The ACIT-Central Circle-2, Rajkot V. Shri Jaliluddin Jummat Ali Shekh, Rajkot

MA 2/RJT/2023

AI Insights

The case revolves around a Miscellaneous Application (M.A. No. 02/Rjt/2023) filed by the Revenue against the order of the ITAT in ITA No. 162/Rjt/2022, which pertained to the assessment year 2018-19. The original dispute involved the ownership of gold worth Rs. 29,01,486, which was seized by the Revenue. The ITAT had previously ruled in favor of the assessee, Shri Jaliluddin Jummat Ali Shekh, acknowledging his claim of ownership over the gold, despite a substantive addition being made in the hands of another party, Shri Brij Mohan, the sender of the gold. The Revenue's M.A. argued that the ITAT's decision overlooked critical facts and legal interpretations, claiming an apparent mistake in the Tribunal's order. However, the ITAT dismissed the M.A., stating that the issues raised were already considered and did not constitute a mistake apparent from the record.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 124084 (ITAT-RAJKOT)
• Duration Of Justice: 6 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-09-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 20-07-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 02-03-2023
• Other Referred Cases: Dattani & Co. Vs ITO
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH VIRTUAL COURT] Before: Shri Waseem Ahmed, Accountant Member And Shri T.R. Senthil Kumar, Judicial Member Th e ACIT, Central Circle-2, Rajkot (App ellant) Vs Shri Jaliluddin Jummat Ali Sh ekh, Office No. 302 , Kamdhenu Co mmercial Co mp lex, Op p. Bank o f Mah arashtra, Dh ebar Road, Rajk ot PAN: BYFPS8 402Q (Resp ondent) Asses see by : Shri Fenil Mehta, A. R. Revenue by : Shri S hramdeep Sinha , CIT-D. R. Date of hearing : 21-07 -2 023 Date of pronouncement : 15-09 -2 023 आदेश/ORDER PER : WASEEM AHMED, ACCOUNTANT MEMBER:- This Miscellaneous Application is arising out of ITA No. 162/Rjt/2023 for AY 2018-19 vide order dated 11-01-2023. M.A. No. 02/Rjt/2023 (In ITA No. 162/Rjt/2022) Assessment Year 2018-19 M.A. No. 2/Rjt/2023 (In I.T.A No.162/Rjt/2022) A.Y. 2018-19 Page No ACIT vs. Shri Jaliluddin Jummat Ali Shekh 2 2. The Revenue by way of this Miscellaneous Application is seeking to rectify the mistake apparent from the record occurred in the order of the ITAT inadvertently within the meaning of provisions of section 254(2) of the Act. 2.1 In the present case, the addition was made in the hand of the assessee on protective basis for Rs. 29,01,486/- on account of gold seized by the Revenue. However, the ld. CIT(A) deleted the addition made by the Assessing Officer on the reasoning that the substantive addition has been made in the hands of the sender of the gold Shri Brij Mohan, a Jeweler based in Hyderabad. 2.2 Against the finding of ld. CIT(A), the assessee preferred an appeal to the ITAT contending that the gold belongs to him which was allowed by the ITAT in his favour (the assessee). However, the Revenue in its MA contended that there cannot be two owners of the same parcel of gold. Besides the above, the Revenue in the Miscellaneous Application also pointed out the apparent mistake in the order of the ITAT, as reproduced below:- “In the impugned order of Ld. ITAT dated 11.01.2023, wherein it has been held that despite substantive addition made in the hands of sender, Sandeep Gupta, Prop. Brijmohan Jewellers, the appellant, Jaliluddin J.A. Shekh is the 'owner' of gold, following facts on record have not been addressed by the Ld. ITAT: (i) The date of booking of gold parcel is 24/10/2017 and the date of dispatch from Hyderabad is 25/10/2017. This parcel was in transit from 25/10/2017 till 27/10/2017 and reached Rajkot on 27/10/2017. Seized gold was found inside this parcel. Whereas, the appellant has contended that he purchased gold from M.A. No. 2/Rjt/2023 (In I.T.A No.162/Rjt/2022) A.Y. 2018-19 Page No ACIT vs. Shri Jaliluddin Jummat Ali Shekh 3 Sandeep Gupta, Prop. Brijmohan Jewellers on 26/10/2017. Simultaneously Shri Sandeep Gupta has also contended that he has sold gold to the appellant on 26/10/2017 and has produced evidences which are on record. Ld. ITAT has not addressed this anomaly, despite it being pointed out by CIT(DR), while holding that the gold dispatched on 25/10/2017 and seized in Rajkot on 27/10/2017 belonged to appellant. (ii) Ld. ITAT has noted that assessment order in the case of Sandeep Gupta, Prop. Brijmohan Jewellers has been finalized in Hyderabad. Ld. ITAT has also noted that Ld. CIT(A) has relied on this fact while deleting the 'protective' addition in the hands of the appellant in the appeal order. Ld. ITAT has however held that the appellant is the owner of gold without addressing as to what will be the status of additions made in 'assessment order' passed in the case of Sandeep Gupta, Prop. Brijmohan Jewellers dated 09/04/2021 u/s 153C. (iii) Ld. ITAT has not addressed the facts, anomalies and possibilities of presence of 'two' different parcels of 'gold', one couriered on 25/10/2017 and another sold to appellant on 26/10/2017, despite acknowledging and reproducing entire arguments of CIT(DR), especially, contention at Sr. No. 2(5)/(8)/(9) and (11) mentioned on pages 4, 5 and 6 of impugned order of Ld. ITAT including prayer at para 3. By ignoring the submissions and contentions of CIT(DR), Ld. ITAT has committed a grave mistake in terms of order of Jurisdictional High Court of Gujarat in the matter Dattani & Co. Vs ITO, ITA No. 162/RJT/2022 for AY 2018-19, wherein the Hon'ble Court was pleased to hold as follows:- "[2014] 41 taxmann.com 360 (Gujarat) HIGH COURT OF GUJARAT Dattani And Co. v. Income Tax Officer, M.R.SHAHANDMS.SOMAGOKANI,JJ., TAX APPEAL NOS. 847 to 849 of 2013 OCTOBER 21, 2013. Section 254 of the Income Tax Act, 1961- Appellate Tribunal- Order of [Duties of Tribunal-Whether whenever any decision has been relied upon and/or cited by assessee and/or any party, Tribunal is bound to consider and/or deal with same and opine whether in facts and circumstances of particular case, same will be applicable or not- Held, yes- Whether, therefore, where Tribunal while disposing of appeal, failed to consider applicability of a decision cited by assessee, impugned order passed by Tribunal was to be set aside and, matter was to remanded back for disposal afresh- Held, yes [Para 4] [Matter remanded]" Though, no case law citation is involved, out facts, pari materia to the root of litigation, were not considered even when pointed out to Ld. ITAT during arguments and in written submission and hence the 'spirit' of adjudication by Hon'ble HC is squarely applicable for consideration of such facts.” M.A. No. 2/Rjt/2023 (In I.T.A No.162/Rjt/2022) A.Y. 2018-19 Page No ACIT vs. Shri Jaliluddin Jummat Ali Shekh 4 3. In view of the above, the ld. Departmental Representative contended that there is an apparent mistake in the order of the ITAT which needs to be rectified within the meaning of the provisions of section 254(2) of the Act. 4. On the contrary, the ld. counsel submitted that the ITAT has decided the issue in favour of the assessee after referring/ considering the relevant facts which have been alleged as an apparent mistake by the Revenue in the Miscellaneous Application. To this effect, the ld. Authorized Representative for the assessee before us drawn our attention to para 14.2 of the ITAT order where the mistake pointed out by the Revenue was duly observed and considered by the ITAT before passing the order. Thus, it was pleaded by the ld. Authorized Representative that there is no mistake apparent from the record. 5. We have heard the rival contentions of both the parties and perused the materials available on record. The provisions of section 254(2) of the Act empowers the ITAT to rectify any type of mistake in its order provided it should be apparent from the record. The mistake apparent from the record has been the subject matter of continuous litigation. The Hon’ble Courts time and again has defined the apparent mistakes through judicial pronouncements. As such, the apparent mistake refers to those errors or inconsistency that is evident from the face of the documents/order of the authority in respect of which two views are not possible. The apparent mistake can be in the form of calculation, data, wrong assumption of facts, misinterpretation of the provisions of law, misreporting of income, deduction, or any other relevant information. However, the mistakes which M.A. No. 2/Rjt/2023 (In I.T.A No.162/Rjt/2022) A.Y. 2018-19 Page No ACIT vs. Shri Jaliluddin Jummat Ali Shekh 5 require arguments, debate, evaluation of law/facts in its determination, the same cannot be referred as mistake apparent from the record. Likewise, in the event of any order given by the ITAT which is alleged to be based on the wrong assumption of facts or law, but after due application of mind, then the same cannot be termed as a mistake apparent from the record. It is because the view has been formed by the ITAT after considering the necessary facts and the law on the point of dispute, then the same cannot be reviewed again in the garb of apparent mistake. In other words, the error of judgement cannot be described as a mistake apparent from record. In such a situation, the aggrieved party should approach the higher forum for the redressal of the issue involved in the dispute. 5.1 Coming to the facts of the present case, we note that the mistake pointed out by the Revenue in the Miscellaneous Application has been duly considered by the ITAT in its order vide order paragraph No. 14.2 of the order. The relevant extracts of the order is reproduced as under:- “14.2 The above details furnished by the assessee were not doubted by the authorities below. As such the doubt of the revenue is this that the proprietor of M/s Brij Mohan Jewellers namely Shri Sandeep Gupta in the statement has stated that the fine gold weighing 949.18 grams was sold to the assessee dated 26 October 2017 which was personally handed over to the assessee whereas as per the assessee the gold was couriered to him (the assesse). The Revenue also found that the seized gold was booked for courier dated 24 October 2017 and was in transit from 25 October 2017. As such there was mismatch in the statement furnished by Shri Sandeep Gupta and the submission made by the assessee and further the fact that seized gold was in transit with courier service from 24 October 2017. Based on the above, a doubt crept in the mind of the AO and therefore the AO held documentary evidences produced with regard to purchase of gold dated 26 October 2017 are afterthought and futile effort to give color of genuineness to an unaccounted transaction. In the result the addition was made in the hands of the assessee on protective basis viz a viz the additions in the hands of the Sandeep Gupta (M/s Brij Mohan Jewellers) on substantive basis. Admittedly, the facts brought on record by the AO are crucial but we note that such mismatch M.A. No. 2/Rjt/2023 (In I.T.A No.162/Rjt/2022) A.Y. 2018-19 Page No ACIT vs. Shri Jaliluddin Jummat Ali Shekh 6 was never confronted to the assessee for his rebuttal. Thus, it appears to us that some details has been used by the AO against the assessee behind his back which is not desirable under the provisions of law.” 5.2 Thus, from the above, it can be seen that the ITAT has passed the order after due application of mind. Thus, there cannot be any apparent mistake in the order of ITAT within the meaning of provisions of section 254(2) of the Act. If we reconsider the arguments of the Revenue, the same shall amount to a review of our own order which is not permissible. 5.3 Regarding the reliance placed by the ld. Departmental Representative in the case cited above, we note that the principles laid down by the Hon’ble Gujarat High Court in humble understanding are distinguishable from the present set of facts. In the case before the Hon’ble Gujarat High Court, the assessee has cited certain case laws which were not considered by the ITAT while delivering its order. Thus, the Hon’ble Gujarat High Court held that the order of ITAT as erroneous within the meaning of the provisions of section 254(2) of the Act. However, in the present case before us, there was no judgement as referred to by the Revenue at the time of the hearing which was left out for consideration by the ITAT. Furthermore, all the contentions raised by the Revenue at the time of the original hearing were reproduced verbatim in the order of ITAT. The ITAT has decided the impugned issue after due consideration of the facts of the case and the arguments of ld. Authorized Representative and the ld. Departmental Representative. Accordingly, we are not convinced by the arguments advanced by the ld. Departmental Representative at the time of hearing the MA. Thus, we hold that there is no mistake apparent from the record in the order of ITAT M.A. No. 2/Rjt/2023 (In I.T.A No.162/Rjt/2022) A.Y. 2018-19 Page No ACIT vs. Shri Jaliluddin Jummat Ali Shekh 7 requiring revision u/s 254(2) of the Act. Hence, the MA filed by the Revenue is hereby dismissed. 6. In the result, the MA filed by the Revenue is hereby dismissed. Order pronounced in the open court on 15-09-2023 Sd/- Sd/- (T.R. SENTHIL KUMAR) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad : Dated 15/09/2023 आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order, Assistant Registrar, Income Tax Appellate Tribunal, Rajkot