TARA KABRA, MUMBAI V. DY CIT -CC-1(3), MUMBAI

MA 211/MUM/2022

AI Insights

The case involves Tara Kabra, the Assessee, who filed a Miscellaneous Application seeking rectification of an order passed by the Income Tax Appellate Tribunal. The original order had incorrectly reproduced a ground of appeal and failed to consider certain explanations and evidence provided by the Assessee regarding cash and jewellery found during a search operation but not seized. The Tribunal acknowledged the errors in the original order and agreed to reconsider the specific ground of appeal after taking into account the relevant judgments and the CBDT circular cited by the Assessee.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 113469 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-02-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 17-11-2022
• Assessment Year: 2017-2018
• Appeal Filed On: 02-08-2022
• Other Referred Cases: CIT vs. Ratanlal Vyaprilal Jain, M.S. Agarwal (HUF)
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 144; 260A; 254(2); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL "E" BENCH, MUMBAI SHRI B.R. BASKARAN, ACCOUNTANT MEMBER SHRI RAHUL CHAUDHARY, JUDICIAL MEMBER MA No. 211/MUM/2022 (Arising out of ITA No.1319/Mum/2021) (Assessment Year: 2017-18) Tara Kabra, 2202, Aspean Mahindra Eminente, S.V. Road, Near Patkar College, Goregaon (West), Mumbai - 400062 [PAN: ACBPK7381F] Deputy Commissioner of Income Tax, Central Circle-1(3), Mumbai, Room No. 905, 9 th Floor, Aayakar Bhavan, M.K. Road, Mumbai - 400020 .................. Vs .................. Appellant Respondent Appearances For the Appellant/Assessee For the Respondent/Department : : Shri Ajay Singh Shri Soumender Kumar Das Date of conclusion of hearing Date of pronouncement of order : : 18.11.2022 17.02.2023 O R D E R Per Rahul Chaudhary, Judicial Member: 1. The present Miscellaneous Application has been filed by the Assessee for rectification of common order, dated 18.04.2022, passed by the Tribunal in ITA No. 1319/Mum/2021, Assessment Year 2017-18. 2. We have heard the rival submissions and perused the material on record. 3. According to the Ld. Authorised Representative for the Applicant, MA No. 211/Mum/2022 Assessment Year: 2017-18 2 the first mistake apparent on record which is crept into the common order dated 18.04.2022 (hereinafter referred to as „the Order‟), is that while disposing of appeal for the Assessment Year 2017-18, Ground No. 4 has been reproduced instead of Ground No. 2 in paragraph 5. We find that the submission made by the Ld. Authorised Representative for the Applicant is correct. Accordingly, Ground No. 4 would now be replaced with Ground No. 2 in paragraph 5 which would now read as under: „5. For Assessment Year 2017-18 one more ground is there which read as under: “2. On the facts and circumstances of the case, Hon'ble CIT (A) has erred in considering the cash found of Rs. 21,200 and jewellery found of Rs.8,15,796 as seized however as mentioned in assessment order, both cash and jewellery were found but were not seized and was released by Search team after getting explanation from appellant in the statement recorded during Search. The Hon'ble CIT (A) has erred in not considering the explanation provided during the appellant proceedings without giving any reason for non-acceptance of such explanations. The addition made by learned assessing officer for Cash found of Rs 21,200/- and Jewellery of Rs 8,15,796/- was confirmed by considering the same as seized one which is factually incorrect. It is therefore prayed that such addition made of Rs.8,36,996/- should be deleted.‟ 4. Next, the Ld. Authorised Representative for the Applicant referred to extract of paragraph 17 of the Order reproduced on page 4 of the application and submitted that the Tribunal has incorrectly stated that no explanation was furnished by the Applicant before the Assessing Officer and the CIT(A). In support he placed reliance on Question No. 13 forming part of the statement of the Assessee recorded under Section 132(4) of the Act on 29.10.2016 placed at page 11 to 14 of the paper-book filed by the Applicant MA No. 211/Mum/2022 Assessment Year: 2017-18 3 in the appeal before the Tribunal. 4.1. The relevant extract of the Order forming part of paragraph 17 read as under: “However, before the Assessing Officer, as recorded in the assessment order the assessee has not made any submission in this regard after due notice. Before learned CIT(A) also nothing was submitted as it has been duly noted by learned CIT(A) that the assessee has all along being harping upon the validity of notice and jurisdiction of assessment.” 4.2. On perusal of the same, we find that the Tribunal has recorded that no submissions were made by the Applicant before the Assessing Officer after due notice. We find that this is factually correct as the assessment was framed under Section 144 of the Act since the Applicant did not participate in the assessment proceedings. 4.3. We also find that the CIT(A) in paragraph 10 of the Order dated 20.05.2021, recorded as under: “10. During the course of search, cash of Rs.21,200/- and jewellery of Rs.8,15,796/- totaling to Rs.8,36,996/- was found and seized. During the course of assessment proceedings, the assessee failed to furnish any reply in this regard even though, she was given sufficient opportunities of being heard. This resulted into completion of assessment, as per best judgment in the manner laid down u/s.144 and Assessing Officer also had to levy penalty u/s.271(1)(b) of the IT Act. Consequently, addition of Rs.8.36,996/- was made by the Assessing Officer in the hands of the assessee on this account. During the appellate proceedings also, the assessee failed to furnish any credible explanation or evidence in support of cash and jewellery found and seized and treated as unexplained by the Assessing Officer. Assessee only said that cash and MA No. 211/Mum/2022 Assessment Year: 2017-18 4 jewellery found from its premised at the time of search was not unusual. In absence of any evidence to the contrary, I am not in a position to deviate from the view taken by the Assessing Officer. Therefore, addition of Rs.8,36,996/-, made by the Assessing Officer is upheld.” 4.4. In paragraph 17, the Tribunal has recorded that nothing was submitted before the CIT(A) as it has been duly noted by the CIT(A). We find this to be factually correct as the CIT(A) has specifically recorded that the Applicant had failed to furnish any credible explanation or evidence in support of cash and jewellery found and seized and treated as unexplained by the Assessing Officer. Therefore, we hold that there is no mistake in paragraph 17 of the Order and therefore, no rectification is required on this count. 5. Lastly, the Ld. Authorised Representative for the Applicant submitted that the Tribunal had proceeded on incorrect premise that no explanation was furnished before the CIT(A). In this regard, he referred to written submission filed by the Applicant before the CIT(A) placed at page 141 to 167 of the paper-book (@ (paragraph 5 – page 163-164). He further submitted that in reply to Question No. 13 in the statement recorded under Section 132(4) of the Act on 29.10.2016 as well as in the aforesaid submissions filed before CIT(A), the Applicant had explained that jewellery belong to the Applicant and her family and was received at the time of various auspicious occasions including marriage from friends and relatives. He further submitted in order to support his case the Applicant had placed reliance on the circular issued by the Central Board of Direct Taxes (CBDT) which was not a „new plank raised‟ by the Applicant and that the Tribunal erred in not adjudicating the same. He further submitted that the MA No. 211/Mum/2022 Assessment Year: 2017-18 5 Applicant was permitted to raise additional ground in writing or orally at the time of hearing, though, in the present case it was merely in the contention of the existing ground. He also made a submission that the Tribunal had failed to consider the decision cited. In view of the aforesaid, he contended that the order passed by the Tribunal suffered from mistakes apparent on record. 5.1. In this regard, it would be pertinent to refer to paragraph 17 of the order which read as under: “17. We find that the above guideline is with regard to seizure of jewellery. In the present case it is not at all the case that there is any seizure. The issue here is that cash and jewellery was found during search and the onus was upon the assessee to explain the same. However, before the Assessing Officer, as recorded in the assessment order the assessee has not made any submission in this regard after due notice. Before learned CIT(A) also nothing was submitted as it has been duly noted by learned CIT(A) that the assessee has all along being harping upon the validity of notice and jurisdiction of assessment. As noted by us hereinabove this has been not been pressed by learned counsel. Even this plea of relief of jewellery found on the basis of CBDT guideline was also not made before learned CIT(A). Hence, this new plank raised by learned counsel is not emanating from the orders of authorities below. As noted by learned CIT(A) except for submitting that the items found in search were not unusual, no explanation was made by the assessee before learned CIT(A). In the absence of any material on record in this regard we are not inclined to grant any relief whatsoever by simply mentioning of that CBDT guideline. In this view of the matter this ground raised by the assessee stands dismissed.” 5.2. On perusal of the same it can be seen that the Tribunal has referred to the circular issued by CBDT and stated that the same MA No. 211/Mum/2022 Assessment Year: 2017-18 6 as not applicable in view of the fact that the same was applicable to the case of seizure of jewellery and had no application in the facts of the case where there was no seizure. In paragraph 16, the Tribunal has also quoted the relevant extract of the guideline (i.e. Instruction No. 1916, dated 11.05.1994) relied upon by the Applicant. Therefore, we do not find any merit in the contention of the Ld. Authorised Representative for the Applicant that the Tribunal had failed to adjudicate the contention raised by the Applicant. Further, it is admitted position that reliance was not placed in the aforesaid circular in proceedings before the Assessing Officer and the CIT(A). Therefore, the Tribunal was correct in observing that a „new plank raised‟ by the Applicant before the Tribunal which was dealt with by the Tribunal. We agree with the Ld. Authorised Representative for the Applicant that the Tribunal can admit and examine an additional ground or claim provided the same is raised before the Tribunal by way of a written or oral application, which was admittedly not the case in the present appeal as according to the Ld. Authorised Representative for the Applicant the contention was raised in support of the existing ground. 5.3. Having said as above, we find that explanation regarding the source of jewellery given in reply to Question No. 13 forming part of statement of the Assessee recorded under Section 132(4) of the Act on 29.10.2016, has not been considered by the Tribunal. However, it is settled legal position that the Tribunal does not have power to review its own decision. Further, an oversight of a fact cannot constitute an apparent mistake rectifiable under section 254(2) of the Act. This might lead to perversity of the order, for which the remedy available to the assessee is appeal under Section 260A of the Act and not rectification application MA No. 211/Mum/2022 Assessment Year: 2017-18 7 under section 254(2) of the Act. 5.4. However, we note that in paragraph 16 of the Order it has been recorded by the Tribunal that the reliance has been placed on behalf of the Applicant on the decision of the Tribunal wherein relief on the basis of the CBDT Circular (i.e. Instruction No. 1916 dated 11.05.1994) has been granted. Further, on perusal of record we find that the Applicant had placed on record the decision of Hon‟ble Gujarat High Court in the case of CIT vs. Ratanlal Vyaprilal Jain (2011) 339 ITR 351 (Guj (HC) and Hon‟ble Madhya Pradesh High Court in the case of M.S. Agarwal (HUF) (2008) 11 DTR 169 (MP) (HC) dealing with the applicability of Instruction No. 1916 dated 11.05.1994. Therefore, we agree with the contention of the Applicant that a mistake apparent on record, arising from non-consideration of the aforesaid order/judgments, has crept into the order. Accordingly, the consolidated order, dated 18.04.2022, is recalled for the limited purpose of adjudication of Ground No. 2 raised in appeal for the Assessment Year 2017-18 after taking into consideration the aforesaid judgments already placed on record. In result, in terms of the above, the present Miscellaneous Application filed by the Assessee is allowed. Order pronounced on 17.02.2023. Sd/- Sd/- (B.R. Baskaran) Accountant Member (Rahul Chaudhary) Judicial Member म ुंबई Mumbai; दिन ुंक Dated : 17.02.2023 Alindra, PS MA No. 211/Mum/2022 Assessment Year: 2017-18 8 आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपील र्थी / The Applicant 2. प्रत्यर्थी / The Respondent. 3. आयकर आय क्त(अपील) / The CIT(A)- 4. आयकर आय क्त / CIT 5. दिभ गीय प्रदिदनदि, आयकर अपीलीय अदिकरण, म ुंबई / DR, ITAT, Mumbai 6. ग र्ड फ ईल / Guard file. आिेश न स र/ BY ORDER, सत्य दपि प्रदि //True Copy// उप/सह यक पुंजीक र /(Dy./Asstt. Registrar) आयकर अपीलीय अदिकरण, म ुंबई / ITAT, Mumbai