MOHD SALIM PASHA, V. DCIT CEN CIR 30,

MA 255/MUM/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3603 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-05-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: misc
• Appeal Filed On: 16-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIKRAM GAUR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI R.K. PANDA, AM & SHRI V.D. RAO, JM M.A. NO. 255/MUM/2010 ARISING OUT OF I.T.(SS)A. NO. 11/MUM/06 (BLOCK PERIOD 1.4.88 TO 8.1.99) MR. MOHD. SALIM PASHA 31/32, GOPI COMMERCIAL CENTRE, 5 TH & 6 TH FLOOR, JUHU ROAD, SANTACRUZ (W) MUMBAI-400 049 PAN: AGXPP7863P VS. THE DY. CIT CENTRAL CIRCLE-30, MUMBAI APPELLANT RESPONDENT APPELLANT BY: SHRI ADITYA NEMANI REVENUE BY: SHRI VIKRAM GAUR O R D E R DATE OF HEARING: 07.05.2010 DATE OF ORDER: 28.05.2010 PER R.K. PANDA, AM: THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATIO N (MA) REQUESTS THE TRIBUNAL TO RECALL ITS ORDER PASSED ON 10 TH FEBRUARY, 2009 IN I.T.(SS)A. NO. 11/MUM/2006 FOR THE BLOCK PE RIOD 1.4.1988 TO 8.1.1999. 2. IN THIS CASE THE ASSESSING OFFICER MADE AN ADDITION OF RS. 3,02,00,000/- AS UNDISCLOSED INCOME OF THE ASSESSEE ON ACCOUNT OF SALE PROCEEDS OF PROPERTY AT GOA. WHILE DOING SO H E OBSERVED THAT THE ASSESSEE MR. MOHD. SALIM PASHA AND HIS WIFE BOUGHT PROPERTIES AT GOA THROUGH FOUR SALE DEEDS FROM JANUARY TO JUNE 19 94 FOR RS. 30 LAKHS AND SOLD IT TO M/S. MOREPAN HOTELS FOR RS. 3. 02 CRORES. IN ABSENCE OF REQUIRED DETAILS, THE ASSESSING OFFICER ADDED THE ENTIRE SALE PROCEEDS AS UNDISCLOSED INCOME OF THE ASSESSEE. TH E CIT(A) AFTER OBTAINING A REMAND REPORT FROM THE ASSESSING OFFICE R AND AFTER CONSIDERING THE VARIOUS ARGUMENTS ADVANCED BY THE A SSESSEE CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICE R. WHILE DOING SO HE RELIED ON THE DECISION OF THE JURISDICTIONAL HIG H COURT IN THE CASE OF LEELAVATI M. AMIN VS. CIT REPORTED IN 201 ITR 283 A ND THE DECISION OF M.A. NO. 255/MUM/2010 SHRI MOHD. SALIM PASHA ================= 2 THE HONBLE SUPREME COURT IN THE CASE OF SARIFA BIV I MOHD. IBRAHIM VS. CIT REPORTED IN 204 ITR 631. ON FURTHER APPEAL THE TRIBUNAL RELYING ON THE ABOVE DECISIONS OF THE JURISDICTIONA L HIGH COURT AS WELL AS THE HONBLE SUPREME COURT UPHELD THE ORDER OF TH E CIT(A). WHILE DOING SO A CATEGORICAL FINDING WAS ALSO GIVEN BY TH E TRIBUNAL THAT IN THE INSTANT CASE THE ASSESSEE HAS NO EVIDENCE TO SH OW THAT THE LAND WAS USED FOR AGRICULTURAL PURPOSES AFTER THE SAME W AS PURCHASED IN THE YEAR 1994. 3. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRING TO T HE MA SUBMITTED THAT A MISTAKE HAS OCCURRED IN THE ORDER OF THE TRIBUNAL INASMUCH AS THE TRIBUNAL DID NOT CONSIDER THE VARIO US JUDGEMENTS IN FAVOUR OF THE ASSESSEE WHICH WERE CITED BEFORE THE TRIBUNAL. FURTHER THE JUDGEMENTS FAVOURING THE ASSESSEE WHICH WERE CI TED HAD NOT BEEN DISTINGUISHED. HE SUBMITTED THAT IN VIEW OF THE NO N CONSIDERATION OF THE FAVOURABLE DECISIONS CITED, A MISTAKE HAS CREPT IN THE ORDER OF THE TRIBUNAL RELATING TO GROUNDS OF APPEAL NOS. 1 & 2. THEREFORE, IT SHOULD BE RECALLED/RECTIFIED UNDER THE PROVISIONS O F SECTION 254(2) OF THE INCOME-TAX ACT, 1961. 4. THE LEARNED DR, ON THE OTHER HAND, SUBMITTED THAT T HE TRIBUNAL FOLLOWING THE DECISION OF THE JURISDICTION AL HIGH COURT AND THE HONBLE SUPREME COURT HAS TAKEN THE CORRECT VIE W. THE ASSESSEE THROUGH THIS MA IS NOW REQUESTING THE TRIBUNAL TO R ECALL THE ORDER FOR PASSING A FRESH ORDER WHICH AMOUNTS TO REVIEWING OF ITS OWN DECISION BY THE TRIBUNAL WHICH IS NOT PERMISSIBLE UNDER THE LAW. THEREFORE, THE MA SHOULD BE DISMISSED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE BY BO TH THE SIDES. WE FIND THE TRIBUNAL WHILE PASSING THE ORDE R HAS FOLLOWED THE DECISION OF THE JURISDICTIONAL HIGH COURT AS WELL A S THE HONBLE SUPREME COURT. THE TRIBUNAL HAS ALSO GIVEN A CATEG ORICAL FINDING THAT THE ASSESSEE COULD NOT PRODUCE ANY EVIDENCE TO SHOW THAT THE LAND WAS USED FOR AGRICULTURAL PURPOSES AFTER THE S AME WAS PURCHASED IN THE YEAR 1994. SINCE THE DECISION OF THE TRIBUNAL IS IN ACCORDANCE WITH LAW LAID DOWN B Y THE HONBLE SUPRE ME COURT IN THE CASE OF SARIFA BIVI MD. IBRAHIM (SUPRA) AND THE DEC ISION OF THE M.A. NO. 255/MUM/2010 SHRI MOHD. SALIM PASHA ================= 3 TRIBUNAL IN THE CASE OF LEELAVATI M. AMIN (SUPRA) T HEREFORE, THESE ARE BINDING ON THE TRIBUNAL. THE VARIOUS OTHER DECISIO NS CITED BY THE ASSESSEE WHICH ACCORDING TO THE ASSESSEE ARE IN ITS FAVOUR ARE EITHER DISTINGUISHABLE ON FACTS OR OF NON-JURISDICTIONAL H IGH COURTS. THEREFORE, THESE ARE NOT BINDING ON THE TRIBUNAL. 6. FURTHER, THE LEARNED COUNSEL FOR THE ASSESSEE ALSO COULD NOT POINT OUT ANY MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL. WE, THEREFORE, DO NOT FIND ANY MERIT IN THE MA FILED BY THE ASSESSEE REQUESTING FOR RECALLING THE ORDER OF THE TRIBUNAL. THE SAME IS ACCORDINGLY DISMISSED. 7. IN THE RESULT, THE MA FILED BY THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED ON 28 TH MAY, 2010. SD/- (V.D. RAO) JUDICIAL MEMBER SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI, DATED 28 TH MAY, 2010 COPY TO: (1) THE APPELLANT, (2) THE RESPONDENT, (3) THE CIT(A)-CENTRAL V, MUMBAI, (4) THE CIT, CENTRAL-II, MUMBAI, (5) THE DR, E BENCH, ITAT, MUMBAI. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI TPRAO