SASIKUMAR V. PILLAI, V. ITO 23(3)(4),

MA 102/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4122 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2007-2008
• Appeal Filed On: 27-04-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M SALMAN KHAN
• Assessee Lawyers: S C TIWARI
• Keywords: Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI C.N. PRASAD (JM) M.A. NO. 102/MUM/2015 (OUT OF I.T.A. NO. 5382/MUM/2012) (ASSESSMENT YEAR 2007 - 2008) MR. SASIKUMAR V. PILLAI F - 35, SHARAD INDUSTRIAL ESTATE, LAKE ROAD, BHANDUP (W), MUMBAI 400 078. VS. ITO 23(3)(4), MUMBAI ( APPLICANT ) .. ( RESPONDENT ) PAN NO.AABPP6472C ASSESSEE BY : SHRI S.C. TIWARI DEPARTMENT BY : SHRI M. SALMAN KHAN DATE OF HEARING : 04.03.2016 DATE OF PRONOUNCEMENT : 04 .03.2016 O R D E R PER B.R. BASKARAN, AM : - THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATION SEEKING RECTIFICATION OF MISTAKE IN THE ORDER DT. 9.1.2015 PASSED IN THE CASE OF SHRI SASIKUMAR V. PILLAI IN ITA NO. 5382/MUM/2012 RELATING TO A.Y 2007 - 08 . 2. THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT THE TRIBUNAL DID NOT TAKE INTO ACCOUNT THE SUBMISSIONS OF THE ASSESSEE THAT THE ORDER PASSED BY THE COORDINATE BENCH OF THE TRIBUNAL IN THE QUANTUM APPEAL WAS ERRONEOUS AND IN THE INTEREST OF JUSTICE, THE SAME 2 MR. SASIKUMAR V. PILLAI M.A NO. 102/MUM/2015 IS REQUIRED TO BE RE - EXAMINED IN THE PRESENT APPEAL FILED AGAINST THE PENALTY ORDER PASSED U/S 271(1)(C) OF THE ACT. THE LD. COUNSEL ALSO SUBMITTED THAT THE BENCH , ON AN EARLIER OCCASION, OBSERVED THAT THE MATTER SHALL BE RESTORED TO THE AO FOR TAKING DECISION AFRESH AND WITH THE SAID OBSERVATION, THE BENCH ADJOURNED THE MATTER TO THE NEXT DAY TO FURNISH DETAILS OF EXPLANATION GIVEN TO THE AO IN THE PENALTY PROCEEDINGS. HOWEVER, THE TRIBUNAL HAS DI SMISSED THE APPEAL OF THE ASSESSEE INSTEAD OF SETTING ASIDE THE SAME TO THE FILE OF THE AO. ACCORDINGLY, THE LD. AR SUBMITTED THAT THE DECISION TAKEN BY THE TRIBUNAL IS IN CONTRADICTION TO THE OBSERVATIONS MADE ON THE BENCH AND FURTHER, NON - CONSIDERATION OF THE REQUEST OF THE ASSESSEE TO RE - EXAMINE THE ORDER PASSED IN THE QUANTUM APPEAL RESULTS IN MISTAKE APPARENT FROM THE RECORD. ACCORDINGLY, THE LD. AR PRAYED THAT THE IMPUGNED ORDER OF THE TRIBUNAL MAY BE AMENDED TO RECTIFY THE MISTAKE S . 3. ON THE CO NTRARY, THE LD. DR SUBMITTED THAT THE PETITION FILED BY THE ASSESSEE, IN FACT, REQUIRES THE TRIBUNAL TO REVIEW ITS DECISION , WHICH THE TRIBUNAL IS NOT EMPOWERED TO DO U/S 254(2) OF THE ACT. THE LD. DR FURTHER SUBMITTED THAT THE PENALTY WAS CONFIRMED BY TH E TRIBUNAL SINCE THE ASSESSEE HAS FAILED TO FURNISH ANY EXPLANATION AS REQUIRED UNDER EXPL. 1 TO SEC. 271(1)(C) OF THE ACT. HE FURTHER SUBMITTED THAT, AT THE TIME OF HEARING , THE LD. A.R ADVANCED MANY ARGUMENTS AND HENCE THE TRIBUNAL DIRECT ED HIM TO BRIN G EVIDENCE TO SHOW THAT THE SIMILAR KIND OF EXPLANATIONS WAS ALSO GIVEN BEFORE THE AO. HENCE THE CASE WAS ADJOURNED NEXT DAY TO PROVIDE AN OPPORTUNITY TO THE ASSESSEE. HOWEVER, THE ASSESSEE ADMITTED ON THE NEXT DAY THAT NO SUCH EXPLANATION WAS FILED. TH E LD D.R SUBMITTED THAT THESE FACTS HAVE ALSO BEEN ACCEPTED IN THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE. UNDER THESE SET OF FACTS, THE TRIBUNAL AFFIRMED THE ORDER OF THE LD. 3 MR. SASIKUMAR V. PILLAI M.A NO. 102/MUM/2015 CIT(A) , SINCE THE ASSESSEE HAS NOT OFFERED ANY EXPLANATIONS BEFORE THE AO /CIT(A) AS REQUIRED BY THE EXPLANATION 1 TO SEC. 271(1)(C) OF THE ACT. ACCORDINGLY HE SUBMITTED THAT ORDER PASSED BY THE TRIBUNAL DOES NOT SUFFER FROM ANY MISTAKES AND DOES NOT REQUIRE INTERFERENCE U/S 254(2) OF THE ACT. 4. WE HEARD THE RIVAL CONTENTION S AND PERUSED THE RECORD. 5. ON A PERUSAL OF THE ORDER PASSED BY THE TRIBUNAL, WE NOTICED THAT THE TRIBUNAL HAS SPECIFICALLY OBSERVED THAT EXPL. 1 TO SEC. 271(1)(C) OF THE ACT PLACES INITIAL ONUS UPON THE ASSESSEE TO FURNISH RELEVANT MATERIALS, DOCUMENTS AND EXPLANATIONS, AND IN THIS REGARD, THE TRIBUNAL HAD ALSO TAKEN SUPPORT OF THE DECISION RENDERED BY THE HONBLE SUPREME COURT IN THE CASE OF K.P. MADHUSUDHANAN (251 ITR 99) AND MAK DATA PVT. LTD. (38 TAXMANN.COM 448) . FURTHER, THE TRIBUNAL HAS GIVEN A CLEAR FINDING THAT THE ASSESSEE HAS FAILED TO FURNISH ANY EXPLANATION WITH REGARD TO THE ADDITIONS ON WHICH THE IMPUGNED PENALTY HAS BEEN IMPOSED. HENCE, T HE SUBMISSIONS OF THE ASSESSEE IN THE PRESENT PETITION ABOUT NON - CONSIDERATION OF THE PLEA TO RE - EXAMINE THE ORD ER PASSED IN THE QUANTUM APPEAL, IN OUR VIEW, CANNOT CONSIDERED TO BE A MISTAKE APPARENT FROM RECORD, SINCE THE TRIBUNAL HAS PASSED THE ORDER BY CONSIDERING THE CONTENTIONS WHICH ARE FOUND TO BE RELEVANT. SIMILARLY THE OBSERVATIONS, IF ANY, MADE ON THE BENCH CANNOT BE CONSIDERED TO BE A MISTAKE APPARENT FROM THE RECORD. AS RIGHTLY POINTED OUT BY LD D.R, THE REQUESTS OF THE ASSESSEE WOULD RESULT IN REVIEW OF THE ORDER PASSED BY THE TRIBUNAL, WHICH IT IS NOT PERMITTED TO DO U/S. 254(2) OF THE ACT. ACCORDINGLY, WE DO NOT FIND ANY MERIT IN THE PETITION FILED BY THE ASSESSEE AND, ACCORDINGLY WE REJECT THE SAME. 4 MR. SASIKUMAR V. PILLAI M.A NO. 102/MUM/2015 6. IN THE RESULT, THE M ISCELLANEOUS A PPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 04 .03.2016. SD/ - SD/ - ( C.N. PRASAD ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 04 .03.2016 *SSL* COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI