Dr. Hitesh A Patel, Himatnagar V. The Income Tax Officer, S. K. Ward-3, Himatnagar

MA 3/AHD/2023

AI Insights

Dr. Hitesh A. Patel filed a Miscellaneous Application seeking to recall an ITAT order that added Rs. 24,36,100 to his income for the assessment year 2009-10, claiming it was a mistake apparent from the record. The ITAT had previously upheld this addition based on a survey team's findings and the assessee's initial admission during the survey. However, the assessee later retracted his admission through an affidavit. The ITAT dismissed the application, stating that the original order was based on a detailed consideration of the facts and arguments presented, and there was no apparent mistake in the order that could be rectified under section 254(2) of the Income Tax Act.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 135612 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-02-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 02-02-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 08-01-2023
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: BIREN SHAH
• Section: 133A; 254(2)

Judgement Text

आयकर आयकरआयकर आयकर अपी अपीअपी अपीलीय लीयलीय लीय अिधकरण अिधकरणअिधकरण अिधकरण, अहमदाबाद अहमदाबादअहमदाबाद अहमदाबाद यायपीठ यायपीठ यायपीठ यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, ‘’ SMC” BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER M.A No.3/Ahd/2023 आयकर अपील सं./ITA No.96 /AHD/2020 िनधा रण िनधा रणिनधा रण िनधा रण वष वष वष वष /Asstt. Year: 2009-2010 Dr. Hitesh A. Patel, C/o Harsh Hospital, Umiya Complex, Nr. Mehta Petrol Pump, Himatnagar-383001. PAN: ABEPP1040J Vs. Income Tax Officer, S.K. Ward-3, Himatnagar. (Applicant) (Respondent) Assessee by : Shri Biren Shah, A.R Revenue by : Shri Rakesh Jha, Sr. D.R सुनवाई क तारीख/Date of Hearing : 03/02/2023 घोषणा क तारीख /Date of Pronouncement: 22/02/2023 आदेश आदेशआदेश आदेश/O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: The assessee by way of this Miscellaneous Application is seeking to recall the order passed by the ITAT on the reasoning that there is a mistake apparent from the record within the meaning of the provision of section 254(2) of the Act. M.A no.3/Ahd/2023 ITA no.96/AHD/2020 A.Y. 2009-10 2 2. The assessee in the Miscellaneous Application has pointed out that the actual professional receipts of the assessee stands at Rs. 18,23,600/- which is also evident from the patient register. However, the survey team during the survey operation under force has recorded undisclosed/unaccounted receipt of Rs. 24,36,100/- without providing any corroborative materials available on record. The undisclosed/unaccounted income was also admitted by the assessee in the statement furnished during the survey operation u/s 133A of the Act, dated 04/12/2009. However, the assessee immediately post survey operation vide affidavit dated 07/09/2009, retracted from his statement. All these informations were duly brought to the notice of the Bench at the time of the hearing but the ITAT without considering the argument inadvertently upheld the addition of Rs. 24,36,100/- 3. It was submitted by the Ld.AR that non-consideration of the crucial fact of the case as discussed above and supported by the affidavit is a mistake apparent from the record which crept in the order of the ITAT inadvertently and the same needs to be rectified. Thus, the order of the ITAT needs to be recalled. 4. On the other hand, the Ld. DR submitted that the ITAT has passed the order after considering all the necessary facts and the contentions raised by the Ld. AR in the Miscellaneous Application. Thus, if the ITAT considers the same document afresh, it will amount to review of its own order which is prohibited under the provision of the Act. 5. We have heard the rival contention of both the parties and perused the materials available on record. The ITAT has been empowered to rectify the mistake in its order which is apparent from the record under the provision of section 254(2) of the Act. The mistake which are apparent from the record refers to those mistakes which are glaring and can be pointed out from the face and M.A no.3/Ahd/2023 ITA no.96/AHD/2020 A.Y. 2009-10 3 about the same two views are not possible. A mistake which requires long drawn process in itself cannot be said a mistake apparent from the record. 5.1 In the case on hand, the ITAT after considering the necessary details and arguments of the Ld. AR and the Ld. DR has decided the issue vide order dated 07/12/2022. The ITAT after making reference to seized document containing the information about the actual receipt and unaccounted receipt has reached to the conclusion that the income of Rs. 24,36,100/- is liable to be added to the total income of the assessee. The findings of the ITAT is detailed and based on the reasons. Therefore, there is no scope to review its order again. There can be a mistake in the findings derived by the ITAT but that does not mean that the order of the ITAT suffers from any apparent mistake. As such, the findings of the ITAT which was given after considering the necessary facts and the argument of both the parties cannot be treated as erroneous within the provision of section 254(2) of the Act. Hence, the Miscellaneous Application filed by the assessee is hereby dismissed. 6. In the result, the Miscellaneous Application filed by the assessee is hereby dismissed. Order pronounced in the Court on 22/02/2023 at Ahmedabad. Sd Sd/- (MADHUMITA ROY (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (True Copy)Copy) Ahmedabad; Dated 22/02/2023 Manish