DCIT CENTRAL CIRCLE-3(1), Mumbai V. YOGESH MEHRA, Mumbai

MA 106/MUM/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3796 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-06-2022
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2007-2008
• Appeal Filed On: 12-05-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Deemed dividend
• Section: 2(22)(e); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “G” MUMBAI BEFORE SHRI AMIT SHUKLA (JUDICIAL MEMBER) AND SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) MA No. 106/MUM/2022 (ITA No. 4006/MUM/2019) Assessment Year: 2007-08 Dy. CIT Cen. Circle-3(1), Room No. 124, 19 th floor, Air India Building, Nariman Point, Mumbai-400021. Vs. M/s Yogesh Mehra, Flat No. 201, Hare Krishna Society, North South Road No.8, Vile Parle West, Mumbai-400049. PAN No. AAAPM 6139 N Appellant Respondent Assessee by : Mr. Siddharth Kothari, AR Revenue by : Mr. Manoj Sinha, DR Date of Hearing : 24/06/2022 Date of pronouncement : 24/06/2022 ORDER PER OM PRAKASH KANT, AM By way of this Miscellaneous Application the Revenue is seeking recall of the order dated 22/07/2021 of the Tribunal in ITA No. 4006/M/2019 for assessment year 2007-08. 2. The Ld. Departmental Representative Miscellaneous Application assessee ground No. 1 to 7 assessee in its appeal challenged two amount of additions made under section 2(22)(e) of the Act’). The first addition was of addition was of ₹2,95,38, No. 5 of the appeal challenging the addition of been adjudicated by the challenging the addition of by the Tribunal and therefore there is mistake apparent in the order of the Tribunal which need to be rectified. 3. The Ld. counsel of the assessee on the other hand submitted that the assessee is not aggrieved by way of not issue raised in ground No. 4, Departmental Representative (DR) Miscellaneous Application submitted that in the appeal filed by the d No. 1 to 7 were raised. He submitted that the assessee in its appeal challenged two amount of additions made under section 2(22)(e) of the Income-tax Act, 1961 (in short ). The first addition was of ₹1,49,55,114/-, where 2,95,38,019/-. The Ld DR submitted that ground No. 5 of the appeal challenging the addition of ₹2,95, been adjudicated by the Tribunal, however the ground No. challenging the addition of ₹1,49,55,114/- has not been adjudicated and therefore there is mistake apparent in the order which need to be rectified. counsel of the assessee on the other hand submitted that the assessee is not aggrieved by way of not adjudication of ground No. 4, by the Tribunal. M/s Yogesh Mehra MA No. 106/M/2022 2 (DR) referring the submitted that in the appeal filed by the . He submitted that the assessee in its appeal challenged two amount of additions made , 1961 (in short ‘the whereas, the second . The Ld DR submitted that ground 2,95,38,019/- has , however the ground No. 4 has not been adjudicated and therefore there is mistake apparent in the order counsel of the assessee on the other hand submitted adjudication of the 4. We have heard rival submiss dispute and perused the relevant there is no dispute on the issue that ground No. adjudicated by the Tribunal “4. On the facts and in the circumstances of the appellant's case and in law the Ld. CIT(A) erred in directing the AO to verify the ledger accounts of WWIL/EIL in the books of S related concerns for ascertaining the claim of appellant that there are no actual payments made/received and only journal entries were passed and if found correct delete the addition of account of deemed dividend made by the O in respect of transaction between WWIL/EIL with 5 related despite the fact that the ledger accounts were available before the A during the course of assessment proceedings and the same were also filed before the Ld. CIT(A)instead of deleting the addition of 4.1 The only objection the assessee is that he does not wish to rectify the said mistake. In our opinion, once a ground has been raised before the Tribunal unless the assessee do not press the ground during the appeal. We have heard rival submission of the parties on the issue dispute and perused the relevant material on record. We find that there is no dispute on the issue that ground No. Tribunal. The said grounds read as under: On the facts and in the circumstances of the appellant's case and in law the Ld. CIT(A) erred in directing the AO to verify the ledger accounts of WWIL/EIL in the books of S related concerns for ascertaining the claim of appellant that there are no actual payments made/received and only journal entries were passed and if found correct delete the addition of ₹1,49,55,114/- on account of deemed dividend made by the O in respect of transaction between WWIL/EIL with 5 related companies despite the fact that the ledger accounts were available before the A during the course of assessment proceedings and the same were also filed before the Ld. CIT(A)instead of deleting the addition of ₹1,49,55,114/- made by the AO.” bjection the assessee is that he does not wish to rectify the said mistake. In our opinion, once a ground has been Tribunal, then that ground has to be adjudicated unless the assessee do not press the ground during the appeal. M/s Yogesh Mehra MA No. 106/M/2022 3 ion of the parties on the issue-in- record. We find that there is no dispute on the issue that ground No. 4 has not been he said grounds read as under: On the facts and in the circumstances of the appellant's case and in law the Ld. CIT(A) erred in directing the AO to verify the ledger accounts of WWIL/EIL in the books of S related concerns for ascertaining the claim of appellant that there are no actual payments made/received and only journal entries were passed and if on account of deemed dividend made by the O in respect of companies despite the fact that the ledger accounts were available before the A during the course of assessment proceedings and the same were also filed before the Ld. CIT(A)instead of bjection the assessee is that he does not wish to rectify the said mistake. In our opinion, once a ground has been , then that ground has to be adjudicated unless the assessee do not press the ground during the appeal. In the present matter before us said ground was not pressed by the assessee. person, who may request for rectification, t 254(2) of the Act is reproduced as under: “Section 254(2) of the The Appellate Tribunal may, at any time within [six months from the end of the month in which the order was passed], with a view to rectification any mistake apparent from record, amend any order passed by it under sub make such amendment by the assessee or the [Assessing] Officer: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not b unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard: [Provided further this sub-section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees. ent matter before us, it is not the case of the assessee that said ground was not pressed by the assessee. As regards to the person, who may request for rectification, the relevant section is reproduced as under: 254(2) of the Act The Appellate Tribunal may, at any time within [six months from the end of the month in which the order was passed], with a view to rectification any mistake apparent from record, amend any order passed by it under sub-section (1), and shall amendment if the mistake is brought to its notice by the assessee or the [Assessing] Officer: that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard: Provided further that any application filed by the assessee in section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.]” (Emphasis supplied externally) M/s Yogesh Mehra MA No. 106/M/2022 4 , it is not the case of the assessee that As regards to the he relevant section The Appellate Tribunal may, at any time within [six months from the end of the month in which the order was passed], with a view to rectification any mistake apparent from record, section (1), and shall if the mistake is brought to its notice that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable that any application filed by the assessee in section on or after the 1st day of October, 1998, shall (Emphasis supplied externally) 4.2 The plain reading of the above section makes it clear that the Tribunal may rectify any mistake apparent from the record mistake is brought to its notice either by the asses Assessing Officer, subject to reasonable opportunity of being heard provided to the assessee. In our opinion, thus there is no rectifying order of the Miscellaneous Application heard the objection of the assessee. In view of above, we reject the contention of the assessee challenging rectification application preferred by the Revenue adjudication of the ground No. is a mistake apparent in the order of the recall the order of the adjudication of ground No. to fix the appeal for hearing after notifying the parties in accordance with ITAT Rules, 1963. plain reading of the above section makes it clear that the rectify any mistake apparent from the record mistake is brought to its notice either by the asses , subject to reasonable opportunity of being heard provided to the assessee. In our opinion, thus there is no rectifying order of the Tribunal in the case of appeal Miscellaneous Application filed by the Revenue, as we have already heard the objection of the assessee. In view of above, we reject the contention of the assessee challenging rectification application Revenue. We accordingly, hold that in view of non adjudication of the ground No. 4 of the appeal by the is a mistake apparent in the order of the Tribunal, and therefore we recall the order of the Tribunal for the limited purpose of adjudication of ground No. 4 of the appeal. The Registry hearing after notifying the parties in accordance with ITAT Rules, 1963. M/s Yogesh Mehra MA No. 106/M/2022 5 plain reading of the above section makes it clear that the rectify any mistake apparent from the record if such mistake is brought to its notice either by the assessee or by the , subject to reasonable opportunity of being heard provided to the assessee. In our opinion, thus there is no bar in in the case of appeal of assessee, on , as we have already heard the objection of the assessee. In view of above, we reject the contention of the assessee challenging rectification application . We accordingly, hold that in view of non- f the appeal by the Tribunal, there , and therefore we for the limited purpose of Registry is directed hearing after notifying the parties in accordance 5. In the result, the Revenue is allowed. Order pronounced in the Court on Sd/- (AMIT SHUKLA JUDICIAL MEMBER Mumbai; Dated: 24/06/2022 Rahul Sharma, Sr. P.S. 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. //True Copy// In the result, the Miscellaneous Application ounced in the Court on 24/06/2022. Sd/- AMIT SHUKLA) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT Copy of the Order forwarded to : BY ORDER, (Sr. Private Secretary ITAT, Mumbai M/s Yogesh Mehra MA No. 106/M/2022 6 Miscellaneous Application filed by the OM PRAKASH KANT) MEMBER Private Secretary) ITAT, Mumbai