Bhavpujya Securities Pvt.Ltd., Ahmedabad V. Asstt.Commissioner of Income Tax, Ahmedabad

MA 30/AHD/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4845 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 7 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 11-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S N DIVETIA
• Keywords: Business income; Rectification of order; Speculation loss

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER MISC. APPLICATION NO.30/AHD/2016 IN ./ ITA.NO.1713/AHD/2015 / ASSTT. YEAR: 2009-2010 BHAVPUJYA SECURITIES P.LTD. 59, KAMDHENU COMPLEX PANJARA POLE AHMEDABAD 380 015. VS ACIT, CIR.3 AHMEDABAD. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI S.N. DIVETIA, AR REVENUE BY : SHRI MUDIT NAGPAL, SR.DR / DATE OF HEARING : 05/10/2018 / DATE OF PRONOUNCEMENT: 25/10/2018 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER BY THIS MISC. APPLICATION, THE ASSESSEE IS SEEKING RECALL AND RECTIFICATION OF ORDER OF THE TRIBUNAL PASSED IN IT ANO.1713/AHD/2015 DATED 27.1.2016. 2. IN THE MISC. APPLICATION THE ASSESSEE HAS POINTE D OUT CERTAIN ERRORS COMMITTED BY THE TRIBUNAL WHILE ADJUDICATING THE IS SUE OF SPECULATION LOSS. THE RELEVANT PART OF PLEADINGS MADE IN THE MA READ AS UNDER: 5. THE APPLICANT MOST RESPECTFULLY SUBMITS THAT I ORDER TO ASCERTAIN THE NON-APPLICABILITY OF SAID EXPLANATION, THE AO H AS TO ASCERTAIN GROSS TOTAL INCOME OR THE PRINCIPAL BUSINESS OF THE COMPA NY. IF THE GROSS TOTAL INCOME CONSIST MAINLY OF HEADS OTHER THAN BUSINESS INCOME THIS MA NO.30/AHD/2015 2 EXPLANATION WILL NOT APPLY. SIMILARLY IF THE PRINCI PAL BUSINESS OF THE COMPANY IS BANKING OR GRANTING OF LOANS & ADVANCES, THIS EXPLANATION WILL NOT APPLY. NOW THE PERUSAL OF THE ENTIRE ORDER OF HON'BLE TRIBUNAL SHOWS THAT ONLY THE SECOND EXCEPTION HAS BEEN CONSI DERED WHEREAS THE FIRST EXCEPTION RELATING TO COMPOSITION OF GROSS TO TAL INCOME HAS NOT BEEN CONSIDERED AT ALL. THE APPLICANT SUBMITS THAT FOR THE PURPOSES OF THE GROSS TOTAL INCOME THE TEST LAID DOWN BY DECISI ON IN CASE OF CIT V. DARSHAN SECURITIES P. LTD ( 341 ITR 0556)(BOM.) HAS TO BE CONSIDERED BUT THE TRIBUNAL NOT BEEN CONSIDERED THE SAME. IT I S HELD THAT IN COMPUTING THE GROSS TOTAL INCOME THE NORMAL PROVISI ONS OF THE ACT IS APPLIED AND IT IS ONLY THEREAFTER, THAT IT HAS TO B E DETERMINED AS TO WHETHER THE GROSS TOTAL INCOME SO COMPUTED CONSISTS MAINLY OF INCOME WHICH IS CHARGEABLE UNDER THE HEADS REFERRED TO IN THE EXPLANATION. THEREFORE IN THE PRESENT CASE THERE IS BUSINESS LOS S OF RS. 14,93,823/- FROM SHARE TREADING FALLING UNDER THE HEAD BUSINES S INCOME' WHEREAS INCOME FROM BROKERAGE OF RS. 1,77,164/- AND INTERES T ON LOANS & ADVANCES OF RS. 9,53,119/-. UNDER THE CIRCUMSTANCES , THE TRIBUNAL WAS NOT JUSTIFIED IN COMING TO THE CONCLUSION THAT THE APPLICANT'S CASE DID NOT FALL WITHIN THE PURVIEW OF THE EXCEPTIONS CARVE D OUT IN THE EXPLANATION TO SECTION-73. 3. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, W E HAVE GONE THROUGH THE IMPUGNED ORDER. BEFORE US, THE LD.COUNSEL FOR THE ASSESSEE MADE SUBMISSIONS IN LINE WITH PLEADINGS CONTAINED IN THE MA. HE FUR THER SUBMITTED THAT THE MISTAKES POINTED OUT IN THE MA ARE APPARENT ON THE FACE OF THE ORDER, AND THEREFORE, IMPUGNED ORDER OF THE TRIBUNAL CITED SUP RA DESERVES TO BE RECTIFIED. THE LD.DR ON THE OTHER HAND SUBMITTED THAT ALL ISSU ES POINTED OUT BY THE ASSESSEE IN THE MA HAVE ALREADY BEEN DEALT WITH BY THE TRIBUNAL IN ITS DETAILED ORDER, AND THEREFORE, NO FURTHER ADJUDICAT ION IS REQUIRED. HE SUBMITTED THAT THE ASSESSEE UNDER THE GARB OF MA IS ATTEMPTING TO REVIEW THE ORDER WHICH IS NOT PERMISSIBLE IN LAW. ONCE THE TRI BUNAL DECIDED THE ISSUE ON MERIT AND PASSED ORDER, IT BECOMES FINAL AND TRIBUN AL CANNOT SIT ON FOR REVIEWING ITS ORDER. MA NO.30/AHD/2015 3 4. WE FIND THAT THE POWER OF RECTIFICATION UNDER SE CTION 254 OF THE INCOME TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE, WHI CH IS SOUGHT TO BE RECTIFIED, IS AN OBVIOUS PATENT MISTAKE AND APPAREN T FROM THE RECORD AND NOT A MISTAKE, WHICH IS REQUIRED TO BE ESTABLISHED BY ARG UMENTS AND LONG DRAWN PROCESS OF REASONING ON POINTS, ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. WE FIND THAT THE ALLEGED ERROR POINTED O UT BY THE ASSESSEE WHILE CONSIDERING THE ISSUE IN DISPUTE, THE TRIBUNAL HAD DETAILED DISCUSSION ON LEGAL AS WELL AS ON FACTUAL ASPECTS AND NO FRESH EXERCISE IS REQUIRED. WE FIND THAT THE SCOPE OF SUB-SECTION (2) IS RESTRICTED TO RECTI FYING ANY MISTAKE IN THE ORDER WHICH IS APPARENT FROM RECORD AND DOES NOT EXTEND T O REVIEWING OF THE EARLIER ORDER. IT IS SETTLED POSITION OF LAW THAT RECONSIDE RING THE FINDINGS RECORDED, OR RECONSIDERING APPLICATION OF RELEVANT PROVISIONS OF LAW TO FACTS OF CASE, SUCH A COURSE IS NOT PERMISSIBLE UNDER SECTION 254(2). TH EREFORE, WE ARE OF THE VIEW THAT BY POINTING OUT THE ALLEGED APPARENT ERRORS, R ELYING ON NEW FOUND AND REPEATED SUBMISSIONS, THE ASSESSEE IS TRYING TO REV IEW AND REVISIT ENTIRE ORDER OF THE TRIBUNAL, WHICH IS NOT PERMISSIBLE IN LAW. WE DO NOT FIND ANY MERIT IN THIS APPLICATION OF THE ASSESSEE, BECAUSE THE ISSUE S AGITATED IN THE MA HAVE ALREADY BEEN EXAMINED AND DELIBERATED UPON, AND REA CHED A CONCLUSION ON MERIT. MA, THEREFORE, FAILS. 5. IN THE RESULT, MISC. APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 25 TH OCTOBER, 2018 AT AHMEDABAD. SD/- SD/- ( PRADIPKUMAR KEDIA ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 25/10/2018