SHIVSHANKAR AGARWAL, MUMBAI V. INCOME TAX OFFICER 25 (1)(3), MUMBAI

MA 364/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6780 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-06-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2011-2012
• Appeal Filed On: 25-07-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR RAI LD
• Assessee Lawyers: R C JAIN; AJAY DAGA LD ARS
• Keywords: Bogus purchase; Principle of natural justice

Judgement Text

MA NO. 364/MUM/2017 ARISING OUT OF ITA NO.5131/MUM/2016 SHIVSHANKAR AGARWAL ASSESSMENT YEAR 2011-12 IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI , , BEFORE SHRI JOGINDER SINGH, JM AND SHRI MANOJ KUMAR AGGARWAL, AM MISCELLANEOUS APPLICATION NO.364/MUM/2017 (ARISING OUT OF ITA NO.5131/MUM/2016) ( / ASSESSMENT YEAR: 2011-12) SHIVSHANKAR AGARWAL A-204,CORPORATE CENTRE PREMISES A.K.ROAD, MAROL PIPE LINE ANDHERI(EAST) MUMBAI 400 059 / VS. INCOME TAX OFFIC ER 25(1)(3) C-10, ROOM NO. 404 PRATYAKSHKAR BHAVAN BANDRA KURLA COMPLEX BANDRA(E), MUMBAI 400 051 ./ ./PAN/GIR NO. ACWPA-8043-M ( /APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : SHRI R.C JAIN & AJAY DAGA LD. ARS REVENUE BY : SHRI SAURABH KUMAR R AI , LD. DR / DATE OF HEARING : 04/05/2018 / DATE OF PRONOUNCEMENT : 20/06/2018 ORDER UNDER SECTION 254(2) OF INCOME TAX ACT, 1961 PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. BY WAY OF THIS MISCELLANEOUS APPLICATION, THE AS SESSEE SEEKS TO RECALL ORDER OF THE TRIBUNAL ITA NO.5131/MUM/2016 D ATED 17/04/2017. MA NO. 364/MUM/2017 ARISING OUT OF ITA NO.5131/MUM/2016 SHIVSHANKAR AGARWAL ASSESSMENT YEAR 2011-12 2 2. THE LEARNED COUNSEL FOR ASSESSEE [AR], BY WAY OF THIS PETITION, PLEADED THAT DURING ARGUMENT OF THE APPEAL, RELIANC E WAS PLACED ON VARIOUS OBSERVATIONS OF LD. FIRST APPELLATE AUTHORI TY AND IT WAS CONTENDED THAT ON FACTUAL MATRIX, THE LOWER AUTHORITIES WERE NOT JUSTIFIED IN ESTIMATING THE PROFITS OF THE ASSESSEE AND IN THE P ROCESS, OVERLOOK CERTAIN JUDICIAL PRONOUNCEMENTS AS RELIED UPON BY T HE ASSESSEE. IT WAS FURTHER PLEADED THAT PROPER OPPORTUNITY OF BEING HE ARD WAS NOT GIVEN TO THE ASSESSEE AT VARIOUS STAGES WHICH WAS IN VIOLATI ON OF PRINCIPLE OF NATURAL JUSTICE. PER CONTRA, LD. DR SUBMITTED THAT THE ISSUE HAS BEEN KEPT OPEN ONLY AND HAS BEEN REMITTED BACK TO THE FI LE OF LD. AO FOR RE- ADJUDICATION WHICH WAS FAIR TO BOTH THE SIDES AND T HEREFORE, THE GRIEVANCE AS RAISED BY LD. COUNSEL WAS UNWARRANTED. 3. WE HAVE CAREFULLY HEARD THE RIVAL CONTENTIONS AN D PERUSED THE RELEVANT MATERIAL ON RECORD INCLUDING THE DECISION RENDERED BY THE TRIBUNAL. WE FIND THAT THE SCOPE OF RECTIFICATION, AS PROVIDED IN SECTION 254(2), IS IN A VERY NARROW COMPASS AND THE SAME CO ULD BE RESORTED ONLY IN CASE THERE WAS ANY MISTAKE APPARENT FROM RECORD AND NOT OTHERWISE. IT IS WELL SETTLED LAW THAT STATUTORY AU THORITY CANNOT EXERCISE THE POWER OF REVIEW UNLESS SUCH POWER IS EXPRESSLY CONFERRED BY THE STATUTE OR OTHERWISE. WE FIND THAT THIS POWER IS MI SSING FOR THE TRIBUNAL. RECALLING THE ENTIRE ORDER WOULD OBVIOUSLY MEAN PAS SING OF A FRESH ORDER. THAT DOES NOT APPEAR TO BE THE LEGISLATIVE I NTENT SINCE RECALLING OF THE ORDER IS NOT PERMISSIBLE UNDER SECTION 254(2). POWER TO RECALL AN ORDER IS PRESCRIBED IN TERMS OF RULE 24 OF THE ITAT RULES, 1963, AND THAT TOO ONLY IN CASE WHERE THE ASSESSEE SHOWS THAT IT H AD A REASONABLE MA NO. 364/MUM/2017 ARISING OUT OF ITA NO.5131/MUM/2016 SHIVSHANKAR AGARWAL ASSESSMENT YEAR 2011-12 3 CAUSE FOR BEING ABSENT AT A TIME WHEN THE APPEAL WA S TAKEN UP AND WAS DECIDED EX-PARTE . IN THE ABOVE BACKGROUND, WE PROCEED TO DISPOSE-OF F THIS MISCELLANEOUS APPLICATION. 4. UPON PERUSAL OF THE ORDER OF THE TRIBUNAL, WE FI ND THAT VIDE PARA-4 , THE MATTER OF ESTIMATION OF ADDITION AGAINST ALLEGED BOGUS PURCHASES HAS BEEN FOUND TO BE INCONCLUSIVE ON FACTUAL MATRIX AND THEREFORE, THE SAME HAS BEEN SET ASIDE TO THE FILE OF LD. AO FOR FRESH ADJUDICATION AFTER PROVIDING DUE OPPORTUNITY TO THE ASSESSEE. THE ISSU E HAS BEEN KEPT OPEN AND THE ASSESSEE HAS BEEN DIRECTED TO SUBSTANT IATE HIS CLAIM WITH REQUISITE MATERIAL. THESE DIRECTIONS, IN THE CIRCUM STANCES, ARE QUITE FAIR AND WOULD TAKE CARE OF VIOLATION OF NATURAL JUSTICE PLEA AS RAISED BY THE LD. COUNSEL BEFORE US. FURTHER, THE DECISION HAS BE EN RENDERED WITH DUE APPLICATION OF MIND AFTER CONSIDERING THE FACTUAL M ATRIX AND ARGUMENTS ADDUCED BY RESPECTIVE REPRESENTATIVES. THE CONCERN RAISED BY LD. AO THAT THE AFORESAID DIRECTIONS WOULD LEAD TO ENHANCE MENT OF INCOME IS NOTHING MORE THAN AN APPREHENSION IN NATURE AT THIS STAGE AND THEREFORE, THE SAME COULD NOT BE A GROUND TO RECALL THE ORDER. HENCE, NOT FINDING ANY MISTAKE APPARENT FROM RECORD IN THE ORDER AS ENVISAGED BY SECTION 254(2), WE DISMISS THIS MISCELLANEOUS APPLICATION. 5. RESULTANTLY, THE APPLICATION FILED BY ASSESSEE STANDS DISMISSED IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH JUNE,2018 SD/- SD/- (JOGINDER SINGH) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 20.06.2018 SR.PS:- THIRUMALESH MA NO. 364/MUM/2017 ARISING OUT OF ITA NO.5131/MUM/2016 SHIVSHANKAR AGARWAL ASSESSMENT YEAR 2011-12 4 ! / COPY OF THE ORDER FORWARDED TO : 1. ' #$ / THE APPELLANT 2. %&#$ / THE RESPONDENT 3. ( ( ' ) / THE CIT(A) 4. ( / CIT CONCERNED 5. %* , ' * , / DR, ITAT, MUMBAI 6. +, / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI