JCIT, Bijapur Range, Bijapur V. Narayanarao V. Kulkarni, Bijapur

MA 237/BANG/2017

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 5519 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-11-2017
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 25-10-2017
• Court: TRIBUNAL
• Department Lawyers: PADMAMEENAKSHI J

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, B ENGALURU BEFORE S HRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER MISC. PETN.NO.237/BANG/2017 (IN I TA NO. 1236/ BANG/2 013) (ASSESSMENT YEAR: 20 09 - 10 ) SHRI NARAYAN V.KULKARNI, NO.B - NIL - 15, PANDHARI VIVEKNAGAR EAST, BIJAPUR - 586101. VS. PETITIONER JOINT COMMISSIONER OF INCOME - TAX, BIJAPUR RANGE BIJAPUR. RESPONDENT PETITIONER BY : SHRI RAVISHANKAR, ADVOCATE. RESPONDENT BY : SMT.PADMA MEENAKSHI, JCIT(DR) . DATE OF HEARING : 17 / 11 /2017 DATE OF PRONOUNCEMENT : 27 /11 /2017 O R D E R PER I NTURI RAMA RAO, AM : THIS MISC. PETITION IS FILED BY THE ASSESSEE PRAYING THAT WHILE ADJUDICATING GROUND NO.5 , THE ALTERNATIVE PLEA OF ONLY EXPENDITURE IN EXCESS OF RS.20,000/ - ALONE SHOULD BE DISALLOWED U/S 40A (3) OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] , HAD NOT CONSIDERED THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT , DHARWAD BENCH IN THE CASE OF SHANKAR S.KOLIWAD VS. ITO IN ITA NO.5040/2009 DATED 6 TH JANUARY 2012. IT WAS FURTHER URGED THAT NON - CONSIDERATION OF JURISDICTIONAL HIGH COURT DECISION CONSTITUTES A MISTAKE APPARENT FROM RECORD AS HELD BY THE HON BLE APEX COURT IN THE CASE OF ACIT VS. S AURASHTRA KUTCH STOCK EXCHANGE LTD. (305 ITR 227). THUS, HE MP NO.2 37 /B A N G/2017 PAGE 2 OF 3 PRAYED THAT THE IMPUGNED ORDER MAY BE RECTIFIED ADJUDICATING THE GROUND NO.5 IN THE LIGHT OF THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SHANKAR S.KOLIWAD (SUPRA). 2. WE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THERE IS NO QUARREL AS TO THE LEGAL PROPOSITION THAT NON - CONSIDERATION OF JURISDICTIONAL HIGH COURT DECISION CONSTITUTES MISTAKE APPARENT FROM RECORD CAPABLE OF BEING RECTIFIED UNDER THE POWER S VESTED WITH THIS TRIBUNAL U/S 254(2) OF THE ACT BUT THE ONUS ALWAYS LIES ON THE ASSESSEE TO PROVE THAT THIS DECISION WAS RELIED UPON BY HIM DURING THE COURSE OF HEARING OF THE APPEAL AND SPECIFIC ATTENTION OF THE BENCH WAS DRAWN TO THIS DECISION AND I N S UCH CIRCUMSTANCES NON - CONSIDERATION OF THE DECISION OF THE JURISDICTIONAL HIGH COURT CONSTITUTES A MISTAKE APPARENT FROM RECORD. WE DRAW SUPPORT FOR THIS PROPOSITION FROM THE DECISION OF THE HON BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. EARNEST EXPORTS LTD. (323 ITR 577) WHEREIN IT HAS BEEN HELD THAT PETITION U/S 254(2) OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] IS MAINTAINABLE WHERE THE TRIBUNAL FAILED TO CONSIDER MATERIAL OR PLEADINGS BEFORE IT AND WHERE SPECIFIC ATTEN TION OF THE BENCH WAS DRAWN DURING THE COURSE OF THE HEARING OF THE APPEAL. IN THE PRESENT CASE , THE PETITIONER HAD FAILED TO DISCHARGE HIS ONUS AND THEREFORE, THE MISCELLANEOUS PETITIONER FILED BY THE PETITIONER IS DISMISSED. ORDER PRONO UNCED IN THE OPEN COURT ON 27 TH NOVEMBER , 2017 S D/ - SD/ - ( SUNIL KUMAR YADAV ) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE : BENGALURU. D A T E : 27 / 11 /201 7 SRINIVASULU, SPS MP NO.2 37 /B A N G/2017 PAGE 3 OF 3 COPY TO : 1 PETITIONER 2 RESPONDENT 3 CIT(A) 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME - TAX A PPELLATE TRIBUNAL BANGALORE