M/s. Devine Infracon Pvt. Ltd., New Delhi V. ACIT, New Delhi

MA 249/DEL/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 0219 (ITAT-DELHI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-08-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 25-07-2024
• Assessment Year: misc
• Appeal Filed On: 10-06-2024
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Rectification of order
• Section: 68; 153A; 143(2); 139(1); 254(2)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “Friday-B” NEW DELHI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI YOGESH KUMAR US, JUDICIAL MEMBER MA NO. 249/Del/2024 (IN ITA NO. 3067/DEL/2014) A.Y. 2009-10 M/s Divine Infracon Pvt. Ltd. vs. ACIT, Central Circle-9, Plot No. 4, Sector-13, Jhandewalan, Dwarka City Centre, New Delhi Dwarka, New Delhi – 110 075 (PAN: AACCD4476A) (Appellant) (Respondent) Assessee by : Sh. Salil Aggarwal, Sr. Adv. & Sh. Shailesh Gupta, CA Department by : Sh. D.K. Srivastava, Sr. DR. Date of Hearing : 26.07.2024 Date of pronouncement : 12.08.2024 ORDER PER SHAMIM YAHYA, AM By way of this Miscellaneous Application assessee seeks recall of the order of this Tribunal passed in Revenue’s I.T.A. No. 3067/Del/2014 for AY 2009-10 vide order dated 07.02.2024. 2 2. We have heard both the parties and perused the records. The Grounds taken in the Revenue’s Appeal reads as under:- 1. “Whether Commissioner of Income Tax (Appeals) erred in law and on facts in upholding the ground of the assessee that provision of section 153A of the Act could not be applied in a case where no material has been found as a result of search and since no evidence or material had been found on search the instant addition made was outside the scope of section 153A of the Act. 2. That the Commissioner of Income Tax (Appeals) erred in law and on fact of the case in deleting the addition of Rs. 43,00,000/- made by the AO on account of unexplained cash credit u/s. 68 of the I.T. Act. 3(a) The order of the CIT(Appeals) is erroneous and not tenable in law and on facts.” 3. We note that the Tribunal had adjudicated and allowed the Revenue’s Appeal. Now the Assessee is aggrieved that Ground No. 2 has not been adjudicated, which is a mistake apparent from record. 3.1 Per contra, Ld. DR submitted that it was the Revenue’s Appeal in which the Tribunal had allowed the Revenue’s Appeal by adjudicating the issue raised. However, the Revenue is not at all aggrieved by the said order of the Tribunal. He further submitted that assessee is seeking the review of the aforesaid Tribunal’s order in the garb of rectification of mistake which is not permissible u/s. 254(2) of the Act. 4. We find that the Tribunal has concluded in the said order as under:- “8. Upon careful consideration, we find ourselves in agreement with the submission of the Ld. DR. The 3 decision of the Hon’ble Jurisdictional High Court takes precedence over of all other Tribunal and lower courts. As per the ratio emanating from the said decision in case of Chintels India Ltd. (supra) is that if the period for issuance of notice is still available then the case will not be considered as completed assessment. To recapitulate the facts of this case, original return was filed u/s. 139(1) of the Act on 28.10.2009, this means that notice u/s. 143(2) of the Act could be issued up to 30.09.2010 (i.e. six months from the end of the financial year in which return was filed i.e. 2009-10). The search in this case was conducted on 14.09.2010 before the end of the stipulated time period for issuance of notice u/s. 143(2) of the Act. Hence, the assessment for AY 2009-10 cannot be treated as abated or pending on the date of initiation of search. In this view of the matter, the addition is not restricted to seized material found during the course of search in case of abated assessment. Assessing Officer can very rely upon his own enquiry. In the present case Asessing Officer’s enquiry has clearly revealed that the unsecured loan amounting to Rs. 4,30,00,000/- is unexplained cash credit in the books of the assessee and he has rightly added u/s. 68 of the Act. We set-aside the order of the Ld. CIT(A) and restore that of the Assessing Officer.” 4.1 Upon careful consideration, we find that Ld. DR’s submissions is cogent, as it was the Revenue’s appeal which had been allowed by the Tribunal by adjudicating the issue and Revenue is not at all aggrieved for any non-adjudication. However, the assessee in the garb of rectification wants to recall the Tribunal’s order and review all the issues. This in our considered opinion, is not permissible u/s. 254(2) of the Act. Assessee has neither filed any Appeal, nor filed any Cross Objection or any Application under Rule 27 of the ITAT Rules, 1963. The assessee seeks the review of the Tribunal’s order which is not permissible under the Act. 4 4.2 In view of the aforesaid factual matrix and circumstances of the case, in our considered opinion, we find that there is no mistake apparent on record in the order of the Tribunal and assessee is seeking a review of the Tribunal’s order in the garb of rectification, which is not permissible u/s. 254(2) of the I.T. Act and, therefore, the present Miscellaneous Application, being devoid of any merit, is dismissed as such. 5. In the result, the Misc. Application filed by the Assessee is dismissed. Order pronounced in the Open Court on 12/08/2024. Sd/- Sd/- [YOGESH KUMAR US] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER SRB Copy forwarded to: - 1. Appellant 2. Respondent 3. CIT 4. CIT (A) 5. DR, ITAT By Order, Assistant Registrar, ITAT, Delhi Benches