A.R DEVELOPERS, V. ITO WD 21(1)(4),

MA 179/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4352 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-04-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2007-2008
• Appeal Filed On: 03-08-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PUNITA BANSAL
• Keywords: Charitable institution

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES I, MUMBAI , . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER M.A. NO.179/MUM/2015 (ARISING OUT OF ITA NO.1125/MUM/2011) ASSESSMENT YEAR: 2007-08 M/S A.R. DEVELOPERS, C/O. V.A. AMBEKAR & ASSOCIATES, CHARTERED ACCOUNTANTS, G-4, ANDHERI LAXMI SOCIETY J.B. NAGAR, ANDHERI (EAST), MUMBAI-400059 / VS. THE INCOME TAX OFFICER 20(1)-4, MUMBAI ( #$%& ' /ASSESSEE) ( / REVENUE) P.A. NO. AAOFA5716H #$%& ' / ASSESSEE BY): SMT. PUNITA BANSAL / REVENUE BY SHRI S. SENTHIL KUMARAN-DR ( # ) ' * / DATE OF HEARING : 01/04/2016 +, ) ' * / DATE OF PRONOUNCEMENT : 01/04/2016 M.A. NO.179/MUM/2015 (ARISING OUT OF ITA NO.1125/MUM/2011) M/S A.R. DEVELOPERS , 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THIS MISCELLANEOUS APPLICATION IS BY THE ASSESSEE SEEKING RECTIFICATION/RECALLING THE ORDER OF THE TR IBUNAL DATED 25/03/2015. 2. DURING HEARING OF THIS MISCELLANEOUS APPLICATION , THE LD. COUNSEL FOR THE ASSESSEE, MS. PUNITA BANSAL, CONTEN DED THAT THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE, WHIL E HEARING THE APPEAL OF THE ASSESSEE ON 25/03/2015, INVITED A TTENTION OF THE BENCH TO THE ORIGINAL MOU DATED 02/09/2006 AND THE SUPPLEMENTARY AGREEMENT DATED 14/09/2006, WHICH WER E OVERLOOKED BY THE TRIBUNAL. IT WAS ALSO CONTENDED T HAT THE MOU WAS ERRONEOUSLY DRAFTED BY THE ASSESSEE. PLEA W AS ALSO RAISED THAT DURING HEARING OF THE MAIN APPEAL, DIFF ERENT ARGUMENT WAS ADVANCED BY THE LD. COUNSEL FOR THE AS SESSEE WHICH HAS NOT BEEN CONSIDERED. 2.1. ON THE OTHER HAND, LD. DR, SHRI S. SENTHIL KUMARAN, CONTENDED THAT THROUGH THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS TRYING TO GET THE ORDE R REVIEWED, WHICH IS NOT PERMISSIBLE U/S 254(2) OF THE ACT AND SECONDLY RIGHT FROM ASSESSMENT STAGE AND TILL THE STAGE OF T HE TRIBUNAL AND EVEN THIS SUPPLEMENTARY AGREEMENT, VIDE CLAUSE- 9 HAS CLEARLY CLARIFIED THAT THE MOU DATED 02/09/2006 SHA LL REMAIN IN FORCE, VALID AND BINDING BETWEEN THE PARTIES. TH E CRUX OF THE M.A. NO.179/MUM/2015 (ARISING OUT OF ITA NO.1125/MUM/2011) M/S A.R. DEVELOPERS , 3 ARGUMENT IS THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL, WHICH CAN BE RECTIFIED. 2.2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. SO FAR AS , THE ARGUMENT OF THE LD COUNSEL FOR THE ASSESSEE, MS. PU NITA BANSAL, THAT DIFFERENT ARGUMENT WAS ADVANCED, IS CO NCERNED, WE FIND THAT THE MAIN APPEAL OF THE ASSESSEE WAS AR GUED BY SHRI AJAY R. SINGH AND THE APPEAL WAS DISPOSED OF C ONSIDERING THE MATERIAL AVAILABLE ON RECORD AND THE ARGUMENTS ADVANCED BY THE LD. RESPECTIVE COUNSEL. THE PRESENT LD. AR H AS APPEARED ONLY THROUGH THIS MISCELLANEOUS APPLICATION IN THE PRESENT APPEAL, THEREFORE, THE CONTENTION THAT THE DIFFEREN T ARGUMENT WAS ADVANCED IS CONTRARY TO FACTS AND IS NOT SUBSTA NTIATED. EVEN OTHERWISE, THE PRESENT COUNSEL I.E. MS. BANSAL WAS EVEN NOT PRESENT BEFORE THE TRIBUNAL, WHEN THE HEARING T OOK PLACE ON 23/03/2015. 2.3. IT IS NOTED THAT THE MOU, WHICH WAS BROUGHT T O THE NOTICE OF THE BENCH, BY THE LD. COUNSEL HAS BEEN DU LY CONSIDERED AS IS EVIDENT FROM THE LOG BOOK AND VARI OUS PARAS OF THE ORDER DATED 25/03/2015, WHICH IS SUBJECT MAT TER OF THIS MISCELLANEOUS APPLICATION. THE FACTUAL FINDING REC ORDED IN THE ASSESSMENT ORDER AS WELL AS IN THE IMPUGNED ORDER W AS ALSO CONSIDERED ALONG WITH THE SUBMISSIONS FROM BOTH SID ES. THIS FACTUAL MATRIX WAS NOT CONTROVERTED BY THE ASSESSEE WITH THE HELP OF ANY EVIDENCE. M.A. NO.179/MUM/2015 (ARISING OUT OF ITA NO.1125/MUM/2011) M/S A.R. DEVELOPERS , 4 2.4. IT IS ALSO NOTED THAT THE ASSESSEE ENTERED IN TO A MOU ON 02/09/2006 WITH SHRI DHARMENDRA CHAUDHARY HA S ALSO BEEN DISCUSSED IN PARA 2.3, PETITION NUMBER 50 9 OF 1998 FILED BEFORE HONBLE JURISDICTIONAL HIGH COURT, PET ITION FILED IN CITY CIVIL COURT AT AHMADABAD (CMA NO.823 OF 1997) AND SUPPLEMENTARY AGREEMENT DATED 14/09/2006 IN WHICH T HERE WAS NO MENTION THAT THE EARLIER MOU WAS ERRONEOUSLY DRAFTED RATHER THE NEW MOU VIDE CLAUSE-9 CLEARLY STATES THA T SAVE AS PROVIDED HEREINABOVE THE ABOVE CITED MOU DATED 02/0 9/2006, SHALL REMAIN IN FORCE, VALID, SUBSISTING AND BINDIN G BETWEEN THE PARTIES HERETO WERE DULY CONSIDERED. IT WAS A LSO NOTED THAT THE ORDER DATED 03/11/2010 WAS PASSED BY THE COMMISSIONER OF INCOME TAX (APPEAL) CONSIDERING THE TOTALITY OF FACTS/PROPER APPRECIATION OF FACTS. 2.5. HOWEVER, THROUGH THIS APPLICATION U/S 254(2) OF THE ACT, THE ASSESSEE IS TRYING TO GET THE ORDER OF THE TRIBUNAL REVIEWED, WHICH IS NOT PERMISSIBLE U/S 254 (2) OF T HE ACT, BECAUSE, ONLY ARITHMETICAL ERROR OR OF LIKE NATURE CAN ONLY BE RECTIFIED. WE OBSERVE THAT IF WE WOULD HAVE BEEN S ATISFIED, WITH THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESS EE THAT THERE IS APPARENT MISTAKE IN THE ORDER, CERTAINLY WITH AN OPEN MIND, WE COULD HAVE NO HESITATION TO RECTIFY OUR OR DER. HOWEVER, NO SUCH MISTAKE IS FOUND IN THE ORDER OF T HE TRIBUNAL, THEREFORE, WE FIND NO MERIT IN THE CONTEN TION OF THE ASSESSEE. M.A. NO.179/MUM/2015 (ARISING OUT OF ITA NO.1125/MUM/2011) M/S A.R. DEVELOPERS , 5 2.6. WHILE DEALING WITH MISCELLANEOUS APPLICATION U/S 254(2) OF THE ACT, ONLY ARITHMETICAL, GRAMMATICAL O R MISTAKE OF LIKE NATURE, IF ANY, CAN ONLY BE RECTIFIED AND NOT WHICH CAN BE DRAWN BY A LONG PROCESS OF ARGUMENT/REASONING LEADI NG TO CONTRARY DECISION. OUR VIEW FIND SUPPORTS FROM VAR IOUS DECISIONS FROM HONBLE APEX COURT AND HONBLE HIGH COURTS, THAT THE TRIBUNAL CANNOT REVIEW ITS EARLIER ORDER B UT ONLY CAN RECTIFY MISTAKE, IF ANY, WHICH IS APPARENT FROM REC ORD. THE SCOPE AND AMBIT OF APPLICATION U/S 254(2) OF THE AC T IS VERY LIMITED AND MERITS OF THE CASE CANNOT BE GONE INTO, THEREFORE, WE FIND NO MISTAKE IN THE ORDER OF THE TRIBUNAL. TH E RATIO LAID DOWN IN FOLLOWING CASES SUPPORTS OUR VIEW:- A) CIT VS GOKULCHAND AGRAWAL, 202 ITR 14 (CAL.), B) CIT VS RAMESH ELECTRIC & TRADING COMPANY 203 ITR 49 7, 502 (BOM.), C) GAYWAYS PUBLICITY PVT. LTD. 211 ITR 506 (DEL.), D) CIT VS RAMLAL RAJGARIA 104 CTR (CAL.) 403, E) CIT VS MODEL MANUFACTURING COMPANY PVT. LTD. 111 CT R (CAL.) 2016, F) JAIN DHARMSHALA CHARITABLE TRUST VS CIT 121 CTR (DE L.) 86, G) CIT VS ITAT 206 ITR 126 (AP), H) CIT VS KABIRDAS INVESTMENT LTD. 210 ITR 898 (DEL.) FOLLOWED IN I) DIRECTOR OF INCOME TAX (EXEMPTION) VS ITAT 232 ITR 688 (DEL.), J) MENTHA & ALLIED PRODUCTS COMPANY PVT. LTD. VS ITAT 244 ITR 470 (DEL.), K) CIT VS VARDHMAN SPINNING 226 ITR 296 (P & H), L) DEEKSHA SURI ETC. VS ITAT 232 ITR 395 (DEL.), M) CIT VS ITAT 196 ITR 564 (ORISSA) 196 ITR 590, AND M.A. NO.179/MUM/2015 (ARISING OUT OF ITA NO.1125/MUM/2011) M/S A.R. DEVELOPERS , 6 N) LAXMI ELECTRONIC CORPORATION LTD. VS CIT 188 ITR 39 8 (ALL.), IN VIEW OF THE FACTUAL MATRIX, CASES DISCUSSED HEREINABOVE, IT CAN BE CONCLUDED THAT THE SCOPE AND THE AMBIT OF APPLICATION U/S 254(2) IS VERY LIMITED AS WAS HE LD BY HONBLE DELHI HIGH COURT IN CIT VS ITAT (2007) 293 ITR 118 (DEL.), HONBLE M.P. HIGH COURT IN CIT VS K.D. WIRE S PVT. LTD. (2010) 323 ITR 257 (M.P.). IDENTICAL RATIO WAS LAID DOWN IN APEX METCHEM P. LTD. VS ITAT (2009) 318 ITR 48 (RAJ .), STATE BANK OF INDORE VS ITAT 284 ITR 125 (M.P.), CIT VS M CDOWELL & COMPANY LTD. (2009) 310 ITR 215 (KARN.), CIT VS PEA RL WOOLEN MILLS (2011) 330 ITR 164 (P & H), DHOLADHAR INVESTM ENT PVT. LTD. VS CIT (2014) 362 ITR 111 (DEL.), RAJENDRA PRA SAD BORAH VS ITAT (2008) 302 ITR 243 (GUWAH.) AND CIT VS FIVE STAR MARINE EXPORT PVT. LTD. (2010) 322 ITR 218 (MAD.), CIT VS TATA IRON & STEEL COMPANY LTD. (2001) 248 ITR 190, 192 ( BOM.), J.M. SAHNI VS ITAT 257 ITR 16 (DEL.), KARAN & COMPA NY VS ITAT 253 ITR 131 (DEL.). WE HAVE ALSO PERUSED THE LOG BOOK AND FIND THAT THE ARGUMENTS ADVANCED BY THE LD. COU NSEL FOR THE ASSESSEE, WHILE HEARING THE MAIN APPEAL ON 23/0 3/2015, WERE DULY CONSIDERED AND AFTER ANALYZING THE FACTUA L FINDING RECORDED IN THE ASSESSMENT ORDER/FIRST APPELLATE OR DER, ONLY THEN THE ORDER WAS PASSED. AT THIS STAGE, THE ASSES SEE IS MERELY TRYING TO GET THE ORDER REVIEWED, WHICH IS N OT PERMISSIBLE. 2.7. IT IS FURTHER NOTED THAT EVEN THE LD. ASSESSI NG OFFICER IN HIS ORDER DATED 30/12/2009 DULY CONSIDERED THE B ALANCE M.A. NO.179/MUM/2015 (ARISING OUT OF ITA NO.1125/MUM/2011) M/S A.R. DEVELOPERS , 7 SHEET, COPY OF MOU DATED 02/09/2006 (INCLUDING RELE VANT CLAUSES), SHOW CAUSE NOTICE ISSUED TO THE ASSESSEE DATED 14/12/2009 TO WHICH THE ASSESSEE NEITHER ATTENDED T HE PROCEEDINGS NOR FILED ANY REPLY. THE FACTUAL FINDIN G RECORDED IN THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL ) WAS EVEN NOT CONTROVERTED BY THE ASSESSEE. THUS, IN VIE W OF THE CLEAR FACTS AND THE JUDICIAL PRONOUNCEMENTS DISCUSS ED, HEREINABOVE, WE FIND NO ERROR IN THE ORDER OF THE T RIBUNAL. THROUGH THIS APPLICATION THE ASSESSEE IS TRYING TO GET THE ORDER RECALLED, WHICH IS NOT PERMISSIBLE U/S 254(2) OF TH E ACT, THEREFORE, THE APPLICATION OF ASSESSEE IS HAVING NO MERIT, CONSEQUENTLY, DISMISSED. FINALLY, THE MISCELLANEOUS APPLICATION OF THE ASSES SEE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 01/04/2016. SD/ - (D. KARUNAKARA RAO) SD/ - (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER ( MUMBAI; . # DATED :01/04/2016 F{X~{T? P.S/. #.. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. /012 / THE APPELLANT 2. 3412 / THE RESPONDENT. M.A. NO.179/MUM/2015 (ARISING OUT OF ITA NO.1125/MUM/2011) M/S A.R. DEVELOPERS , 8 3. ( 5' ( /0 ) / THE CIT, MUMBAI. 4. ( 5' / CIT(A)- , MUMBAI 5. 78 3'#$ , /0* /$ , ( / DR, ITAT, MUMBAI 6. % 9 / GUARD FILE. / BY ORDER, 470' 3' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ( / ITAT, MUMBAI