MR. PRERAK GOEL, V. ACIT, CENTRAL CIRCLE-10,

MA 1/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7860 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-02-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 03-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: C G K NAIR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, C , BENCH BEFORE SHRI N.V. VASUDEVAN,J.M. AND SHRI RAJENDRA SINGH, A.M. MA NO: 01/MUM/2011 ARISING OUT OF :ITA NO.2932 & 2936/M/2008 ASSESSMENT YEAR -2002-03 & 2003-04 PRERAK GOEL 101 DHEERAJA ARMA C/O., ROCHEM SEPARATION SYSTEMS (I) PVT. LTD. ANANT KANEKAR MARG BANDRA (E) MUMBAI. PAN NO.: AAKPG 8954 B ASSTT. COMMISSIONER OF INCOME TAX , CENTRAL CIRCLE-10 8 TH FLOOR, CGO BUILDING ANNEX M.K. MARG MUMBAI-400 020. (APPLICANT) VS. (RESPONDENT) APPLICANT BY : SHRI VINOD KUMAR BINDAL RESPONDENT BY : SHRI C.G.K. NAIR DATE OF HEARING : 24.02.2012 DATE OF PRONOUNCEMENT : 29.02.2012 ORDER PER RAJENDRA SINGH (AM). THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSE SSEE REQUESTING FOR RECALL OF THE ORDER DATED 12.11.2010 O F THE TRIBUNAL IN ITA NO.2932 & 2936/M/2008 ON THE GROUND THAT SOME AR GUMENTS ADVANCED BY THE ASSESSEE HAD NOT BEEN CONSIDERED. 2. THE FACTS IN BRIEF ARE THAT THE COMPANY IN WHICH THE FATHER OF THE ASSESSEE WAS THE MANAGING DIRECTOR HAD INCURRED EXPENDITU RE OF MA NO.01/M/11 ARISING OUT OF ITA NO.2932/M/08 AND 2936/M/08 A.Y:02-03 AND 03-04 2 RS.6,69,142/- IN ASSESSMENT YEAR 2002-03 AND RS. 8,53,286/- FOR THE ASSESSMENT YEAR 2003-04 ON THE FOREIGN EDUCATION OF THE ASSESSEE. THE ASSESSEE WAS ONLY A MANAGEMENT TRAINEE AND NOT AN EM PLOYEE OF THE COMPANY. THE AO THEREFORE ASSESSED THE EXPENDITURE INCURRED AS INCOME OF THE ASSESSEE UNDER SECTION 2(24)(IV). IN APPEAL CIT(A) HAD CONFIRMED THE ORDER OF AO FOLLOWI NG THE JUDGMENT OF HONBLE HIGH COURT OF MADRAS IN THE CASE OF CIT VS. SMT. SUREKHA P. KOTHARI (267 ITR 406) AND ON THE JUDGMENT OF HONBLE HIGH COURT OF DELHI IN THE CASE OF SMT. SUDHA BURMAN VS CIT (296 ITR 96) . IN FURTHER APPEAL, THE TRIBUNAL AGREED WITH THE FINDIN G OF THE AUTHORITIES BELOW THAT THE ASSESSEE HAD BEEN SPONSORED FOR FOREIGN E DUCATION ONLY BECAUSE OF THE CLOSE RELATIONSHIP WITH THE MANAGING DIRE CTOR. THE AGREEMENT OF SERVICE WITH THE COMPANY ON RETURN FROM F OREIGN EDUCATION WAS ONLY SELF CERTIFYING DOCUMENT. THE TRIBUN AL ACCORDINGLY CONFIRMED THE ASSESSMENT OF INCOME IN CASE OF THE ASSESSEE. SUBSEQUENTLY, THE TRIBUNAL RECALLED ITS ORDER ONLY TO CONSIDER THE APPLICABILITY OF THE DECISION OF THE TRIBUNAL IN CASE OF M/S. BAKTAVAR P. DUBHASH IN ITA NO.4301/M/2003 REPORTED IN 2009-TIOL-288-ITAT- MUM. 3. IN THE FRESH ORDER, THE TRIBUNAL DULY CONSIDERED T HE DECISION OF THE TRIBUNAL IN THE CASE OF M/S. BAKTAVAR P. DUBHASH . THE TRIBUNAL NOTED THAT IN CASE OF M/S. BAKTAVAR P. DUBHASH (SUPRA), THE TRIBUNAL MA NO.01/M/11 ARISING OUT OF ITA NO.2932/M/08 AND 2936/M/08 A.Y:02-03 AND 03-04 3 HAD ACTED ON ASSUMPTION THAT THE SAME INCOME HAD BEEN TA XED TWICE WHICH WAS NOT CORRECT BECAUSE THE INCOME HAD BEEN TAXED O NLY IN CASE OF M/S. BAKTAVAR P. DUBHASH AND IN CASE OF THE COMPANY, IT WAS ONLY A CLAIM OF EXPENDITURE WHICH WAS NOT INCOME AND WHICH HAD BEEN DISALLOWED. THE TRIBUNAL ALSO OBSERVED THAT IN VIEW O F THE ABOVE POSITION AND ALSO BECAUSE OF THE FACT THAT CIT(A) HAD RE LIED ON TWO JUDGMENTS OF HIGH COURTS I.E. THE JUDGMENT OF HONBLE M ADRAS HIGH COURT IN THE CASE OF SMT. SUREKHA P. KOTHARI (SUPRA), AND THE JUDGMENT OF HONBLE HIGH COURT OF DELHI IN CASE OF SMT. SUDHA BURMAN (SUPRA), WHICH WERE DIRECTLY ON THE ISSUE, THE DECISION OF THE TRIBUNAL CITED, COULD NOT BE FOLLOWED. THE TRIBUNAL ACCORDINGLY CONFIRMED THE ORDER OF CIT(A) AGAIN IN THE FRESH ORDER AGGRIEVED B Y WHICH THE MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE. 4. BEFORE US THE LD. AR FOR THE ASSESSEE SUBMITTED THAT T HE TRIBUNAL HAD NOT CONSIDERED THE ARGUMENT OF THE ASSESSEE THAT INCOM E ON ACCOUNT OF DISALLOWANCE OF FOREIGN EXPENDITURE COULD BE ADDED ONLY IN CASE OF THE FATHER OF THE ASSESSEE AND NOT IN CASE OF THE A SSESSEE WHICH CONSTITUTES APPARENT MISTAKE FROM RECORDS AND ACCORDI NGLY IT WAS REQUESTED THAT THE ORDER SHOULD BE RECALLED. THE L D. DR ON THE OTHER HAND SUBMITTED THAT THE TRIBUNAL HAD PASSED A RE ASONED AND SPEAKING ORDER AND THEREFORE WAS NO APPARENT MISTAKE F OR WHICH IT COULD BE RECALLED. MA NO.01/M/11 ARISING OUT OF ITA NO.2932/M/08 AND 2936/M/08 A.Y:02-03 AND 03-04 4 5. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE MATTER CAREFULLY. THE ISSUE IS WHETHER THERE WAS ANY APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL DATED 12.11.2011. THE ORDER H AS BEEN PASSED BY THE TRIBUNAL IN THE RECALL PROCEEDINGS AND THE EARLIER ORDER HAD BEEN RECALLED ONLY TO CONSIDER THE APPLICABILITY OF THE DECISI ON OF THE TRIBUNAL IN CASE OF M/S. BAKTAVAR P. DUBHASH (SUPRA), AND THEREFORE IN THE RECALLED PROCEEDINGS, NO OTHER ARGUMENT COULD BE CONSIDER ED BY THE TRIBUNAL. THE TRIBUNAL AS POINTED OUT EARLIER HAD D ULY CONSIDERED THE DECISION OF TRIBUNAL IN CASE OF M/S. BAKTAVAR P. DUBHASH (SUPRA), AND HAD HELD THAT THE SAID DECISION COULD NOT BE FOLLOWED F OR REASONS GIVEN IN THE ORDER. THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN DECISION. IT CAN ONLY RECTIFY PATENT AND OBVIOUS MISTAKES WHICH ARE AP PARENT FROM RECORD WHICH IS NOT SO IN THIS CASE. WE, THEREFORE, SEE N O MERIT IN THE MISCELLANEOUS APPLICATION AND SAME IS REJECTED. 6. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSE E STANDS REJECTED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.2.2012. SD/- SD/- (N.V. VASUDEVAN) ( RAJENDRA SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 29.2.2012. JV. MA NO.01/M/11 ARISING OUT OF ITA NO.2932/M/08 AND 2936/M/08 A.Y:02-03 AND 03-04 5 COPY TO: THE APPLICANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.