LATE KALYANJI BHAGAT THROUGH LEGAL HEIR VINOD BHAGAT, MUMBAI V. ASSISTANT COMMISSIONER OF WEALTH TAX 18(1), MUMBAI

MA 145/MUM/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 4200 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 28-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

P A G E | 1 M.A. NO. 145/MUM/2018 AY 2006 - 07 (ARISING OUT OF WTA NO. 04/MUM/2017) LATE SHRI KALYANJI BHAGAT VS. ASST. COMMISSIONER OF WEALTH TAX - 18(1) IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, M UMBAI BEFORE SHRI G.S.PANNU, AM AND SHRI RAVISH SOOD, JM M.A. NO. 145 /MUM/2018 (ARISING OUT OF W TA NO. 04/MUM/2017 ) ( / ASSESSMENT YEAR:2006 - 07 ) LATE SHRI KALYANJI BHAGAT, (THROUGH LEGAL HEIR VINOD BHAGAT) , C/O TANUJA BHAGAT, 2 ND FLOOR, JAYANT ARCADE, ABOVE WAMAN , HARI PETHE JEWELLERS, M.G. ROAD, RAJAWADI, GHATKOPAR (E) MUMBAI - 400077 / VS. ASST. COMMISSIONER OF WEALTH TAX - 18( 1) MUMBAI - 400 077 ./ ./ PAN NO. ATZPS1604A ( / APPLICANT) : ( / RESPONDENT ) / APPLICANT BY : SHRI NISHIT GANDHI , A.R / RESPONDENT BY : MS. NEHA THAKUR, D.R / DATE OF HEARING : 24.08.2018 / DATE OF PRONOUNCEMENT : 0 3 . 10 .2018 / O R D E R PER RAVISH SOOD, JUDICIAL MEMBER: THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE UNDER SEC. 35 OF THE WEALTH TAX ACT, 1957 (FOR SHORT ACT) ARISES FROM THE ORDER PASSED BY THE TRIBUNAL UNDER SEC. 24(5) OF THE ACT , IN WTA NO. 04/MUM/2017, DATED 23.08.2017 FOR A.Y 2006 - 07 . P A G E | 2 M.A. NO. 145/MUM/2018 AY 2006 - 07 (ARISING OUT OF WTA NO. 04/MUM/2017) LATE SHRI KALYANJI BHAGAT VS. ASST. COMMISSIONER OF WEALTH TAX - 18(1) 2. THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) OF THE ASSESSEE APPLICANT AT THE VERY OUTSET OF THE HEARING OF THE APPLICATION SUBMITTED , THAT THE TRIBUNAL , VIDE ITS ORDER PASSED WHILE DISPOSING OFF THE APPEAL OF THE ASSESSEE IN WTA NO. 04/MUM/2017, HA D RESTORED THE MATTER TO THE FILE OF THE A.O . IT WAS SUBMITTED BY THE LD. A.R, THAT THE A.O WAS DIRECTED BY THE TRIBUNAL TO VERIFY THE OWNERSHIP OF CERTAIN PROPERTIES , SO THAT THE EXIGIBILITY OF THE SAME TO W EALTH T AX IN THE HANDS OF THE APPELLANT ASSESSEE MAY BE VERIFIED . THE LD. A.R SUBMITTED THAT THE TRIBUNAL WHILE PASSING ITS ORDER HAD AT PAGE 18 - PARA 11 INADVERTENTLY AND ERRONEOUSLY OBSERVED , THAT IT WAS CLAIMED BY SHRI AMIT SHANTILAL BHAGAT THAT THE PROPERTY AT VIJAY MAHAL , TEEN PATTI, WALKESHWAR, MUMBAI WAS OWNED BY HIM. THE LD. A . R SUBMITTED , THAT THE AFORESAID OBSERVATIONS OF THE TRIBUNAL WERE CONTRARY TO THE FACTS AVAILABLE ON RECORD. IT WAS THE CONTENTION OF THE LD. A.R , THAT IT WAS CATEGORICALLY CLAIMED BEFORE THE LOWER AUTHORITIES , AS WELL AS BEFORE THE TRIBUNAL , THAT THE AFOREMENTIONED PROPERTY VIZ. VIJAY MAHAL , TEEN PATTI, WALKESHWAR, MUMBAI WAS OWNED BY SHRI . VINOD BHAGAT IN HIS PERSONAL CAPACITY. RATHER, AS AVERRED BY THE LD. A.R, THE AFORESAID SHRI AMIT SHANTILAL BHAGAT HAD NEITHER EVER S O CLAIMED BEFORE THE TRIBUNAL, NOR BEFORE THE LOWER AUTHORITIES OR ANY OTHER AUTHORITY , T HAT THE PROPERTY VIZ. VIJAY MAHAL , TEEN PATTI, WALKESHWAR, MUMBAI WAS OWNED BY HIM. FURTHER, IT WAS SUBMITTED BY THE LD. A.R THAT THE PROPERTIES WHICH WERE OWNED BY SH RI AMIT SHANTILAL BHAGAT, BUT WERE HELD BY THE A.O AS BELONGING TO THE DECEASED ASSESSEE , WERE CLEARLY SPELT OUT AT PAGE 6 ITEM 7 AND 9 OF THE ASSESSMENT ORDER. 3. THE LD. A.R IN ORDER TO FORTIFY HIS AFORESAID CONTENTION , THAT IT WAS CATEGORICALLY CLAIM ED BEFORE THE LOWER AUTHORITIES THAT THE PROPERTY VIZ. VIJAY MAHAL , TEEN PATTI, WALKESHWAR, MUMBAI WAS OWNED BY SHRI VINOD BHAGAT IN HIS PERSONAL CAPACITY, TOOK US THROUGH THE RELEVANT EXTRACTS OF THE ORDERS OF THE LOWER AUTHORITIES. I T WAS SUBMITTED BY TH E LD. A.R , THAT IN THE BACKDROP OF THE AFORESAID FACTS, AS THE ORDER PASSED BY THE TRIBUNAL WAS FOUND TO BE SUFFERING FROM A MISTAKE WHICH WAS GLARING, PATENT, APPARENT AND OBVIOUS FROM RECORD, THUS, THE SAME MAY BE RECTIFIED, AND THE A.O BE DIRECTED TO VERIFY THE VERACITY OF THE CLAIM OF SHRI VINOD BHAGAT AS REGARDS P A G E | 3 M.A. NO. 145/MUM/2018 AY 2006 - 07 (ARISING OUT OF WTA NO. 04/MUM/2017) LATE SHRI KALYANJI BHAGAT VS. ASST. COMMISSIONER OF WEALTH TAX - 18(1) THE OWNERSHIP OF THE AFORESAID PROPERTY VIZ. VIJAY MAHAL , TEEN PATTI, WALKESHWAR, MUMBAI, INSTEAD OF SHRI AMIT SHANTILAL BHAGAT WHOSE NAME WAS ERRONEOUSL Y MENTIONED IN THE ORDER . PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) DID NOT CONTROVERT THE AFORESAID CONTENTIONS RAISED BY THE COUNSEL FOR THE ASSESSEE APPLICANT. 4. WE HAVE HEARD THE AUTHORIZED REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE ORDER PASSED BY THE TRIBUNAL UNDER SEC . 24(5) OF THE ACT , DATED 23.08.2017, AS WELL AS THE ORDERS OF THE LOWER AUTHORITIES. WE FIND SUBSTANTIAL FORCE IN THE CONTENTION OF THE LD. A.R , THAT WHILE PASSING THE AFORESAID ORDER , A MISTAKE WHICH IS F OUND TO BE GLARING, PATENT, APPARENT AND OBVIOUS FROM RECORD HAD CREPT IN THE SAME. WE HAVE DELIBERATED UPON THE CONTENTION S ADVANCED BY THE ASSESSEE BEFORE THE A.O AT PAGE 7 - ITEM 27 AND PAGE 12 ITEM 27 OF THE ASSESSMENT ORDER. FURTHER, THE SUBMISSIONS RAISED BY THE ASSESSEE BEFORE THE CWT(A) AT PAGE 7 - ITEM 10 ALSO REVEAL S THAT THE ASSESSEE HAD AVERRED BEFORE HIM THAT THE PROPERTY AT VIJAY MAHAL , TEEN PATTI, WALKESHWAR, MUMBAI WAS OWNED BY SHRI VINOD BHAGAT IN HIS PERSONAL CAPACITY. STILL FURTHER, THE CONTENTIONS TO THE SAID EFFECT WERE ALSO RAISED BY THE ASSESSEE DURING THE COURSE OF HEARING OF APPEAL BEFORE US , AS IS DISCERNIBLE FROM A PERUSAL OF PAGE 13 - 15 OF THE ORDER PASSED BY THE TRIBUNAL. 5. WE THUS , IN TERMS OF OUR AFORESAID OBSERVATIONS ARE OF THE CONSIDERED VIEW THAT WHILE DISPOSING OFF THE APPEAL OF THE ASSESSEE, IT WAS WRONGLY OBSERVED THAT THE ASSESSEE HAD CLAIMED THAT SHRI AMIT SHANTIAL BHAGAT WAS IN POSSESSION OF AND HAD CLAIMED TO BE THE OWN ER OF THE AFOREMENTIONED PROPERTY VIZ. VIJAY MAHA L , TEEN PATTI, WALKESHWAR, MUMBAI. WE HAVE DELIBERATED ON THE CONTENTIONS WHICH WERE ADVANCED BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES, AS WELL AS THOSE THAT WERE ADVANCED BEFORE US DURING THE COURSE OF HEARING OF THE APPEAL. WE FIND THAT IT HAS ALWAYS BEEN THE CLAIM OF THE ASSESSEE THAT SHRI VINOD BHAGAT WAS THE OWNER OF THE AFORESAID PROPERTY VIZ. VIJAY MAHAL , TEEN PATTI, WALKESHWAR, MUMBAI. WE THUS, IN TERMS OF OUR AFORESAID OBSERVATIONS , BEING OF THE CONSIDERED VIEW THAT AS THE ORDER PASSED BY THE TRIBUNAL SUFFERS FROM A MISTAKE , WHICH IS GLARING, P A G E | 4 M.A. NO. 145/MUM/2018 AY 2006 - 07 (ARISING OUT OF WTA NO. 04/MUM/2017) LATE SHRI KALYANJI BHAGAT VS. ASST. COMMISSIONER OF WEALTH TAX - 18(1) PATENT, APPARENT AND OBVIOUS FROM RECORD, THUS , RECTIF Y/ MODIF Y THE AFORESAID ORDER PASSED UNDER SEC 24(5) OF THE ACT, DATED 23.08.2017 TO THE SAID EXTENT . IN TERMS OF OUR AFORESAID OBSERVATIONS , THE A.O SHALL DURING THE COURSE OF THE SET ASIDE PROCEEDINGS VERIFY THE CLAIM OF THE ASSESSEE THAT SHRI VINOD BHAGAT WAS THE OWNER OF THE AFOREMENTIONED PROPERTY, VIZ. VIJAY MAHAL , TEEN PATTI, WALKESHWAR, MUMBAI. IN TH IS REGARD , THE ORDER PASSED BY THE TRIBUNAL IS MODIFIED , TO THE EXTENT THAT AS AGAINST THE NAME OF SHRI AMIT SHANTILAL BHAGAT IN CONTEXT OF THE AFOREMENTIONED PROPERTY VIZ. VIJAY MAHAL , TEEN PATTI, WALKESHWAR, MUMBAI, MENTIONED IN OUR ORDER DATED 23.08.201 7, THE NAME OF SHRI VINOD BHAGAT SHALL STAND SUBSTITUTED . THE A.O DURING THE COURSE OF THE SET ASIDE PROCEEDINGS IS DIRECTED TO VERIFY THE GENUINENESS AND VERACITY OF THE CLAIM OF OWNERSHIP OF SHRI. VINOD BHAGAT, AS REGARDS THE AFORESAID PROPERTY VIZ. VIJA Y MAHAL, TEEN PATTI, WALKESHWAR, MUMBAI. WE THUS, IN TERMS OF OUR AFORESAID OBSERVATIONS ALLOW THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. 6. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 0 3 . 10 .2018 S D / - S D / - ( G.S.PANNU ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 03 . 10 .2018 PS. ROHIT P A G E | 5 M.A. NO. 145/MUM/2018 AY 2006 - 07 (ARISING OUT OF WTA NO. 04/MUM/2017) LATE SHRI KALYANJI BHAGAT VS. ASST. COMMISSIONER OF WEALTH TAX - 18(1) / COPY OF THE ORDER FORWARDED TO : 1. / THE APP LLICANT 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