VINAY B. DESAI, V. ITO 8(1)(3),

MA 36/MUM/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4804 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2006-2007
• Appeal Filed On: 12-02-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI F BENCH, MUMBAI BEFORE SHRI RAJENDRA, AM AND SHRI PAWAN SINGH, JM M. A. NO.36/M/2016 (IN I.T.A. NO.2036/MUM/2014) ( / ASSESSMENT YEAR: 2006-07) VINAY B DESAI A-52 GIRIRAJ INDL ESTATE, MAHAKALI CAVES ROAD, ANDHERI EAST MUMBAI-400093 / VS. ITO 8(1)(3) MUMBAI - /. /.PAN/GIR NO. : AACPD0488K ( /APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 05.08.2016 /DATE OF PRONOUNCEMENT: 05.08.2016 O R D E R PER PAWAN SINGH, JM: PRESENT MISCELLANEOUS APPLICATION IS FILED BY THE A SSESSEE FOR SEEKING RECTIFICATION IN THE ORDER PASSED IN ITA NO. 2036/M /2014 VIDE ORDER DATED 1.1.2016. IN THE APPLICATION THE APPLICANT/ASSESSEE INTER ALIA PLEADED THAT IN PARA 8 OF THE ORDER THERE IS APPARENT MISTAKE WHICH NEED S RECTIFICATION. THE PARA 3 OF THE APPLICATION THE ASSESSEE CONTENDED AS UNDER: 3.IN PARA 8 OF THE HONBLE ITAT ORDER, IT WAS MENT IONED THAT THE I HAVE TAKEN THREE INCONSISTENT STANDS IN RESPE CT OF ORIGINAL DOCUMENTS DATED 30/9/1985 AND 1/4/1986. THIS IS APP ARENTLY INCORRECT AS THERE IS NO INCONSISTENCY. ONLY ONE STAND WAS TA KEN CONSISTENTLY THAT THE ORIGINAL AGREEMENTS DATED 30/9/1985 AND 1/4/198 6 ARE WITH THE DEVELOPERS M/S SATELLITE GAZEBO DEVELOPERS PRIVATE LIMITED. THIS IS APPARENT FROM THE RECORDS. ASSESSEE BY: SHRI JAYESH DADIA, AR DEPARTMENT BY: SHRI SANJEEV KASHYAP. DR M. A. NO.36/M/2016(IN I.T.A. NO.2036/MUM/2014) 2 FURTHER, IT WAS STATED THAT IN CLAUSE L OF THE GIFT DEED DATED 25/1/2006 AS STAND HAS BEEN TAKEN THAT THE ORIGINAL DOCUMENTS HAD BEEN MISPLACED AND LOST. AGAIN, THIS IS FACTUALLY I NCORRECT AS THE GIFT DEED DATED 25/1/2006 HAS NO SUCH CLAUSE L. COPY OF THE GIFT DEED WAS FILED VIDE PAPER BOOK (PAGE NOS. 61 TO 74). FURTHER, IN PARA 8 IT WAS MENTIONED THAT IN THE LET TER DATED 25/11/2013 THAT I HAVE CONTENDED THAT LETTER TO THE BANK WAS WRITTEN BUT THE BANK IS UNABLE TO GET THE RECORDS WHICH ARE TWE NTY YEARS OLD. THE SAID LETTER WAS SO WRITTEN TO FIND OUT THE BANK ENT RIES FROM BANKS RECORDS IN THE YEAR 1985 AND 1986 FOR JUSTIFYING TH E SOURCE OF INVESTMENT VIDE AGREEMENTS DATED 30.09.1985 AND 01/ 04/1986. 2. WE HAVE HEARD LD AR FOR THE ASSESSEE AND LD DR FOR REVENUE. THE LD AR OF THE ASSESSEE ARGUED THAT THE ASSESSEE HAS NOT TAKEN THERE INCONSISTENT STAND IN RESPECT OF DOCUMENTS DATED 30.09.85 AND 01 .04.86 AND FINDING OF TRIBUNAL IN PARA 8 ARE INCORRECT. THE LD AR OF TH E ASSESSEE ARGUED THAT HE HAS TAKEN ONLY ONE STAND THAT ORIGINAL AGREEMENTS DATED 30.09.85 AND 01.04.1986 ARE WITH THE DEVELOPERS M/S SATELLITE GAZEBO DEVEL OPERS PRIVATE LTD. ON THE OTHER HAND LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ARGUED THAT THERE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. T HE OBSERVATION MADE IN PARA 8 OF THE ORDER OF THE TRIBUNAL HAS NOT AFFECTED THE MERIT AND DECISION OF THE CASE, THE APPLICATION IS LIABLE TO BE REJECTED. 3. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE P ARTIES AND GONE THROUGH THE ORDER DATED 01.01.2016 AND FURTHER PERUSED THE RECO RD. IN FACT PARA 8 OF THE ORDER CONTAINS THE FINDINGS OF THE TRIBUNAL AND THE FACT REGARDING CLAUSE L REFERRED IN SAID PARA IS MENTIONED BY LD. CIT(A) IN PARA 5.2 OF HIS ORDER DATED 13.12.2013. WHICH IS READ AS UNDER: 5.2. ON PERUSAL OF THE DEVELOPMENT AGREEMENT DATED 28.06.2012, IT IS OBSERVED THAT THERE IS NO MENTION OF AGREEMENTS DATED 30.09.1985 AND 01.04 .1986 RELATING TO CHAIN OWNERSHIP OF PROPERTIES BY THE DESAI FAMILY FROM A. K. SATAM. FU RTHER, AS REGARDS, GIFT DEED DATED 25/01/2006, IN CLAUSE L ON PAGE NO.5 OF THE AGREEMENT DATED 2 8/06/2012, IT IS MENTIONED THAT THE SAME . HAS BEEN MISPLACED AND LOST AND C OULD NOT BE TRACED AFTER DILIGENT SEARCH .. (THIS IS THE FIRST STAND OF ASSESSEE) M. A. NO.36/M/2016(IN I.T.A. NO.2036/MUM/2014) 3 FURTHER WE MAY REFER IN REPLY/ LETTER DATED 25.11 .2013 FILED BY ASSESSEE BEFORE CIT (A), (PAGE 76 OF P/B) WHEREIN IT WAS CONTENDED THAT IT IS VERY DIFFICULT TO GET OLD RECORD OF PROPERTY WHICH WAS PURCHASED IN T HE YEAR 1985. THE ASSESSEE HAS WRITTEN LETTER, TO THE BANK BUT THEY ARE ALSO N OT ABLE TO GIVE RECORDS WHICH ARE MORE THAN 20 YEARS OLD. (THIS IS THE SECO ND STAND OF THE ASSESSEE) FURTHER IN PARA 3.3 OF THE REMAND REPORT OF ASSES SING OFFICER DATED 24.10.2013 FURNISHED TO THE LD CIT(A)-16, IT HAS BEEN CLEARLY MENTIONED THAT THE DOCUMENTS ARE WITH THE DEVELOPERS SATELLITE GAZEBO PRIVATE LTD. THE COPY OF THE REMAND REPORT IS ON RECORD. (THIS IS THE THI RD STAND OF ASSESSEE). ALL THESE FACTS WERE UNEARTHED DURING THE PERUSAL OF THE RECO RD AND WHILE PASSING THE ORDER DATED 01.01.2016. MOREOVER, ALL THREE INCONSI STENT STANDS ARE EMERGING FROM THE MATERIAL AVAILABLE ON RECORD. THE LD AR FO R ASSESSEE HAS NOT ARGUED ANYTHING AGAINST THE REMAND REPORT OF AO, OBSERVATI ON OF CIT(A) AND THE REPLY/LETTER DATED 25.11.2013 FILED BEFORE CIT (A) ASSESSEE, THAT THE ASSESSEE HAD NOT TAKEN SUCH STAND BEFORE THE LOWER AUTHORITI ES. THE OBSERVATION/FINDINGS OF THE TRIBUNAL ARE BASED ON THE MATERIAL AVAILABLE ON RECORD. 4. ALL THESE INCONSISTENT EMERGED FROM THE RECORD W ERE WITHIN THE KNOWLEDGE OF ASSESSEE SINCE BEGINNING. THE PRESENT APPLICATION I S BASED ON FRIVOLOUS AND MISLEADING FACTS. THERE IS NO APPARENT MISTAKE IN T HE ORDER OF TRIBUNAL EXCEPT THAT CLAUSE L OF THE GIFT DEED MAY BE READ AS CLAUS E L OF DEVELOPMENT AGREEMENT DATED 28.6.2012 WHICH IS REFERRED BY LD. CIT (A) IN ITS ORDER. WITH THIS OBSERVATION THE PRESENT MISCELLANEOUS APPLICAT ION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH AUGUST, 2016. SD/- SD/- (RAJENDRA) (PAWAN SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 05/08/2016 S.K.PS M. A. NO.36/M/2016(IN I.T.A. NO.2036/MUM/2014) 4 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / (ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ) (/ THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. /GUARD FILE. //TRUE COPY/