SHRI JANARDAN R KAPSE, NASHIK, Nashik V. DCIT Central Circle,1, NASHIK, Nashik

MA 3/PUN/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4124 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-05-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 14-01-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 132; 158BD

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “B”, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S. S. VISWANETHRA RAVI, JUDICIAL MEMBER M.A. No.02/PUN/2020 (Arising out of ITA No.163/PUN/2009) Block Period : 1997-98 to 2003-04 Mrs. Aruna J. Kapse, Classik Arcade, Saigram, Cidco Ambad Link Road, Ambad, Nashik- 422010. PAN : ANGPK2783B Vs. DCIT, Central Circle-1, Nashik. Appellant Respondent M.A. No.03/PUN/2020 (Arising out of ITA No.164/PUN/2009) Block Period : 1997-98 to 2003-04 Shri Janardan R. Kapse, Classik Arcade, Saigram, Cidco Ambad Link Road, Ambad, Nashik- 422010. PAN : ABPPK7293K Vs. DCIT, Central Circle-1, Nashik. Appellant Respondent आदेश / ORDER PER INTURI RAMA RAO, AM: These are the Miscellaneous Applications filed by the two different assessees seeking recall of the order passed by this Tribunal in ITA No.163/PUN/2009 in the case of Mrs. Aruna J. Kapse and ITA No.164/PUN/2009 in the case of Shri Janardan R. Assessee by : Smt. Deepa Khare Revenue by : Shri Piyush Kumar Singh Yadav Date of hearing : 20.05.2022 Date of pronouncement : 30.05.2022 MA Nos.02 & 03/PUN/2020 2 Kapse for the Block Period 1997-98 to 2003-04 dated 16.10.2019 respectively. 2. Since the identical facts and issues are involved in both the above Miscellaneous Applications, we proceed to dispose of the same by this common order. 3. Briefly, the facts of the case are as under : The appellant is an individual and director in Vastukrupa Constructions (India) Pvt. Ltd., which is engaged in the business of residential and commercial contracts. The search and seizure operations were conducted u/s 132 of the Income Tax Act, 1961 (‘the Act’) in the case of Laddha Group of companies on 09.10.2002. During the course of search operations, the Investigation Wing of the Department found that the said Laddha Group had acquired shares of M/s. Vastukrupa Constructions (India) Pvt. Ltd. from Mr. J. R. Kapse and Mrs. A. J. Kapse, the petitioner before us. The said transactions took place during the financial year 1999-2000 where the transfer of shares in the said company is handed over by the appellant (petitioner before us). The assessment proceedings against the appellant were initiated u/s 158BD of the Act based on the information received from the Investigation Wing of the Department that the appellant had received total consideration of Rs.45 lakhs for transfer of total 800 shares held in Vastukrupa Construction (India) Pvt. Ltd.. MA Nos.02 & 03/PUN/2020 3 Accordingly, the assessment was completed u/s 158BD r.w.s. 143(3) of the Act vide order dated 21.11.2006 computing the capital gains by adopting 15% of Rs.45 lakhs as a sale consideration. On appeal before the ld. CIT(A), who vide order dated 29.08.2008 confirmed the action of the Assessing Officer. Being aggrieved by the order of the ld. CIT(A), an appeal was filed before this Tribunal which came to be dismissed in ITA Nos.163 & 164/PUN/2009 vide order dated 10.07.2015. During the course of hearing of appeal before the Tribunal, an argument was taken as to the validity of jurisdiction u/s 158BD which came to be disposed of against the assessee vide para 8 of the order dated 10.07.2015 (supra). On receipt of the Tribunal’s order, the appellant (petitioner before us) moved a Miscellaneous Petitions before this Tribunal vide M.A Nos.45 & 46/PUN/2015 stating that the Tribunal had confirmed the addition placing reliance on the new material which was not confronted to the assessee. Considering the averments made in the Miscellaneous Applications, the Tribunal had recalled the appeal vide order dated 29.06.2016. At this juncture, it is worth mentioning here that the petitioner filed an appeal before the Hon’ble High Court of Judicature at Bombay which came to be disposed of as infructuous on the submission of the appellant that the appeals are rendered infructuous on account of subsequent MA Nos.02 & 03/PUN/2020 4 development particularly in view of the fact that the Tribunal recalled earlier order which is impugned in Hon’ble Bombay High Court vide order dated 03.09.2018. 4. Consequent to recall of the appeal, the appeal was disposed of by this Tribunal vide order dated 16.10.2019 dismissing the appeal on merits. While stood matter thus, the present Miscellaneous Applications were filed by the assessee stating that (1) the Tribunal in the second round had failed to adjudicate the ground of appeal relating to the validity of section 158BD as the entire order of earlier order of the Tribunal is recalled vide Miscellaneous Applications’ order dated 29.06.2016. (2) While passing the impugned order, the Tribunal had not taken the cognizance of the order of the Hon’ble Bombay High Court (supra). 5. Some other averments are also made challenging the findings of the Tribunal on merits. When the present Applications was called on, Smt. Deepa Khare, ld. AR for the assessee argued that when the appeal was recalled in its entirety, the failure of the Tribunal to adjudicate the grounds relating to the validity of the proceedings u/s 158BD constitutes a mistake apparent from record. It is further contended that the failure of the Tribunal not to consider the order of the Hon’ble Bombay High Court (supra) also constitutes another mistake apparent from record. Therefore, she MA Nos.02 & 03/PUN/2020 5 prayed that the order passed by the Tribunal vide order dated 16.10.2019 in ITA Nos.163 & 164/PUN/2009 should be recalled. 6. On the other hand, ld. CIT-DR vehemently opposed the submission of learned AR. 7. We heard the rival submissions and perused the material on record. The appellant is seeking the recall of order of the Tribunal dated 16.10.2019 (supra) on the ground that the Tribunal while passing the order on 16.10.2019 had failed to construe the order made on 29.06.2016 as the recall of entire order of earlier Tribunal’s order. The Tribunal also failed to take into consideration the order of the Hon’ble Bombay High Court (supra). We have carefully perused the earlier Miscellaneous Applications moved by the petitioner pursuant to which the Tribunal had passed the recall order dated 29.06.2016 and also perused the present Miscellaneous Applications, it could be clear that the appellant sought the recall of the appeal only on limited finding given by the Tribunal in order dated 10.07.2015 vide para 11 and 12, wherein, the Tribunal placed reliance on the letter dated 18.10.2004 by one Mr. Prakash P. Laddha. The Tribunal concurring with the contentions of the appellant that the Tribunal relied upon the said material without confronting the same to the assessee, recalled the matter which means that the recall of the order is limited to the extent of the finding given by the Tribunal based on MA Nos.02 & 03/PUN/2020 6 that material i.e. letter dated 18.10.2004 of one Mr. Prakash P. Laddha. The Tribunal also made clear as to ambit and scope of recall of its order in its second order dated 16.10.2019 vide para 10 of the said order. Furthermore, in the earlier first order dated 10.07.2015, the Tribunal had adjudicated the oral argument made during the course of hearing of appeal as to the validity of the proceedings u/s 158BD and rendered its findings on merits. The scope of recalled appeal cannot extend beyond grounds on which Miscellaneous Petition was maintained. Secondly, the Tribunal had dealt with the oral arguments made during the course of hearing the appeal in first round on the validity of proceedings u/s 158BD. Therefore, we do not find any merit in the contentions of the appellant that there is a mistake apparent from record in the order dated 16.10.2019 by not adjudicating upon the grounds relating to the validity of the proceedings u/s 158BD of the Act. Secondly, as regards to the alleged failure of the Tribunal to consider the decision of the Hon’ble Bombay High Court (supra), we have gone through the order of the Hon’ble Bombay High Court (supra), wherein, it is clearly mentioned that the appeals were rendered infructuous on the submission made by the assessee that the order of the Tribunal is recalled. The true effect of the order of the Hon’ble Bombay High Court (supra) is nothing but dismissal of the appeal which does not bear any impact on outcome of appeal MA Nos.02 & 03/PUN/2020 7 before Tribunal in second round. Thus, we do not find any merit in the present Miscellaneous Applications filed by the assessee. 8. In the result, both the above Miscellaneous Applications filed by the two different assessees stands dismissed in above terms. Order pronounced on this 30 th day of May, 2022. Sd/- Sd/- (S. S. VISWANETHRA RAVI) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 30 th May, 2022. Sujeet आदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A)-1, Nagpur. 4. The CIT (Central), Nagpur. 5. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “B” बᱶच, पुणे / DR, ITAT, “B” Bench, Pune. 6. गाडᭅ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.