THAKERSHI A. VEERA, MUMBAI V. INCOME TAX OFFICER -16(1)(4), MUMBAI

MA 229/MUM/2017

• Counselvise Citation: [2018] 111 COUNSELVISE.COM (IT) 1562 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-12-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 01-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANISH KUMAR SINGH
• Assessee Lawyers: B V JHAVARI
• Keywords: Rectification of order
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E , MUMBAI BEFORE S HRI R.C. SHARMA (AM) AND SHRI RAM LAL NEGI (JM) M .A. N O. 229 / MUM /2017 ( ARISING OUT OF ITA NO. 6553 /MUM /201 3 ) ( ASSESSMENT YEAR : 2009 10 ) THAKRESHI A. VEERA, 337/A, AKHIL BHARAT CHAW L, BELLASIS BRIDGE ROAD, TARDEO, MUMBAI - 400034 PAN: AAAVY9166E VS. THE INCOME TAX OFFICER - 16(1)(4), MATRU MANDIR, TARDEO ROAD, MUMBAI - 400007 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI B.V. JHAVARI (A R) REVENUE BY : SHRI MANISH KUMAR SINGH (D R) DATE OF HEARING: 28/09 /201 8 DATE OF PRONOUNCEMENT: 26 / 12 /201 8 O R D E R PER RAM LAL NEGI, JM THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS APPLICATIONS FOR RECTIFICATION OF ORDER DATED 11.1 1.2016, PASSED BY THE E BENCH OF THE TRIBUNAL IN ASSESSEES APPEAL ITA NO 6553/MUM/2013 PERTAINING TO THE ASSESSMENT YEAR 2009 - 10 ON THE GROUND THAT THE ITAT HAS OMITTED TO NOTE AND CONSIDER THE ARGUMENT THAT THE POSSESSION CONTEMPLATED IN SECTION 2(47) (V) OF THE INCOME TAX ACT (FOR SHORT THE ACT) READ WITH SECTION 53A OF THE TRANSFER OF PROPERTY ACT REFERS TO POSSESSION PURSUANT TO AN AGREEMENT TO SALE AND NOT POSSESSION IN OTHER CAPACITY. 2. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE SAID OMISSION IS MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL AS THE SAID ARGUMENT IS COMPLETELY LEGAL, INDEPENDENT AND SELF SUSTAINING AND IF THIS ARGUMENT IS CONSIDERED AND HELD TO BE CORRECT, THE CONCLUSION ARRIVED AT BY THE TRIBUNAL IN THE ORDER DATED 11.11.2016 WOULD REQUIRE RE - CONSIDERATION. SINCE, THE 2 M. A. NO . 229/MUM/2017 ASSESSMENT YEAR: 2009 - 10 OMISSION IS A MISTAKE APPARENT WITHIN THE MEANING OF SECTION 254 (2) OF THE ACT, THE SAME IS REQUIRED TO BE RECTIFIED TO CONSIDER THE SUBSTANTIAL ARGUMENT RAISED BY THE ASSESSEE DURING THE COURSE OF HEARING. THE LD. COUNSEL FOR THE ASSESSEE RELIED ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CHATURBHUJ DWARKADAS KAPADIA VS. COMMISSIONER OF INCOME TAX (2003) 260 ITR 491 . 3. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (D R) OPPOSED THE MA ON THE GROUND THAT SINCE THERE IS NO MISTAKE APPARENT IN THE ORDER, THE PRESENT APPLICATION IS NOT MAINTAINABLE. MOREOVER, AS PER THE SETTLED LAW, THE TRIBUNAL HAS NO JURISDICTION TO REVIEW ITS ORDER UNDER SECTION 254 (2) OF THE ACT. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO GONE THROUGH THE ENTIRE MATERI AL ON RECORD INCLUDING THE CASE RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE. UNDER SECTION 254 (2) OF THE ACT, THE TRIBUNAL HAS POWER TO AMEND ANY ORDER PASSED BY IT UNDER SUB - S ECTION 254(1) OF THE ACT WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, HOWEVER, UNDER THE SAID SECTION, THE TRIBUNAL HAS NO JURISDICTION TO REVIEW THE ORDER PASSED BY IT. THE HONBLE JURISDICTIONAL HIGH COURT HAS HELD IN THE CASE OF CIT V S. RAMESH ELECTRONICS AND TRADING COMPANY 203 ITR 497 THAT THE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDER UNDER THE PROVISIONS OF THE ACT. UNDER SECTION 254(2) OF THE ACT, THE TRIBUNAL HAS ONLY POWER TO RECTIFY ANY MISTAKE IN ITS OWN ORDER WH ICH IS APPARENT FROM THE RECORD. THE HONBLE COURT HAS FURTHER HELD THAT FAILURE BY THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD. 5 . IN THE PRESENT CASE, THE ASSESSEE HAS NOT POINTED OUT ANY MISTAKE APPARENT WHICH CAN BE RECTIFIED UNDER SECTION 254 (2) OF THE ACT. RATHER THE ASSESSEE HAS MOVED THE PRESENT APPLICATION WITH THE PRAYER TO DECIDE THE APPEAL AFRESH AFTER HEARING THE ASSESSEE, WHICH DOES NOT FALL WITHIN THE AMBIT OF SECTION 254(2). HENCE, IN OUR CONSIDERED VIEW, SINCE THE PRESENT APPLICATION 3 M. A. NO . 229/MUM/2017 ASSESSMENT YEAR: 2009 - 10 DOES NOT DISCLOSE ANY APPARENT MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL TO RECTIFY THE SAME, THERE IS NO MERIT IN THE CONTENTION OF T HE ASSESSEE. SO FAR AS THE CASE RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE IS CONCERNED, THE TRIBUNAL HAS PASSED THE ORDER IN QUESTION AFTER CONSIDERING THE SAME. HENCE, WE DISMISS THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. IN THE RESULT, MISC. APPLICATION FILED BY TH E ASSESSEE FOR ASSESSMENT 2009 - 10 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH DECEMBER , 2018 . SD/ - SD/ - ( R.C. SHARMA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICI AL MEMBER MUMBAI ; DATED: 26 / 12 / 2018 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI