ACIT,Central Cir-2, , Surat V. Shri Jayeshkumar DhirajlalMistry, Surat

MA 22/SRT/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 1623 (ITAT-SURAT)
• Duration Of Justice: 5 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-09-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 08-09-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 07-04-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RASESH SHAH
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER M.As.No.22-26/SRT/2022 (Arising out of IT(SS)A 21-25/SRT/2018) (AY 2009-10 to 2012-13 & 2014-15) (Hearing in Physical Court) DCIT/ACIT, Central Circle-2, 505, 5 th Floor, Aayakar Bhawan, Majura Gate, Surat-395001 Vs Shri Jayeshkumar Dhirajlal Mistry, 40, Jasukaka, Ni Wadi, A.K. Road, Fulpada, Surat PAN: ACKPM 7158 A Applicant /Revenue Respondent /assessee Assessee by Shri Rasesh Shah, C.A Revenue by Shri Vinod Kumar – Sr. DR Date of hearing 09.09.2022 Date of pronouncement 28.09.2022 Order under section 254(2) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This set of five Miscellaneous Applications (MAs) are filed by the Revenue for seeking rectification within the meaning of Section 254(2) of the Income Tax Act, 1961 in the order dated 13.10.2021 passed in five appeals of Revenue for AY 2009-10 to 2012-13 & 2014-15. In all MAs, the revenue has pleaded common contention, therefore, all the applications were clubbed, heard together and are decided by common order. 2. For appreciation of facts, the facts pleaded in MA No.22/Srt/2022 are treated as lead case. The applicant/ revenue in its application contended that all these appeals were filed by the revenue were dismissed in order dated 13.10.2021. In para-4, of its application MAs No.22-26/SRT/2022 (a/o IT(SS)A No.21-25/SRT/2018) M/s Sh. Jayeshkumar D Mistry 2 the appellant / revenue has referred the contents of impugned order passed by the Ld. Commissioner of Income-tax (Appeals)-4 Surat (“ld. CIT(A)” for short) in all corresponding appeals. In para-5 of the M.A, the appellant / Revenue referred the certain part of the order of Tribunal. In para-6 of the MA, the appellant / Revenue contended that Ld. CIT(A) deleted the protective addition in the hand of assessee without ascertaining and considering the substantive addition. The order of Ld. CIT(A) has been confirmed by the Tribunal. The Ld. CIT(A) as well as Tribunal has erred in law and on fact in deleting the addition of Rs.8.22 crores, when certain incriminating seized materials found to be belonged to assessee and that the protective addition was made in the hand of assessee and substantive in case of Shri Dilip S. Sojitra. The appellant / Revenue prayed to rectify the order in IT(SS)A No.21-25/SRT/2018 dated 13.10.2021. 3. The ld. Sr. DR for the Revenue submitted that the Ld. CIT(A) as well as Tribunal adjudicated the appeals of assessee without waiting the outcome of appeal filed by Dilip S. Sojitra in whose hand the substantive addition was made. The Ld. Sr-DR for the Revenue submits that the order passed by the Tribunal dated 13.10.2021 may be re-called and may be decided after disposal of appeal of Dilip S. Sojitra, which is now filed before the Tribunal. MAs No.22-26/SRT/2022 (a/o IT(SS)A No.21-25/SRT/2018) M/s Sh. Jayeshkumar D Mistry 3 4. On the contrary, ld. Authorized Representative (Ld.AR) for the assessee submits that the Ld. Sr-DR for the appellant / Revenue nowhere in MAs has referred any mistake apparent, which may be said to be as “mistake apparent on record” within the scope of Section 254(2) of the Act. The ld. AR for the assessee submits that appeal in case of Shri Dilip S. Sojitra was not pending before the Tribunal when the appeals of assessee was adjudicated. The Ld. CIT(A) passed the order, which was impugned in the present appeals on 13.08.2018 by granting relief to the assessee. Thereafter the appellant / Revenue preferred appeal before the Tribunal in the month of January, 2018 and the Tribunal adjudicated those appeals in the month of September, 2021. The ld. AR for the assessee further submits that against the order of Tribunal passed on 22.09.2021, the appellant / Revenue has already filed appeal before the Hon'ble jurisdictional High Court, therefore the matter is sub-judice before higher judicial forum and the rectification applications are not maintainable in such circumstances. Even otherwise, the ld. Sr DR for the revenue failed to bring any mistake in the order, which may be said to the mistake apparent. The revenue is seeking review of the order under the garb of present application, which is not permissible. 5. At the time of hearing, the Bench directed the ld. Sr-DR for the appellant / Revenue to ascertain whether any appeal assailing the MAs No.22-26/SRT/2022 (a/o IT(SS)A No.21-25/SRT/2018) M/s Sh. Jayeshkumar D Mistry 4 order of Tribunal, which is sought to be rectified is filed or not, before Hon'ble jurisdictional High Court. The Ld. Sr-DR for the appellant / Revenue vide his reply dated 21.09.2022 filed before the Bench confirmed that the Revenue has filed further appeal before the Hon'ble jurisdictional High Court in challenging the order dated 22.09.2021 passed by the Tribunal in IT(SS)A No.21- 25/SRT/2018 for assessment years 2009-10 to 2012-13 & 2014- 15. The ld AR for assessee also confirmed that the assessee has already filed appeal in all cases before Hon’ble High Court, which have been registered vide Tax Appeal No. 422,428,433,434& 435 of 2022. 6. We have considered the submissions of both the parties and have gone through the content of Miscellaneous Application carefully. On perusal of MA, we note that in the present MAs, the appellant / Revenue contended that Ld. CIT(A) deleted the protective addition in the hand of assessee without confirming the substantive addition on equal amount in the hand of any other assessee. The appellant / Revenue has not specified as to what is the mistake which can be rectified by invoking the provisions of Section 254(2) of the Act. We may further note that when the present appeals were adjudicated, there was no appeal pending before the Tribunal either by Revenue or by the assessee, wherein the substantive addition was confirmed or deleted by Ld. CIT(A). The appeals in MAs No.22-26/SRT/2022 (a/o IT(SS)A No.21-25/SRT/2018) M/s Sh. Jayeshkumar D Mistry 5 case of Dilip Sojitra was adjudicated by ld CIT(A) after the decision of all the appeals in case of Jayeshkumar D Mistry. Admittedly, the appeals in case of substantive addition was not pending before Tribunal, when the appeals of Jayeshkumar D Mistry were adjudicated. Moreover, the revenue has already challenged the order of Tribunal dated 13.10.2021, before Hon'ble jurisdictional High Court. Thus, keeping in view of the judicial proprietary, we do not find it proper to entertain the MA(s) filed by the revenue. Even otherwise, the revenue failed to bring any mistake which may be considered as mistake apparent on record. In the result, the MA No. 22/Srt/2022 in IT(SS)A No. 21/Srt/2018 is dismissed. 7. Considering the fact that we have dismissed the MA No.22/Srt/2022, and the revenue has raised similar contention in all remaining MA(s) No. 23 to 26/Srt/2022, therefore, all the MA(s) filed by the Revenue are dismissed with similar observation. 8. In the result, all the MA(s) are dismissed. Order pronounced on 28/09/2022 in the open court and result was placed on the Notice Board. Sd/- Sd/- (Dr ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 28/09/2022 DKP, Outsourcing Sr.PS MAs No.22-26/SRT/2022 (a/o IT(SS)A No.21-25/SRT/2018) M/s Sh. Jayeshkumar D Mistry 6 Copy to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR 6. Guard File // True Copy // By order Sr. Pvt. Secretary, ITAT, Surat True copy/