MITHALAL BHAWARLAL JAIN, MUMBAI V. INCOME TAX OFFICER - 19(2)(3), MUMBAI

MA 328/MUM/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5566 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-10-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 23-05-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJEEV GUBGOTRA
• Keywords: Bogus purchase; Rectification of order
• Section: 201; 254(2); 147; 2

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) & SHRI PAWAN SINGH (JM) M.A. NO. 328/MUM/2019 ARISING OUT OF I.T.A. NO. 1131 /MUM/ 201 8 (ASSESSMENT YEAR 20 1 0 - 1 1 ) MR. MITHALAL B. JAIN 102/133/144 RIDDHI APARTMENT 10 TH KHETWADI BACK ROAD GIRGAUM, MUMBAI - 04. PAN : ADMPJ5673P V S . ITO - 19(2)(3) 1 ST & 2 ND FLOOR MATRU MANDIR TARDEO NANA CHOWK GRANT ROAD MUMBAI - 400 007. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI DEVENDRA JAIN DEPARTMENT BY SHRI RAJEEV GUBGOTRA DA TE OF HEARING 19.7 . 201 9 DATE OF PRONOUNCEMENT 11 . 10 . 201 9 O R D E R PER SHAMIM YAHYA (AM) : - BY WAY OF THIS MISCELLANEOUS APPLICATION ASSESSEE SEEKS RECTIFICATION OF MISTAKE APPARENT FROM RECORD U/S. 254(2) OF THE I.T. ACT IN THE ORDER OF T HIS TRIBUNAL IN ITA N O. 1131 /MUM/201 8 FOR A.Y. 201 0 - 1 1 VIDE ORDER DATED 5 .1 0 .201 8 . 2. IN TH E INCOME TAX APPEAL THE ASSESSEE HAS CHALLENGED THE VALIDITY OF REOPENING AS WELL AS THE MERITS OF ADDITION SUSTAINED BY LEARNED CIT(A). THE ITAT IN THE AFORESA ID ORDER HAS ELABORATELY DEALT WITH THE ISSUE AND DISMISSED THE APPEAL RAISED BY THE ASSESSEE. NOW, BY WAY OF THIS MISCELLANEOUS APPLICATION THE SUBMISSIONS OF THE ASSESSEE ARE AS UNDER : I HAD FILED AN APPEAL BEFORE THE HON'BLE ITAT AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) DATED 28/12/2017 FOR A.Y. 2010 - 11, THE HEARING OF THE SAME WAS FIXED ON 01/10/2018. MY APPOINTED COUNSEL, CA. ASHOK MEHTA HAD APPEARED FOR SEEKING A SHORT ADJOURNMENT; AS NO RESPONSE WAS RECEIVED AGAINST AN RTI APPLICA TION FILED BY ME BEFORE THE MR. MITHALAL B. JAIN 2 MAHARASHTRA SALES TAX DEPARTMENT. THE SAID RTI APPLICATION IS RELEVANT FOR THE MATTER IN DISPUTE AND GOES TO THE ROOT OF THE MATTER. HOWEVER AS THE MATTER IN DISPUTE WAS RELATING TO ALLEGED BOGUS PURCHASE, ADJOURNMENT WAS DENIE D BY THE BENCH AND IT WAS VERBALLY STATED THAT AS THE ISSUE OF BOGUS PURCHASE IS NOW SETTLED IN VARIOUS DECISIONS, I WOULD BE GRANTED RELIEF BASED ON THOSE DECISIONS TO THE EXTENT OF GROSS PROFIT ALREADY DECLARED IN MY BOOKS OF ACCOUNTS. HOWEVER, ON PERUSA L OF THE ABOVE REFERRED ORDER, FOLLOWING MISTAKES APPARENT FROM RECORD ARE NOTICED: A) NO SUCH RELIEF AS ORALLY PRONOUNCED IN THE HEARING WAS GRANTED I.E. RELIEF TO THE EXTENT OF GROSS PROFIT ALREADY DECLARED IN MY BOOKS OF ACCOUNTS, AND THE DISALLOWANC E OF 12.5% OF PURCHASES WAS SUSTAINED. B) THE FOLLOWING GROUNDS WHICH WERE FORMING PART OF FORM - 36 WERE NOT ADJUDICATED IN THE SAID ORDER . GROUND NO. 1 : TH E LEARNED ASSESSING OFFICER ERRED IN REOPENING THE CASE UNDER SECTION 147 WITHOUT JURISDICTION B ASED ON OPINION FRAMED BY DGIT (INV) AND WITHOUT FORMING HIS OWN OPINION AND TLIE CIT (A) ERRED IN CONFIRMING T H E SAME. GROUND NO. 3: TH E LEARNED ASSESSING OFFICER AND THE CIT (A) ERRED IN NOT PROVIDING EVIDENCES/STATEMENTS COLLECTED BEHIND ASSESSEE'S BA CK NOR AN OPPORTUNITY PROVIDED TO CROSS EXAMINE IN VIOLATION OF GROUNDS OF NATURAL PROCESS. C) HON'BLE BENCH HAS ALSO FAILED TO CONSIDER RECENT JURISDICTIONAL BOMBAY HIGH COURT DECISION IN CASE OF PCIT VS. MOHOMMAD HAJI ADAM & CO. [ITA NO. 1004 OF 2016 DATED 11/02/2019] WHEREIN IT IS HELD THAT THE ADDITION SHOULD BE RESTRICTED TO DIFFERENCE BETWEEN THE GROSS PROFIT RATE ON ALLEGED BOGUS PURCHASES AND THE UN - DISPUTED PURCHASES. THE ORDER WAS PRONOUNCED ON 05/10/2018 AND WAS RECEIVED BY ME ON 25/12/2018. CONSIDERING THE ABOVE MISTAKE, I REQUEST THE HONORABLE TRIBUNAL TO KINDLY RECALL THE ORDER DATED 05/10/2018 IN THE INTEREST OF JUSTICE AND ALLOW THE RELIEF AS ORALLY PRONOUNCED AT THE TIME OF HEARING OR ALTERNATIVELY TO ALLOW THE RELIEF AS PER THE JURISDI CTIONAL HIGH COURT DECISION IN CASE OF PCIT VS. MOHOMMAD HAJI ADAM & CO. [ITA NO. 1004 OF 2016 DATED 11/02/2019 . 3. W E HAVE HEARD BOTH THE COUNSE L AND PERUSED THE RECORDS . U PON CAREFUL CONSIDERATION WE FIND THAT THERE IS NO CO GENCY IN THE SUBMISSION OF T HE ASSESSEE THAT ANY ORDER WAS PRONOUNCED IN THE COURT AT THE TIME OF HEARING. ALL MR. MITHALAL B. JAIN 3 THE ISSUES RAISED HAVE DULY BEEN DEALT WITH BY THE ITAT IN THE AFORESAID ORDER AND THE ASSESSEE'S APPEAL WAS DISMISSED. NOW THE ASSESSEE ALSO WANTS THAT A DECISION RENDERED AFTER THE DATE OF THIS ORDER SHOULD BE CONSIDERED AND THE APPEAL BE RECTIFIED/BE RE CALLED. 4. UPON CAREFUL CONSIDERATION WE FIND THAT THE ORDER REFERRED BY THE LEARNED COUNSEL OF THE ASSESSEE WAS NOT EVEN IN EXISTENCE WHEN THE ORDER WAS PASSED BY THE ITA T . HENCE, THE NON - C O NSIDERATION OF THE SAME CAN BY NO STRETCH OF IMAGINATION RENDER THE ORDER OF THE ITAT LIABLE FOR RECTIFICATION OF MISTAKE APPARENT FROM RECORD. IN THIS VIEW OF THE MATTER IN OUR CONSIDERED OPINION THERE IS NO MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. ACCORDINGLY THE MISCELL ANE OUS APPLICATION FILED BY THE ASSESSEE STA NDS DI SMISSED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 11 . 10 . 201 9 . SD/ - SD/ - ( PAWAN SINGH ) (SH A MIM YAHYA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 11 / 10 / 20 1 9 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI