DEEPAL H SHROFF, V. ACIT 20(2),

MA 257/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7008 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-08-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 02-05-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Gift; Rectification of order
• Section: 12AA; 56

Judgement Text

1 MA NO. 257/MUM/2011 ARISING OUT OF ITA NO. 3429/MUM/2009 (ASST YEAR 2005-06) IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI D BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI R S SYAL, AM & SHRI VIJAY PAL RAO, JM MA NO. 257/MUM/2011 ARISING OUT OF ITA NO. 3429/MUM/2009 (ASST YEAR 2005-06) SHRI DEEPAL H SHROFF 201 SAILEE HERITAGE BLDG HINDUSTANI NAKA KANDIVILI (W) MUMBAI 67 VS THE ASST COMMR OF INCOME TAX 20(2) MUMBAI (APPLICANT ) (RESPONDENT) PAN NO. AEFPM5276H ASSESSEE BY SHRI R K GUPTA REVENUE BY SHRI A K SHARMA DT.OF HEARING 22 ND JULY 2011 DT OF PRONOUNCEMENT 5TH AUG 2011 ORDER PER VIJAY PAL RAO, JM THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESS EE IS DIRECTED AGAINST THE ORDER DATED 19.11.2010 OF THE TRIBUNAL WHEREBY THE APPEAL OF THE REVENUE WAS DISPOSED FOR THE ASSESSMENT YEAR 2005-06. 2 THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THER E IS A MISTAKE APPARENT ON THE RECORD IN PAGE 12 OF THE IMPUGNED ORDER OF THIS TRIBUNAL. HE HAS FURTHER CONTENDED THAT THE DONOR IS THE UNCLE OF THE ASSESS EE; THEREFORE, PROVISIONS OF SEC. 56 ARE APPLICABLE AND NOT SEC. 68. HE HAS FURTHER CONTENDED THAT THE TRIBUNAL HA NOT CONSIDERED THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS MOHANKALA REPORTED IN 291 ITR 278(SC) WHILE DECIDIN G THE ISSUE OF GIFT. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THERE IS AN APPAREN T MISTAKE AS THE TRIBUNAL HAS NOT 2 MA NO. 257/MUM/2011 ARISING OUT OF ITA NO. 3429/MUM/2009 (ASST YEAR 2005-06) CONSIDERED THE DECISIONS WHICH WERE REFERRED BEFORE THE CIT(A) AND RELIED UPON BY THE CIT(A) WHILE DELETING THE ADDITION. 2.1 ON THE OTHER HAND, THE LD DR HAS SUBMITTED THAT THE ISSUE HAS BEEN DISCUSSED AND DECIDED ON MERIT AFTER CONSIDERING ALL THE RELE VANT FACTS AND MATERIAL AND AS PER LAW; THEREFORE, THE MISCELLANEOUS APPLICATION F ILED BY THE ASSESSEE IS BEYOND THE SCOPE OF SEC. 254(2) OF THE I T ACT. 3 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERU SED THE RELEVANT MATERIAL ON RECORD. THE LD AR OF THE ASSESSEE HAS REITERATE D THE CONTENTIONS RAISED IN THE MISCELLANEOUS APPLICATION, WHICH WERE ALREADY RAISE D AT THE TIME OF HEARING OF THE APPEAL. THE LD AR HAS REFERRED VARIOUS DECISIONS I N SUPPORT OF THE CASE OF THE ASSESSEE, WHICH WERE RELIED UPON BY THE ASSESSEE BE FORE THE CIT(A). THE TRIBUNAL, AFTER CONSIDERING THE CONTENTIONS OF THE PARTIES AN D THE RELEVANT RECORDS HAVE DISCUSSED THE ISSUE IN DETAIL AND ADJUDICATED THE S AME ON MERITS. THEREFORE, BY WAY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS SEE KING REVIEW OF THE ORDER PASSED ON MERITS, WHICH IS BEYOND THE SCOPE OF SEC. 254(2). A S REGARDS THE APPLICABILITY OF SECTION 56 IS CONCERNED, THE CLAUSE (V) OF SEC. 2 O F SEC 56 HAS BEEN INSERTED W.E.F 1.4.2005 AND EVEN IT HAS NOT BEEN ARGUED AT THE TIME OF HEARING OF THE APPEAL. SECTION 56(2)(V) READS AS UNDER: 56(1)(V): WHERE ANY SUM OF MONEY EXCEEDING TWENTY FIVE THOUSAND RUPEES IS RECEIVED WITHOUT CONSIDERATION BY AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY FROM ANY PERSON ON OR AFTER THE 1 ST DAY OF SEPT 2004 BUT BEFORE THE 1 ST DAY OF APRIL, 2006, THE WHOLE OF SUCH SUM: 3 MA NO. 257/MUM/2011 ARISING OUT OF ITA NO. 3429/MUM/2009 (ASST YEAR 2005-06) PROVIDED THAT THIS CLAUSE SHALL NOT APPLY TO ANY SUM OF MONE Y RECEIVED- A) FROM ANY RELATIVE; OR B) ON THE OCCASION OF THE MARRIAGE OF THE INDIVIDUA L; OR C) UNDER A WILL OR BY WAY OF INHERITANCE; OR D IN CONTEMPLATION OF DEATH OF THE PAYER; OR E) FROM ANY LOCAL AUTHORITY AS DEFINED IN THE EXPLA NATION TO CLAUSE (2) OF SECTION 10; OR F) FROM ANY FUND OR FOUNDATION OR UNIVERSITY OR OTH ER EDUCATIONAL INSTITUTION OR HOSPITAL OR OTHER MEDICAL INSTITUTIO N OR ANY TRUST OR INSTITUTION REFERRED TO IN CLAUSE (23C) OF SECTION 10; OR G FROM ANY TRUST OR INSTITUTION REGISTERED U/S 12AA EXPLANATION:- FOR THE PURPOSE OF THIS CLAUSE. RELATIVE MEANS- I) SPOUSE OF THE INDIVIDUAL; II) BROTHER OR SISTER OF THE INDIVIDUAL; III) BROTHER OR SISTER OF THE SPOUSE OF THE INDIVID UAL; IV) BROTHER OR SISTER OF EITHER OF THE PARENTS OF T HE INDIVIDUAL; V) ANY LINEAL ASCENDANT OR DESCENDANT OF THE INDIVI DUAL; VI ANY LINEAL ASCENDANT OR DESCENDANT OF THE SPOUSE OF THE INDIVIDUAL; VII SPOUSE OF THE PERSON REFERRED TO IN CLAUSE (II) TO (VI) 3.1 IT IS CLEAR FROM THE CLAUSE (V) OF SUB.SEC 2 OF SEC.56 THAT ANY SUM OF MONEY RECEIVED ON OR AFTER 1.9.2004 SHALL BE TREATED AS I NCOME FROM OTHER SOURCES. IN THE CASE IN HAND, THE AMOUNT/GIFT IN QUESTION WAS RECEI VED ON 6.7.2004 THUS, THE PROVISIONS OF SEC 56(2)(V) WOULD NOT APPLY TO THE C ASE OF THE ASSESSEE. FURTHER, WHEN THIS PLEA WAS NEITHER RAISED BEFORE THE CIT(A) NOR BEFORE US DURING THE COURSE OF HEARING OF THE APPEAL, THEREFORE, THE ASSESSEE CANN OT SETUP A NEW CASE IN MA PROCEEDINGS. 4 THE SCOPE OF SEC 254(2) IS VERY LIMITED AND CIRCU MSCRIBED. FOR EXERCISING THE JURISDICTIONAL U/S 254(2), IT IS THE MANDATORY COND ITION THAT SUCH MISTAKE SHOULD BE WIDE APPARENT, MANIFEST AND PATENT AND NOT SOMETHIN G WHICH COULD BE INVOLVED SERIOUS CIRCUMSTANCES OF DISPUTES OF QUESTION OF FA CTS OR LAW AND CAN BE ESTABLISHED BY LONG DRAWN PROCESS AND REASONING ON THE POINT TO BE RECTIFIED. A PATENT MISTAKE 4 MA NO. 257/MUM/2011 ARISING OUT OF ITA NO. 3429/MUM/2009 (ASST YEAR 2005-06) AS WELL AS EVIDENT ERROR, WHICH DOES NOT REQUIRE AN ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENTS TO ESTABLISH CAN BE SAID TO BE AN ERRO R APPARENT ON THE FACE OF THE RECORDS AND CAN BE RECTIFIED UNDER THE AMBIT OF SEC TION 254(2). IT IS WELL SETTLED THAT SEC 254(2) DOES NOT CONFER POWER ON THE TRIBUNAL TO REVIEW IS EARLIER ORDER. THUS, THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER PASSED ON MERIT AND IN THE GRAB OF RECTIFICATION OF MISTAKE NO ORDER CAN BE PASSED U/S 254(2) WHICH AMOUNTS TO REVERSAL OF THE ORDER PASSED AFTER DISCUSSING ALL THE FACTS AND STATUTORY PROVISIONS IN DETAIL. WHEN THE ENTIRE ISSUE WAS EXAMINED AND DECIDED ON MERIT AFTER CONSIDERING THE JUDGMENTS RELIED UPON BY BOTH THE PARTIES AND, IN S UPPORT OF THE FINDINGS AND VIEW IF CERTAIN DECISIONS ARE REFERRED BY THE TRIBUNAL THEN IT WOULD NOT AMOUNT TO TOTAL RELIANCE PLACED ON THE CITED DECISIONS AND IN TURN AN APPARENT AND MANIFEST MISTAKE IN THE ORDER. 5 IN VIEW OF THE ABOVE DISCUSSION, WE ARE OF THE CO NSIDERED OPINION THAT THE ASSESSEE HAS NOT BROUGHT OUT ANY ERROR OR MISTAKE A PPARENT ON THE FACE OF THE RECORD, WHICH CAN BE RECTIFIED WITH THE PROVISION O F SEC 254(2) BUT ALL THE CONDITIONS RAISED BY THE ASSESSEE IN THE MA AS WELL AS IN THE ARGUMENTS ARE ON MERITS OF THE ISSUE DECIDED BY THE TRIBUNAL VIDE IMPUGNED ORDER. THEREFORE, THE MISCELLANEOUS APPLICATION IS NOTHING BUT SEEKING A REVIEW OF THE IMPUGNED ORDER OF THIS TRIBUNAL WHICH IS BEYOND THE SCOPE OF SEC 254(2). THE ORDER PASSED ON MERITS CANNOT BE AMENDED OR RECALLED BY GIVING A DIFFERENT REASON IN THE GARB OF RECTIFICATION OF MISTAKE. SINCE IT IS NOT THE CASE WHERE THIS TRIB UNAL EITHER IGNORED ANY PROVISIONS OF LAW OR ANY MATERIAL EVIDENCE WHILE ADJUDICATING THE ISSUE. ACCORDINGLY, NO 5 MA NO. 257/MUM/2011 ARISING OUT OF ITA NO. 3429/MUM/2009 (ASST YEAR 2005-06) APPARENT MISTAKE OBVIOUS OR MANIFEST ERROR OR MISTA KE HAS BEEN POINTED OUT IN THE MISCELLANEOUS APPLICATION AND CONSEQUENTLY, THE SAM E DESERVES TO B DISMISSED. 6 IN THE RESULT, THE MISCELLANEOUS APPLICATION FILE D BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THE 5 TH DAY OF AUG 2011. SD/ SD/- ( R S SYAL ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 5 TH ,AUG 2011 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI