GEETHA MEHRA, MUMBAI V. DCIT CENT. CIR. 44, MUMBAI

MA 139/MUM/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 5138 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-12-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2002-2003
• Appeal Filed On: 27-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S SENTHI KUMARAN
• Assessee Lawyers: J PRABHAKAR
• Keywords: Unexplained investment; Additional evidence
• Section: 153A

Judgement Text

,' INCOME TAX APPELLATE TRIBUNAL,MUMBAI- G,BENCH , , BEFORE S/SH. RAJENDRA,ACCOUNTANT MEMBER & RAVISH SO OD, JUDICIAL MEMBER MA NO.139 TO 144/MUM/2016 ARISING OUT OF ./ ITA/5018/MUM/2011, 360/M/2012,5019/M/2011,5020/M/20115021/M/2011,361/M /2012 , / ASSESSMENT YEAR: 2002-03 TO 2007-08 MS. GEETHA NEHRA C/O., SYNERGY ART FOUNDATION LTD. GROUND FLOOR-TANNA HOUSE 11A-NSATHALAL PARIKH MARG,COLABA MUMBAI--400 005. PAN:AAGPM 9039 H VS. DCIT-CENTRAL CIR. 44 MUMBAI. ( /APPELLANT ) ( / RESPONDENT) REV ENUE BY: SHRI S. SENTHI KUMARAN- (DR) ASS ESSEE BY: SHRI J. PRABHAKAR / DATE OF HEARING: 02.12.2016 / DATE OF PRONOUNCEMENT: 02/12/2016 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA A.M. - VIDE HER APPLICATION,DATED 27.6.16THE ASSESSEE HAS STATED THAT THERE WERE CERTAIN MISTAKES IN THE ORDER OF THE TRIBUNAL,DATED 31.07.2012,THAT SAM E WERE TO BE RECTIFIED AS PER THE PROVISIONS OF SECTION 254 OF THE ACT,THAT THE TRIBUNAL HAD DIS MISSED THE EARLIER APPLICATION FILED ON 2.11.2012 VIDE ITS ORDER DT.12.04.2013 FOR THE REAS ON THAT HON'BLE BOMBAY HIGH COURT HAD ADMITTED THE APPEAL FILED AGAINST THE ORDER, THAT T HE TRIBUNAL HAD SET ASIDE THE ASSESSMENT FOR THE ABOVE MENTIONED AY.S IN RESPECT OF THE ADDITION S TOWARDS ESTIMATED DRAWING (AY.2003- 04 TO 2005-06), THAT IN RESPECT OF ALLEGED HAWALA P AYMENT FOR AY 2003-04 THE TRIBUNAL HAD UPHELD THE ADDITION,THAT IT HAD SET ASIDE AN ADDITI ON OF RS.60.05 LAKHS FOR THE AY 2007-08 , THAT THE TRIBUNAL SHOULD HAVE CONSIDERED THE MA FIL ED IN PROPER PERSPECTIVE, THAT THE TRIBUNAL HAD NOT DECIDED THE ISSUE AND THAT IT HAD NOT CONSI DERED THE FACTS ON RECORD, THAT IT HAD NOT CONSIDERED THE EVIDENCES FURNISHED IN PAPER BOOK CO MPILATION VOLUME-I, THAT PURCHASE REGISTER WAS SEIZED WAS ALSO FURNISHED DURING THE C OURSE OF HEARING, THAT THE ISSUE OF WITH- DRAWALS FOR ALL THE ABOVE MENTIONED YEARS WAS NOT L OOKED INTO IN PROPER PERSPECTIVE, THAT THE MATTER WAS SET ASIDE,THAT NO BANK ACCOUNT WERE SEIZ ED OR VERIFIED BY THE DEPARTMENT DURING THE ASSESSMENT PROCEEDINGS, THAT THE EVIDENCE WITH REGARD TO WITHDRAWALS WERE FURNISHED BEFORE THE FIRST APPELLATE AUTHORITY (FAA), THAT TH E AO DID NOT VERIFY THE DETAILS DURING THE REMAND PROCEEDINGS,THAT THE TRIBUNAL HAD CONCLUDED THAT SUFFICIENT OPPORTUNITY WAS AVAILABLE TO THE ASSESSEE,THAT THE AO HAD COMPLETED THE ASSES SMENT WITHIN A PERIOD OF FOUR DAYS MA-139-144/M/16-GEETHA 2 WITHOUT CONSIDERING THE AVAILABLE MATERIAL, THAT IN THE REMAND PROCEEDINGS THE AO HAD OBJECTED TO FURNISHING OF ADDITIONAL EVIDENCE BEFOR E THE FAA. WITH REGARD TO PARA NO.10.1 TO 10.3 AND PARA 8.1 OF THE TRIBUNAL ORDER,IT WAS ARG UED THAT TRIBUNAL HAD WRONGLY CONCLUDED THAT THE AO HAD LOOKED INTO THE SEIZED MATERIAL OR BANK STATEMENTS, THERE WAS NO BASIS TO COME TO CONCLUSION THAT THERE WERE ADEQUATE DRAWING S, THAT DETAILS OF DRAWINGS BY CHQUES AS WELL AS CREDIT CARD WERE FILED,THAT IT WAS ARGUED T HAT SUMMARY ASSESSMENTS U/S. 143 (1) WERE COMPLETED,THAT NO ADDITION COULD BE MADE IN ABSENC E OF SEIZED MATERIAL INDICATING UNDISCLOSED INCOME, THAT THE SETTING ASIDE OF ASSES SMENT ON THE ISSUE OF DRAWINGS AND ASKING THE AO TO VERIFY THE ELECTRICITY AND TELEPHONE BILL S WAS ILLEGAL.REFERRING TO PARA NO.11, 11.1 AND 11.2 OF THE ORDER OF THE TRIBUNAL THE ASSESSEE CONTENDED THAT THE TRIBUNAL HAD CLUBBED THE GROUNDS OF DIFFERENT AY.S FOR COMMON DISPOSAL,THAT IN PARA 27.1 OF THE ORDER THE TRIBUNAL IT HAD HELD THAT THE PAINTINGS WERE PURCHASED BY THE A SSESSEE AS PERSONAL EFFECT THAT NO GROUND WAS RAISED BEFORE THE TRIBUNAL ABOUT THE PERSONAL E FFECT, THAT THE ISSUE BEFORE THE TRIBUNAL WAS TO CONSIDER OPENING CAPITAL OF RS.60.15 LAKHS A S UNEXPLAINED, THAT TRIBUNAL HAD TRAVELLED BEYOND ITS JURISDICTION.IT WAS LASTLY CONTENDED THA T IN PARA 27.5 AND 28 THE TRIBUNAL HAD HELD THAT MERELY PRESENTING RETURN OF INCOME AT WRONG PL ACE OF JURISDICTION WOULD NOT BE TREATED AS RETURN OF INCOME PROPERLY FILED, THAT THE MATTER WA S SET ASIDE TO FILE OF AO FOR FRESH ADJUDICATION. 2. DURING THE COURSE OF HEARING BEFORE US,THE AUTHORIS ED REPRESENTATIVE (AR) REITERATED THE SUBMISSIONS THAT WERE PART OF THE APPLICATION. HE F URTHER ARGUED THAT THE AO HAD PASSED THE ORDER IN PURSUANCE OF DIRECTION OF ORDER OF THE TRI BUNAL AND HAD NOT GRANTED ANY RELIEF, THAT THE FAA HAD CONFIRMED THE ORDER OF THE AO. THE DEPARTMENTAL REPRESENTATIVE (DR) ARGUED THAT TH E MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE WAS REJECTED BY THE TRIBUNAL, THAT NO FRES H APPLICATION COULD BE FILED AFTER THE ORIGINAL M.A. HAD BEEN REJECTED. HE REFERRED TO THE CASES OF DR.S.PANNEERSELVAM (319ITR 135) AND KAMALBHAI ISMAILJI (288ITR297),THAT THE O RIGINAL ORDER WAS PASSED BY THE TRIBUNAL IN 2012, THAT THE PRESENT APPEAL WAS FILED BEYOND A PERIOD OF FOUR YEARS, THAT SAME HAD TO BE REJECTED , THAT THERE WAS NO MISTAKE IN THE ORDER O F THE TRIBUNAL,THAT FAILURE TO CONSIDER THE ARGUMENTS OF THE ASSESSEE WERE NOT A MISTAKE APPAR ENT FROM RECORD.HE REFERRED TO CASE OF RAMESH ELECTRICAL LTD. (203ITR497) . 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE BEFORE US.WE FIND THE TRIBUNAL HAD ADJUDICATED THE APPEALS FILED BY THE ASSESSEE FOR THE AY.S.2002-03 TO 2008- MA-139-144/M/16-GEETHA 3 09 ON 31.7.12, THAT THE ASSESSEE FILED AN APPLICATI ON U/S. 254 OF THE ACT ON 12.4.2013, THAT THE SAID APPLICATION WAS DISMISSED BY THE TRIBUNAL ON T HE GROUND THAT THE SUBJECT MATTER WAS SUB- JUDICE BEFORE THE HON'BLE BOMBAY HIGH COURT, THAT T HE TRIBUNAL HAD DIRECTED THE AO TO PASS NECESSARY ORDERS WITH REGARD TO CERTAIN ISSUES, THA T THE AO COMPLETED THE ORDER U/S. 143A R.W.S. 143(3), R.W.S 254 OF THE ACT ON 31.1.2014, T HAT THE ASSESSEE CHALLENGED THE SAID ORDER OF THE AO BEFORE FAA,THAT THE FAA ADJUDICATED THE APPE AL ON 29.12.2016, THAT ON 27.06.16 THE ASSESSEE FILED THE FRESH APPLICATION U/S.254 OF THE ACT. 3.1. WE AGREE WITH THE ARGUMENT OF THE DR THAT NO MISCEL LANEOUS APPLICATION CAN BE FILED AGAINST THE ORDER PASSED U/S. 254(2) OF THE ACT ON AN EARLIER OCCASION.HOWEVER, WE WOULD LIKE TO DECIDE THE APPLICATION ON MERITS ALSO.FIRST WE W OULD TAKE UP PARA-5 OF ORDER OF THE TRIBUNAL.IN ITS ORDER THE TRIBUNAL HAD MENTIONED AS UNDER: 5.WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CAR EFULLY PERUSED THE ORDER OF THE AUTHORITIES BELOW.THOUGH, IT APPEARS THAT THE ASSES SING OFFICER ISSUED 3 TO 4 SHOW CAUSE NOTICES ONE AFTER ANOTHER WITHOUT GIVING SUFFICIENT TIME TO THE ASSESSEE TO FILE NECESSARY DETAILS; HOWEVER, WHEN THE CIT(A ) ISSUED A REMAND ORDER AND THE ASSESSEE WAS GIVEN ANOTHER OPPORTUNITY TO FILE ALL THE DETAILS AND EVI DENCE AS WELL AS DEFEND THE CASE DURING REMAND PROCEEDINGS, THEN THE SAID GRIEVANCE OF THE ASSESSEE AGAINST THE ASSESSING OFFICER IS NO MORE EXIST. ACCORDINGLY, WE DO NOT FIND ANY SUBS TANCE OR MERIT IN THE GROUND OF THE ASSESSEE AND SAME IS DISMISSED. IN OUR OPINION, THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL MENTIONED ABOVE. WHAT THE TRIBUNAL HAS HELD IS THAT DURING THE REMAND PROCEED INGS THE ASSESSEE WAS GIVEN ADEQUATE OPPORTUNITY TO FILE THE DOCUMENTS IN ITS FAVOUR AND THUS,THE GRIEVANCE OF NOT GIVING SUFFICIENT OPPORTUNITY DID NOT EXIST ANY MORE.WE ARE UNABLE TO UNDERSTAND AS TO WHAT WAS THE MISTAKE IN THE ORDER OF THE TRIBUNAL AT PARA NO.5. 3.2. NOW,WE WOULD DISCUSS THE PARA NO.8.1, 10.1 TO 10.3 OF THE ORDER OF THE TRIBUNAL.PARA 8.1 DEALS WITH THE FACTS OF THE CASE AS OBSERVED BY THE AO. THE TRIBUNAL HAS ONLY RECORDED THE FACTS AS MENTIONED BY THE AO.THUS, THERE IS NO SCOP E OF ANY MISTAKE IN THE ORDER OF THE TRIBUNAL. 3.3 .IN PARA 10 AND 10.1,THE TRIBUNAL HAS MENTIONED TH AT ONLY PENDING ASSESSMENTS WERE ABATED BY VIRTUE OF SECTION 153A OF THE ACT AND NOT THE COMPLETED ASSESSMENT, THAT IN THE ASSESSMENT PROCEEDING UNDER THE SAID SECTION, THE A O COULD PROCEED LIKE A REGULAR ASSESSMENT WITH RESPECT TO THE PENDING ASSESSMENTS,THAT THE AD DITION TO THE INCOME WITH REGARD TO COMPLETED ASSESSMENTS COULD BE MADE ON THE BASIS OF INCRIMINATING MATERIAL FOUND DURING THE SEARCH THAT WAS NOT PRODUCED DURING THE COURSE OF O RIGINAL ASSESSMENT. IN OUR OPINION, THE TRIBUNAL HAS DISCUSSED THE LEGAL POSITION ONLY IN B OTH THE PARAS AND THERE IS NO MISTAKE IN ITS ORDER . MA-139-144/M/16-GEETHA 4 IN PARA 10.2,THE TRIBUNAL HAD HELD THAT FROM THE RE CORDS AVAILABLE IT WAS NOT CLEAR AS TO WHETHER THE ORIGINAL ASSESSMENT WAS COMPLETED IN AN Y OF THE ASSESSMENT YEARS. THE ISSUE REQUIRED PROPER EXAMINATION AND VERIFICATION AT THE LEVEL OF AO.IF THE RECORDS MADE AVAILABLE TO THE TRIBUNAL DID NOT THROW ANY LIGHT ON THE PEND ENCY OF ASSESSMENT PROCEEDINGS FOR VARIOUS AY.S., IT HAD NO OPTION BUT TO SEND THE ISS UE TO THE FILE OF AO. IN PARA 10.3 THE TRIBUNAL HAD DIRECTED THE ASSESSEE TO PRODUCE BILLS BEFORE THE AO TO ESTIMATE THE PERSONAL EXPENDITURE OF THE ASSESSEE AS ESTIMAT ED BY THE FAA. IN OUR OPINION, ONE OF THE BASIS TO ESTIMATE PERSONAL EXPENDITURE IS THE CONSU MPTION OF ELECTRICITY AND TELEPHONE BILL. THE DIRECTION WAS TO DETERMINE THE ESTIMATION OF PE RSONAL EXPENSES. THE TRIBUNAL HAD ASKED THE AO TO DECIDE THE ISSUE AFRESH EXCEPT FOR AY 200 8-09 FOR WHICH THE ADDITIONS WERE DELETED BY THE FAA.WE ARE OF THE OPINION THAT THERE IS NO M ISTAKE IN THE ORDER OF THE TRIBUNAL. 3.4. AT PARA 11.1 AND 11.2 THE TRIBUNAL HAD MENTIONED TH AT THE ISSUE WAS COMMON TOWARDS ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PA INTINGS, THAT CONSIDERING THE COMMONNESS OF THE ISSUE IT HAD DISPOSED THE ISSUE AT PARA NO.1 8.1 AND 18.2 OF THE ORDER. THE TRIBUNAL HAD DECIDED THE ISSUE AFTER CONSIDERING THE AVAILABLE M ATERIAL, SO, WE HOLD THAT THE ACTION OF THE TRIBUNAL CANNOT BE HELD TO BE ERRONEOUS. 3.5. FINALLY,WE WILL DISCUSS PARA 27.1 OF THE ORDER OF T HE TRIBUNAL. THE TRIBUNAL HAD DISCUSSED THE ISSUE AND OBSERVED THAT IT WOULD NOT DECIDE THE CONTROVERSY REGARDING FILING OF FRAUDULENT RETURN OF INCOME, THAT THE RETURN WAS FILED UNDER W RONG JURISDICTION WITHOUT GETTING THE FILE TRANSFERRED FROM CHENNAI TO MUMBAI,THAT PRESENTING THE RETURN OF INCOME AT WRONG PLACE COULD NOT BE TREATED AS A RETURN OF INCOME PROPERLY FILED. FINALLY THE ISSUE WAS SET ASIDE TO THE FILE OF THE AO TO DECIDE THE MATTER AFRESH AS CLAIM ED BY THE ASSESSEE. IN OUR OPINION, THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL AND WHAT TH E ASSESSEE WANTS FROM US IS TO REVIEW THE ORDER OF THE TRIBUNAL DATED 31.7.2012. WE HAVE TAKEN NOTE OF THE FACT THAT THE ORIGINAL M. A.WAS DISMISSED BY THE TRIBUNAL ON 12.04.2013,BUT THE ASSESSEE DID NOT AGITATE THE IS SUE TILL JUNE,2016. BY THAT TIME THE FAA HAD ALSO DISPOSED OF THE APPEAL FILED BY THE ASSESSEE A GAINST THE ORDER OF THE AO DATED 31.1.2014. CLEARLY,THE ASSESSEE WAS WAITING OF A FAVOURABLE OR DER FROM THE AO/FAA .ONCE THE AO AND THE FAA,DECIDED THE ISSUE AGAINST HER,SHE DECIDED T O FILE AN M.A.AS PER THE PROVISIONS OF THE ACT TRIBUNAL IS NOT EMPOWERED TO REVIEW ITS OWN DEC ISION AND THE SCOPE OF SECTION 254(2) IS VERY LIMITED. IF A MISTAKE IS SO GLARING THAT ON TH E FACE OF IT SAME HAS TO BE AMENDED,THEN ONLY THE PROVISIONS OF SECTION 254(2)CAN BE INVOKED.IT I S SAID THAT THE SECTION IS LIMITED TO MISTAKE APPARENT FROM RECORD LIKE ARITHMETICAL ERRORS,TYPOG RAPHICAL MISTAKES,NON-ADJUDICATION OF MA-139-144/M/16-GEETHA 5 GROUND OF APPEAL OR NON-CONSIDERATION OF A JUDGMENT OF HONBLE SUPREME COURT OR JURISDICTIONAL HIGH COURT HAVING DIRECT BEARING ON THE CASE.HONBLE DELHI HIGH COURT HAS,IN THE MATTER OF GEOFIN INVESTMENT (P.)LTD.,DESCRIBED THE CONCEPT OF MISTAKE APPARENT FROM RECORD AS UNDER: THE POWER IS CIRCUMSCRIBED AND LIMITED. THERE SHOUL D BE A MISTAKE WHICH IS APPARENT BEFORE THE POWER CAN BE EXERCISED. THIS IS A MANDATORY PRE -CONDITION. THE TRIBUNAL IN ITS ORDER REFERRED TO THE CONTROVERSY IN QUESTION RELATING TO THE DISALLOWANCE MADE ON ACCOUNT OF SHORT- TERM CAPITAL LOSS AND LONG-TERM CAPITAL LOSS. THE E NTIRE ISSUE WAS EXAMINED ON THE MERITS INCLUDING THE JUDGMENTS RELIED UPON BY THE ASSESSEE . AFTER EXAMINING THE MATTER IN DETAIL, IT ALLOWED THE APPEAL FILED BY THE REVENUE. FOLLOWING IS THE DECISION OF THE HONBLE JURISDICTI ONAL HIGH COURT HAS IN THE CASE OF RAMESH ELECTRICALS (203ITR497): UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961, THE APPELLATE TRIBUNAL MAY, 'WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD' , AMEND ANY ORDER PASSED BY IT UNDER SUB- SECTION (1) WITHIN THE TIME PRESCRIBED THEREIN. IT IS AN ACCEPTED POSITION THAT THE APPELLATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIONS OF THE ACT. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO R ECTIFY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS IS MERELY A POWER OF AMENDING ITS ORDER. THE POWER OF RECTIFICATION UNDER SECTION 254(2) CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD, AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMEN TS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FO R ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE TRIBUNAL CANNOT, IN THE EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO S OME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION. FROM THE ABOVE,IT IS CLEAR THAT TRIBUNAL HAS GOT LI MITED POWER TO RECTIFY MISTAKE U/S.254(2) OF THE ACT.IN THE CASE BEFORE US,THE ASSESSEE HAS NOT POINTED OUT ANY ARITHMETICAL MISTAKE IN THE ORDER OF THE TRIBUNAL NOR HAS SHE PROVED THAT LEGAL POSITION TAKEN BY THE TRIBUNAL HAS ALTERED BECAUSE OF SUBSEQUENT JUDGMENT OF THE JURISDICTIONA L HIGH COURT OR THE APEX COURT.THE TRIBUNAL HAS DECIDED THE ISSUE AFTER CONSIDERING AL L THE FACTS AND PROVISIONS OF LAW.IN OUR OPINION,NO MISTAKE IS APPARENT,IN THE IMPUGNED ORD ER OF THE TRIBUNAL.ARRIVING AT A WRONG CONCLUSION IS ALSO NOT A MISTAKE APPARENT FROM THE RECORD,AS HELD BY THE HON'BLE BOMBAY HIGH COURT.IN SHORT,THERE IS NO MISTAKE IN THE ORDE R OF THE TRIBUNAL.THEREFORE,WE ARE OF THE OPINION THAT APPLICATION FILED BY THE ASSESSEE DESE RVES TO BE REJECTED. AS A RESULT,ALL THE MA.S FILED BY THE ASSESSEE STAN D DIMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND ,DECEMBER, 2016. 2 , 2016 SD/- SD/- ( /RAVISH SOOD) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 02.12.2016. JV.SR.PS. MA-139-144/M/16-GEETHA 6 / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR G BENCH, ITAT, MUMBAI / , A , . . . 6. GUARD FILE/ . //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.