SMT. MEERA DEVI, , JAIPUR V. ITO, WARD-6(1), JAIPUR

MA 1/JPR/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2849 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-09-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 15-06-2022
• Assessment Year: 2013-2014
• Appeal Filed On: 29-12-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: TANUJ AGARWAL
• Keywords: Rectification of order; Period of limitation; Additional evidence; Time period of passing order
• Section: 68; 254(2); 13; 153

Judgement Text

vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR Jh laanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM Miscellaneous Application No.1 /JP/2022 (Arising out of vk;dj vihy la-@ITA No. 256/JP/2020 fu/kZkj.k o"kZ@Assessment Year : 2013-14 Smt. Meera Devi 772, Sindhi Colony Raja Park, Jaipur cuke Vs. The ITO Ward 6 (1) Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AMAPK 3601 R vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Tanuj Agarwal, Adv. jktLo dh vksj ls@ Revenue by: Shri A.S. Nehra, Addl. CIT lquokbZ dh rkjh[k@ Date of Hearing : 16/06/2022 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 13/09/2022 vkns'k@ ORDER PER: SANDEEP GOSAIN, JM The assessee has filed a Miscellaneous Application against ITAT, Jaipur Bench order dated 11-11-2020 for rectification of mistake u/s 254(2) of the I.T.Act by praying therein as under:- ‘’Mistakes Apparent: It is most respectfully submitted that the following mistakes are apparent for which this present Miscellaneous Application is being filed by the humble appellant before this Hon'ble Bench: 4.1 The judgment of Hon'ble Jurisdictional High Court which directly goes to the root of the matter unfortunately got skipped the kind attention of the Hon'ble ITAT while deciding the ground of the appeal at para 14 & 15. The fact that the humble appellant quoted this judgment before the Honb'le ITAT is evident from page no. 19 of the impugned order wherein the submissions of the appellant were reproduced. 2 MA 1/JP/2022 SMT. MEERA DEVI VS ITO, WARD 6(1), JAIPUR The appellant relied on judgment of Hon'ble Rajasthan High Court in the case of M/s Aravali Trading Co. Vs. Income Tax Officer reported at (2008) 8 DTR 199, wherein it was held that once the existence of the creditors is proved and such persons own the credits which are found in the books of the assessee, the assessee's onus stands discharged and the latter is not further required to proves the source from which the creditors could have acquired the money deposited with him either in terms of section 68 or on general principle. Merely because the depositor's explanation about the sources of money was not acceptable to the AO, it cannot be presumed that the deposit made by the creditors is money belonging to the assessee itself. It is most respectfully submitted that in the appellant's case also the Shri Ramswaroop Mali has accepted the payment of money to the appellant before the ld. A.O. by way of his statements recorded during the assessment proceedings and also by way of affidavits and other documents. Hence, the judgment of Honb'le Rajasthan High Court is squarely applicable. Had this judgment not skipped the kind attention of Honb'le ITAT while deciding the appeal, the outcome would have been altogether different and the ground of appeal may have been allowed. It is further submitted that though the appellant has established with evidences the Source of Source of the sum of money of Rs. 10,00,000/- received from Mr. Ram Swaroop Mali, but as per the settled proposition of law, the source of source need not be proved. The appellant also relied on the judgments of CIT Vs. First Point Finance Ltd. 286 ITR 477 (Raj. High Court) and ACIT Vs. Rajasthan Asbestos Cement Co. XLI Tax World 153 ITAT, Jaipur Bench (page no 19 of impugned order) which also skipped the kind attention of the Hon'ble ITAT while deciding the appeal. Had these judgments also not skipped the kind attention of Honb'le ITAT while deciding the appeal, the outcome would have been altogether different and the ground of appeal may have been allowed. 4.2 Additional evidence by way affidavit of Shri Chhitar Mali, S/o Shri Ramswaroop Mali confirming contribution of Rs 5.11 from truck sales cash paid to his farmer Shri Ramswaroop Mali was not admitted by the Honb'le ITAT under Rule 29 of the Income tax Appellate Tribunal Rules, 1963, by holding that the appellant failed to demonstrate as to how the additional document admission application filed by the assessee is meeting with the ingredients contained in Rule 29 of the ITAT Rules. It is most respectfully submitted that the appellant gave reasoning for admission of additional evidences under Rule 29 of ITAT Rules, 1963, in the said application which is reproduced as under: 3 MA 1/JP/2022 SMT. MEERA DEVI VS ITO, WARD 6(1), JAIPUR "It is submitted that the Id. CIT(A) sustained the part addition amounting to Rs.5,11,000/- pertaining to sale of truck by son by holding at para no. 4.3 (page no. 19-20) of the appellate order as under : "I find that that the truck was sold by the son of Shri Ramswaroop Mali and not by Ramswaroop Mali. There is no evidence that the son gave the amount to Shri Ramswaroop Mali. Therefore, the source to the extent of Rs.5,11,000/- cannot be accepted and is correctly added by the Assessing Officer. The balance amount of Rs.4,89,000/- is deleted This ground of appeal is partly allowed." Before, both the lower authorities the appellant had furnished various evidences that a sum of money was received by the appellant from Shri Ramswaroop Mall. The ld. CIT(A), while sustaining the part addition of Rs.5,11,000/-, raised a fresh dispute that there is no evidence that the son gave the money to his father Shri Ramswaroop Mali. Even no opportunity was given by the ld. CIT(A) to clear this doubt and the appellant came to know about it only when the appellate order was received. In the interest of justice, I humbly request you'r honours to kindly admit the aforesaid affidavit of son of Shri Ramswaroop Mali as additional evidence under the Income-tax (Appellate Tribunal) Rules." It is humbly submitted that reasoning was given which unfortunately skipped the kind attention of the Hon'ble ITAT and the application was rejected Moreover, it is most respectfully submitted that since the document go to the root of the matter before the highest fact finding body, its acceptance would have been vital in the interest of justice. 4.3 It was held at page no. 21 that AO had believed the source of Rs. 4,89,000/- from the agricultural income of Shri Ramswaroop Mall. The Hon'ble ITAT erred in holding that Id. AO had believed the source of Rs 4,89,000/- from the agricultural income of Shri Ramswaroop Mali as the Id. AO has disallowed the same It was the ld. CIT(A) who believed the said source and allowed the appeal to this extent. 4.4 It was held that has assesse has not placed on record any document in respect of purchase and sale of truck by son of Shri Ramswaroop Mali whereas details of truck registration no., engine no. and chassis no. were mentioned which is also reproduced as assessee submissions at page no. 17 of the Hon'ble ITAT's order Moreover, copy of Truck agreement was also furnished at paper book page 4 MA 1/JP/2022 SMT. MEERA DEVI VS ITO, WARD 6(1), JAIPUR no 34 to 35 and the ld. AO also admitted the fact of submission of Truck agreement at para no. 5.3 of the assessment order. 4.5 It was held that there is absolutely no evidence to prove that the said son had given amount to his father Shri Ramswaroop Mali whereas at para no 53 of the assessment order the Id. AO stated that in the statements recorded during the assessment proceedings in reply to question on. 8, Mr. Ramswaroop Mali replied that he received Rs. 5,11,000/- from his son who sold truck no. RJ/05/G/4334 for Rs.5,11,000/- and the same was used to advance money to Smt. Meera Devi and the balance of Rs.4,89,000/- was sourced out of his agricultural income. Moreover, Mr. Chittarmal Mali son of Mr. Ramswaroop Mali also filed an affidavit (additional evidence under Rule 29 of ITAT Rules, 1963) confirming payment of Rs.5,11,000/- to his father Mr. Ramswaroop Mali for purchase of property It is further most respectfully submitted that omission to consider material available on record and also omission to consider alternative argument is a mistake apparent from record which can be rectified under section 254(2) of the Act as held in the following cases (a) CIT vs. Mithalal Ashokkumar (1986) 158 ITR 755 (MP) ( b) CIT vs. ITAT (1988) 172 ITR 158 (MP) Hence, in the interest of justice, your honours are requested to kindly consider and allow this present miscellaneous application thereby allowing ground no. 3 wrongly rejected and oblige.’’ 2. At the outset of the hearing, the Bench noted that there is delay of 212 days in filing the Misc. Application by the assessee for which the ld. AR of the assessee filed the following submissions. ‘’1 Issue of Limitation: That Misc. Application u/s 254(2) (hereinafter referred to as MA’’) can be preferred within six months from the end of the month in which order is passed. It was held that date of passing of order shall be reckoned as the date of service of order in Jagmohan Gurbakash Singh vs ITO – ITAT, Chandigarh 5 MA 1/JP/2022 SMT. MEERA DEVI VS ITO, WARD 6(1), JAIPUR Bench in MA No. 42/Chd./2018 decided dated 27-04-2018. Hence, the limitation to prefer MA u/s 254 (2) was 31-08-2021. Hon’ble Supreme Court of India in its order dated 23-09-2021 in Miscellaneous Application No. 665 of 2021 in SMW© No.3/2020 held that in computing the period of limitation for any suit, appeal, application or proceedings, the period from 15-03-2020 till 02-10- 2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15-03-2021 (i.e. five and a half month period from 16-03-2021to 31-08-2021) to be counted from 02-10- 2021. Hence, the present MA is well within the limitation period and is not time barred.’’ 2.2 On the other hand, the ld. DR objected to the Misc. Application of the assesee praying that the assessee wants to get her order reviewed by way of filing the Misc. Application and thus the ld. DR supported the ITAT Order. As regards the late filing of the Misc. Application, the ld. DR submitted that the Court may decide the issue as deem fit and proper in the case. 2.3 We have heard both the parties and perused the materials available on record. As regards the issue of late filing of Misc. Application by the assessee, the Bench finds the submission of the assessee appropriate and the delay in filing the Misc. Application by the assessee is condoned. Further, the Bench noted that the assessee has submitted that the Bench has not considered the judgment of Hon’ble Rajasthan High Court in the case of Aravali Trading Company vs ITO (2008) 8 DTR 199. It is imperative to mention that the Bench has taken into consideration the decision of Aravali Trading Co. vs ITO (supra) vide Ground No. 3 (Para 12 at 6 MA 1/JP/2022 SMT. MEERA DEVI VS ITO, WARD 6(1), JAIPUR page 19 of its order and it is not required to mention each and every decisions cited by the assessee in its findings. The Bench while deciding the issue raised by the assessee makes full efforts to keep in mind the decisions relied upon by the assessee. Therefore, the Bench does not find any infirmity in its order dated 11-11- 2020. In this view of the matter, the Misc. Application filed by the assessee stands dismissed. 3.0 In the result, the Misc. Application of the assessee is dismissed.. Order Pronounced in the Open Court on 13 /09/2022 Sd/- Sd/- ¼ jkBksM deys'k t;UrHkkbZ ½ ¼lanhi xkslkbZ½ (Rathod Kamlesh Jayantbhai) (Sandeep Gosain) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 13 /09/2022 *Mishra vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Smt. Meera Devi, Jaipur 2. izR;FkhZ@ The Respondent- ITO, Ward -6(1), Jaipur 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (MA No. 01/JP/2022) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asstt. Registrar