H.K. ENTERPRISES, MUMBAI V. DY CIT -CC-2(4), MUMBAI

MA 317/MUM/2022

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 0147 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-08-2024
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: E
• Next Hearing Date: 08-08-2024
• Assessment Year: misc
• Appeal Filed On: 30-10-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: YOGENDRA T. WAKARE
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI “E” BENCH : MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER M.A. No. A.Y. Applicant Respondent 309/Mum/2022 (Arising out of ITA No. 269/M/21) 2012-13 H.K. Enterprises, 74/80, 3 rd Floor, Souri Building, Babu Genu Road, Kalbadevi, Mumbai PAN: AAFFH6076C) Dy.CIT-CC-2(4), 8 th Floor, Pratishtha Bhavan, Old CGO Building, Mumbai 310/Mum/2022 (Arising out of ITA No. 268/M/21) 2013-14 312/Mum/2022 (Arising out of ITA No. 316/M/21) 2014-15 313/Mum/2022 (Arising out of ITA No. 317/M/21) 2015-16 315/Mum/2022 (Arising out of ITA No. 267/M/21) 2016-17 316/Mum/2022 (Arising out of ITA No. 315/M/21) 2017-18 317/Mum/2022 (Arising out of ITA No. 314/M/21) 2018-19 For Assessee : Shri R.S. Khandelwal, For Revenue : Shri Yogendra T. Wakare, Sr.DR Date of Hearing : 09-08-2024 Date of Pronouncement : 13-08-2024 ORDER PER B.R. BASKARAN, A.M : All these Miscellaneous Applications have been filed by the assessee submitting that there are mistakes apparent from record in the common order dt. 05-04-2022 passed by the Tribunal in the appeals mentioned in the caption. 2 H.K. Enterprises 2. In all these petitions, according to the assessee, there are two mistakes apparent from record. The first mistake pointed out by the assessee is that the AO has made additions without there being any incriminating material supporting those additions. The Ld A.R submitted that the Tribunal had restored this issue to the file of the AO for examining the above said claim of the assessee instead of deleting those additions. According to the assessee, the decision to restore the issue to the file of the AO for examining the availability of incriminating materials is a mistake apparent from record. The Ld A.R submitted that, while giving effect to the order passed by the Tribunal, the AO has observed that there is no incriminating material and accordingly, the respective additions have been deleted. Accordingly, the Ld A.R submitted that the grievance of the assessee was addressed in the consequential order. Accordingly, the Ld A.R submitted that the first mistake pointed out by the assessee has become infructuous and accordingly, it is not pressed. 3. The second mistake pointed out by the assessee is that the assessee, prior to the completion of assessment proceedings, filed petitions before the Income-tax Settlement Commission u/s. 245C of the Income Tax Act, 1961 („the Act‟). In the said petitions, the assessee had offered certain additional income on adhoc basis in all these years. There was no supporting material for the amounts so offered. However, the Hon‟ble Income-tax Settlement Commission rejected the settlement applications filed by the assessee and hence the present assessment orders came to be passed by the AO. However, while completing the assessments of these years, the AO noticed the fact that the assessee had offered additional income in the settlement applications. Accordingly, the said additional income came to be added by the AO in the present assessment orders. 3 H.K. Enterprises 4. The Ld.AR submitted that the contention of the assessee before the Tribunal was that the additional income was offered before Income tax Settlement Commission on adhoc basis and there was no material available to support the same. Accordingly, it was contended that the said additions should be deleted, as they do not represent any real income. Before the ITAT, the assessee has also placed reliance on the following decisions rendered by the Co-ordinate Benches of the Tribunal on identical additions made by the AO. In all these additions, the Co- ordinate Benches have held that the AO cannot make any addition on the basis of additional income, if any, offered in the settlement applications. Accordingly, the Co-ordinate Benches have deleted identical type of additions made by the AO. a) Decision of the Hon‟ble Mumbai Tribunal in the case of Anantnadh Constructions and Farms (P.) Ltd. vs. DCIT [166 ITD 83]; b) Decision of the Hon‟ble Mumbai Tribunal in the case of Dolat Investments Ltd. vs. DCIT [38 SOT 123]; c) Order of the Hon‟ble Mumbai Tribunal in the case of Lodha Land Developers Pvt. Ltd. vs. DCIT [ITA No. 5509/Mum/2016, dt. 27- 05-2019]; d) Order of the Hon‟ble Mumbai Tribunal in the case of Galaxy Premises Pvt. Ltd. vs. DCIT and Ors. [ITA No. 5462/Mum/2016, dt. 25-04-2017] 5. The Ld.AR submitted that the Tribunal, however, neither referred to any of the above cited decisions not it distinguish them also. Accordingly, the Ld.AR submitted that the Tribunal has failed to consider the decisions of Co-ordinate Benches cited before it and the same has resulted in a mistake apparent from record. He submitted that non-consideration of decisions of the Co-ordinate Benches of the Tribunal cited before it is a mistake apparent from record within the 4 H.K. Enterprises meaning of section 254(2) of the Act, as held by Hon‟ble Supreme Court in the case of Honda Siel Power Products Ltd (295 ITR 466). 6. The Ld.DR, on the contrary, submitted thatthe Tribunal has taken a view and the same cannot be rectified under the garb of mistake apparent from record. 7. We heard the parties and perused the record. Admittedly, the Tribunal did not refer to any of the decisions rendered by the Co-ordinate Benches on identical issue. We notice from the paper book filed by the assessee that copies of decisions have been placed on record. The Hon‟ble Supreme Court has held in the case of Honda Siel Power products Ltd (supra) that non-consideration of the decision rendered by the Co-ordinate Benches was a mistake apparent from record. Accordingly, we find merit in the petitions filed by the assessee on this issue. 8. Accordingly, we recall the impugned orders relating to the years under consideration for the limited purpose of adjudicating the issue relating to the addition made on the basis of Settlement Applications filed before Income tax Settlement Commission. We direct the registry to post these appeals in the normal course. 9. In the result, all the Miscellaneous Applications are partly allowed. Order pronounced in the open court on 13 th August, 2024 Sd/- Sd/- [AMIT SHUKLA] [B.R. BASKARAN] JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, Dated: 13-08-2024 TNMM 5 H.K. Enterprises Copy to : 1. The Applicant 2. The Respondent 3. The Pr. CIT, Mumbai concerned 4. D.R. ITAT, “E” Bench, Mumbai. 5. Guard File. //By Order// //True Copy // Dy./Asst. Registrar, ITAT, Mumbai