MINAXI K. MEHTA, MUMBAI V. ASST CIT 21(1), MUMBAI

MA 141/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5708 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-01-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 08-03-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMIT PRATAP SINGH
• Assessee Lawyers: R C JAIN
• Keywords: Business income; Search and seizure
• Section: 271(1)(c); 274; 254(2); 13; 22

Judgement Text

M.A. NO.141/MUM/2019 (ARISING OUT OF ITA NO.6766/MUM/2014) MINAXI K. MEHTA VS. ACIT, CIRCLE - 21(1) 1 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI R.C SHARMA, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER M.A. NO. 141/MUM/2019 (ARISING OUT OF ITA NO.6766/MUM/2014) (ASSESSMENT YEARS: 2008 - 09 ) MINAXI K. MEHTA B - 21, 3 RD FLOR, PARITOSH KAPOLE, V.O MEHTA MARG, J.V.P.D., VILE PARLE (W), MUMBAI 400 049. VS. ASST. COMMISSIONER OF INCOME TAX, CIRCLE 21(1), MUMBAI PAN AAJPM2912L (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI R.C JAIN, A.R RESPONDENT BY: SHRI AMIT PRATAP SINGH, D.R DATE OF HEARING: 08.11.2019 DATE OF PRONOUNCEMENT: 30 .01.2020 O R D E R PER RAVISH SOOD, JM : THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ON 01.03.2019 ARISES FROM THE ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING OFF THE APPEAL OF THE ASSESSEE VIZ. MRS. MINAXI K. MEHTA VS. ACIT, CIRCLE 21(1), MUMBAI [ ITA NO. 6766 /MUM/201 4 , DATED 19.09.2018 ] . 2. THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE SUBMITTED THAT THE ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING OFF THE APPEAL OF THE ASSESSEE, VIDE ITS ORDER DATED 19.09.2018 SUFFERED F ROM CERTAIN MISTAKES, WHICH HAD T HUS RENDERED THE SAME AMENABLE FOR RECTIFICATION UNDER SUB - SECTION (2) OF SEC.254 OF THE INCOME - TAX ACT, 1961 (FOR SHORT ACT). THE LD. A.R TOOK US THROUGH THE MISCELLANEOUS APPLICATION, WHICH READ AS UNDER : M.A. NO.141/MUM/2019 (ARISING OUT OF ITA NO.6766/MUM/2014) MINAXI K. MEHTA VS. ACIT, CIRCLE - 21(1) 2 1. THIS IS AN APPLICATION U/S 254(2) OF THE AC T, FOR REACALL AND READJUDICATION FOR CERTAIN MISTAKES IN T H E IMPUGNED ORDER. 2. THE PRESENT MISCELLANEOUS APPLICATION IS FILE AGAINST THE ORDER OF THE HONBLE TRIBUNAL DATED 19TH SEPTEMBER 2018 PASSED IN THE APPEAL FILED BY THE APPLICANT (HEREINAFTER RE FERRED TO AS THE SAID ORDER)WHICH WAS RECEIVED ON 13TH NOVEMBER, 2018. FOR CONVENIENCE OF REFERENCE, A COPY OF THE SAID ORDER IS ENCLOSED HEREWITH AND MARKED AS ANNEXURE A. 3. THE APPLICANTS SECONG GROUND OF APPEAL (AS REPRODUCED IN THE SAID ORDER AT PAGE 2) IS AS FOLLOWS: THE LEARNED ASST. COMMISSIONER OF INCOME TAX ERRED IN LEVYING PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 AND HAVING REGARD TO THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW THE APPELLANT DENIES HER LIABILITY TO PAY ANY P ENALTY UNDER THE SAID SECTION (EMPHASIS SUPPLIED). THUS THE VALIDITY OF PENALTY ORDER UNDER LAW WAS CHALLENGED INTER - ALIA IN THE ABOVE APPEAL. 4. THIS VERY GROUND OF APPEAL WAS CANVASSED BY THE APPELLANT IN THE COURSE OF HEARING. PARA 10 OF THE IMPUGNED ORDER DISCUSSES THE APPELLANTS ARGUMENT THAT HE PENALTY ORDER WAS NOT VALID IN LAW AS T H E ASSESSI N G OFFICER, IN THE SHOW CAUSE NOTICE DATED 30.12.2010 DID NOT STRIKE OFF THE IRRELEVANT DEFAULT AND THUS THE NOTICE WAS BAD IN LAW AN INVALID. 5. H OWEVER THE ABOVE ARGUMENT OF T HE APPELLANT HAS NOT BEEN ADJUDICAT E D UPON AND SUBSEQUENTLY, IN PARA 10 OF THE SAID ORDE R THE REASON FOR NON - ADJUDICATION IS GIVEN AS THIS WAS NOT A SPECIFIC GROUND OF LAW BEFORE THE HONBLE I NCOME TAX APPELLATE TRIBUNAL. TH E HONBLE TRIBUNAL THUS SIMPLY DID NOT CONSIDER THIS GROUND MERELY ON THE GROUND THAT SPECIFIC GROUND WAS NOT RAISED IN THE MEMO OF APPEAL DESPITE THE FACT THE SAME WAS IMPLICIT IN THE GROUND RAISED. NON CONSIDERATION OF THE SAID GROUND CONSTITUTES MISTAKE OF LAW AND FACTS WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. 6. FU R THER AS REGARDS THE MERIT ON LEVY OF PENALTY, DURING T H E COURSE OF HEARING, THE APPELLANT SUBMITTED BEFORE THE HONBLE INCOME TAX APPELLATE TRIBUNAL A COPY OF LETTER DATED 15.12.20 10 WHICH WAS ALSO BEFORE THE ASSESSING OFFICER WHICH CLEARLY STATES THAT OUT OF THE TOTAL SALES CONSIDERATION OF RS 7 CRORES, THE APPLICANT RECEIVED RS. 6.25 CRORES, RS. 40 LAKHS WERE RECEIVED BY THE APPLICANTS MOTHER AND AN AMOUNT OF RS. 35 LAKHS WAS UTI LIZED FOR STAMP DUTY PAYMENT. FOR CONVENIENCE OF REFERENCE, A COPY OF THE SAID LETTER IS ENCLOSED HEREWITH AND MARKED ANNEXURE B. 7. FOR NON - CONSIDERATION OF THE S AID LETTER THE HON ITAT HAS MENTIONED THAT THE APPLICANTS MOTHER RECEIVED AN AMOUNT OF RS . 75 LAKHS IN PARA 8 THOUGH THE FACT OF THE MATTER IS THAT THE MOTHER OF THE APPLICANT RECEIVED ONLY RS. 40 LACS WHICH ALSO CONSTITUTES MISTAKE APPARENT FROM RECORD. YOUR APPLICANT THEREFORE SUBMITS THAT THE FAC T S AND CIRCUMSTANCES DO WARRANT RECALL OF THE ORDER AND READJUDICATION TO THE EXTENT AS INDICATED ABOVE. 3. IT WAS SUBMITTED BY THE LD. A.R , THAT THE TRIBUNAL HAD ERRONEOUSLY OBSERVED THAT THOUGH ANOTHER SHOW CAUSE NOTICE (FOR SHORT, SCN) UNDER SEC. 274 R.W.S. 271(1)(C) OF THE ACT, DATED 12.02.2013 WAS ISSUED TO THE ASSESSEE, BUT THE ASSESSEE HAD LOST SIGHT OF THE SAID SCN WHILE ASSAILING THE VALIDITY OF THE JURISDICTION ASSUMED BY THE A.O FOR IMPOSING PENALTY U/S 271(1)(C) OF THE ACT. I T WAS SUBMITTED BY THE LD. A.R, THAT THE NOTICE DATED 12.02.2013 WAS NOT A SHOW CAUSE NOTICE UNDER SEC. 274 R.W.S 271(1)(C) AND WAS MERELY A NOTICE INTIMATING THE NEXT DATE OF HEARING OF THE MATTER, WHEREIN THE ASSESSEE BY WAY OF A REMINDER WAS ONCE AGAI N CALLED UPON TO SHOW CAUSE AS TO WHY PENALTY UNDER SEC. 271(1)(C) MAY NOT BE IMPOSED ON HER . IT WAS SUBMITTED BY THE LD. A.R THAT THE AFORESAID NOTICE DATED 12.02.2013 DID NOT CONTAIN ANY M.A. NO.141/MUM/2019 (ARISING OUT OF ITA NO.6766/MUM/2014) MINAXI K. MEHTA VS. ACIT, CIRCLE - 21(1) 3 ALLEGATION OF CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. IN ORDER TO DRIVE HOME HIS AFORESAID CLAIM , THE LD. A.R HAD DRAWN OUR ATTENTION TO THE AFORESAID NOTICE DATED 12.02 .2013 AT PAGE 2 OF THE ASSESSES PAPER BOOK (FOR SHORT, APB). IN SUM AND SUBSTANCE, IT WAS SUBMITTED BY THE LD. A. R THAT THE SHOW CAUSE NOTICE, DATED 30.12.2010, WAS THE ONLY EFFECTIVE NOTICE ISSUED BY THE A.O WHEREIN THE DEFAULTS VIZ. CONCEALMENT OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME WERE MENTIONED. IT WAS SUBMITTED BY THE LD. A.R , THAT I N THE ABSENCE OF ANY MENTION OF THE AFORESAID DEFAULTS IN THE SUBSEQUENT NOTICE DATED 12.02.2013 , THERE WAS NO OCCASION FOR THE ASSESSEE TO HAVE ADVANCED ANY CONTENTION AS REGARDS ANY FAILURE ON THE PART OF THE A.O TO STRIKE OFF THE IRRELEVANT DEFAULT IN RESPECT OF THE SAID NOTICE, AS THE SAME WAS SIMPLY A REMINDER LETTER CALLING UPON THE ASSESSEE TO EXPLAIN AS TO WHY PENALTY UNDER SEC. 271(1)(C) MAY NOT BE IMPOSED ON HER . IT WAS SUBMITTED BY THE LD. A.R , THAT AS THE TRIBUNAL WHILE DISPOSING OFF THE APPEA L HAD PROCEEDED WITH ON THE BASIS OF THE AFORESAID MISCONCEIVED FACT , THEREFORE, ITS ORDER SUFFERED FROM A MISTAKE APPARENT FROM RECORD, WHICH THEREIN RENDERED IT AMENABLE FOR RECTIFICATION UNDER SUB - SECTION (2) OF SEC. 254 OF THE ACT . APART FROM THAT, IT WAS SUBMITTED BY THE LD. A.R THAT AS THE ASSESSEE HAD BY WAY OF GROUND OF APPEAL NO. 2 ASSAILED THE LEVY OF PENALTY UNDER SEC. 271(1)(C) , THEREFORE, THE TRIBUNAL WAS IN ERROR IN NOT CONSIDERING THE SAME WHILE DISPOSING OFF THE APPEAL . ALSO, THE LD. A.R ASSAILED THE OBSERVATIONS THAT WERE RECORDED BY THE TRIBUNAL WHILE SUSTAINING THE PENALTY UNDER SEC. 271(1)(C), ON MERITS. 4. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) OBJECTED TO THE AFORESAID CONTENTIONS ADVANC ED BY THE COUNSEL FOR THE ASSESSEE. IT WAS SUBMITTED BY THE LD. D.R THAT AS THERE WAS NO MISTAKE IN THE ORDER OF THE TRIBUNAL, THEREFORE, THE APPLICATION FILED BY THE ASSESSEE SEEKING RECTIFICATION OF THE SAID ORDER WAS NOT MAINTAINABLE AND WAS LIABLE TO B E DISMISSED. 5. WE HAVE HEARD THE AUTHORIZED REPRESENTATIVES FOR BOTH THE PARTIES AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, WHILE DISPOSING OFF THE APPEAL OF THE ASSESSEE, IT WAS OBSERVED BY US THAT THOUGH THE ASSESSEE HAD ASSAILED TH E VALIDITY OF THE SHOW CAUSE NOTICE, DATED 30.12.2010, BUT HAD LOST SIGHT OF A SUBSEQUENT SCN THAT WAS ISSUED BY THE A.O UNDER SEC. 274 R.W.S. 271(1)(C), DATED 12.02.2013 . AS SUCH, WE HAD OBSERVED THAT THE ASSESSEE HAD NOT POINTED OUT ANY IRREGULARITY IN THE ASSUMPTION OF JURISDICTION BY THE A.O UNDER SEC. 274 R.W.S M.A. NO.141/MUM/2019 (ARISING OUT OF ITA NO.6766/MUM/2014) MINAXI K. MEHTA VS. ACIT, CIRCLE - 21(1) 4 271(1)(C) ON THE BASIS OF THE SUBSEQUENT SCN, DATED 12.02.2013 THAT WAS ISSUED TO HER. HOWEVER, A PERUSAL OF THE NOTICE DATED 12.02.2013 REVEALS THAT THE SAME WAS NOT A SHOW CAUSE NOTICE ISSUED UNDER SEC. 274 R.W.S 271(1)(C), BUT AS RIGHTLY CLAIMED BY THE ASSESSEE, IT WAS A SIMPLE NOTICE/LETTER WHEREIN THE A.O BY WAY OF A REMINDER HAD CALLED UPON THE ASSESSEE TO EXPLAIN AS TO WHY PENALTY UNDER SEC. 271(1)(C) MAY NOT BE IMPOSED ON HER . THE NOTICE DATED 12.02.2013 ISSUED BY THE A.O READS AS UNDER (RELEVANT EXTRACT): NO. ACIT/C - 2(1)/SHOW CAUSE - PENALTY2012 - 13 DATE 12.02.2013 28 TH JANUARY, 2013 AAJPM2912L TO MINAXI KISHORE MEHTA H:03:SS TT PARITHOSH V L MEHTA ROAD JUHU VILE PARLE WEST, MUMBAI 400049. PAN : AADCA9058Q SUB: PENALTY SHOW CAUSE PROCEEDINGS U/S 271(1)(C) OF THE I.T ACT, 1961 A.Y 2008 - 09 REG. ************************** KINDLY RE F ER TO THE ABOVE YOU ARE REQUESTED TO ATT END THIS OFFICE ON 22 FEB 2013 AT 2:30 P.M. IN CONNECTION WITH THE PENALTY PROCEEDINGS U / S ________ FOR A.Y 2008 - 09 ALONGWITH YOUR EXPLANATION, IF ANY. IF NO REPLY IS RECEIVED BY THE SAID DATE, THE MATTER WILL BE DECIDED ON MERITS WITHOUT ANY FURTHER REFE RENCE IN THE MATTER. SEAL. SD/ - [ PRAVIN D. SALUNKHE ] ASST. COMMISSIONER OF INCOME - TAX, CIRCLE 2(1), MUMBAI. 6. ON THE BASIS OF THE AFORESAID FACTS, IT CAN SAFELY BE GATHERED THAT WE HAD WHILE DISPOSING OFF THE GROUND OF APPEAL NO. 2 INA DVERTENTLY PROCEEDED WITH ON A MISTAKEN BELIEF THAT THE NOTICE DATED 12.02.2013 WAS A SHOW CAUSE NOTICE ISSUED UNDER SEC. 274 R.W.S 271(1)(C). RESULTANTLY , OUR OBSERVATIONS RECORDED WHILE DISPOSING OFF THE APPEAL OF THE ASSESSEE VIZ. MRS. MINAXI K.MEHTA VS. ACIT, CIRCLE - 21(1), MUMBAI [ ITA NO. 6766 /MUM/201 4 , M.A. NO.141/MUM/2019 (ARISING OUT OF ITA NO.6766/MUM/2014) MINAXI K. MEHTA VS. ACIT, CIRCLE - 21(1) 5 DATED 19.09.2018 ] SUFFERS FROM A MISTAKE, WHICH THUS RENDERS IT AMENABLE FOR RECTIFICATION UNDER SUB - SECTION (2) OF SEC. 254 OF T HE ACT . ACCORDINGLY, OUR OBSERVATIONS RECORDED ON THE PRESUMPTION THAT THE LETTER DATED 12.02.2013 WAS A SHOW CAUSE NOTICE ISSUED UNDER SEC. 274 R.W.S 271(1)(C) , WHICH READ A UNDER : FURTHER, WITHOUT PREJUDICE TO OUR AFORESAID OBSERVATIONS, WE FIND THAT EVEN OTHERWISE THE ASSESSEE WHILE CHALLENGING THE VALIDITY OF THE JURISDICTION ASSUMED BY THE A.O FOR IMPOSING OF PENALTY UNDER SEC. 271(1)(C), HAS FAILED TO COME UP WITH THE COMPLETE FACTS AS REGARDS THE ISSUE UNDER CONSIDERATION. WE FIND THAT THOUGH THE ASSESSEE HAD PLACED ON RECORD THE COPY OF THE SHOW CAUSE NOTICE, DATED 30.12.2010 ISSUED BY THE A.O UNDER SEC. 274 R.W.S 271 AT THE TIME OF PASSING THE ASSESSMENT ORDER, BUT HAD LOST SIGHT OF THE SUBSEQUENT SHOW CAUSE NOTICE, DATED 12.02.2013 WHIC H WAS ISSUED BY THE A.O. UNDER SEC. 274 R.W.S 271 OF THE ACT. WE THUS, ARE OF THE CONSIDERED VIEW THAT AS THE COMPLETE FACTS/RECORDS HAD NOT BEEN PLACED ON RECORD BY THE ASSESSEE, THUS THE ADJUDICATION OF THE ISSUE PERTAINING TO THE VALIDITY OF THE JURISDI CTION ASSUMED BY THE A.O, WHICH THE ASSESSEE HAD FOR THE VERY FIRST TIME RAISED BEFORE US CANNOT ALSO BE PROCEEDED WITH FOR THE SAID REASON. ARE EXPUNGED FROM OUR ORDER PASSED WHILE DISPOSING OFF THE APPEAL, VIDE OUR ORDER DAT E D 19.09.2018. 7. HOWEVER, WE HAD WHILE DISPOSING OFF THE APPEAL OF THE ASSESSEE OBSERVED THAT THE ASSESSEE HAD NEITHER CHALLENGED THE JURISDICTION ASSUMED BY THE A.O FOR IMPOSING PENALTY UNDER SEC. 271(1)(C) BEFORE THE LOWER AUTHORITIES NOR RAISED ANY SPECIFIC GROUND OF APPEAL ON THE SAID ASPECT BEFORE THE TRIBUNAL . ACCORDINGLY, BY REFERRING TO RULE 11 OF THE APPELLATE TRIBUNAL RULES, 1963, WE HAD REFRAINED FROM ADVERTING TO THE CONTENTIONS WHICH WERE ADVANCED BY THE LD. A.R AS REGARDS THE VALIDITY OF TH E JURISDICTION ASSUMED BY TH E A.O FOR IMPOSING PENALTY U/S 271(1)(C) OF THE ACT , BY OBSERVING AS UNDER : WE SHALL FIRST ADVERT TO THE CHALLENGE THROWN BY THE LD. A.R TO THE VALIDITY OF THE JURISDICTION ASSUMED BY THE A.O FOR LEVYING PENALTY UNDER SEC. 271(1)(C) ON THE ASSESSEE . WE FIND THAT THE VALIDITY OF THE JURISDICTION ASSUMED BY THE A.O FOR IMPOSING PENALTY UNDER SEC. 271(1)(C) HAS BEEN CHALLENGED FOR THE FIRST TIME BEFORE US. IT IS THE CASE OF THE ASSESSEE THAT AS THE IRRELEVANT DEFAULT IN THE SHOW CAUSE NOTICE DATED 30 .12.2010 WAS NOT STRUCK OFF BY THE A.O, HENCE THE ASSESSEE WAS NOT PUT TO NOTICE AS REGARDS THE DEFAULT FOR WHICH SHE WAS CALLED UPON TO EXPLAIN AS TO WHY PENALTY UNDER SEC. 271(1)(C) MAY NOT BE IMPOSED ON HER. WE HAVE DELIBERATED ON THE OBJECTION RAISED B Y THE LD. D.R THAT AS THE ASSESSEE HAD FAILED TO RAISE A SPECIFIC GROUND OF APPEAL AS REGARDS THE VALIDITY OF THE JURISDICTION ASSUMED BY THE A.O FOR IMPOSING PENALTY UNDER SEC. 271(1)(C) ON THE ASSESSEE, THUS THE SAME COULD NOT BE LOOKED INTO WHILE DISPOS ING OFF THE PRESENT APPEAL. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE OBJECTION RAISED BY THE LD. D.R AND FIND SUBSTANTIAL FORCE IN THE SAME. WE ARE PERSUADED TO BE IN AGREEMENT WITH THE CONTENTION OF THE LD. D.R THAT AS THE ASSESSEE HAD NEITHER CHAL LENGED THE JURISDICTION ASSUMED BY THE A.O FOR IMPOSING PENALTY UNDER SEC. 271(1)(C) BEFORE THE LOWER AUTHORITIES, NOR HAS RAISED ANY SPECIFIC GROUND OF APPEAL BEFORE US, THUS THE SAME CANNOT BE LOOKED INTO BY US WHILE DISPOSING OFF THE PRESENT APPEAL. IN THIS REGARD, WE MAY HEREIN OBSERVE THAT AS PER RULE 11 OF THE APPELLATE TRIBUNAL RULES, 1963 AN APPELLANT SHALL NOT, EXCEPT WITH THE LEAVE OF THE TRIBUNAL, URGE OR BE HEARD IN SUPPORT OF ANY GROUND NOT SET FORTH IN THE MEMORANDUM OF APPEAL. THUS, IN THE AB SENCE OF A GROUND OF APPEAL HAVING BEEN RAISED BY THE ASSESSEE BEFORE US AS REGARDS THE VALIDITY OF THE JURISDICTION M.A. NO.141/MUM/2019 (ARISING OUT OF ITA NO.6766/MUM/2014) MINAXI K. MEHTA VS. ACIT, CIRCLE - 21(1) 6 ASSUMED BY THE A.O FOR IMPOSING PENALTY UNDER SEC. 271(1)(C), WE REFRAIN FROM ADVERTING TO AND THEREIN ADJUDICATING THE SAME. THE ASSESS EE IN THE PRESENT APPLICATION, HAD TRIED TO IMPRESS UPON US THAT SHE HAD ASSAILED THE VALIDITY OF THE JURISDICTION ASSUMED BY THE A.O BY WAY OF RAISING GROUND OF APPEAL NO. 2 BEFORE THE TRIBUNAL, WHICH READ AS UNDER : 2. THE LEARNED ASST. COMMISSIONER OF INCOME - TAX ERRED IN LEVYING PENALTY U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 AND HAVING REGARD TO THE FACT AND CIRCUMSTANCES OF THE CASE AND IN LAW THE APPELLANT DENIES HER LIABILITY TO PAY ANY PENALTY UNDER THE SAID SECT ION AS OBSERVED BY US WHILE DISPOSING OFF THE APPEAL , THE ASSESSEE HAD NEVER ASSAILED BEFORE THE LOWER AUTHORITIES THE VALIDITY OF THE JURISDICTION ASSUMED BY THE A.O UNDER S E C. 271(1)(C), ON THE GROUND, THAT THE A.O HAD FAILED TO STRIKE OFF THE IRREL EVANT DEFAULT IN THE BODY OF THE SHOW CAUSE NOTICE, DATED 30.12.2010. ALTHOUGH, THE ASSESSEE HAD CANVASSED THE INVALID I TY OF THE AFORESAID SCN, DATED 30.12.2010 ,FOR THE AFORESAID REASON, IN THE COURSE OF THE HEARING OF THE APPEAL, BUT AS OBSERVED BY U S WHILE DISPOSING OFF THE APPEAL, NO SPECIFIC GROUND OF APPEAL AS REGARDS THE SAID ASPECT WAS RAISED BY THE ASSESSEE IN THE MEMORANDUM OF APPEAL BEFORE US. ALSO, THE ASSESSEE HAD NOT RAISED AN ADDITIONAL GROUND OF APPEAL IN SUPPORT OF HER AFORESAID CLA IM, AS REQUIRED UNDER RULE 11 OF THE APPELLATE TRIBUNAL RULES, 1963. ACCORDINGLY, IN THE BACKDROP OF THE AFORESAID FACTS, WE HAD WHILE DISPOSING OFF THE APPEAL OF THE ASSESSEE DECLINED TO CONSIDER THE CONTENTIONS WHICH WERE ADVANCED BY THE LD. A.R DE HORS SETTING FORTH OF A GROUND OF APPEAL/ADDITIONAL GROUND OF APPEAL IN CONTEXT OF THE AFORESAID ISSUE UNDER CONSIDERATION. AS SUCH, WE ARE NOT INCLINED TO ACCEPT THE CLAIM OF THE ASSESSEE THAT THE NON - ADJUDICATION OF THE ASSAILING OF THE VALIDITY OF THE JURISD ICTION ASSUMED BY THE A.O FOR IMPOSITION OF PENALTY UNDER SEC. 271(1)(C) BY THE TRIBUNAL SUFFERS FROM A MISTAKE, WHICH THEREIN RENDERS ITS ORDER AMENABLE FOR RECTIFICATION UNDER SUB - SECTION (2) OF SEC. 254 OF THE ACT. 8. AS REGARDS THE VIEW TAKEN BY THE TRIBUNAL AS REGARDS THE SUSTAINABILITY OF THE PENALTY IMPOSED UPON THE ASSESSEE ON MERITS , WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE BY ASSAILING THE SAME HAS IN THE GARB OF ITS AFORESAID APPLICATION SOUGHT A REVIEW OF OUR ORDER , DATED 19.09.2018, PA SSED WHILE DISPOSING OFF HER APPEAL . WE ARE AFRAID THAT AS A REVIEW OF AN ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING OFF THE APPEAL CANNOT BE SOUGHT IN THE GARB OF AN APPLICATION FILED UNDER SEC. 254(2) OF THE ACT, THEREFORE, THE AFORESAID CLAIM OF THE A SSESSEE DOES NOT MERIT ACCEPTANCE AND IS ACCORDINGLY REJECTED. M.A. NO.141/MUM/2019 (ARISING OUT OF ITA NO.6766/MUM/2014) MINAXI K. MEHTA VS. ACIT, CIRCLE - 21(1) 7 9. IN TERMS OF OUR AFORESAID OBSERVATIONS THE APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOU NCED IN THE OPEN COURT ON 30 .01.2020 SD/ - SD/ - ( R.C. SHARMA ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 30 .01.2020 PS. ROHIT / 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// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI.