ITO (IT) 1(1)(1), V. WAIZE M. ALI,

MA 333/MUM/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4392 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2005-2006
• Appeal Filed On: 17-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G PANSARI
• Assessee Lawyers: N R AGARWAL
• Keywords: Search and seizure; Tax effect
• Section: 69B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER M.A. NO. 333 & 334/MUM./2016 ( ARISING OUT OF ITA NO. 1343 & 1344 / MUM . /201 4 ) ( ASSESSMENT YEAR : 20 05 06 & 2006 07 ) INCOME TAX OFFICER (I.T) WARD 1(1)(1), MUMBAI . APP LICANT V/S SHRI WAIZE M. ALI 2 ND FLOOR, KENNEDY HOUSE GOREGAONKAR ROAD NANA CHOUWK, MUMBAI 400 007 PAN AIQPA6270N . RESPONDENT REVENUE BY : SHRI D.G. PANSARI ASSESSEE BY : SHRI N.R. AGARWAL DATE OF HEARING 1 5 .02.2019 DATE OF ORDER 10.05.2019 O R D E R PER SAKTIJIT DEY. J.M. THE REVENUE HAS FILED THE AFORESAID MISC. APPLICATIONS PURPORTEDLY UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ), SEEK ING RECALL OF THE ORDER DATED 4 TH DECEMBER 2015, PASSED IN ITA NO.1 343 & 1 344/ MUM./201 4. 2 SHRI WAIZE M. ALI 2 . AS STATED IN THE MISC. APPLICATION AND SUBMITTED BEFORE US BY THE LEARNED DEPARTMENTAL REPRESENTATIVE, THE APPEAL ORDER PASSED BY THE TRIBUNAL SUFFERS FROM MISTAKE APPARENT IN THE FACE OF RECORD, AS THE TRIBUNAL HAS NOT REFERRED TO THE CORRECT REMAND REPORT AND GRANTED RELIEF TO THE ASSESSEE RELYING UPON ITS OWN ORDER IN CASE OF ANOTHER ASSESSEE SHRI RAVISH P. ZAIDI. FURTHER, THE DEPARTMENT HAS CONTENDED THAT THE TRIBUNAL HAS ERRED IN NOT CLUBBING THE APPEALS OF THE REVENUE FOR ALL THE YEARS I.E., INCLUDING ASSESSMENT YEAR 2007 - 08, WHICH PREVENTED THE DEPARTMENT IN TAKING FURTHER LEGAL RECOURSE IN ASSESSMENT YEAR 2007 - 08 DUE TO LOW TAX EFFECT. 3 . THE LEARNED AUTHORISED REPRESENTATIVE, ON THE OTHER HAND, SUBMITTED THAT THE TRIBUNAL HAS DECIDED THE APPEALS AFTER CONSIDERING ALL ASPECTS , FACTUAL AND LEGAL , REL ATING TO THE DISPUTED ADDITIONS. THEREFORE , IT CANNOT BE SAID THAT THE ORDER PASSED BY THE TRIBUNAL SUFFERS FROM MISTAKE APPARENT FROM THE FACE OF RECORD. THUS, HE SUBMITTED , THE APPLICATIONS FILED BY THE REVENUE DESERVE TO BE DISMISSED. 4 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD . AS COULD BE SEEN FROM THE FACTS ON RECORD, THE ASSESSING OFFICER ON IDENTICAL FACTS AND CIRCUMSTANCES MADE ADDITIONS OF DIFFERENT 3 SHRI WAIZE M. ALI AMOUNTS AT THE HANDS OF THE ASSESSEE UNDER SECTION 69B OF THE ACT FOR THE ASSESSMENT YEAR S 2005 - 06, 2006 - 07 AND 2007 - 08 ON P ROTECTIVE BASIS. NOTABLY, THE AFORESAID ADDITIONS WERE MADE ON THE BASIS OF MATERIAL FOUND DURING THE SEARCH AND SEIZURE OPERA TION CONDUCTED IN MS. CHANDBIBI ZAIDI , WHEREIN, BANK ACCOUNT IN THE NAM E OF THE ASSESSEE AND MS. CHANDBIBI ZIDI INDICATING DEPOSIT OF ` . 53,32,113. THE AFORESAID AMOUNT WAS ADDED ON SUBSTANTIVE BASIS AT THE HANDS OF MS. CHANDBIBI ZIADI AND ON PROTECTIVE BASIS AT THE HANDS OF THE ASSESSEE. THE AFORESAID ADDITION S WERE CHALLENGED BY THE ASSESSEE BEFORE THE FIRST APPELLATE AUTHORITY. TH E LEARNED COMMISSIONER (APPEALS) DISPOSED OFF THE APPEALS FILED BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2005 - 06 TO 2007 - 08, IN A CONSOLIDATED ORDER DELETING THE ADDITIONS MADE BY THE ASSESSING OFFICER ON PROTECTIVE BASIS. AGAINST THE AFORESAID DECISION OF THE LEARNED COMMISSIONER (APPEALS), THE DEPARTMENT PREFERRED APPEALS BEFORE THE TRIBUNAL. THE APPEAL OF THE REVENUE RELATING TO THE ASSESSMENT YEAR 2007 - 08 INITIALLY CAME UP FOR CONSIDERATION BEFORE THE TRIBUNAL AND THE TRIBUNAL VIDE ORDER DATED 10 TH JUNE 2015, IN ITA NO.1345/MUM./2014, UPHELD THE ORDER OF LEARNED COMMISSIONER (APPEALS) WHILE DISMISSING THE APPEAL OF THE REVENUE. THE FACTS INVOLVED IN ALL THE APPEALS BEING IDENTICAL , THE TRIBUNAL WHILE DISPOSING OFF THE PRESENT APPEALS NOT ONLY TOOK NOTE O F THE FACTUAL ASPECT OF THE ISSUE BUT ALSO FOUND THAT THE 4 SHRI WAIZE M. ALI ORDER PASSED BY THE TRIBUNAL FOR THE ASSESSMENT YEAR 2007 - 08 SQUARELY APPLIES TO THE FACTS OF THE PRESENT APPEAL. ACCORDINGLY, THE TRIBUNAL UPHELD THE DECISION OF LEARNED COMMISSIONER (APPEALS) ON T HE ISSUE. THAT BEING THE CASE, THE CONTENTION OF THE DEPARTMENT THAT THE APPEAL ORDER PASSED BY THE TRIBUNAL SUFFERS FROM MISTAKE APPARENT ON THE FACE OF RECORD, AS ENVISAGED UNDER SECTION 254(2) OF THE ACT , IS WITHOUT ANY BASIS. ON THE CONTRARY, IT IS VER Y MUCH CLEAR FROM THE PRESENT MISC. APPLICATION S THAT THE DEPARTMENT IN THE GUISE OF RECTIFICATION IS ACTUALLY SEEKING A REVIEW OF THE ORDER WHICH IS NOT PERMISSIBLE IN LAW. 5 . FURTHER, IN THE COURSE OF HEARING, LEARNED AUTHORISED REPRESENTATIVE HAD SUBMITTED THAT THE TAX EFFECT ON THE DISPUTED ADDITION S IS LE SS THAN THE MONETARY LIMIT OF ` . 20 LAKH AS PER CB DT CIRCULAR NO.3/ 2018, DATED 11 TH JULY 2018. THEREFORE , THE PRESENT APPEALS OF THE REVENUE WOULD OTHERWISE NOT BE MAINTAINABLE. WE FIND SUBSTANT IAL FORCE IN THE AFORESAID SUBMISSIONS OF THE LEARNED AUTHORISED REPRESENTATIVE . S INCE THE TAX EFFECT ON THE DISPUTED ADDITIONS IS MUC H BELOW THE MONETARY LIMIT OF ` . 20 LAKH, THE PRESENT APPEAL S WOULD BE COVERED BY THE CBDT CIRCULAR REFERRED TO ABOVE, HEN CE, W OULD NOT MAINTAINABLE. THEREFORE, IT WOULD HAVE BEEN A 5 SHRI WAIZE M. ALI FRUITLESS EXERCISE TO RECALL THE APPEAL ORDER. IN VIEW OF THE AFORESAID, WE DISMISS THE APPLICATIONS FILED BY THE REVENUE. 6 . I N THE RESULT, BOTH THE MISC. APPLICATIONS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN C OURT ON 10.08.2019 SD/ - MANOJ KUMAR AGGARWAL ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 10.08.2019 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (SR. PRIVATE SECRETARY) ITAT, MUMBAI