Sanjay Kumar, CHENNAI V. ACIT, CHENNAI

MA 34/CHNY/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3177 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-07-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 26-06-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 23-03-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: N VIJAY KUMAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , A B ENCH, CHENNAI . , ' $ % , & ' BEFORE SHRI A.MOHAN ALANKAMONY ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER MISCELLANEOUS PETITIO N NO.34/ MDS/2015 (IN ITA.NO.2042/MDS/2014 ) (ASSESSMENT YEAR: 2009-10) MR. SANJAY KUMAR, OLD NO.47, NEW NO.27, AVVOUR MUTHIA STREET, NEW WASHERMENPET, CHENNAI-600 081. VS. ASSISTANT COMMISSIONER OF INCOME TAX, BUSINESS CIRCLE-VII, CHENNAI. PAN: AMCPS6903L ( PETITIONER ) RESPONDENT) APPLICANT BY : MR. N.VIJAY KUMAR, C.A RESPONDENT BY : MR. A.V.SREEKANTH, JCIT / DATE OF HEARING : 26 TH JUNE, 2015 / DATE OF PRONOUNCEMENT : 8 TH JULY, 2015 / O R D E R PER CHALLA NAGENDRA PRASAD, JM: THIS MISCELLANEOUS PETITION IS FILED BY THE ASSESSE E STATING THAT THE TRIBUNAL HAS RECORDED IN PARA 3 OF ITS ORDER THE FOLLOWING ARGUMENT OF THE COUNSEL:- COUNSEL SUBMITS THAT IN FACT CREDITS WERE REPAID SUBSEQUENTLY BY WAY OF BANKING CHANNELS, THEREFORE GENUINENESS OF THE LOAN TRANSACTIONS WERE PROVED. COUNSEL SUBMITS THAT ASSESSING OFFICER DISALLOWED ONLY PRINCIPAL AMOUNT OF THE LOAN BUT ALLOWED INTEREST ON SUCH LOAN. THEREFORE, THE COUNSEL PLEADS FOR DELETION OF ADDITION. M.P.NO.34/MDS/2015 2 THE SAID ARGUMENT HAS NOT BEEN CONSIDERED BY THE TR IBUNAL WHILE DECIDING THE APPEAL. THEREFORE, COUNSEL FOR T HE ASSESSEE PRAYS FOR CONSIDERING THIS ISSUE WHILE DIS POSING OF THE MISCELLANEOUS PETITION. 2. DEPARTMENTAL REPRESENTATIVE SUBMITS THAT THE ASS ESSEE IN HIS PETITION HAS NOT BROUGHT OUT AS TO WHAT IS T HE MISTAKE APPARENT FROM RECORD IN THE ORDER PASSED BY THE TRI BUNAL. IN THE PETITION, NOWHERE IT IS MENTIONED THAT THERE IS MISTAKE APPARENT FROM RECORD IN THE ORDER PASSED BY THIS TR IBUNAL EXCEPT STATING THAT THE TRIBUNAL INADVERTENTLY FAIL ED TO CONSIDER AN ARGUMENT. FURTHER DEPARTMENTAL REPRESENTATIVE PL ACING RELIANCE ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. RAMESH ELECTRIC & TRADING CO. ( 203 ITR 497) SUBMITS THAT FAILURE BY THE TRIBUNAL TO CONSID ER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD. THEREFORE, DEPARTMENTAL REPRESENTATIVE SUBMITS THAT PETITION M AY BE DISMISSED. M.P.NO.34/MDS/2015 3 3. HEARD BOTH SIDES. PERUSED ORDER OF THE TRIBUNAL AND THE DECISION RELIED ON. ON GOING THROUGH THE PETITION F ILED BY THE ASSESSEE, WE FIND THAT IT IS NOWHERE MENTIONED THAT THERE IS MISTAKE APPARENT ON RECORD IN THE ORDER PASSED BY T HE TRIBUNAL. THE ASSESSEE DID NOT POINT OUT ANY ERROR OR MISTAKE COMMITTED BY THE TRIBUNAL EXCEPT STATING THAT AN AR GUMENT OF THE COUNSEL IS NOT CONSIDERED BY THE TRIBUNAL, WHIC H IN OUR OPINION IS NOT A MISTAKE APPARENT ON RECORD. AS RIG HTLY POINTED OUT BY THE DEPARTMENTAL REPRESENTATIVE, THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. RAMESH ELECTRIC & TRADING CO. (SUPRA) HELD THAT FAILURE BY THE TRIBUNAL TO CO NSIDER AN ARGUMENT ADVANCED BY EITHER PARTY IS NOT AN ERROR A PPARENT ON RECORD BUT MAY BE ERROR OF JUDGEMENT OBSERVING AS U NDER:- IN OUR VIEW, THE POWER OF RECTIFICATION UNDER SECTION 254(2) OF THE INCOME-TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS, AS HAS BEEN SHOWN IN THE PRESENT CASE. FAILURE BY THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT A N ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE M.P.NO.34/MDS/2015 4 AN ERROR OF JUDGEMENT. IN THE PRESENT CASE, THE ALLEGED FAILURE AT LEAST ON ONE COUNT, IS ATTRIBUTE D BY THE ASSESSEE TO THE INCOME-TAX OFFICER AND NOT THE TRIBUNAL. IN OUR VIEW, THE TRIBUNAL HAD NO JURISDICTION UNDER SECTION 254(2) TO PASS THE SECOND ORDER. 4. THE ABOVE DECISION SQUARELY APPLIES TO THE FACTS OF THE PRESENT CASE AND WE DISMISS THE MISCELLANEOUS PETIT ION FILED BY THE ASSESSEE ACCORDINGLY. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH JULY, 2015.. SD/- SD/- ( . ) ( # &' ( ) ( A.MOHAN ALANKAMONY ) ( CHALLA NAGEND RA PRASAD ) * / ACCOUNTANT MEMBER &, * / JUDICIAL MEMBER & /CHENNAI, . /DATED, 8 TH JULY, 2015 SOMU (,12 42 /COPY TO: 1. APPLICANT 2. (57 /RESPONDENT 3. 8 () /CIT(A) 4. 8 /CIT 5. 2 (,,; /DR 6. > /GF .