D.K. SHAH HUF, V. ACIT CC-15,

MA 208/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7420 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-12-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 25-11-2011
• Assessment Year: 1997-1998
• Appeal Filed On: 30-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V V SHASTRI
• Assessee Lawyers: J D MISTRY; K K VED
• Keywords: Question of law

Judgement Text

MA NO 208 OF 2011 ITA 1849 OF 05 DHARNIDHAR KHIMCHAND SHAH HUF MUMBAI PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL 'H' BENCH, MUMBAI BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER MA NO.208/MUM/2011 (ARISING OUT OF ITA NO. 1849/MUM/2005) (ASSESSMENT YEAR: 1997-98) DHARNIDHAR KHIMCHAND SHAH (HUF) ASSTT. COMMISSIONER OF MANGROL MANSION INCOME TAX, CIRCLE-15 GUNBOW STREET AAYKAR BHAVAN,MK MARG MUMBAI 400001 VS MUMBAI 400020 PAN AABHS 5254 F APPELLANT RESPONDENT APPELLANT BY: SHRI J.D.MISTRY & K.K.VED RESPONDENT BY: SHRI V.V. SHASTRI, DR DATE OF HEARING: 25/11/2011 DATE OF PRONOUNCEMENT: 09/12/2011 O R D E R PER B. RAMAKOTAIAH, A.M. THIS MISCELLANEOUS APPLICATION WAS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE INCOME TAX APPELLATE TRIBU NAL DATED 11.01.2010 IN ITA NO.1849/MUM/2005. 2. THE ISSUE IN THE APPEAL IS WITH REFERENCE TO DISALL OWANCE OF EXPENDITURE CONSEQUENT TO THE FINDINGS GIVEN BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS NOT CARRIED ON ANY BU SINESS ACTIVITY DURING THE YEAR. THE ITAT IN ITS ORDER UPHELD THE O RDER OF THE CIT (A) REJECTING THE CLAIM OF THE ASSESSEE. 3. THE PRESENT M.A. WAS PREFERRED ON THE REASON THAT S OME OF THE ARGUMENTS OF THE ASSESSEE WERE NOT CONSIDERED A ND NON CONSIDERATION OF THE ARGUMENTS AND THE BINDING JUDI CIAL PRECEDENCE CONSTITUTE A MISTAKE APPARENT FROM THE RECORD. THE APPELLANT SUBMITS THAT THE ABOVE DEFECT IS SUCH AS WOULD REQU IRE THE MATTER TO MA NO 208 OF 2011 ITA 1849 OF 05 DHARNIDHAR KHIMCHAND SHAH HUF MUMBAI PAGE 2 OF 3 BE PROPERLY CONSIDERED AS IT GOES TO THE VERY ROOT OF THE REASONING FOR DISALLOWING THE ASSESSEES APPEAL AND IN THE IN TEREST OF JUSTICE THE ORDER REQUIRES TO BE RECALLED. 4. THE LEARNED COUNSEL IN HIS ARGUMENTS REITERATED THE SUBMISSIONS MADE IN THE M.A. WHILE POINTING OUT THA T THE ORDER OF THE ITAT HAD NOT CONSIDERED SOME OF THE SUBMISSIONS INCLUDING THAT THE ASSESSEE WAS IN THE BUSINESS IN EARLIER YEARS A ND IN LATER YEARS. 5. HOWEVER, IT TRANSPIRED THAT THE ASSESSEE HAS PREFER RED AN APPEAL TO THE HON'BLE BOMBAY HIGH COURT AGAINST THE ORDER OF THE TRIBUNAL AND THE SAID APPEAL HAS BEEN ADMITTED BY T HE HON'BLE BOMBAY HIGH COURT VIDE ITS ORDER DATED 12.07.2011 O N THE FOLLOWING QUESTION OF LAW: WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE AND IN LAW THE TRIBUNAL WAS JUSTIFIED IN LAW I N HOLDING THAT THE APPELLANT WAS NOT CARRYING ON ANY BUSINESS ACTIVITY DURING THE YEAR UNDER CONSIDERATI ON 6. SINCE THE VERY ISSUE ON WHICH THE TRIBUNAL HAS ADJU DICATED HAS BEEN ADMITTED BY THE HON'BLE BOMBAY HIGH COURT, WE ARE OF THE OPINION THAT IT IS NOT APPROPRIATE FOR ASSESSEE TO AGITATE THE SAME BEFORE THE TRIBUNAL IN THE GUISE OF MISCELLANEOUS A PPLICATION. EVEN THOUGH THE ASSESSEE UNDERTOOK TO WITHDRAW THE SAID APPEAL BEFORE THE HONBLE HIGH COURT, IN CASE THE CAPTIONED M.A. IS ALLOWED AND ORDER OF THE TRIBUNAL IS RECALLED, THIS PRAYER CANN OT BE ACCEPTED AS THE CORRECTNESS OR OTHERWISE OF THE DECISION OF THE TRIBUNAL IS TO BE ADJUDICATED BY THE LORDSHIP OF HON'BLE BOMBAY HIGH COURT. AS FAR AS THE TRIBUNAL IS CONCERNED, THE ISSUE HAS ALREADY BEEN DECIDED AND IS NOW FUNCTUS OFFICIO AS FAR AS THE ISSUE RAISED IN THE APPEAL IS CONCERNED. IN VIEW OF THIS, WE ARE OF THE CONSIDERE D OPINION THAT THE PETITION FILED BY THE ASSESSEE UNDER SECTION 254(2) CANNOT BE ENTERTAINED BY THIS FORUM. WE GET SUPPORT FROM THE ORDER OF SPECIAL BENCH OF ITAT IN THE CASE OF TATA COMMUNICATIONS LT D VS. JCIT 121 MA NO 208 OF 2011 ITA 1849 OF 05 DHARNIDHAR KHIMCHAND SHAH HUF MUMBAI PAGE 3 OF 3 ITD 384 (SB)(MUMBAI) FOR THE SAME. THEREFORE, THE A PPLICATION IS DISMISSED. 7. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY T HE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH DECEMBER,2011. SD/- SD/- (D.K.AGARWAL) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER VNODAN/SPS MUMBAI, DATED 9TH DECEMBER, 2011. COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, H BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI