GIRAJ MEHTA, Kishangarh V. ITO, Kishangarh

MA 1/JPR/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2094 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-07-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 21-01-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D C SHARMA
• Assessee Lawyers: G C JAIN
• Section: 133(6)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. ME ENA) M.A. NO.1/JP/2013 (ARISING OUT OF ITA NO. 1069/JP/2010) ASSESSMENT YEAR : 2007-08 SHRI GIRIRAJ MEHTA VS. THE ITO PROP. M/S. OSWAL UDYOG KISHANGARH G-444, IV PHASE INDUSTRIAL AREA MADANGANJ, KISHANGARH (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.C. JAIN DEPARTMENT BY: SHRI D.C. SHARMA DATE OF HEARING: 11-07-2014 DATE OF PRONOUNCEMENT: 18-07-2014 ORDER PER R.P. TOLANI, JM THE ASSESSEE HAS FILED A MISCELLANEOUS APPLICATIO N U/S 254 (2) OF THE ACT AGAINST THE ORDER OF THE TRIBUNAL DATED 27-05-2 011 FOR THE ASSESSMENT YEAR 2007-08 CONTENDING THAT THIS ITAT ORDER SUFFER S FROM APPARENT MISTAKE INASMUCH AS THE ITAT HAS OBSERVED THAT NOTHING HA S BEEN STATED THAT WHY THE AMOUNT WAS SURRENDERED AND WHY ASSESSEE HAS FIL ED APPEAL BEFORE THE LD. CIT(A) OR AGAIN HERE BEFORE THE TRIBUNAL. IT IS S UBMITTED THAT TRIBUNAL HAS IGNORED THE FACT THAT THE ASSESSEE HAS FILED THE WR ITTEN SUBMISSION ON 13-05- 2011. THEREFORE, THE OBSERVATION OF THE ITAT THAT N OTHING WAS STATED BY THE 2 ASSESSEE IS A MISTAKE APPARENT FROM RECORD. IT IS P ERTINENT TO MENTION THAT THE IMPUGNED AMOUNT WAS SURRENDERED BY THE ASSESSEE BEF ORE THE AO WHICH EMERGES FROM PARA 2.2. OF AOS ORDER AS UNDER:- 2.2 THE ABOVE FACTS WERE BROUGHT TO THE KNOWLEDGE OF THE ASSESSEE VIDE ORDER SHEET ENTRY DA TED 26-11-2009 TO FURNISH HIS REPLY BY 04-12-2009. THE ASSESSEE FILED A WRITTEN REPLY DATED 4-12-2009 SUBMITTING AS UNDER:- WITH REFERENCE TO THE ABOVE IT IS SINCE WE COULD NOT GET THE CONFIRMATION FROM THE FOLLOWING SUNDRY CREDITORS, UNSECURED LOANS, WE ARE HEREBY SURRENDER ING THE FOLLOWING AMOUNTS FOR TAXATION IN ORDER TO AVOI D FURTHER LITIGATION AND HAVE THE MENTAL PEACE. SUNDRY CREDITORS AMOUNT M/S. DEE JAY STEELS, NEW DELHI RS. 4,76,537/- ON THAT BASIS, THE ADDITION WAS MADE. THE LD. CIT(A ) CONFIRMED THE ADDITION BY HOLDING THAT ON THE BASIS OF THE ENQUIRY MADE BY THE AO U/S 133(6) OF THE ACT, THE ASSESSEE COULD NOT EXPLAIN THE SAME AND TH E AMOUNT WAS SURRENDERED. THE LD. CIT(A) HOWEVER, CHANGED THE SE CTION FROM 41(1)(A) OF THE ACT AND HELD IT TO BE THE UNDISCLOSED INVESTME NT IN FACTORY BUILDING. THE ITAT CONFIRMED THE ORDERS OF THE LOWER AUTHORITIES. THE ASSESSEE IS IN MISCELLANEOUS APPLICATION CONTENDING THAT THE TRIBU NAL HAS FAILED TO CONSIDER THE WRITTEN SUBMISSION FILED ALONGWITH THE ARGUMENTS DATED 13-05- 2011 WHICH IS ON THE RECORD. THE LD. COUNSEL FOR T HE ASSESSEE REITERATED THE 3 ARGUMENTS AND CONTENDED THAT THE ITAT ORDER SUFFERS FROM APPARENT MISTAKE FOR NON-CONSIDERATION OF THE WRITTEN SUBMISSION. TH US THE ORDER OF THE ITAT BECOMES ERRONEOUS. 2.1 THE LD. DR ON THE OTHER HAND CONTENDS THAT ITAT IN ITS ORDER AT PARA 6 HAS CATEGORICALLY MENTIONED THAT THE SUBMISSIONS AL ONGWITH THE MATERIALS ON RECORD HAVE BEEN PERUSED. THEREFORE, THERE IS NO JU STIFICATION IN THE PLEA RAISED THAT WRITTEN SUBMISSION HAS NOT BEEN CONSIDE RED. HENCE, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE SHOULD BE DISMISSED. 2.2 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. FROM THE ABOVE OBSERVATIONS OF THE ITAT ORDER, IT CANNOT BE ASSUMED THAT ASSESSEE'S WRITTEN SUBMISSIO NS AVAILABLE ON RECORD WERE NOT CONSIDERED. THUS THE PLEA OF THE ASSESSEE CANNOT BE ACCEPTED. THE ITAT IN PARA 6 OF ITS ORDER HAS MENTIONED THAT THE NOTHING HAS BEEN STATED BY THE ASSESSEE AS TO WHY THE AMOUNT WAS SURRENDERED A ND AS TO WHY IT WAS IN APPEAL BEFORE THE LD. CIT(A) AND BEFORE THE TRIBUNA L. ON MERITS ALSO, ONCE THE ASSESSEE HAS ACCEPTED HIS SURRENDERED INCOME TH EN THERE IS NO JUSTIFICATION GO IN APPEAL BEFORE THE LD. CIT(A) OR ITAT WITHOUT ANY COGENT REASONS. SINCE THE ASSESSEE HAS FAILED TO STATE THE COGENT REASONS IN THIS BEHALF, THE ITAT HAS TAKEN CONSIDERED VIEW THAT THE AMOUNT HAS BEEN SURRENDERED BY THE ASSESSEE AND THE LD. CIT(A) HAS GIVEN CATEGORICAL FINDING 4 ABOUT THE UNDISCLOSED INVESTMENT IN THE CONSTRUCTIO N OF THE BUILDING. THUS THE ORDER OF ITAT DOES NOT FROM ANY APPARENT MISTA KE AS HAS BEEN POINTED OUT BY ASSESSEE AND IT DOES NOT REQUIRE ANY RECTIFI CATION U/S 254(2) OF THE ACT. THUS THE MISCELLANEOUS APPLICATION OF THE ASSE SSEE IS DISMISSED. 3.0 IN THE RESULT, THE M.A. OF THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18-07-2014. SD/- SD/- (T.R. MEENA) (R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR DATED: 18 TH JULY, 2014 *MISHRA COPY FORWARDED TO:- 1. SHRI GIRIRAJ MEHTA, KISHANGARH 2. THE ITO, KISHANGARH, 3. THE LD. CIT 4. THE LD. CIT(A), R 5..THE LD. DR 6.THE GUARD FILE (MA NO. 1/JP/2013) BY ORDER AR ITAT, JAIPUR