Sooraj Leathers, Vellore V. ITO, Vellore

MA 173/CHNY/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4724 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-09-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 12-07-2016
• Court: TRIBUNAL
• Department Lawyers: SHIV SRINIVASJCIT D R
• Assessee Lawyers: K RAVI
• Section: 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI ... , , , BEFORE SHRI N.R.S.GANESAN, JUDICIAL MEMBER AND SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER M.P. NO.173/MDS./2016 (I.T.A.NO.305 /MDS./2016 ASSESSMENT YEAR :2009-10) M/S.SOORAJ LEATHERS, NO.11,6 TH CROSS STREET, PHASE II, SATHUVACHARI, VELLORE 632 009. VS. INCOME TAX OFFICER, INCOME TAX WARD I(1), VELLORE. PAN AAWFS 5387 A ( / APPELLANT ) ( / RESPONDENT ) ! / APPELLANT BY : MR.K.RAVI,ADVOCATE '# ! / RESPONDENT BY : MR.SHIV SRINIVAS,JCIT, D.R $ % &' / DATE OF HEARING : 23.09.2016 ()* &' /DATE OF PRONOUNCEMENT : 23.09.2016 / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS MISCELLANEOUS APPLICATION IS FILED BY THE AS SESSEE PRAYING FOR RECTIFICATION OF THE EARLIER ORDER OF THE TRIBU NAL IN ITA MP NO.173/MDS/2014 2 NO.305/MDS./2016 DATED 22.04.2016 FOR THE ASSESSMEN T YEAR 2009-10. 2. THE LD.A.R SUBMITTED THAT THE TRIBUNAL HAD IN I TS ORDER DATED 22.04.2016 DIRECTED THE AO TO EXCLUDE OPENING BALAN CE FROM THE ADDITION MADE U/S.68 OF THE ACT AFTER VERIFYING THE OPENING BALANCES. ACCORDING TO LD.A.R, THE TRIBUNAL HELD AT PAGE-7 OF ITS ORDER THAT CONSENT GIVEN BY THE ASSESSEE CANNOT GIVE JURISDICT ION AND A RIGHT TO THE AO TO MAKE AN ADDITION AND AT PARA-6 OF THE ORD ER, THE TRIBUNAL HELD THAT THE ASSESSEE FAILED TO PRODUCE ANY EVIDEN CE OF THE IDENTITY OF THE PARTIES, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION. THEREFORE, WHEREVER EVIDENCES WERE NOT GIVEN IN RES PECT OF CREDITS, THE ADDITION IS TO BE SUSTAINED. LD.A.R PLEADED THA T THERE IS NO SPECIFIC MENTION IN THE TRIBUNALS ORDER ABOUT THE TREATMENT OF CREDITS, WHERE THE ASSESSEE HAD PRODUCED EVIDENCES BEFORE TH E CIT(A). ACCORDINGLY, HE PRAYED THAT THE TRIBUNAL IS HAVING INHERENT POWERS TO RECTIFY THE ORDER OF TRIBUNAL. LD.D.R SUBMITTED TH AT THERE IS NO MISTAKE APPARENT FROM THE ORDER OF THE TRIBUNAL. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE CAME IN APPEAL BEFORE THE TRIB UNAL CHALLENGING MP NO.173/MDS/2014 3 THE ADDITION OF ` 66,98,357/- MADE U/S.68 OF THE ACT. THE TRIBUNAL OBSERVED THAT PROVISIONS OF THE SECTION 68 IS APPLI CABLE ONLY TO THE CREDIT WHICH HAS BEEN MADE FIRST TIME IN THE BOOKS OF ACCOUNTS IN THE RELEVANT ASSESSMENT YEAR AND IT DOES NOT APPLICABLE TO THE OPENING BALANCE OF THE CREDITS IN THE BOOKS OF ACCOUNTS OF ASSESSEE. ACCORDINGLY, THE ISSUE WAS REMITTED TO THE FILE OF AO TO EXCLUDE THE SAME FROM THE ADDITIONS MADE U/S.68 OF THE ACT AFTE R DULY VERIFYING THE SAME AND PROVIDING OPPORTUNITY TO THE ASSESSEE. FURTHER, THE TRIBUNAL ALSO NOTED THAT SINCE THE ASSESSEE FAILED TO PLACE NECESSARY EVIDENCE TO PROVE THE GENUINENESS OF THE TRANSACTIO N U/S.68 OF THE ACT IN SPITE OF GIVING OPPORTUNITY TO THE ASSESSEE, THE SAME TO BE CONFIRMED. NOW, THE LD.A.R WANTED TO REVIEW THE EARLIER ORDER OF THE TRIBUNAL U/S.254(2) OF THE ACT . IT IS THE JUDICIAL DECISION OF THE TRIBUNAL AND IF THE ASSESSEE IS NOT SATISFIED WITH IT, HE HAS REMEDY ELSEWHERE AND NOT BY WAY OF MISCELLANEOUS PETITIONS U/S.254(2) OF THE ACT. TH IS PROVISION OF THE ACT DOES NOT EMPOWER THE TRIBUNAL TO REVIEW ITS OWN ORDER IN THE CASE OF RECTIFICATION. IN OUR OPINION, THERE IS NO MERIT IN THE ARGUMENT MP NO.173/MDS/2014 4 OF THE LD.A.R. ACCORDINGLY, THE MISCELLANEOUS PETI TIONS FILED BY THE ASSESSEE STANDS DISMISSED. 4. ORDER PRONOUNCED IN THE OPEN COURT AFTER HEARIN G THE MISCELLANEOUS PETITION ON FRIDAY, THE 23 RD OF SEPTEMBER,2016 AT CHENNAI. SD/- SD/- ( ' . . '# . $ ) ( N.R.S.GANESAN ) ( ) (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 23 RD SEPTEMBER, 2016. K S SUNDARAM. '&+, - ,*& /COPY TO: 1. /APPELLANT 2. '# /RESPONDENT 3. $ .& () /CIT(A) 4. $ .& /CIT 5. ,1 '&23 /DR 6. 45 6% /GF