MAYUR SHRIMANKAR, MUMBAI V. ITO-21(1)(3), MUMBAI

MA 241/MUM/2018

• Counselvise Citation: [2018] 111 COUNSELVISE.COM (IT) 1496 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-11-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2011-2012
• Appeal Filed On: 03-10-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SATISHCHANDRA RAJOREDR
• Assessee Lawyers: BHUPENDRA KARKHANISAR
• Keywords: Bogus purchase; Charitable institution
• Section: 133(6); 195; 192; 254(2); 48

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI , . , , BEFORE SHRI JOGINDER SINGH, VICE PRESIDENT, AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER M.A. NOS.241 & 242/MUM/2018 (ARISING OUT OF ITA NOS.2906 & 2907/MUM/2016) ASSESSMENT YEARS: 2011-12 & 2009-10 MAYUR SHRIMANKAR 11, VIBHA VASU 28, TEJPAL ROAD VILLE PARLE (E) MUMBAI-400057 / VS. ITO-21(1)(3) MUMBAI !'# $ / ASSESSEE % / REVENUE P.A. NO. AAJPS9806M !'# $ / ASSESSEE BY SHRI BHUPENDRA KARKHANIS-AR % / REVENUE BY SHRI SATISH CHANDRA RAJORE-DR & %' ( $ ) / DATE OF HEARING 16/11/2018 ( $ ) / DATE OF ORDER: 07/12/2018 / O R D E R BY THESE MISCELLANEOUS APPLICATIONS, THE ASSESSEE SEEKS RECALLING OF AN EX-PARTE ORDER DATED 03/10/20 17 ON THE GROUND THAT THE NEXT DATE OF HEARING WAS WRONGL Y NOTED BY THE LD. COUNSEL FOR THE ASSESSEE. MA NOS. 241 & 242/MUM/2018 ITA NOS. 2906 & 2907/MUM/2016 MAYUR SHRIMANKAR 2 2. DURING HEARING, THE LD. COUNSEL FOR THE ASSESSE E CONTENDED THAT ON 31/08/2017, THE DATE OF HEARING W AS WRONGLY NOTED, THEREFORE, COULD NOT APPEAR ON THE APPOINTED DATE I.E. 03/10/2017. ON THE OTHER HAND, THE LD. DR CONTENDED THAT ON 01/08/2017 AND 31/08/2017, AT THE REQUEST OF THE ASSESSEE, THE APPEALS WERE AD JOURNED, AND SINCE THE ORDER HAS BEEN PASSED ON MERIT, THERE FORE, IT MAY NOT BE RECALLED. IT WAS PLEADED THAT THE TRIBUN AL HAS NO POWER TO REVIEW ITS ORDER UNLESS AND UNTIL THERE IS AN ARITHMETICAL MISTAKE. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THESE APP EALS WERE FILED BY THE ASSESSEE ON 20/04/2016 AS IS EVID ENT FROM ORDER-SHEET ENTRY DATED 19/06/2017. ON 01/08/2 017 AT THE REQUEST OF THE ASSESSEE AND AGAIN ON 31/08/2 017, THE HEARING WAS ADJOURNED TO 03/10/2017 AND BOTH PA RTIES WERE INFORMED. ON 03/10/2017, THE ASSESSEE NEITHER PRESENTED HIMSELF/HERSELF NOR MOVED ANY ADJOURNMENT PETITION. SHRI RAM TIWARI, LD. DR STRONGLY DEFENDED THE ADDITION MADE BY THE LD. ASSESSING OFFICER AND CONF IRMED BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL). MA NOS. 241 & 242/MUM/2018 ITA NOS. 2906 & 2907/MUM/2016 MAYUR SHRIMANKAR 3 2.2. NOW, WE SHALL ANALYZE CERTAIN CASE LAWS, SO T HAT WE CAN REACH TO A FAIR CONCLUSION. IN A DECISION BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF M/ S SHIRPUR GOLD REFINERY LTD. VS. ITAT (WRIT PETITION NO.1227 OF 2016) ORDER DATED 27/07/2016, IN IDENTICAL SITUA TION, THE HON'BLE HIGH COURT HELD AS UNDER:- 1. THIS PETITION UNDER ARTICLE 226 OF THE CONSTITUT ION OF INDIA SEEKS TO CHALLENGE THE ORDER DATED 4TH DECEMB ER, 2015 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL (T HE TRIBUNAL). THE IMPUGNED ORDER, DISMISSED THE PETITI ONER'S APPLICATION UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 (THE ACT) TO RECTIFY / RECALL THE ORDER DATED 4TH MARCH, 2015 PASSED BY THE TRIBUNAL UNDER SECTION 254(1) OF THE ACT RELATING TO THE ASSESSMENT YEAR 2006-07. 2. THE IMPUGNED ORDER HELD THAT THE ORDER DATED 4TH MARCH, 2015 DOES NOT CALL FOR ANY RECTIFICATION AS THERE IS NO ERROR APPARENT FROM THE RECORD. RECORD. IT ALSO HOLDS THAT THE ISSUE IN DISPUTE HAD BEEN DECIDED ON MERITS AFT ER ANALYZING THE FACTS AND ARGUMENTS OF THE PETITIONER BY ITS ORDER DATED 4TH MARCH, 2015. THUS, THE PRAYER FOR R ECALL OF THE ORDER DATED 4TH MARCH, 2015 AND RESTORING IT TO THE COMMISSIONER OF INCOME TAX (APPEAL) FOR FRESH DETERMINATION WAS IN THE PRESENT FACTS NOT CALLED F OR. 3. THE GRIEVANCE OF THE PETITIONER IS THAT THE IMPU GNED ORDER DATED4TH DECEMBER, 2015 INCORRECTLY PROCEEDS ON THE BASIS THAT THE ORDER DATED 4TH MARCH, 2015 PASSED U NDER SECTION 254(1) OF THE ACT ALSO DEALT WITH THE MERIT S OF THE DISPUTE AFTER HEARING THE PETITIONER. IT IS THE PET ITIONER'S CASE THAT THE MERITS OF THE DISPUTE WERE NOT EVEN A RGUED BY IT BEFORE THE TRIBUNAL LEADING TO THE ORDER DATED 4 TH MARCH, MA NOS. 241 & 242/MUM/2018 ITA NOS. 2906 & 2907/MUM/2016 MAYUR SHRIMANKAR 4 2015. IN SUPPORT THE PETITIONER HAS FILED A COPY OF AN AFFIDAVIT DATED 23 RD APRIL, 2016 OF MR. B.S. SHARM A, CHARTERED ACCOUNTANT, WHO REPRESENTED THE PETITIONE R AT THE HEARING OF THE REGULAR APPEAL UNDER SECTION 254 (1) OF THE ACT AS WELL AS AT THE MISCELLANEOUS APPLICATION UNDER SECTION 254(2) OF THE ACT. THE AFFIDAVIT CONTENDS T HAT NO SUBMISSIONS ON MERITS AT THE HEARING WHICH LED TO T HE ORDER DATED 4TH MARCH, 2015 WERE MADE ON BEHALF OF THE PETITIONER. THIS AFFIDAVIT WAS IN SUPPORT OF ITS CO NTENTION THAT THE IMPUGNED ORDER IS NOT SUSTAINABLE IN LAW. 4. WE FIND THAT THE IMPUGNED ORDER OF THE TRIBUNAL WAS PASSED ON 4TH DECEMBER, 2015, RECEIVED BY THE PETIT IONER ON 28TH DECEMBER, 2015. THIS PETITION HAS BEEN FILE D ON 29'' APRIL, 2016. THE PETITION STATES THAT ACCORDIN G TO THE PETITIONER, THERE IS NO DELAY IN FILING THE PETITIO N. HOWEVER, IF THIS COURT IS OF THE VIEW THAT THERE IS A DELAY AND DELAY MAY BE CONDONED. HOWEVER, NO REASONS WITH PARTICUL ARS ARE SPECIFIED IN THE PETITION. IN VIEW OF THE FACT THAT THE PETITION ITSELF DOES NOT EXPLAIN THE REASON FOR THE DELAY, THE PETITION IS LIABLE TO BE DISMISSED. 5. ON 19TH JULY, 2016 THE PETITIONER HAS FILED AN A FFIDAVIT-IN- REJOINDER. IN IT FOR THE FIRST TIME THE PETITION HA S ATTEMPTED TO EXPLAIN THE DELAY BY STATING AS UNDER: '3. I SAY THAT THE PETITIONER COMPANY DOES NOT HAVE A MANAGING DIRECTOR OR A WHOLE TIME DIRECTOR. IT ONLY HAS A MANAGER MR. SUB HASH PAREEK, WHO IS STATIONED AT TH E FACTORY AT REFINERY SITE, SHIRPUR; DIST. DHULE, MAH ARASHTRA - 425 405. THERE ARE ONLY 5 PERSONS IN THE ADMINISTRA TIVE DEPARTMENT OPERATING FROM THE CORPORATE OFFICE NAME LY MYSELF BEING SR. ACCOUNTS MANAGER; MR. NARESH BETKA T; SR. ACCOUNTS EXECUTIVE, MR. NAVNIT DORJI, JR. ACCOUNTS EXECUTIVE, MR. SHYAM JHA, JR. ACCOUNTS EXECUTIVE AN D MR. RAJENDRA BHATI, JR. ACCOUNTS EXECUTIVE. MRS. ARCHIT A KOTHARI IS THE CPO OF THE PETITIONER COMPANY. I SAY THAT NE ITHER THE MA NOS. 241 & 242/MUM/2018 ITA NOS. 2906 & 2907/MUM/2016 MAYUR SHRIMANKAR 5 CPO NOR THE 5 ADMINS HAVE EVER DEALT WITH INCOME T AX WRIT PETITIONS IN THE PAST' 3. DURING THE HEARING ON 20TH JULY, 2016 THE ABOVE ASP ECT WAS EXPLAINED TO SUPPORT THE SUBMISSION MADE ACROSS THE BAR THAT IT IS A LOSS MAKING COMPANY LEADING TO SCA RCE RESOURCES IN TERMS OF THE STAFF AVAILABLE. THUS THE DELAY. THIS CONTENTION MADE ACROSS THE BAR DOES NOT FIND P LACE EITHER IN THE PETITION OR IN THE AFFIDAVIT. WE DIRE CTED THE PETITIONER TO PRODUCE ITS LATEST ANNUAL REPORT. TOD AY. DR. SHIVRAM, THE LEARNED COUNSEL FOR THE PETITIONER PRO DUCED THE 30TH ANNUAL REPORT FOR THE YEAR 2014-15. A PERU SAL OF THE SAME REVEALS A COMPLETELY DIFFERENT PICTURE. IT IS TRUE THAT THE PETITIONER DOES NOT APPEAR TO HAVE A DESIG NATED MANAGING DIRECTOR OR WHOLE TIME DIRECTOR BUT IT HAS A MANAGER APPOINTED UNDER SECTION 269 OF THE COMPANIE S ACT, 1956. THEREFORE, SUCH A MANAGER IS EQUIVALENT TO ON WHOLE TIME OR MANAGING DIRECTOR WHOSE APPOINTMENT H AS BEEN APPROVED BY THE CENTRAL GOVERNMENT. THE AFFIDA VIT DOES NOT DISCLOSE THIS FACT, THUS SUGGESTING OTHERW ISE. WE FURTHER NOTICE FROM THE ANNUAL REPORT PRODUCED THAT THE PETITIONER FOR THE YEAR ENDING 31ST MARCH, 2015 HAS A TURNOVER OF RS.32,222 MILLIONS WITH A PROFIT BEFORE TAX OF RS.216 MILLIONS AND AFTER TAX OF RS.154 MILLIONS. I T HAS OPERATIONS INTERNATIONALLY WITH 100% SUBSIDIARIES I N DUBAI AND SINGAPORE. THE ANNUAL REPORT ALSO REVEALS THAT DUN AND BRADSTREET CD & B) HAD RANKED THE PETITIONER CO MPANY AS ONE AMONGST INDIA'S TOP 500 COMPANIES IN THE YEA R 2015 IT IS 358 IN TERMS OF TOTAL INCOME, 467 IN TERMS OF NET PROFIT AND 471 IN TERMS OF RETURN ON NET WEALTH. THE AFFID AVIT IN REJOINDER FILED BY THE PETITIONER AND THE SUBMISSIO NS MADE ON THE COMPANY PETITIONER AND THE SUBMISSION MADE ON THE LAST OCCASION SOUGHT TO CONVEY THAT THE OPERATIONS OF THE COMPANY ARE OF A SMALL NATURE AND THERE IS ONLY ONE MANAGER WHO IS STATIONED AT DHULE AND OTHER 5 PERSO NS IN MA NOS. 241 & 242/MUM/2018 ITA NOS. 2906 & 2907/MUM/2016 MAYUR SHRIMANKAR 6 ADMINISTRATIVE DEPARTMENT OF THE COMPANY. THEREFORE , THE DELAY. THE STATEMENTS MADE IN THE AFFIDAVIT SEEKS T O PRESENT A PICTURE COMPLETELY DIFFERENT FROM THE FAC TS AS ARE EVIDENT FROM THE ANNUAL REPORT OF THE COMPANY FOR T HE YEAR ENDING 2014-15 PRODUCED BY THE PETITIONER AT OUR IN STANCE. AN AFFIDAVIT IS A SWORN STATEMENT AND IT MUST REFLE CT THE TRUE AND COMPLETE FACTS. IT MSUT NOT BE AN EXERCISE IN SUPPRESSIO VERY SUGGESTION FALSI. FURTHER, WHEN A P ARTY SEEKS TO EXERCISE THIS COURTS JURISDICTION THE LEA ST THAT IS EXPECTED OF THE PETITIONER IS FULL AND TRUE DISCLOS URE. THE CONDUCT ON THE PART OF THE PETITIONER DISENTITLES T HE PETITIONER FROM ANY RELIEF UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. 7. MOREOVER, IN ANY CASE, THE PETITIONER HAS NOT BE EN ABLE TO EXPLAIN THE REASON FOR THE DELAY IN FILING THIS PETITION. 8. BEFORE PARTING, WE WOULD LIKE TO MAKE AN OBSERVA TION THAT LEADING FRESH EVIDENCE BY FILING A COPY OF AN AFFIDAVIT DATED 28 TH APRIL, 2016 AFTER THE IMPUGNED ORDER AND ANNEXING IT TO PETITION IS NOT APPROPRIATE. PARTICU LARLY WHEN THE SAME WAS NOT FILED BEFORE THE TRIBUNAL. THIS TO MOST UNFAIR TO THE MEMBERS OF THE TRIBUNAL. AT THE TIME OF RECTIFICATION APPLICATION WAS BEING HEARD, THE NECE SSARY EVIDENCE INCLUDING THE AFFIDAVIT COULD HAVE BEEN FI LED BEFORE THE MEMBERS OF THE TRIBUNAL. IN THE VIEW WE HAVE T AKEN, IT IS NOT NECESSARY TO GO INTO THE MERITS OF THE AFFID AVIT FILED BY THE CHARTERED ACCOUNTANT AS A PART OF THIS PETITION . 9. ACCORDINGLY, THE WRIT PETITION IS DISMISSED. 2.3. IN CIT VS. ITAT & ORS. (2006) 195 TAXATION 288 (DEL.) IT HAS BEEN HELD VIDE PARA 7, PAGE 291 & 292 AS UNDER: MA NOS. 241 & 242/MUM/2018 ITA NOS. 2906 & 2907/MUM/2016 MAYUR SHRIMANKAR 7 THAT BEING THE LEGAL POSITION, THE TRIBUNAL WAS NO T IN OUR OPINION JUSTIFIED IN RECALLING THE ORDER PSSSED BY IT IN TOTO AND SETTING THE MATTER DOWN FOR A FRESH HEARING. JUST B ECAUSE A PRONOUNCEMENT MADE ON THE SUBJECT EITHER BY THE TRI BUNAL OR BY ANY OTHER COURT WAS NOT NOTICED BY THE TRIBUNAL WHILE TAKING A PARTICULAR VIEW ON THE MERIT OF THE CONTRO VERSY MAY CONSTITUTE AN ERROR THAT WOULD CALL FOR CORRECTION IN AN APPROPRIATE APPEAL AGAINST THE ORDER. ANY SUCH ERRO R MAY HOWEVER FALL SHORT OF CONSTITUTING A MISTAKE APPARE NT FROM THE RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. MORE IMPORTANTLY JUST BECAUSE A POINT IS DEBATABLE (WHIC H IS ONE OF THE REASONS GIVEN BY THE TRIBUNAL IN THE INSTANT CA SE) COULD HARDLY PROVIDE A JUSTIFICATION FOR RECALLING THE OR DER AND FIXING THE APPEAL FOR A DE NOVO HEARING. WHILE DOING SO, T HE TRIBUNAL HAS NO DOUBT MADE CERTAIN OBSERVATIONS IN REGARD TO THE LEVY OF INTEREST UNDER SECTION 158 BFA BEING STATUTORY I N NATURE WITH NO POWER VESTED IN ANY AUTHORITY OR TRIBUNAL T O CONDONE THE SAME, BUT THE VERY FACT THAT THE TRIBUNAL HAS M ADE THOSE OBSERVATIONS WOULD NOT RENDER VALID THE ORDER OF RE CALL PASSED BY IT. THE NET RESULT OF THE ORDER MADE BY THE TRIB UNAL CONTINUES TO REMAIN THE SAME VIZ. THE APPEAL HAS TO BE HEARD AGAIN SIMPLY BECAUSE ONE OF THE ISSUES DECIDED BY T HE TRIBUNAL IS DEBATABLE OR THE TRIBUNAL HAS NOT NOTIC ED AN EARLIER DECISION RENDERED BY ANOTHER BENCH. BOTH THESE REAS ONS WERE INSUFFICIENT TO JUSTIFY THE ORDER OF RECALL MADE BY THE TRIBUNAL. 2.4. IN SAURASHTRA KUTCH STOCK EXCHANGE LTD. (SUP RA) IT HAS BEEN LAID DOWN (PLACITUM 37 AT PAGE 239) : IN OUR JUDGMENT, THEREFORE, A PATENT, MANIFEST AND SELF- EVIDENT ERROR WHICH DOES NOT REQUIRE ELABORATE DISC USSION OF EVIDENCE OR ARGUMENT TO ESTABLISH IT, CAN BE SAI D TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD AND CAN BE CORRECTED WHILE EXERCISING CERTIORARI JURISDICTION. AN ERROR CANNOT BE SAID TO BE APPARENT ON THE FACE OF THE RE CORD IF ONE HAS TO TRAVEL BEYOND THE RECORD TO SEE WHETHER THE JUDGMENT IS CORRECT OR NOT. AN ERROR APPARENT ON TH E FACE OF THE RECORD MEANS AN ERROR WHICH STRIKES ON MERE LOOKING AND DOES NOT NEED A LONG DRAWN OUT PROCESS OF REASONING ON POINTS WHERE THERE MAY CONCEIVABLY BE TWO OPINIONS. SUCH ERROR SHOULD NOT REQUIRE ANY EXTRANE OUS MATTER TO SHOW ITS INCORRECTNESS. TO PUT IT DIFFERE NTLY, IT MA NOS. 241 & 242/MUM/2018 ITA NOS. 2906 & 2907/MUM/2016 MAYUR SHRIMANKAR 8 SHOULD BE SO MANIFEST AND CLEAR THAT NO COURT WOULD PERMIT IT TO REMAIN ON RECORD. IF THE VIEW ACCEPTED BY THE COURT IN THE ORIGINAL JUDGMENT IS ONE OF POSSIBLE V IEWS, THE CASE CANNOT BE SAID TO BE COVERED BY AN ERROR APPAR ENT ON THE FACE OF THE RECORD. 2.5. WE HAVE HEARD THE MISCELLANEOUS APPLICATION O F THE ASSESSEE WITH OPEN MIND BUT WE ARE NOT CONVINCE D WITH THE REASONING OF THE ASSESSEE BECAUSE THE ASSESSEE, THROUGH THIS APPLICATION IS MERELY TRYING TO GET TH E ORDER REVIEWED, WHICH IS NOT PERMISSIBLE, U/S 254(2) OF T HE ACT. EVEN OTHERWISE, ONLY ARITHMETICAL ERROR OR OF LIKE NATURE CAN ONLY BE RECTIFIED. HOWEVER, NO SUCH MISTAKE IS FOUND IN THE ORDER OF THE TRIBUNAL, THEREFORE, WE FIND NO ME RIT IN THE CONTENTION OF THE ASSESSEE. WHILE DEALING WITH MISCELLANEOUS APPLICATION U/S 254(2) OF THE ACT, ON LY ARITHMETICAL, GRAMMATICAL MISTAKE OF LIKE NATURE, I F ANY, CAN ONLY BE RECTIFIED AND NOT WHICH CAN BE DRAWN BY A LONG PROCESS OF ARGUMENT/REASONING LEADING TO CONTRARY DECISION. OUR VIEW FIND SUPPORTS FROM VARIOUS DECI SIONS FROM HONBLE APEX COURT AND HONBLE HIGH COURTS, TH AT THE TRIBUNAL CANNOT REVIEW ITS EARLIER ORDER BUT ONLY C AN RECTIFY MISTAKE, IF ANY, WHICH IS APPARENT FROM RECORD. THE SCOPE AND AMBIT OF APPLICATION U/S 254(2) OF THE ACT IS V ERY MA NOS. 241 & 242/MUM/2018 ITA NOS. 2906 & 2907/MUM/2016 MAYUR SHRIMANKAR 9 LIMITED AND MERITS OF THE CASE CANNOT BE GONE INTO, THEREFORE, WE FIND NO MISTAKE IN THE ORDER OF THE T RIBUNAL. THE RATIO LAID DOWN IN FOLLOWING CASES SUPPORTS OUR VIEW:- A) CIT VS GOKULCHAND AGRAWAL, 202 ITR 14 (CAL.), B) CIT VS RAMESH ELECTRIC & TRADING COMPANY 203 ITR 49 7, 502 (BOM.), C) GAYWAYS PUBLICITY PVT. LTD. 211 ITR 506 (DEL.), D) CIT VS RAMLAL RAJGARIA 104 CTR (CAL.) 403, E) CIT VS MODEL MANUFACTURING COMPANY PVT. LTD. 111 CT R (CAL.) 2016, F) JAIN DHARMSHALA CHARITABLE TRUST VS CIT 121 CTR (DE L.) 86, G) CIT VS ITAT 206 ITR 126 (AP), H) CIT VS KABIRDAS INVESTMENT LTD. 210 ITR 898 (DEL.) FOLLOWED IN I) DIRECTOR OF INCOME TAX (EXEMPTION) VS ITAT 232 ITR 688 (DEL.), J) MENTHA & ALLIED PRODUCTS COMPANY PVT. LTD. VS ITAT 244 ITR 470 (DEL.), K) CIT VS VARDHMAN SPINNING 226 ITR 296 (P & H), L) DEEKSHA SURI ETC. VS ITAT 232 ITR 395 (DEL.), M) CIT VS ITAT 196 ITR 564 (ORISSA) 196 ITR 590, AND N) LAXMI ELECTRONIC CORPORATION LTD. VS CIT 188 ITR 39 8 (ALL.), 2.6. IN VIEW OF THE FACTUAL MATRIX, CASES DISCUSSED HEREINABOVE, IT CAN BE CONCLUDED THAT THE SCOPE AND THE AMBIT OF APPLICATION U/S 254(2) IS VERY LIMITED AS WAS HELD BY HONBLE DELHI HIGH COURT IN CIT VS ITAT (2007) 2 93 ITR 118 (DEL.), HONBLE M.P. HIGH COURT IN CIT VS K.D. WIRES PVT. LTD. (2010) 323 ITR 257 (M.P.). IDENTICAL RATI O WAS LAID MA NOS. 241 & 242/MUM/2018 ITA NOS. 2906 & 2907/MUM/2016 MAYUR SHRIMANKAR 10 DOWN IN APEX METCHEM P. LTD. VS ITAT (2009) 318 ITR 48 (RAJ.), STATE BANK OF INDORE VS ITAT 284 ITR 125 (M .P.), CIT VS MCDOWELL & COMPANY LTD. (2009) 310 ITR 215 (KARN .), CIT VS PEARL WOOLEN MILLS (2011) 330 ITR 164 (P & H ), DHOLADHAR INVESTMENT PVT. LTD. VS CIT (2014) 362 IT R 111 (DEL.), RAJENDRA PRASAD BORAH VS ITAT (2008) 302 IT R 243 (GUWAH.) AND CIT VS FIVE STAR MARINE EXPORT PVT. LT D. (2010) 322 ITR 218 (MAD.), CIT VS TATA IRON & STEEL COMPANY LTD. (2001) 248 ITR 190, 192 (BOM.), J.M. S AHNI VS ITAT 257 ITR 16 (DEL.), KARAN & COMPANY VS ITAT 253 ITR 131 (DEL.). THE RATIO LAID DOWN BY THE TRIBUNA L IN BRIJMOHAN SAGARMAL CAPITAL SERVICES PVT. LTD. (MA NO.217/MUM/2015), ORDER DATED 18/01/2016, SUPPORTS OUR VIEW. IT IS NOTED THAT THE TRIBUNAL AFTER HEARI NG THE LD. DR AND CONSIDERING THAT THERE WAS DELAY IN FILING T HE APPEAL BY THE ASSESSEE, CONDONED THE DELAY AND THER EAFTER DECIDED THE APPEAL OF THE ASSESSEE ON MERIT, CONSID ERING VARIOUS DECISION FROM HON'BLE HIGH COURTS. IT WAS FOUND THAT EVEN THE NOTICES ISSUED UNDER SECTION 133(6) O F THE ACT, SUCH PARTIES FROM WHOM PURCHASES WERE CLAIMED TO BE MADE WERE NOT FOUND EXISTING. EVEN BEFORE THE LD. MA NOS. 241 & 242/MUM/2018 ITA NOS. 2906 & 2907/MUM/2016 MAYUR SHRIMANKAR 11 ASSESSING OFFICER, IN SPITE OF SPECIFICALLY ASKING, THE ASSESSEE DID NOT PRODUCE THE PARTIES, THEREFORE, TH E GENUINENESS OF THE CLAIM COULD NOT BE ESTABLISHED B Y THE ASSESSEE. IT IS ALSO NOTED THAT THE LD. COMMISSIONE R OF INCOME TAX (APPEAL) HAS TAKEN A VERY REASONABLE VIE W IN ESTIMATING THE PROFIT @ 12.5% OF BOGUS PURCHASES. T HUS, WE DONT FIND ANY MERIT IN THE CLAIM OF THE ASSESSE E, CONSEQUENTLY, THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE ARE WITHOUT ANY MERIT AND THE ASSESSEE MER ELY WANTS TO ORDER OF THE TRIBUNAL REVIEWED, WHICH IS N OT PERMISSIBLE. FINALLY, THE MISCELLANEOUS APPLICATIONS OF THE ASSE SSEE ARE DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 16/11/2018. SD/- SD/- (G. MANJUNATHA) SD/- (JOGINDER SINGH) ' # / ACCOUNTANT MEMBER / VICE PRESIDENT MUMBAI; + DATED : 07/12/2018 F{X~{T? P.S / ,% MA NOS. 241 & 242/MUM/2018 ITA NOS. 2906 & 2907/MUM/2016 MAYUR SHRIMANKAR 12 !$%&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. -./ / THE APPELLANT 2. 01./ / THE RESPONDENT. 3. 2 2 & 3$ / THE CIT, MUMBAI. 4. 2 2 & 3$ / CIT- , MUMBAI 5. 4%50$ ! , 2 -)-! 6 , & / DR, ITAT, MUMBAI 6. '7 / GUARD FILE. ! / BY ORDER, 14$0$ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , & / ITAT, MUMBAI