S.Pannerselvam, CHENNAI V. DCIT, Tambaram

MA 213/CHNY/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9603 (ITAT-CHENNAI)
• Duration Of Justice: 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 21-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: K MEENAKSHISUNDHARAM
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER .. M.P. NO. 213/MDS/2012 (IN I.T.A. NO. 734/MDS/2010) ASSESSMENT YEAR : 2008-09 SHRI S. PANNEERSELVAM, NO.6, PADMAVATHY NAGAR, MANAPAKKAM MAIN ROAD, KOLAPAKKAM, CHENNAI - 600 048. PAN : AHGPP4151L (PETITIONER) V. THE DEPUTY COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE I, TAMBARAM. (RESPONDENT) PETITIONER BY : SHRI K. MEENAKSHISUNDHARAM, ADVOCATE RESPONDENT BY : SHRI SHAJI P. JACOB, CIT-DR DATE OF HEARING : 07.12.2012 DATE OF PRONOUNCEMENT: 07.12.2012 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : THROUGH THIS MISCELLANEOUS PETITION, ASSESSEE SUB MITS THAT THE TRIBUNAL HAD RECORDED INCORRECT FACTS ABOUT THE ADD ITION OF ` 81,21,440/- SUSTAINED THROUGH THE IMPUGNED ORDER. AS PER THE ASSESSEE, TRIBUNAL HAD DEALT WITH AT GREAT LENGTH, APPLICATION OF M.P. NO. 213/MDS/12 2 SECTION 69A OF INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') FOR MAKING THE ADDITION AND ALSO GIVEN A FINDING THAT ASSESSEE WAS OWNER OF THE MONEY, WITHOUT SATISFACTORILY EXPLAINING THE OWNERS HIP. AS PER THE ASSESSEE, THE ASSESSING OFFICER HIMSELF HAD STATED THAT THE AMOUNTS WERE CONTRACT RECEIPTS. FURTHER GRIEVANCE RAISED IS THAT THE TRIBUNAL HAD MADE REFERENCE TO EXPLANATION 37 OF THE ACT, WH ICH WAS NOT CONSIDERED ANYWHERE IN THE ORDER BY THE CIT(APPEALS ). FURTHER, ACCORDING TO HIM, HIS REPRESENTATIVE HAD SUBMITTED THAT EXPENSES RELATING TO CONTRACT AS ALSO CONTRACT RECEIPTS WERE NOT BOOKED BY THE ACCOUNTS AND DESPITE THERE BEING NO PRONOUNCEMENT O N THE DATE OF HEARING, THE PRONOUNCEMENT DATE WAS MENTIONED AS 15 .11.2012. 2. WHEN THE MATTER CAME UP FOR HEARING, LEARNED COU NSEL FOR THE ASSESSEE SUBMITTED THAT ARGUMENTS, WHICH WERE NEVER TAKEN BEFORE ASSESSING OFFICER OR THE CIT(APPEALS), WERE CONSIDE RED BY THIS TRIBUNAL WHILE CONFIRMING THE ADDITION MADE. ACCOR DING TO HIM, THERE WAS NO REFERENCE TO THE EXPLANATION TO SECTION 37 I N THE ASSESSMENT ORDER NOR IN THE ORDER OF CIT(APPEALS). ORDER OF T HE TRIBUNAL HAD LEFT THE ASSESSEE WITH AN EXPERIENCE THAT WAS WORSE OFF, AND THE PURPOSE OF FILING THE APPEAL, WHICH WAS TO GET RELIEF, GOT DEFEATED BY THE TRIBUNAL ORDER. RELIANCE WAS PLACED ON THE DECISIO N OF HONBLE M.P. NO. 213/MDS/12 3 PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT V. J AGADHRI ELECTRIC SUPPLY AND INDUSTRIAL COMPANY (140 ITR 490) FOR HIS SUBMISSION THAT THE TRIBUNAL COULD NOT UPHOLD THE CIT(APPEALS)S OR DER ON A GROUND OTHER THAN THAT WHICH WAS BEFORE THE CIT(APPEALS). ACCORDING TO HIM, OBSERVATION OF THE TRIBUNAL REGARDING STAMP OF APPR OVAL BEING GIVEN BY IT FOR DOING AN UNLAWFUL ACT WAS NOT NECESSARY, NOR RAISED BY THE PARTIES. IN ANY CASE, ACCORDING TO HIM, ASSESSEES STATEMENT, WHICH WAS RELIED ON FOR MAKING THE ADDITION, WAS NOT READ IN WHOLE. 3. PER CONTRA, LEARNED D.R. SUBMITTED THAT THERE WA S NO ERROR IN THE ORDER OF THIS TRIBUNAL WARRANTING RECTIFICATION UNDER SECTION 254(2) OF THE ACT. 4. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL SUBMISSIONS. THE QUESTION BEFORE US WAS WHETHER THE ADDITION OF ` 81,21,440/- MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(APPEALS) WAS CORRECT OR NOT. ASSESSEE HIMSELF HAD STATED BE FORE THE CIT(APPEALS) THAT HE HAD AGREED TO ENTER INTO AN AR RANGEMENT, WHICH WAS NOT LAWFUL, FOR THE PURPOSE OF HELPING A PARTY WHICH WAS INDULGING IN UNLAWFUL ACTS. ASSESSEE HAD NOT SHOWN THE RECEI PT OF SUCH MONEY IN HIS BOOKS OF ACCOUNTS, THOUGH IT WAS REFLECTED I N HIS BANK ACCOUNT. NEITHER WAS ALLEGED EXPENSES FROM SUCH ACCOUNT PROV ED OR M.P. NO. 213/MDS/12 4 SUBSTANTIATED. RECEIPT OF MONEY FROM M/S S. PERIYA PALAYAM COMMON EFFLUENT TREATMENT PLANT PVT. LTD. WAS NOT A T ALL DISPUTED. BASED ON THE ADMISSION OF THE ASSESSEE THAT IT WAS COLLUDING FOR AN UNLAWFUL ARRANGEMENT, THE TRIBUNAL HAD MADE THE OBS ERVATION THAT IT WOULD NOT BE A PARTY FOR GIVING STAMP OF APPROVAL F OR SUCH ACTS. AS FOR THE REFERENCE BY THE LEARNED A.R. ON THE DECISI ON OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF JAGADHRI ELECTRIC SUPPLY AND INDUSTRIAL COMPANY (SUPRA), IT WOULD APPLY ONLY IF AN ASSESSEE COULD SATISFY THE TRIBUNAL THAT THE GROUNDS GIVEN B Y THE CIT(APPEALS) IN THE APPEAL WERE WRONG. WE HAD GIVEN A CLEAR FIN DING THAT THE CIT(APPEALS) WAS JUSTIFIED IN CONFIRMING THE ADDITI ON. EXPLANATION TO SECTION 37 CAME IN AUTOMATICALLY BY VIRTUE OF ADMIS SION OF THE ASSESSEE THAT IT WAS A PART OF UNLAWFUL ARRANGEMENT . HONBLE APEX COURT IN THE CASE OF HUKUMCHAND MILLS LTD. V. CIT ( 63 ITR 232) HAD HELD THAT THE POWERS GIVEN TO THE TRIBUNAL UNDER SE CTION 254(1) OF THE ACT FOR PASSING AN ORDER, AS IT THINKS FIT, WOULD I NCLUDE ALL THE POWERS EXCEPT THE POWER OF ENHANCEMENT. ONLY RESTRICTION IS THAT JURISDICTION OF THE TRIBUNAL IS LIMITED TO SUBJECT MATTER OF APP EAL. THIS TRIBUNAL HAD NOT DECIDED THE ISSUE, WHICH WAS NOT SUBJECT MA TTER OF THE APPEAL. FOR INVOKING THE RECTIFICATION POWER OF TH E TRIBUNAL UNDER SECTION 254(2) OF THE ACT, ASSESSEE SHOULD BRING OU T THE MISTAKE M.P. NO. 213/MDS/12 5 WHICH IS APPARENT FROM RECORD. A LOOK AT RULE 34A OF APPELLATE TRIBUNAL RULES, 1963, CLEARLY SHOWS THAT AN APPLICA TION UNDER SECTION 254(2), NEED TO CLEARLY AND CONCISELY STATE THE MIS TAKE APPARENT FROM THE RECORD. HERE, WHAT THE ASSESSEE IS SEEKING IS REVIEW OF THE ORDER OF THIS TRIBUNAL IN THE GUISE OF MISCELLANEOUS PETI TION. THERE IS NO MISTAKE IN THE ORDER OF THIS TRIBUNAL MUCH LESS ANY MISTAKE WHICH IS APPARENT ON RECORD. THE TRIBUNAL HAS NO POWER TO R EVIEW ITS OWN ORDERS. WE ARE, THEREFORE, OF THE OPINION THAT THI S MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DEVOID OF ANY MER IT. 5. IN THE RESULT, MISCELLANEOUS PETITION FILED BY T HE ASSESSEE IS DISMISSED. THE ORDER WAS PRONOUNCED IN THE COURT ON FRIDAY, TH E 7 TH OF DECEMBER, 2012, AT CHENNAI. SD/- SD/- (VIKAS AWASTHY) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 7 TH DECEMBER, 2012. KRI. COPY TO: PETITIONER/RESPONDENT/CIT(A)/CIT/D.R./GUA RD FILE