MANISH ESTATES P. LTD, V. ITO 1(2)(3),

MA 288/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1269 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-12-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2003-2004
• Appeal Filed On: 01-08-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'SMC' BENCH, MUMBAI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER M.A. NO.288/MUM/2013 (ARISING OUT OF ITA NO.1838/MUM/2013) (ASSESSMENT YEAR: 2003-04 ) M/S. MA NISH ESTATES PVT. LTD. 4 TH FLOOR, KSHMALAYA 27, NEW MARINE LINES MUMBAI-400 020. VS. INCO M E TAX OFFICER - 1(2)(3) AAYAKAR BHAVAN, M.K. ROAD MUMBAI-20. ( APPLICANT ) (RESPONDENT) PERMANENT ACCOUNT NO. AAAC M 3892 M ASSESSEE BY : SHRI NISHIT GANDHI REVENUE BY : SHRI SURENDRA KUMAR - DR DATE OF HEARING : 06 /12/2013 DATE OF PRONOUNCEMENT : 06 /12/2013 O R D E R PER I.P. BANSAL, JM: VIDE MISCELLANEOUS APPLICATION FILED ABOVE IT IS TH E CASE OF THE ASSESSEE THAT A MISTAKE HAS CREPT IN THE ORDER PASS ED BY THIS TRIBUNAL WHICH IS DATED 12/06/2013 IN ITA NO.1838/MUM/2013. IN THE APPLICATION IT IS THE CASE OF THE ASSESSEE THAT AMO UNT IN DISPUTE WAS ONLY SUM OF RS.1,29,201/- AGAINST WHICH THE TRIBUNA L TREATED THE DISPUTED AMOUNT AT RS.1,48,852/- WHICH ADDITION WAS ALREADY DELETED BY AO. 2. FURTHER IT IS THE CASE OF THE ASSESSEE THAT DURI NG THE COURSE OF HEARING BEFORE THE TRIBUNAL ASSESSEE HAD POINTED OU T THE FACT THAT ALL THE CONFIRMATIONS HAVE BEEN FILED BEFORE THE ASSESSING OFFICER AS WELL AS CIT(A). THE ADDITION COULD NOT BE SUSTAINED IN VIEW OF THE DECISION OF MA NO.288/M/13 A.Y.03-04 2 HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SITADEVI JUNEJA (325 ITR 593) AND SUCH DECISION WAS RELIED UPON BY THE L D. AUTHORIZED REPRESENTATIVE DURING THE COURSE OF HEARING. THUS, IT IS THE CASE OF THE ASSESSEE THAT MISTAKE HAS CREPT IN THE AFOREMENTION ED ORDER OF THE TRIBUNAL AND IT IS PRAYED THAT THE ORDER OF THE TRI BUNAL SHOULD BE SUITABLY AMENDED/MODIFIED AND GROUND OF THE ASSESSE E SHOULD BE DISPOSED OF ON MERITS. 2.1 FOR BETTER UNDERSTANDING OF THE CASE OF THE ASS ESSEE IN THE MISCELLANEOUS APPLICATION IT WILL BE NECESSARY TO N ARRATE THE FOLLOWING FACTS:- THE IMPUGNED ASSESSMENT IS AN ASSESSMENT ORDER DAT ED 27/11/2009 PASSED UNDER PROVISIONS OF SECTION 143(3 ) R.W.S.254 OF THE INCOME TAX ACT, 1961. EARLIER THE ASSESSMENT WAS CO MPLETED U/S. 143(3) ON 04/01/2006. IN THE ORIGINAL ASSESSMENT THE ASSES SEE DISPUTED ADDITION OF RS.2,78,154/- MADE U/S. 41(1) OF THE AC T. THE SAID ADDITION WAS SET ASIDE BY THE TRIBUNAL VIDE ITS ORDER DATED 17/04/2009. IN PURSUANCE OF SUCH ORDER OF THE TRIBUNAL THE IMPUGNE D ASSESSMENT ORDER WAS PASSED. THE AFORESAID AMOUNT OF RS.2,78,153.68 COMPRISE OF THE FOLLOWING CREDITS OUTSTANDING IN THE BOOKS OF ASSES SEE: 1. SHREEJI METAL CORPORATION RS.2,350.00 2. SHABA DECORATORS RS.1,48,852.25 3. BHARATI ENTERPRISES RS.5,000.00 4. SAMIR S. CHAH TRUST RS.16,412.71 5. SACHIN TRUST RS.15,800.00 6. DR. VIRAL C.SHAH RS.39,738.72 7. KOKILA H. SHAH RS.20,000.00 8. PARUL V. SHAH RS.30,000.00 TOTAL RS.2,78,153.6 8 3. THE AO REQUIRED THE ASSESSEE TO SUBSTANTIATE ITS CASE WITH REGARD TO AFOREMENTIONED SUNDRY CREDITORS. THE DETAILS WER E SUBMITTED FROM MA NO.288/M/13 A.Y.03-04 3 WHICH THE AO FOUND THAT THE ASSESSEE HAD SUBMITTED BANK STATEMENT AND RECEIPTS OF SUM OF RS.1,48,852.25 IN RESPECT OF SHABA DECORATORS. HOWEVER, IN RESPECT OF OTHER CREDITORS ASSESSEE DID NOT SUBMIT THE DETAILS AS THOSE WERE SUBMITTED FOR SHABA DECORATORS. THERE FORE, THE AO DELETED THE ADDITION OF RS.1,48,852/- OUT OF AFOREMENTIONED TOTAL AMOUNT OF RS.2,78,153.68. 3.1 THE ADDITION SUSTAINED AMOUNTING TO RS.1,29,30 1/- WAS AGITATED IN AN APPEAL FILED BEFORE CIT(A). LD. CIT(A) HAS RE CORDED HIS FINDING IN PARA-5 OF THE IMPUGNED ORDER. HE NOTED THAT THE ASS ESSEE HAS FAILED TO ADDUCE ANY SUPPORTIVE DOCUMENTS EITHER BEFORE THE A O OR BEFORE HIM. THE LD. CIT(A) FURTHER OBSERVED THAT EVEN BEFORE HI M, THE ASSESSEE COULD FILE XEROX COPY OF CONFIRMATIONS, WHICH DO NOT HAVE ORIGINAL SIGNATURE OF THE PARTIES. THE ACCOUNT PREPARED ARE STEREOTYPED W HICH ARE NOT HOLDING GOOD IN ABSENCE OF AUTHENTICITY OF CHEQUE NUMBERS F OR SUCH TRANSACTION OR MODE OF TRANSFER. THEREFORE, THE LD. CIT(A) OBSE RVED THAT HE IS OF THE CONSIDERED VIEW THAT THE ASSESSEE COULD NOT DISCHAR GE ITS OBLIGATION AS PER DIRECTIONS OF ITAT AND IN THIS MANNER THE LD. C IT(A) UPHELD THE ADDITION. 3.2 THE ORDER OF LD. CIT(A) WAS UPHELD BY THE TRIBU NAL VIDE AFOREMENTIONED ORDER DATED 06/12/2013 AS THE ASSESS EE DID NOT PRODUCE ANY OF THE DOCUMENTS TO ASSAIL THE FINDINGS OF THE LD. CIT(A). IT MAY ALSO BE MENTIONED HERE THAT NO PAPER-BOOK, WHATSOEVER, W AS FILED BEFORE THE TRIBUNAL. EXCEPT MAKING LEGAL SUBMISSION THE LD. AR DID NOT PRODUCE ANY DOCUMENT AND LEGAL SUBMISSION OF THE LD. AR WERE DU LY CONSIDERED AND DECIDED IN PARA-8, 9 AND 10 OF THE ORDER OF THE TRI BUNAL. 3.3 IF THE CONTENTS OF THE MISCELLANEOUS APPLICATI ON FILED BY THE ASSESSEE ARE CONSIDERED IN THE LIGHT OF AFOREMENTIO NED SEQUENCE OF EVENTS THEN IT CAN BE SAID THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL. MA NO.288/M/13 A.Y.03-04 4 THE ASSESSEE HAS NEVER FILED ANY DOCUMENT BEFORE TR IBUNAL, WHICH WAS STATED TO BE FILED BEFORE THE LD. CIT(A) OR ASSESSI NG OFFICER AND IN ABSENCE OF THOSE DOCUMENTS, IT CANNOT BE SAID THAT THE TRIB UNAL HAS COMMITTED ANY ERROR WHICH IS LIABLE FOR RECTIFICATION UNDER T HE PROVISIONS OF SECTION 254(2) OF THE ACT. ACCORDINGLY WE REJECT THE PLEA O F THE LD. AR THAT IN VIEW OF COPIES OF CONFIRMATIONS HAVING BEEN FILED BEFORE LD. CIT(A) THE ADDITION WAS LIABLE TO BE DELETED. IN ABSENCE OF COPIES OF D OCUMENTS, NO MISTAKE IS COMMITTED BY THE TRIBUNAL IN SUSTAINING THE ADDITIO N UPHELD BY THE CIT(A). BEFORE TRIBUNAL THE ASSESSEE HAD RAISED LEG AL ARGUMENTS WHICH WERE DULY CONSIDERED AND ADJUDICATED UPON. THEREFOR E, ON THIS COUNT THERE WAS NO MISTAKE IN THE ORDER OF THE TRIBUNAL. 3.4 FURTHER, SO FAR AS IT RELATES TO THE ALLEGED MI STAKE IN RECORDING THE SUSTAINED ADDITION FIGURE AT RS.1,48,852.52 IN PLAC E OF RS.1,29,301.43, IT IS OBSERVED THAT THE SAID MISTAKE HAS OCCURRED ONLY AS THE SAID FIGURE WAS INCORRECTLY MENTIONED IN THE GROUNDS OF APPEAL FILED IN FORM NO.36 BEFORE THE TRIBUNAL . HOWEVER, THERE IS NO IMPACT O F THE SAID FIGURE ON ADJUDICATION OF APPEAL FILED BY THE ASSESSEE BEFORE TRIBUNAL AS WHAT HAS BEEN CONFIRMED BY THE TRIBUNAL IS THE ORDER OF CIT( A) IN WHICH ADDITION OF RS.1,29,301.43 WAS CONFIRMED. THUS, THERE IS NO SUC H MISTAKE AS IS ALLEGED IN THE ORDER OF THE TRIBUNAL. 4. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 6TH DECEMBER, 2013. SD/- SD/- (N.K. BILLAIYA ) ACCOUNTANT MEMBER (I.P. BANSAL ) JUDICIAL MEMBER MUMBAI, DATED: 06/12/2013. JV. MA NO.288/M/13 A.Y.03-04 5 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.