ALITCO TILES, V. ITO 12(3)(2),

MA 213/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7290 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-10-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 05-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P K B MENON
• Keywords: Gift

Judgement Text

1 MA N O.213/M/2011,M/S NITCO TILES 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A BEFORE SHRI D. MANMOHAN, V.P. AND SHRI R.K. PANDA, A.M. M.A. NO. 213/MUM/2011 ARISING OUT OF ITA NO. 1038/MUM/2009 ASSESSMENT YEAR 2003-04 M/S NITCO TILES, RECONDO COMPOUND, INSIDE MINICIPAL ASPHALT COMPOUND, S.K. AHIRE MARG, WORLI, MUMBAI 400 030. PAN AAACFN 8174E VS. THE INCOME TAX OFFICER 12(3)(2), MUMBAI. PAN AAACU0615L APPLICANT RESPONDENT APPLICANT BY SHRI VIMAL PUNMIYA RESPONDENT BY SHRI P.K.B. MENON DATE OF HEARING 14.10.2011 DATE OF PRONOUNCEMENT 19.10.2011 PER R.K. PANDA, A.M. THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATIO N REQUESTS THE TRIBUNAL TO RECALL GROUNDS OF APPEAL NO. 1 STATING THAT A MISTAKE HAS CREPT IN THE ORDER OF THE TRIBUNAL WHICH REQUIRES RECTIFICAT ION U/S 254(2) OF THE INCOME TAX ACT, 1961. 2. IN THIS CASE, AN ADDITION OF ` 90,000/- WAS MADE BY THE A.O. ON ACCOUNT OF CAPITAL INTRODUCTION BY ONE OF THE PARTNERS MRS. DOLLY TALWAR. BEFORE THE LD. CIT(A) IT WAS SUBMITTED THAT THE INVESTMENT WAS MAD E OUT OF LOANS AND GIFTS RECEIVED BY THE PARTNER. THOUGH IDENTITY WAS ESTAB LISHED BEFORE THE A.O. SINCE THE PARTNER IS AN INCOME TAX ASSESSEE AND SINCE THE CAPITAL INTRODUCED WAS VERY SMALL, THEREFORE, THE SOURCE OF CAPITAL SHOULD NOT HAVE BEEN DOUBTED. HOWEVER, THE ADDITION WAS CONFIRMED BY THE LD. CIT( A). BEFORE THE TRIBUNAL THE 2 MA N O.213/M/2011,M/S NITCO TILES 2 ASSESSEE HAS MADE DETAILED SUBMISSIONS THE GIST OF WHICH IS THAT THESE ARE ONLY JOURNAL ENTRIES WHICH WERE TRACED AFTER A PERIOD OF 5 YEARS TO RECONCILE THE ACCOUNT. AFTER CONSIDERING THE DETAILED ARGUMENTS ADVANCED BY THE ASSESSEE, THE TRIBUNAL CAME TO THE CONCLUSION THAT IT TOOK MO RE THAN 5 YEARS FOR THE ASSESSEE TO TRACE THE ACCOUNT AND THE EXPLANATION G IVEN IN THE NOTE DOES NOT INSPIRE ANY CONFIDENCE. SINCE THE ASSESSEE HAS NOT COME OUT WITH CLEAR PICTURE REGARDING THE SOURCE OF INTRODUCTION OF CAPITAL, TH E TRIBUNAL UPHELD THE ADDITION MADE BY THE A.O. AND CONFIRMED BY THE LD. CIT(A). 3. AT THE TIME OF HEARING OF THE M.A., THE LD. COUN SEL FOR THE ASSESSEE COULD NOT EXPLAIN ANY MISTAKE WHICH IS APPARENT FROM THE ORDER OF THE TRIBUNAL. HE MERELY TRIED TO RE-ARGUE THE MATTER WHICH HE HAD AR GUED AT THE TIME OF HEARING AND SUBMITTED THAT SINCE OTHER TWO GROUNDS OF THE A SSESSEE HAVE BEEN RESTORED TO THE FILE OF THE A.O., THEREFORE, THIS GROUND MAY ALSO BE RESTORED TO THE FILE OF THE A.O. 4. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES. THE LD. COUNSEL FOR THE ASSESSEE COULD NOT POINT OUT ANY MI STAKE WHICH IS APPARENT FROM THE RECORD SO AS TO INVOKE THE PROVISIONS OF S ECTION 254(2) OF THE I.T. ACT. THE LD. COUNSEL FOR THE ASSESSEE THROUGH THIS M.A. IS NOW ARGUING THE MATTER AFRESH WHICH AMOUNTS TO REVIEW OF ITS OWN ORDER BY THE TRIBUNAL, WHICH IS NOT PERMISSIBLE UNDER THE LAW. SINCE THE LD. COUNSEL F OR THE ASSESSEE COULD NOT POINT OUT ANY MISTAKE IN THE ORDER OF THE TRIBUNAL, THEREFORE THE M.A. FILED BY THE ASSESSEE IS DISMISSED. 5. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 19.10.2011. SD/- SD/- (D. MANMOHAN) ( R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT M EMBER MUMBAI, DATED 19.10.2011. 3 MA N O.213/M/2011,M/S NITCO TILES 3 RK COPY TOTHE APPELLANT 1. THE RESPONDENT 2. THE CIT(A) - CONCERNED, MUMBAI 3. THE CIT, CONCERNED, MUMBAI 4. THE DR BENCH, A 5. MASTER FILE TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI