SMITA NARESH VARAIYA, MUMBAI V. ITO 19(3)(3), MUMBAI

MA 189/MUM/2021

• Counselvise Citation: [NaN] 107 COUNSELVISE.COM (IT) 1916 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-12-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 27-08-2021
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 250

Judgement Text

M No. 189/Mum/2021 Assessment Year: 2008-09 Page 1 of 4 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI “SMC” BENCH, MUMBAI [Coram: Pramod Kumar (Vice President) And Vikas Awasthy (Judicial Member)] MA No. 189/Mum/2021 (in ITA No. 3282/Mum/2019) Assessment year: 2008-09 Smita Naresh Varaiya ............................Applicant 303, Shivam Building, Dongarshi Road, Walkeshwar, Mumbai -400 004 [PAN: AACPV 8470 H] Vs Income Tax Officer-19(3)(3) Mumbai ............................Respondent Appearances by Drashti Shah for the applicant Milind Chavan for the respondent Date of concluding the hearing : December 03, 2021 Date of pronouncement : December 03, 2021 ORAL ORDER (Dictated in the open court) Per Pramod Kumar, VP: 1. By way of this miscellaneous application, the assessee applicant seeks rectification of the mistake stated to be apparent from the record in our order dated 05.04.2021. 2. This short alleged mistake apparent from the record is that the decision of the Hon’ble Jurisdictional High Court in the case of PCIT vs. Mohmd. Haji Adam & Co. (in ITA No. 1004 of 2016) and others dated 11.12.2019, a copy of which is also placed before the Tribunal in PB page nos. A9 to A15, has not been taken into account by the Tribunal. The learned counsel for the assessee’s contention is that but for the omission of taking into account of the M No. 189/Mum/2021 Assessment Year: 2008-09 Page 2 of 4 said binding precedent from the Hon’ble Jurisdictional High Court, the addition ultimately upheld in the case of the assessee could have been substantially lower, i.e., 1.15% vis-a-vis the addition upheld by the assessee @ 5%. We are, thus, urged to take into account the said judgment and, accordingly, lower the quantum of the addition upheld in the hands of the assessee, on account of bogus purchase. 3. Shri Chavan, learned senior departmental representative, on the other hand, submits that going by the judgment of Hon'ble Supreme Court in the case of N. K. Proteins Ltd. 250 taxman 0022 (SC) the entire amount of bogus purchase should have been upheld in the hands of the assessee and not just 5%. The learned senior departmental representative, thus, submits that there is no occasion to tinker with the order passed by the Tribunal as the request has made. In response to our question, however, the learned senior departmental representative fairly accepts that the Tribunal has not specifically dealt with the judicial precedent in the case of Mohmd. Haji Adam & Co.(supra), even though he is hesitant to add, it will not make any difference to the contrary. 4. Having heard the rival contentions and having perused the material on record, we are satisfied that there is indeed an inadvertent mistake apparent on record to the extent that the said decision of the Hon’ble Jurisdictional High Court has not been specifically dealt with, though we must add that whether the said decision is applicable on the present set of facts or not, is a call to be taken by the Bench. Therefore, while we do not agree with the learned counsel’s suggestion that we should lower the quantum of addition, we uphold the plea that in the present case, the decision of the Hon’ble Jurisdictional High Court in the case of Mohmd. Haji Adam & Co.(supra), has not been considered. Suffice to say that the mistake in non consideration of this judgment but impact thereof, is something which the bench will decide upon considering the said judgment. We, therefore, deem it fit and proper to direct the registry to place the matter before the division bench for the limited purposes of examining the impact, if any, of the Hon’ble Jurisdictional High Court judgement in the case of Mohmd. Haji Adam & Co. (supra). The matter is directed to be placed before the Bench on 02.02.2022. As the date has been so announced in the open court, there is no need of issuance of notices. M No. 189/Mum/2021 Assessment Year: 2008-09 Page 3 of 4 5. In the result, the miscellaneous application is allowed in the terms indicated above. Order dictated and pronounced in the open court itself, i.e., on 3 rd day of December, 2021. Sd/- Sd/- Vikas Awasthy Pramod Kumar (Judicial Member) (Vice President) Mumbai, dated the 3 r d day of December, 2021 Roshani, Sr. PS Copies to: (1) The Applicant (2) The respondent (3) CIT (4) CIT(A) (5) DR (6) Guard File By order True Copy Assistant Registrar/Sr. PS Income Tax Appellate Tribunal Mumbai benches, Mumbai