Assistant Commissioner of Income Tax , Amravati Circle , Amravati V. Shri Sanjay Shankarrao Jadhav , AMRAVATI

MA 04/NAG/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5783 (ITAT-NAGPUR)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 07-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AGNESH P THOMAS
• Keywords: Rule of consistency
• Section: 2(22)(e); 254(2); 22

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL BENCH, NAGPUR (AT E-COURT, PUNE) BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM . / MA NO.03/NAG/2019 (ARISING OUT OF ITA NO.308/NAG/2017) / ASSESSMENT YEAR : 2013-14 DCIT, AMRAVATI CIRCLE, AMARAVATI. ....... / APPELLANT / V/S. SMT. SMITA SANJAY JADHAV, AT 17, SAEE BUNGALOW, MANGILAL PLOT, AJMIRE GHARON SARAL LASN, CAMP ROAD, AMRAVATI. PAN : ABVPJ9175F / RESPONDENT . / MA NO.04/NAG/2019 (ARISING OUT OF ITA NO.307/NAG/2017) / ASSESSMENT YEAR : 2013-14 ACIT, AMRAVATI CIRCLE, AMRAVATI. ....... / APPELLANT / V/S. SHRI SANJAY SHANKARRAO JADHAV, PROP. M/S. JADHAV GEARS, M/S. JADHAV ICONS AND M/S JADHAV CONTEX, MIDC, AMRAVATI-444602. PAN : AARPJ6547L / RESPONDENT REVENUE BY : SMT. AGNESH P. THOMAS ASSESSEE BY : SHRI K. P. DEWANI / DATE OF HEARING : 17.01.2020 / DATE OF PRONOUNCEMENT : 22.01.2020 / ORDER PER D. KARUNAKARA RAO, AM: BOTH THE MISCELLANEOUS APPLICATIONS ARISE FROM THE REVENUES APPEAL IN ITA NOS.307 & 308/NAG/2017 VIDE ORDER DATED 18.12.2018 FOR THE ASSESSMENT YEAR 2013-14 RESPECTIVELY. 2 MA NOS.03 & 04/NAG/2019 2. BEFORE US, THROUGH THESE MISCELLANEOUS APPLICATIONS, LD. DR FOR THE REVENUE MADE THE FOLLOWING SUBMISSIONS :- 4. THE ITAT, NAGPUR WHILE GIVING HIS FINDINGS HE HAS NOT CRITICALLY EXAMINED THE TWO DECISION RELIED UPON BY THE LD. ITAT, NAGPUR. THE DECISION IN THE CASE OF SHRI MAHESH K. SHAH (ITA NO.5194/MUM/2014) DATED 31.01.2017 RELIED UPON BY LD. ITAT HAS NOT BEEN ACCEPTED BY REVENUE AND APPEAL TO HONBLE BOMBAY HIGH COURT HAS BEEN FILED. THE DECISION RELIED UPON BY THE HONBLE ITAT IN THE CASE OF SHRI DEEPAK J. CHOWDHARY VS ITO WD-5(3), NAGPUR ITAT NO.94/NGP/2013 VIDE ORDER DATED 26.06.2015 WHEREIN THE ASSESSEE THE LOAN ENTRY WAS THROUGH BOOK ENTRIES THROUGH JOURNAL ENTRIES AND ASSESSEE HAD STOOD AS GUARANTOR FOR LOAN TO THE COMPANY GENERATING BUSINESS RELATIONSHIP WHICH IS NOT THE INSTANT CASE. FURTHER, THE FACTS OF THE CASE ARE CLEARLY DISTINGUISHABLE. IN BOTH CASES RELIED UPON HON'BLE ITAT, THE ASSESSEE HAD MORTGAGED HIS INDIVIDUAL PROPERTY FOR AVAILING LOAN BY THE COMPANY. IN THE INSTANT CASE, THERE IS NO SUCH MORTGAGE. THE ASSESSEE'S REPLY TO SHOW CAUSE HAD BEEN REPRODUCED IN THE ORDER. HENCE, LD. ITAT'S ORDER CONTAINED MISTAKE IN PLACING RELIANCE ON THOSE TWO DECISIONS ON THE FOLLOWING GROUNDS. THIS BEING SO, THERE IS A MISTAKE APPARENT FROM RECORD IN THE ABOVE ORDER UNDER REFERENCE OF THE LD. ITAT WITHIN THE MEANING OF SECTION 254(2) OF THE ACT WHICH IS MOST RESPECTFULLY BROUGHT TO THE NOTICE OF THE HON'BLE ITAT. IT IS, THEREFORE, MOST RESPECTFULLY URGED THAT THE HONBLE ITAT BE PLEASED TO RECALL THE SAME AND ADJUDICATE UPON THE SAME ON MERITS. 1 WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE HONOURABLE ITAT WAS JUSTIFIED IN IGNORING THE FACT THAT THE ASSESSEE HAS GOT SUBSTANTIAL INTEREST IN THE COMPANY FROM WHICH SHE ACCEPTED LOAN AND HENCE PROVISIONS OF SECTION 2(22)(E) OF THE INCOME TAX ACT 1961 ARE SQUARELY APPLICABLE IN THE INSTANT CASE? 2 WHETHER, ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE HONOURABLE ITAT IS JUSTIFIED IN HOLDING THAT IN THE PRESENT CASE PROVISIONS OF SECTION 2(22)(E) ARE NOT APPLICABLE DUE TO THE FACT THAT THE ASSESSEE HAD NOT MORTGAGED HIS PERSONAL PROPERTY TO SECURE LOAN FOR THE COMPANY AND THE DECISIONS RELIED UPON BY IT ARE NOT APPLICABLE AND ARE DISTINGUISHABLE? 3. ON THE OTHER HAND, LD. AR FOR THE ASSESSEE VEHEMENTLY JUSTIFIED THE ORDER OF THE TRIBUNAL AND PRAYED FOR DISMISSING THE MAS OF THE REVENUE. 4. AFTER HEARING BOTH THE PARTIES AND ON PERUSING THE ABOVE EXTRACTED PORTION OF THE MISCELLANEOUS APPLICATION, WE FIND THE NON-CONSIDERATION OF CERTAIN DECISIONS OR CONSIDERATION OF CERTAIN OTHER DECISIONS AT THE TIME OF ADJUDICATION OF THE ISSUES BY THE TRIBUNAL, IS THE SUBJECT MATTER OF MAS. WE 3 MA NOS.03 & 04/NAG/2019 ARE OF THE OPINION THAT THESE KINDS OF MAS ARE UNSUSTAINABLE FOR THE REASON THAT IT ACCOUNT TO REVIEW OF OUR OWN DECISIONS GIVEN BY US IN THE TRIBUNALS ORDER. THE TRIBUNAL HAS NO JURISDICTION IN THESE MATTERS. CONSIDERING THE SAME AND FOLLOWING THE PRINCIPLE OF CONSISTENCY, WE ARE OF THE OPINION THAT THE ORDERS PASSED BY THE TRIBUNAL (SUPRA) ARE NOT RECTIFIABLE. ACCORDINGLY, BOTH THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE ARE DISMISSED. 5. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON THIS 22 ND DAY OF JANUARY, 2020. SD/- SD/- (PARTHA SARATHI CHAUDHURY) (D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 22 ND JANUARY, 2020. SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A) 4. THE CIT 5. , , / DR, ITAT, NAGPUR. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.