DILIP S. PODAR, V. DCIT 17(2),

MA 180/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4332 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-05-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 07-08-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: BHARTI SINGH
• Section: 37(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SANJAY ARORA, AM AND SHRI PAWAN SINGH, JM . / MA NO. 180/MUM/2015 (ARISING OUT OF ITA NO. 6853/MUM/2011 ) ( / ASSESS MENT YEAR: 2008 - 09 ) DILIP S. PODAR (PROPRIETOR OF M/S. D. K. CORPORATION) 4A/5, BHARATIYA KREEDA MANDIR, 57, NAIGAON CROSS ROAD, WADALA, MUMBAI - 400 031 VS. DY. C.I.T. 17(2), ROOM NO. 217, 2 ND FLOOR, PIRAMAL CHAMBERS, PAREL, MUMBAI - 12 ./ ./ PAN/GIR NO. AAAPP 6107 B ( APPLICANT ) : ( RESPONDENT ) APPLICANT BY : SHRI RYAN SALDANHA RESPONDENT BY : MS. BHARTI SINGH / DATE OF HEARING : 05.02.2016 / DATE OF PRONOUNCEMENT : 04 .0 5 .2016 / O R D E R PER SANJAY ARORA, A. M.: THIS IS A MISCELLANEOUS PETITION BY THE ASSESSEE AGAINST THE ORDER U/S. 254(1) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) BY THE TRIBUNAL DATED 15.3.2013 IN ITS CASE FOR ASSESSMENT YEAR (A.Y.) 2008 - 09 . 2. BEFOR E US , THE L D . AUTHORI Z ED REPRESENTATIVE (AR), THE ASSESSEES C OUNSEL , TAKING US THROUGH PARAS 2 TO 4 OF THE M ISCELLANEOUS A PPLICATION , NARRATING THE NATURE OF THE ASSESSEES TRADE, WOULD SUBMIT THAT THE ASSESSEE IS IN THE BUSINESS SINCE LONG , I.E., 1979, A ND THEREFORE THERE WAS NO REASON TO DOUBT ITS INTEGRITY. HE WOULD THEN DISCUSS SOME FACTUAL MISTAKES CLAIMED TO IMBUE THE IMPUGNED ORDER, LISTED AT PARAS 5 - 2 M A NO. 180/MUM/2015 (A.Y. 2008 - 09) DILIP S. PODAR VS. DY. CIT 9 OF THE PETITION . ALL OF THEM RELATE TO THE REVENUES GROUND NO.3, CHALLENGING THE DELETION OF TH E DISALLOWANCE OF A PART OF THE COMMISSION P AID BY THE ASSESSEE, AN AGENT, TO HIS SUB - AGENTS, SINCE CONFIRMED BY THE TRIBUNAL. THE SAME STAND DIS CUSSED BY THE TRIBUNAL VIDE PARAS 5 AND 6 OF ITS IMPUGNED ORDER. WHILE PARA 5 LISTS THE BASIS ON WHICH THE T WO REVENUE AUTHORITIES GAVE THEIR CONFLICTING DECISIONS, PARA 6 DETAILS THE VARIOUS REASONS THAT INFORMED THE TRIBUNALS ORDER. THE REVENUES CASE, ON THE OTHER HAND, RESTED ON THE IMPUGNED ORDER BEING AN ORDER ON MERITS, UPON DULY CONSIDERING THE CASE OF BOTH THE PARTIES, AND WHICH IS NOW BEING SOUGHT TO BE REVIEWED, AND WHICH IS IMPERMISSIBLE IN LAW. 3. WE MAY AT THE OUTSET CLARIF Y THAT THE TRIBUNAL IS INCOMPETENT TO REVIEW ITS ORDER , AND THE SCOPE OF SECTION 254(2) OF THE ACT IS SEVERELY RESTRICTED , I. E., TO RECTIFY ING A MISTAKE THEREIN APPARENT FROM THE RECORD. FURTHER, THE REVENUES CASE RESTS ON THE NON - SUBSTANTIATION OF THE RENDERING OF SERVICES (BY THE SUB - AGENTS), FOR WHICH THE IMPUGNED COMMISSION STANDS ALLOWED. IT IS THE NOT NECESSARY FOR THE RE VENUE TO PROVE ANYTHING FURTHER, I.E., T O DISPROVE THE TRANSACTION FOR ITS DISALLOWANCE ON ACCOUNT OF NON - SATISFACTION OF THE MANDATE OF S. 37(1) . THE VARIOUS OBSERVATIONS BY THE TRIBUNAL AT PARAS 6.3 AND 6.4 OF ITS ORDER, WHICH ARE CLAIMED TO BEAR MISTAKE S, ARE MADE ON ITS FACTUAL EXAMINATION OF THE CASE AND THE MATERIAL ON RECORD. THAT IS , IS IN ADDITION TO THE REVENUES CASE, WHICH STANDS UPHELD. IN OTHER WORDS, EVEN APART FROM THOSE OBSERVATIONS, THE CASE OF THE REVENUE STANDS IN - A S - MUCH AS THE TRIBUNA L HAS UPHELD THE SAME , SO THAT IT FOUND AS A FACT THAT THE RENDERING OF SERVICES BY THE SUB - AGENTS HAD NOT BEEN ADEQUATELY EVIDENCE D AND , ACCORDINGLY , IS NOT PROVED. WHY, THE REVENUE DISALLOWED THE ASSESSEES CLAIM DE HORS AND INDEPENDENT OF THOSE OBSERVAT IONS OF THE TRIBUNAL ? THAT IS, THE REV ENUES CASE, WHICH STANDS UPHELD, DID NOT CONTAIN THE SAID OBSERVATIONS, WHICH ARE STATED TO VITIATE THE IMPUGNED ORDER. IN FACT, THE ASSESSEE ADMITS TO THIS FACT AT PAR 6 OF ITS INSTANT APPLICATION WHE N IT S TATES TH AT IN MOST CASES THE SUB - AGENTS DO NOT RENDER ANY SERVICES EXCEPT PASSING 3 M A NO. 180/MUM/2015 (A.Y. 2008 - 09) DILIP S. PODAR VS. DY. CIT INFORMATION ABOUT THE POTENTIAL PROJECTS . THE EXCEPTION LAID DOWN NOW, I.E., PASSING O F INFORMATION ONLY, WE MAY ADD , FIRSTLY, CONTRADICTS THE ASSESSEES CASE AND, IN ANY CASE, HAS N OT BEEN SHOWN TO US AS FORMING PART OF OR BORNE OUT BY THE RECORD , NOR, CONSEQUENTLY , CONSIDERED BY THE REVENUE . WE STATE ALL THIS WITHOUT PREJUDICE TO OUR COMMENTS WITH REGARD TO THE FACTUAL INFIRMITIES IN THE IMPUGNED ORDER , AS CLAIMED BY THE ASSESSEE PE R ITS APPLICATION, WHICH ARE AS FOLLOWS. 4. (A) PARA 5 OF THE A PPLICATION NOTES THE TRIBUNALS OBSERVATIONS AS FOLLOWS: - (AT PARA 6.3) APART FROM THE ABSENCE OF ANY POSITIVE FINDINGS TO THIS EFFECT, THE A.O. FOUND AS A MATTER OF FACT THAT NONE OF THE PAYEES COULD FURNISH THE EXACT LOCATION OF THE OFFICES OF THE BUYERS; THE NAMES OF THE PERSONS WHO WERE CONTACTED FOR THE PURPOSE, EVEN THOUGH THE ORDERS WERE FINALIZED ONLY AFTER PRODUCT NEGOTIATIONS OVER TIME .. THE ASSESSEE SEEKS TO ARGUE THAT THESE CONSID ERATIONS MAY NOT BE RELEVANT. IN OUR VIEW, IN SO DOING, THE ASSESSEE TRANSGRESSES THE SCOPE OF RECTIFICATION PROCE EDINGS U/S . 254(2) OF THE ACT. IN FACT, THE TRIBUNAL FOLLOWS ITS AFORE - SAID OBSERVATIONS BY STATING (AT PARA 6.4) THAT ALL THIS PROPELS IT TO EXAMINE THE FACTS (OF THE CASE) MORE CLOSELY. IT MAY BE FURTHER CLARIFIED, EVEN AS POINTED OUT DURING THE HEARING ITSELF, THAT THE OBSERVATIONS WITH REGARD TO THE EXACT LOCATION OF THE OFFICES (OF THE BUYERS) IS STATED IN THE A SSESSMENT O RDER ITSELF (AT PARA 7.8) (ALSO STATED IN THE IMPUGNED ORDER) , AND FURTHER THAT THE WORDS EXACT LOCATION BEAR A CONNOTATION TOTAL LY DIFFERENT THAN ADDRESS , WHICH ARE STATED TO HAVE BEEN STATED BY THE SUB - AGENTS IN THEIR STATEMENT S , AND IS RATHER AN INFORMATION IN THE PUBLIC DOMAIN. L IKEWISE, FOR THE OBSERVATIONS BY THE TRIBUNAL AT PARA 6.4 OF ITS ORDER (REPRODUCED AT PARAS 6 AND 7 OF ITS APPLICATION), WHICH ARE NOT CONTROVERTED O R SHOWN AS FACTUALLY INCORRECT IN ANY MANNER. THE A SSESSEE HAS MERELY SOUGHT TO EXPLAIN THE SAME, STATING FACTS WHICH WERE NOT MENTIONED EARLIER, I.E., ARE NOT BORNE OUT BY THE RECORD. 4 M A NO. 180/MUM/2015 (A.Y. 2008 - 09) DILIP S. PODAR VS. DY. CIT (A) VIDE PARA 8 OF ITS APPLICATION, THE ASSESSEE IMPUGNS THE OBSERVATION BY THE TRIBUNAL (AT PARA 6.4 OF ITS ORDER) STATING THAT THE DETAILS OF THE SERVICES REND ERED BY THE SUB - AGENTS WERE FURNISHED FOR THE FIRST TIME ONLY BEFORE THE FIRST APPELLATE AUTHORITY, MAKING REFERENCE TO PARA 7.1 OF THE ASSESSMENT ORDER . THE TRIBUNAL, IT MAY BE NOTED, WAS COGNI ZANT THEREOF, AND BY STATING SO REFERRED TO THE EXTENT TO WH ICH THE DETAILS WERE PROVIDED BEFORE THE ASSESSING AUTHORITY . IN ANY CASE, IT ONLY SHOWS THAT THE A.O. HAD CONSIDERED THE ASSESSEES CASE. THE QUESTION , WE MAY CLARIFY , IS NOT WITH REGARD TO THE DESCRIPTION OF THE SERVICES RENDERED, BUT PROVING THEM, SO TH AT EVEN GRANTING THAT THE SAME WERE STATED BEFORE THE ASSESSING OFFICER, WOULD BE TO NO CONSEQUENCE ; RATHER , FURTHER REINFORCES THE REVENUES CASE . (B) IT IS THEN STATED AT PARA 9 OF THE A PPLICATION THAT M/S. P. PARIKH & ASSOCIATES, VADODARA, GUJARAT HAV E BEE N R ENDERING SERVICES TO THE ASSESSEE FOR THE PAST 20 YEARS. THIS IS SAID TO BE IN CONTRA DICTION OF THE OBSERVATION BY THE TRIBUNAL (AT PARA 6.4 OF ITS ORDER) THAT THE AGENTS WERE DEALING WITH THE ASSESSEE FOR THE FIRST TIME. EVEN AS STATED DURING THE HE ARING ITSELF, THE OBSERVATION CLEARLY STATE S THAT ALMOST ALL THE AGENTS AND, THEREFORE, IS NOT STATED TO NECESSARILY INCLUDE EACH AND EVERY SUB - AGENT , I.E., AS BEING APPLICABLE TO ALL THE SUB - AGENTS . T HE ASSESSEE HAS IN FACT POINTED OUT ONLY ONE SUCH SUB - AGENT - WHICH POSITION WAS IN FACT AFFIRMED BY THE LD. AR DURING HEARING, THEREBY ONLY VALIDATING THE SAID OBSERVATION BY THE TRIBUNAL. 5. IN VIEW OF THE FOREGOING, WE FIND NO MERIT IN THE ASSESSEES APPLICATION, AND DISMISS THE SAME. THE LAW IS WELL S ETTLED WITH REGARD TO A REVIEW BEING NOT PERMISSIBLE U/S. 254(2). WE MAY THOUGH TOWARD THE SAME ADVERT TO THE DECISIONS IN THE CASE OF CIT V. RAMESH ELECTRIC & TRADING CO . 1993] 203 ITR 497 (BOM) AND CORROSION ROADLINES V. DY. CIT [2005] 92 I TD 181 (PUNE) (TM), ELUCIDATING THE LAW IN THE MATTER , AND WHICH HAVE ALSO BEEN RELIED UPON TOWARD STATING THE LAW IN THE MATTER, IN ARRIVING AT OUR DECISION . WE DECIDE ACCORDINGLY. 5 M A NO. 180/MUM/2015 (A.Y. 2008 - 09) DILIP S. PODAR VS. DY. CIT 6. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON MA Y 04 , 201 6 SD/ - SD/ - ( PAWAN SINGH ) (S ANJAY ARORA) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 04 . 0 5 .201 6 . . ./ ROSHANI , SR . PS & KAMAL KUMAR , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APP LIC ANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI