ा / Assessment Year : 2015-16 M/s Shah Ashokkumar G Rathod 2684, Raviwar Peth, Gokak-591307 PAN : AACFS7071F . . . . . . . Applicant बिधम / V/s Income Tax Officer, Ward-1, Gokak . . . . . . . Respondent द्वधरध / Appearances Assessee by : Mr A S Patil [‘Ld. AR’] Revenue by : Dr Ashwini Hosmani [‘Ld. DR’] सुिवधई की तधरीख / Date of conclusive Hearing : 29/11/2024 घोर्णध की तधरीख / Date of Pronouncement : 05/12/2024 आदेश / ORDER PER G. D. PADMAHSHALI, AM; By the present Miscellaneous Applications [for short ‘MA’] the applicant seeks to recall & rectify the order of this Tribunal passed u/s 254(1) of the Income Tax Act [for short ‘the Act’] in 011/PAN/2019 dt. 08/01/2024 whereby the appeal filed by the assessee dismissed. 2. We have heard rival contentions of both the parties on the limited issue of non-consideration of judicial precedents; and subject to the provisions of rule 18 of Income Tax Appellate Tribunal Rules, 1963 [for short ‘ITAT, Rules’] perused the MA and duly considered the contents & prayer thereof in the light of settled legal position. MA No. 004/PAN/2024 Arising out of ITA No. 011/PAN/2019 ITAT-Panaji Page 2 of 4 3. We have given our thoughtful consideration to MA running into full four pages seeking our indulgence to re-adjudicate the issue on the basis of two case laws viz; (1) ‘CIT Vs SK Srigiri & Bros’ [298, ITR 13 (Kar)] and (2) ‘M/s Abbas Shabuddin Saheb Vs ITO’ [ITA No. 461/PAN/2019]. It is the sole averment of the applicant that, the Tribunal while dealing with its main appeal has failed to consider the former twin binding judicial precedents. It is therefore contended that, owning to non-consideration of such binding judicial precedent the consequential/impugned order of the Tribunal is suffered from apparent & obvious mistake hence such adjudication & order deserves to be rectified u/s 254(2) of the Act. To drive home aforestated contention the Ld. AR Mr AS Patil also pressed into service the decision of Hon’ble Apex Court rendered in ‘ACIT Vs Saurashtra Kutch Stock Exchange Ltd.’ [2008, 305 ITR 227 (SC)]. Per contra, insofar as the first case law is concerned, the Ld. DR Hosmani sought our attention to para 3 & 7.2 respectively placed on page 3 & 11 and submitted that, on the face of the order it is uncloudy clear that, while adjudicating the main appeal the Tribunal has duly noted & considered the judicial precedent relied by the applicant and dealt the issue accordingly. Thus, it left no mark of ignorance. Insofar as the second case law is concerned, adverting to an email communication through which the judicial precedent laid in M/s Abbas Shabuddin (supra) was pressed into service by the applicant, the Ld. DR contended that, this email communication was made much after the conclusive hearing had taken place through virtual hearing. Further the fact of such email communication was neither brought to the notice of Bench nor to the respondent Revenue for rebuttal. Without prejudice to above, the ratio laid MA No. 004/PAN/2024 Arising out of ITA No. 011/PAN/2019 ITAT-Panaji Page 3 of 4 in M/s Abbas Shabuddin was rendered in context of undisclosed excess stock in trade found during survey proceedings, whereas the issue in main appeal before the Tribunal was undisclosed/unexplained investment. Since the factual matrix of the case law relied were altogether unalike the one in main appeal, the ratio laid therein had no application even otherwise. It is therefore prayed that; the present application of the assessee for the aforestated reasons deserves to be dismissed. 4. There is no duality over the application of ratio laid in ‘ACIT Vs Saurashtra Kutch Stock Exchange’ where the judicial precedents are not considered. The only dispute herein is that, the applicant claims ignorance of judicial precents au contraire the respondent dismantled the claim by proving otherwise. 5. Undisputedly, the Tribunal while adjudicating the issue raised in main appeal of the applicant assessee, vide para 3 placed on page 4 and vide para 7.2 placed on page 11 of its order dt. 08/01/2024 has duly considered the decision of Hon’ble Karnataka High Court rendered in ‘CIT Vs SK Srigiri & Bros.’ (supra). Once it is so, then the applicant is not entitled to claim a rectification for not adjudicating issue in accordance with its version of opinion drawn from such judicial precedents. In a case where there may be an error of judgement in applying the ratio having regard to dis-assorted facts, but such error of judgment is not the same as mistake apparent from the record. And such error in judgement is impermissible for the Tribunal to rectify u/s 254(2) of the Act. This view finds fortified in ‘CIT Vs ITAT’ [1992, 196 ITR 590 (Orissa)]. MA No. 004/PAN/2024 Arising out of ITA No. 011/PAN/2019 ITAT-Panaji Page 4 of 4 6. Insofar as non-consideration of Ld. Co-ordinate bench decision rendered in ‘ITA No. 461/PAN/2018’ (supra) is concerned, we find force in vehement arguments of the Revenue that said decision cannot be made applicable to the case under consideration for twin reasons viz; (1) as it was relied [through email] much after the conclusive hearing taken place virtually and (2) such communication was neither brought to the notice of the bench nor to the respondent revenue to refute. The applicant contention that due to internet outage the said case law through referred during the course of virtual hearing but could not effectively pressed into service has failed to inspire us as the dimness towards oral arguments or submission cannot be considered as apparent error on the face of the record. We say so in view of the Hon’ble Jurisdictional Bombay High Court decision in ‘CIT Vs Ramesh Electric & Trading Co’. [1993, 203 ITR 497 (Born)]. We are therefore of the view that, the present MA filed by the assessee u/s 254(2) of the Act is devoid and bereft of any merit thus deserves to be dismissed. Since the applicant failed to bring out to our notice any other rectifiable mistake which can indeed be rectified u/s 254(2) of the Act, we have no hesitation in dismissing this MA. 7. In result, the MA of the applicant assessee stands DISMISSED. U/r 34 of ITAT Rules, order pronounced in the open court on the date mentioned herein above. -S/d- -S/d- PAVAN KUMAR GADALE G. D. PADMAHSHALI JUDICIAL MEMBER ACCOUNTANT MEMBER Panaji, Dated : 05th day of December, 2024 Copy of the Order forwarded to : 1.अपीलधर्थी / The Applicant 2. प्रत्यर्थी / The Respondent. 3. The CIT-(A) Panaji-1, Goa 4. The Pr.CIT, Panaji 5. DR, ITAT, Bench, Panaji 6.गधर्ाफ़धइल / Guard File. आदेशधिुसधर / By Order वररष्ठ निजी सनिव / Sr. Private Secretary आयकर अपीलीय न्यधयधनर्करण, पुणे / ITAT, Panaji. "