HIREN BROTHERS INVESTMENT CO. P. LTD, V. ACIT CIR 6(3),

MA 219/MUM/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5285 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-11-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2005-2006
• Appeal Filed On: 01-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H MUMBAI BEFORE SHRI R.S. SYAL (AM) AND SMT. ASHA VIJAYARAG HAVAN (JM) M.A. NO. 219/MUM/2010 (ARISING OUT OF ITA NO. 2724/MUM/2009) ASSESSMENT YEAR-2005-06 M/S. HIREN BROTHERS INVESTMENT CO. PVT. LTD., RUBY HOUSE, J.K. SAWANT MARG, DADAR(W), MUMBAI-400 028 PAN-AAACH 1431P THE ACIT, CIR-6(3), AAYAKAR BHAVAN, MUMBAI-400 020 (APPELLANT) VS. (RESPONDENT) APPELLANT BY: SHRI GAURAV BANSAL RESPONDENT BY: SHRI SUMEET KUMAR O R D E R PER ASHA VIJAYARAGHAVAN (JM) BY THIS MISCELLANEOUS APPLICATION, THE PETITIONER I .E. HIREN BROTHERS INVESTMENT CO. PVT. LTD., HAS POINTED OUT THAT SOME MISTAKES APPARENT FROM RECORD HAVE CREPT IN WHILE PASSING TH E TRIBUNAL ORDER DT. 28.1.2010. 2. THE PETITIONER SUBMITS AS FOLLOWS: THUS IT IS SUBMITTED WITH THE HIGHEST RESPECT THAT A GRAVE INJUSTICE HAS BEEN CAUSED TO THE ASSESSEE AS NOT A SINGLE SUBMISSION/ARGUMENT ON BEHALF OF THE ASSESSEE FINDS ANY PLACE IN THE IMPUGNED ORDER. IT IS NOT A CASE WHER E ONE OR SOME OF THE SUBMISSIONS/ARGUMENTS WERE NOT LEFT TO BE MENTIONED BUT IT IS A CASE WHERE A COMPLETE BLACK O UT OF ALL THE SUBMISSIONS/ARGUMENTS IS APPARENT AND THEREFORE , A MISTAKE APPARENT HAS INADVERTENTLY BEEN COMMITTED. M.A. NO. 219/M/10 2 3. THE PETITIONER FURTHER SUBMITTED AS FOLLOWS: IT IS SUBMITTED WITH UTMOST RESPECT THAT EVEN OTHE RWISE, THE ORDER APPEARS TO BE CONTRARY TO THE LAW LAID DOWN B Y JURISDICTIONAL HIGH COURT AND SUPREME COURT . THE ONLY REASON GIVEN BY THE ITAT IN PARA 8 OF IMPUGNED ORDE R IS FROM THE ABOVE CHART, WE FIND THAT ALL THE SHARES HAVE B EEN SOLD WITHIN A SHORT PERIOD AFTER THE PURCHASE. THUS, THE MATTER HAS BEEN DECIDED ON THE BASIS OF A SINGLE FACTOR , IGNORING ALL OTHER CIRCUMSTANCES. IN CIT VS ASIAN DRY DOCK CO. 108 ITR 822 (BOM), WHERE THE JURISDICTIONA L HIGH COURT OBSERVED THAT IN DETERMINING WHETHER A TRANSA CTION IS AN ADVENTURE IN THE NATURE OF TRADE IT IS THE TOTAL EFFECT OF ALL THE FACTS AND CIRCUMSTANCES THAT HAVE TO BE CONSIDE RED. THE SAME PRINCIPLES HAVE BEEN REITERATED BY THIS COURT IN THE CASES OF CIT VS RADHESHYAM R. MORARKA (1981) 127 ITR 111 AND IN CIT VS V.A. TRIVEDI (1988) 172 ITR 95 AND A. TUSHAR TANNA VS CIT 284 ITR 453. THUS THE IMPUGNED ORDER IS ALSO CONTRARY TO THE SUP REME COURTS DECISION IN CIT (CENTRAL), CALCUTTA VS ASSO CIATED INDUSTRIAL DEVELOPMENT CO. (P) LTD. (82 ITR 586) (R EPRODUCERD IN THE CBDT CIRCULAR REFERRED ABOVE.) IN THIS CASE THE CIT(A) HAS ACCEPTED THE PLEA OF THE ASSESSEE THAT THE TRAN SACTIONS WERE RECORDED AS INVESTMENTS IN THE BOOKS OF ACCOUN T. SINCE THE HONBLE ITAT IS THE FINAL FACT FINDING AU THORITY AND IN ABSENCE OF RECORDING OF ALL THE FACTS IN THE ORDER THE APPELLATE COURTS WOULD NOT BE ABLE TO JUSTIFIABLY DISPOSE OF THE APPEAL. THUS IT IS IMPERATIVE THAT THE SAID ERROR APPARENT ON RECORD TOOK MUST BE RECTIFIED BY RECALLING THE SAME FOR RE CORDING OF COMPLETE FACTS AND ALSO BY FOLLOWING THE ABOVE MENT IONED ORDERS AND THE ORDER PASSED IN M.A. NOS. 466 TO 469/DEL/2007 ON 9.5.08 AFTER CONSIDERING VARIOUS OR DERS BY THE HONBLE ITAT BENCH A NEW DELHI IN THE CASE OF ONGC LTD CPF TRUST VS ITO (2008) 24 SOT 48 (DEL) IN PARTICUL AR BY REFERRING TO CED VS R. BRAHADEESWARAN (1987) 160 IT R 680, 688 WHEREIN IT WAS HELD THE ITAT AS AN INSTITUTION OF CORRECTION AND THEREFORE THE REQUISITE RECTIFICATIO NS/CORRECT IN THE INFIRMITIES POINTED OUT HEREIN MUST BE MADE TO MEET BOTH THE ENDS OF NATURAL JUSTICE AND LAW. 4. WE HAVE HEARD THE MISCELLANEOUS PETITION. AT PA RA-2 OF OUR ORDER, WE HAVE SUMMARIZED THE ORDER OF THE AO. FURTHER AT PARA-3, WE HAVE M.A. NO. 219/M/10 3 REPRODUCED THE CONTENTION OF THE ASSESSEE BEFORE TH E LD. CIT(A). WE MIGHT NOT HAVE DISCUSSED VARIOUS CASES OF THE ISSUE , NEVERTHELESS WE HAVE APPLIED OUR MIND TO THE FACTS OF THE CASE. SI NCE THE CASE LAWS RELIED BY THE PETITIONER ARE NOT IDENTICAL TO THE FACTS OF THE PETITIONERS CASE. WE THEREFORE OF THE OPINION THAT HAVING APPLIED OUR MI ND, WE PARTLY ALLOWED THE REVENUES APPEAL. 5. FURTHER, WE HAVE ACCEPTED THE CLAIM OF THE ASSES SEE WITH RESPECT TO TISCO LTD., ONLY AFTER DUE DELIBERATION ON THE CASE LAWS ON THE ISSUE AND AFTER ANALYZING THE FACTUAL POSITION. THEREFORE WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY US. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THIS 4 TH DAY OF NOVEMBER, 2010 SD/- SD/- ( R.S. SYAL) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 4 TH NOVEMBER , 2010 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR H BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI M.A. NO. 219/M/10 4 DATE INITIALS 1 DRAFT DICTATED ON: 25.10.2010 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 25.10.2010 ______ SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: _________ ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: _________ ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: _________ ______ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: _________ ______ 9. DATE OF DISPATCH OF ORDER: _________ ______