SHRI GOPALDAS GARG, Ujjain V. The DCIT 1(1), Ujjain

MA 125/IND/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5425 (ITAT-INDORE)
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 02-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Assessee Lawyers: ASHOK BHANUPRIYA CAS

Judgement Text

SHRI GOPAL DAS GARG/ M. A. NO.125/ IND/2016/ ARISIN G OUT OF I. T. A. NO. 373/IND/2014/A.Y.:10-11 PAGE 1 OF 4 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE , ' .. , ' BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER SHRI GOPAL DAS GARG, UJJAIN VS. DCIT 1(1) UJJAIN / / / / APPELLANT / / / / RESPONDENT .../ PAN: ACKPJ 1349 Q / / / / APPELLANT BY SHRI SHARAD JAIN AND SHRI ASHOK BHANUPRIYA CA`S / / / / RESPONDENT BY SHRI MOHD. JAVED, SR. D.R. / // / DATE OF HEARING 31 - 03 - 2017 / // / DATE OF PRONOUNCEMENT 31-03-2017 / / / / O R D E R PER O.P. MEENA, ACCOUTANT MEMBER. 1. THROUGH THIS MISCELLANEOUS APPLICATION, THE ASSESSE E HAS POINTED OUT THAT THERE IS A MISTAKE APPARENT FROM RECORDS IN TH E ORDER OF TRIBUNAL PASSED IN I.T.A. NO.373/IND/2014 DATED 28-10-2016. 2. THE LEARNED COUNSEL FOR THE ASSESSEE, SUBMITTED THA T THE ASSESSEE MADE PAYMENTS TOWARDS LIABILITY OF M/S. REEMA TRADING CO . (ADDITIONS RS. 5, 41, 7 85) AND M/S. KALURAM SATYANARAYAN (ADDITION OF RS. 3 , 65, 530). THEREFORE, THE TRIBUNAL HAS DELETED THE ADDITIONS OF RS.5, 41, 7 85/-AND RS. 3, 65, 530/-. M. A. NO. 125/ IND/2016 / ARISING OUT OF .../ I.T.A. NO.373/IND/2014 / ASSESSMENT YEAR:2010-11 SHRI GOPAL DAS GARG/ M. A. NO.125/ IND/2016/ ARISIN G OUT OF I. T. A. NO. 373/IND/2014/A.Y.:10-11 PAGE 2 OF 4 THE SAME IS APPEARING FROM PARAGRAPH 5 AT PAGE 5. T HE RELEVANT LINES ARE AS UNDER: WE HAVE HEARD THE RIVAL SUBMISSIONS. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT AS PER THE SUBMISSIONS OF THE ASSESSEE IN RESPECT OF TWO PARTIES, THE ASSESSEE HA S ALREADY PAID THE LIABILITY AND WHEN THE ASSESSEE HAS ALREADY PAID T HE LIABILITY, NO ADDITION CAN BE MADE THE LEARNED COUNSEL SUBMITTED THAT DESPITE ABOVE DE LETION, DUE TO LANGUAGE OF LINES 7-9, IT IS APPEARING THAT ADDITION IN THE RES PECT OF M/S. KALURAM SATYANARAYAN HAS NOT BEEN DELETED. IN APPEAL EFFECT PROCEEDINGS, THE AO MAY NOT GIVE RELIEF TO THE ASSESSEE IN RESPECT OF M/S. KALURAM SATYANARAYAN, DESPITE RELIEF BY THE HONBLE TRIBUNAL. THE RELEVA NT LINES ARE: NO ADDITION CAN BE MADE IN CASE OF RIMA TRADING COMPANY ADDITION OF RS. 5, 41, 785/-. THEREFORE, WE DELETE THE SAME. IN RESPECT OF KALURAM SATYANARAYAN AND 5 CREDITORS THE ASSESSEE D ID NOT PRODUCE THE CREDITORS.. THEREFORE, THE LEARNED COUNSEL REQUESTED THAT A CLA RIFICATION BE ISSUED TO THE LOWER AUTHORITIES, AS FOR DELETION OF ADDITION OF R S.3, 65, 530/-IN RESPECT OF M/S. KALURAM SATYANARAYAN. 3. ON THE OTHER HAND, THE LD. SR. D.R. SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF THE TRIBUN AL. THE TRIBUNAL HAS EXPLICITLY SUSTAINED THE ADDITION IN RESPECT OF M/S . KALURAM SATYANARAYAN. SHRI GOPAL DAS GARG/ M. A. NO.125/ IND/2016/ ARISIN G OUT OF I. T. A. NO. 373/IND/2014/A.Y.:10-11 PAGE 3 OF 4 4. WE HAVE HEARD THE PARTIES, CONSIDERED THE FACTS, AN D GONE THROUGH THE ORDER OF THE TRIBUNAL. FOR THE SAKE OF CLARITY, WE REPRODUCED THE LINE OF THE ORDER OF THE TRIBUNAL WHICH READS AS UNDER:- WE HAVE HEARD THE RIVAL SUBMISSIONS. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT AS PER THE SUBMISSION OF THE ASSESSEE IN RESPECT OF TWO PARTIE S, THE ASSESSEE HAS ALREADY PAID THE LIABILITY AND WHEN TH E ASSESSEE HAS ALREADY PAID THE LIABILITY, NO ADDITION CAN BE MADE IN THE CASE OF RIMA TRADING COMPANY ADDITION OF RS.5, 41, 785/-. THEREFORE, WE DELETE THE SAME. IN RESPECT OF KALURA M SATYANARAYAN AND 5 CREDITORS THE ASSESSEE DID NOT P RODUCED THE CREDITORS AND IN THE CASE OF 5 CREDITORS, THE L ETTER WAS NOT SERVED. THE ISSUE IN CONTROVERSY IS COVERED BY THE DECISION OF THE HON`BLE DELHI HIGH COURT IN THE CASE OF CIT VS. CHIPSOFT TECHNOLOGY PVT. LTD. (SUPRA), WHEREIN THE ON HON`B LE HIGH COURT HAS HELD AS UNDER: RESPECTFULLY FOLLOWING THE SAME, WE UPHOLD THEN ACTION OF THE LEARNED CIT (A) THE PLAIN READING OF ABOVE OPERATIVE PART OF THE OR DER OF THE TRIBUNAL MAKES IT CLEAR THAT THE CLAIM OF THE ASSESSEE WITH REFERENCE TO M/S. KALURAM SATYANARAYAN, WAS DISCUSSED BUT IT TOOK A SPECIFIC VIEW THAT IN RESPECT OF KALURAM SATYANARAYAN AND 5 CREDITORS, THE ASSESSEE DID NOT PRODUCE THE PARTIES AND ALSO IN RESPECT OF 5 CREDITORS LETTERS WERE NOT SERVED, THEREFORE, TRIBUNAL CAME TO THE CONCLUSION THAT THE CLAIM OF T HE ASSESSEE IN RESPECT OF M/S. KALURAM SATYANARAYAN AND 5 CREDITORS IS NOT AL LOWABLE AS THE ASSESSEE HAS FAILED TO PRODUCE THE SAID PARTY BEFORE THE AO. WE FURTHER FIND THAT THE TRIBUNAL FOLLOWING THE RATIO LAID DOWN BY THE HON`B LE DELHI HIGH COURT IN THE CASE OF CIT V. CHIPSOFT TECHNOLOGY PVT. LTD. HAD E XPLICITLY CONFIRMED THE ADDITION MADE IN THE CASE OF M/S. KALURAM SATYANARA YAN AND 5 OTHER CREDITORS. THEREFORE, IN SUCH CIRCUMSTANCES OF THE CASE AND FACTS, THERE IS NO MISTAKE APPARENT FROM RECORDS IN THE ORDER OF TRIBU NAL. THE INTERPRETATION AS SHRI GOPAL DAS GARG/ M. A. NO.125/ IND/2016/ ARISIN G OUT OF I. T. A. NO. 373/IND/2014/A.Y.:10-11 PAGE 4 OF 4 BEING SOUGHT BY THE ASSESSEE, IF CONSIDERED, WOULD TANTAMOUNT TO REVIEW OF THE FINDING ARRIVED AT IN THE ORIGINAL ORDER OF THE TRI BUNAL. IN OUR CONSIDERED OPINION, IN SUM AND SUBSTANCE, THE ASSESSEE IS SEEK ING THE REVIEW OF THE ORDER OF THE TRIBUNAL, WHICH IS NOT PERMISSIBLE. IN SUPPO RT OF OUR OPINION, WE RELY ON THE DECISION OF HON`BLE SUPREME COURT IN IN THE CAS E OF PATEL NARSHI THAKERSHI VS. PRADHYUMANSINGHJI ARJUNSINGHJI [1971] 3 SCC 844 WHEREIN IT WAS HELD THAT NO REVIEW LIES ON MERITS UNLESS A STA TUTE SPECIFICALLY PROVIDES FOR IT. OBVIOUSLY, WHEN A REVIEW IS SOUGHT DUE TO PROCE DURAL DEFECT, THE INADVERTENT ERROR COMMITTED BY THE TRIBUNAL MUST BE CORRECTED EX DEBITO JUSTITIAE TO PREVENT THE ABUSE OF ITS PROCESS, AND SUCH POWE R INHERES IN EVERY COURT OR TRIBUNAL. IN VIEW OF THIS MATTER, WE FIND NO MERIT IN THIS MISC. APPLICATION OF THE ASSESSEE. THE SAME IS THEREFORE, DISMISSED. 5. IN THE RESULT, MISC. APPLICATION IS DISMISSED. 6. THE ORDER PRONOUNCED IN THE OPEN COURT ON 31-03-201 7. SD/ - SD/ - ( ) (..) - / DATED : 31-03-2017/OPM