Sikandar And Company, Sangli V. Income-tax Officer, Ward - 2(1), Sangli

MA 238/PUN/2022

AI Insights

The cases involve two separate Miscellaneous Applications filed by Ms. Allabaksha Mehaboob Mulla and Sikandar and Company against the ITO, Ward-2(1), Sangli, concerning the assessment year 2009-10. Both applications challenged the Tribunal's earlier decisions which had dismissed their appeals regarding additions of excess stock and cash found during a survey. The applicants argued that the Tribunal had overlooked a Supreme Court judgment which could have influenced their cases. However, the Tribunal maintained that the additions were based on concrete evidence from the survey and the initial admissions made by the assessee, which were later retracted.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 137675 (ITAT-PUNE)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-02-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 16-02-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 07-09-2022
• Other Referred Cases: CIT Vs. S. Khader Khan Son (2013) 352 ITR 480 (SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Retraction
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “SMC”, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT Miscellaneous Application No.226/PUN/2022 (arising out of ITA No.1464/PUN/2018) Assessment Year : 2009-10 Ms. Allabaksha Mehaboob Mulla, Guruwar Peth, At & Post Battis Shirala 415 408 Dist. Sangli, Maharashtra PAN : AACFA4723A Vs. ITO, Ward-2(1), Sangli (Applicant) (Respondent) Miscellaneous Application No.238/PUN/2022 (arising out of ITA No.1463/PUN/2018) Assessment Year : 2009-10 Sikandar and Company, Guruwar Peth, At & Post Battis Shirala 415 408 Dist. Sangli, Maharashtra PAN : AHLPK0527C Vs. ITO, Ward-2(1), Sangli (Applicant) (Respondent) Assessee by : Shri Kishor B. Phadke Revenue by : Shri Suhas Kulkarni Date of Hearing : 17-02-2023 Date of Pronouncement : 17-02-2023 ORDER PER R.S.SYAL, VP : These two Miscellaneous applications by different assessees involve similar issue. For the sake of convenience, I have clubbed them for disposal. M.A.Nos. 226 & 238/PUN/2022 2 2. Miscellaneous Application No.226/PUN/2022 in the case of Ms. Allabaksha Mehaboob Mulla in ITA No.1464/PUN/2018 assails the correctness of the order passed by the Tribunal on 06-05-2022 dismissing the assessee’s appeal on account of addition of excess stock to the tune of Rs.8,43,230/- and excess cash of Rs.4,00,100/- found during the course of survey. 3. The ld. AR submitted that the judgment of the Hon’ble Supreme Court in the case of CIT Vs. S. Khader Khan Son (2013) 352 ITR 480 (SC) was omitted to be considered by the Tribunal. This judgment provides that any addition made during the course of survey, based solely on the statement of the assessee, cannot be sustained. Turning to the facts of the instant case, I find that both the additions were based on physical verification of stock and cash done during the course of survey, which transpired that there was excess stock and cash to this extent. Thus, it is clear that the judgment in the case of S. Khader Khan Son (supra) has no role to play in the facts of the instant case. Be that as it may, the ld. AR fairly admitted that this judgment was not cited during the course of hearing of the appeal. M.A.Nos. 226 & 238/PUN/2022 3 4. The second submission made by the ld AR is that though the assesee made a surrender during the course of survey but the same was retracted and hence, the addition should not have been confirmed. On this score, I find that the Tribunal, while dismissing the grounds, duly took note of, firstly, the excess stock/cash found during the course of survey; secondly, the admission made by the assessee in this regard; thirdly, the retraction made. On an overview of the entire scenario, the Tribunal came to the conclusion that the additions were justified on the strength of the excess stock/cash found notwithstanding the retraction. 5. At this juncture, it is relevant to mention that the instant hearing is of the Miscellaneous Application. Scope of the M.A. u/s 254(2) is restricted to rectifying a mistake apparent from record. If the so called mistake entails a debatable issue, it goes outside the ken of rectification. Similarly, if one particular view out of the two has been adopted in the order u/s.254(1), the same cannot become the subject matter of rectification u/s.254(2) of the Act. Here is a case in which the Tribunal, after considering the entire facts, came to the conclusion that the retraction was not valid and the addition was made on the basis of excess stock/cash. I am not inclined to entertain the Miscellaneous Application. M.A.Nos. 226 & 238/PUN/2022 4 6. Both the sides are in agreement that the facts and circumstances of the other Miscellaneous Application in the case of Sikandar and Company in M.A.No.238/PUN/2022 are similar. Following the view taken hereinabove, I dismiss the Miscellaneous Application filed by the assessee. 7. In the result, both the Miscellaneous Applications are dismissed. Order pronounced in the Open Court on 17 th February, 2023. - Sd/- (R.S.SYAL) VICE PRESIDENT प ु णे Pune; दनांक Dated : 17 th February, 2023 Satish आदेश क त ल प अ े षत / Copy of the Order is forwarded to : 1. अपीलाथ / The Appellant; 2. यथ / The Respondent; 3. आयकर आयु (अपील) / The CIT-1, Kolhapur 4. The Pr. CIT-1, Kolhapur 5. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, पुणे “SMC” / DR ‘SMC’, ITAT, Pune; 6. गाड फाईल / Guard file. // True copy // आदेशान ु सार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune M.A.Nos. 226 & 238/PUN/2022 5 Date 1. Draft dictated on 17-02-2023 Sr.PS 2. Draft placed before author 17-02-2023 Sr.PS 3. Draft proposed & placed before the second member JM 4. Draft discussed/approved by Second Member. JM 5. Approved Draft comes to the Sr.PS/PS Sr.PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *