ASHOK J. THAKKAR, MUMBAI V. ASST CIT CEN CIR 39, MUMBAI

MA 13/MUM/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5511 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 10-01-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: DI LIP J THAKKAR
• Keywords: Rectification of order

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) M.A. NO. 13/MUM/2019 ARISING OUT OF M.A. NO. 42/MUM/2018 (ASSESSMENT YEAR 20 12 - 13 ) LATE SHRI ASHOK J. THAKKAR (THROUGH LEGAL HEIR SMT. SMITA ASHOK THAKKAR) 111 - A, MAHA TMA GANDHI ROAD, KARIMJI BUILDING FORT, MUMBAI - 400 023. PAN : AAAPT7132J V S . ACIT, CC - 39 MUMBAI ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SRI DILIP J. THAKKAR & SHRI RAJESH P. SHAH DEPARTMENT BY SHRI ABIRAMA KARTHIKEYAN DATE OF HEARING 29.3 . 20 1 9 DATE OF PRONOUNCEMENT 29 . 5 . 201 9 O R D E R PER SHAMIM YAHYA (AM) : BY WAY OF THIS MISCELLANEOUS APPLICATION ASSESSEE SEEKS RECTIFICATION OF MISTAKE U/S. 254(2) OF THE AC IN MISCELLANEOUS APPLICATION ORDER OF THIS TRIBUNAL IN M.A. NO. 42/MUM/201 8 . IN THE MISCELLANEOUS APPLICATION ASSESSEE SUBMITS THAT EARLIER THE ASSESSEE HAS FILED MISCELLANEOUS APPLICATION SUBMITTING THAT IN INCOME TAX APPEAL THERE WERE AFFIDAVIT FILED FOR THE PROPOSITION THAT THE JEWELLERY FOUND IN SEARCH BELONGED TO DAUGHTER I N LAW. THE ASSESSEE SUBMITS THAT ITAT HAS WRONGLY CONSIDERED IT AS AN AFTERTHOUGHT. FURTHER THE ASSESSEE SUBMITS THAT IN INCOME TAX APPEAL THE ITAT HAS REFERRED AND RELIED ON THE HON'BLE BOMBAY HIGH COURT DECISION. ASSESSEES CLAIM IS THAT THE SAID DECISIO N WAS IN FAVOUR OF THE ASSESSEE. IT IS ASSESSEES SUBMISSION THAT THOUGH MISCELLANEOUS APPLICATION WAS FILED THERE IS NO CLARIFICATION TO ISSUES RAISED IN MISCELLANEOUS APPLICATION. IT IS FURTHER SUBMITTED THAT IN FACT ITAT IN LEGAL HEIR S CASE HAS REFERRED TH E MATTER BACK TO THE ASSESSING OFFICER FOR LATE SHRI ASHOK J. THAKKAR 2 RECONCILIATION AND VERIFICATION OF JEWELLERY. HENCE, IT HAS BEEN SUBMITTED THAT THE INCOME TAX APPEAL MAY BE RECALLED FOR FRESH HEARING. 2. PER CONTRA, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT FIRSTLY M ISCELLANEOUS APPLICATION SEEKING RECTIFICATION OF MISTAKE APPARENT FROM RECORD U/S. 254(2) IN MISCELLANEOUS APPLICATION ORDER ITSELF IS NOT PERMITTED AS THE ACT DOES NOT POSTULATE MISCELLANEOUS APPLICATION AGAINST MISCELLANEOUS APPLICATION. FURTHERMORE, LE ARNED DR SUBMITTED THAT THE IN THE INCOME TAX APPEAL, ITAT HAS DULY EXAMINED ASSESSEES SUBMISSION AND FOUND THE SAME TO BE AN AFTERTHOUGHT. FURTHER, LEARNED DEPARTMENTAL REPRESENTATIVE PRAYED THAT THE ASSESSEE NOW INSISTS THAT THIS FINDING SHOULD BE CHANG ED AND ASSESSEES AFFIDAVIT SHOULD BE SUBSTITUTED TO THAT. LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT ASSESSEE IS CLEARLY SEEKING REVIEW OF THE ORDER IN THE GARB OF MISTAKE APPARENT FROM RECORD. 3. UPON CAREFUL CONSIDERATION, WE FIND THAT ASSESSE E IN THIS CASE IS SEEKING REVIEW OF THE ORDER OF THE TRIBUNAL IN ABOVE INCOME TAX APPEAL NO. 5732/MUM/2016 FOR THE A.Y. 2011 - 13 VIDE ORDER DATED 4.9.2017 . ITAT WAS VERY MUCH CONSCIOUS ABOUT THE ASSESSEES CLAIM THAT THE JEWELLERY BELONGS TO DAUGHTER IN LAW . HOWEVER, ITAT CONSIDERED IT AN AFTERTHOUGHT. NOW ASSESSEE SEEKS THAT THE SAID ORDER MAY BE REVIEWED AND ASSESSEES CLAIM ACCEPTED. THE ASSESSEE ALSO SUBMITS THAT CASE LAW RELIED BY THE ITAT IN THE M.A. ACTUALLY HELPS THE ASSESSEE. 4. WE FIND THAT THE AS SESSEE IS CLEARLY SEEKING REVIEW OF THE ORDER BY THE ASSESSEE WHICH IS NOT PERMISSIBLE UNDER THE ACT. FURTHERMORE, WE FIND THAT THE SAME ISSUE IN A N M.A. WAS DEALT WITH BY THE ITAT IN MISCELLANEOUS APPLICATION NO. 42/MUM/2018 AGAINST WHICH THIS MISCELLANEO US APPLICATION HAS BEEN FILED. ITAT HAS DULY PASSED THE ORDER IN MISCELLANEOUS APPLICATION WHICH NOW ASSESSEE CLAIMS THAT THE ORDER DID NOT CLARIFY ASSESSEES POINT. WE DO NOT FIND ANY COGENCY WHATSOEVER IN THE SUBMISSION OF THE ASSESSEE. THE ASSESSEE BY LATE SHRI ASHOK J. THAKKAR 3 ANY MEANS WANTS A REVIEW OF THE ITAT ORDER AND ACCEPTANCE OF ITS CLAIM WHICH WAS REJECTED AS AN AFTERTHOUGHT. THIS IS NOT AT ALL PERMISSIBLE IN AN MISCELLANEOUS APPLICATION. HENCE, THIS MISCELLANEOUS APPLICATION STANDS DISMISSED. ORDER HAS BE EN PRO NOUNCED IN THE COURT ON 29 . 5 . 201 9 . SD / - (SH A MIM YAHYA ) ACCOUNTANT MEMBER MUMBAI ; DATED : 29 / 5 / 20 1 9 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// ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI