Deputy Commissioner of Income-tax, New Delhi V. Jasmine Builtech Pvt. Ltd., New Delhi

MA 365/DEL/2018

• Counselvise Citation: [2023] 103 COUNSELVISE.COM (IT) 5573 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 7 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-01-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 19-01-2023
• Assessment Year: 2007-2008
• Appeal Filed On: 30-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AJAY BHAGWANI
• Keywords: Search and seizure; Documents seized
• Section: 40A(3); 254(2)

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “D”: NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND MS. ASTHA CHANDRA, JUDICIAL MEMBER MA No.365/Del/2018 Arising out of ITA 1352/Del/2015 Asstt. Year: 2007-08 O R D E R PER ASTHA CHANDRA, JM The present Miscellaneous Application is filed by the Revenue seeking rectification of the order dated 05.01.2018 in ITA No. 1352/Del/2015 for the Assessment Year (“AY”) 2007-08. 2. The Revenue in its Miscellaneous Application has raised the following contentions:- “3. The decision of the Hon’ble ITAT is not acceptable, as the ITAT did not examine the terms of collaboration agreement and facts of the case and did not consider the incrimination documents seized during the search operation. The Hon’ble ITAT has placed its reliance on the decision of the ITAT order in ITA Nos. 1679 & DCIT, New Delhi. Vs. M/s. Jasmine Buildtech (P) Ltd. M-11, Middle Circle, Connaught Circus, New Delhi – 110 001 PAN AABCJ6865E (Appellant) (Respondent) Assessee by: Shri Ajay Bhagwani, CA Department by : Shri Sanjay Kumar, Sr. DR Date of Hearing 20.01.2023 Date of pronouncement 20.01.2023 MA No.365/Del/2018 DCIT vs Jasmine Buildtech (P) Ltd. 2 1767/Del/2013 in the case of the same assessee (M/s. Jasmine Buildtech Pvt. Ltd.) for the A.Y. 2007-08. 4. The decision of the Hon’ble ITAT in the above said decisions were not accepted. As the Hon’ble ITAT did not examine the terms of collaboration agreement and facts of the case. The assessee has wrongly pleaded in the case of Westland Developers Pvt. Ltd. that it was being paid Rs. 35,000/- per acre as reimbursement expenses by Countrywide Promoters Pvt. Ltd. (Collaborate & flagship concern of BPTP) and addition was deleted as no claim of expenditure was filed by the assessee. A similar plea has been taken in Countrywide Promoters, which is a misrepresentation of the facts. The entire group of BPTP has evaded the clutches of the Department by managing favourable judgment from the Appellate Authorities. This is despite the fact that several incriminating documents were seized during the search and have been discussed at length in the order of the AO. 5. The Hon’ble ITAT wrongly upheld the order of the CIT(A). During the Search and Seizure operation in the group of BPTP several incriminating documents were seized by the Department and the Hon’ble ITAT may decide the issues in this matter after examination of the seized material on record. The Hon’ble ITA is the final fact-finding authority and was required to go into the reasons for additional payments made to the venders. 6. The Revenue has already filed the Miscellaneous Application (MAs) in ITA Nos. 1679 & 1767/Del/2013 on 20.04.2018 (copy enclosed) In view of the above, it is therefore earnestly requested to accept the Misc. application on the issue of 1. Addition on account of Interest paid to Vendors on Post Dated Cheques (PDCs) and 2. On MA No.365/Del/2018 DCIT vs Jasmine Buildtech (P) Ltd. 3 account of Disallowance u/s 40A(3) of the Income Tax Act, 1961, of the Revenue in the due interest of justice.” 3. The Ld. DR at the time of hearing reiterated the above stated contentions made in the Miscellaneous Application and requested to reconsider the issues decided in ITA No. 1352/Del/2015 in respect of additions made therein on account of – (i) interest paid to vendors on Post Dated Cheques (PDCs) and (ii) disallowance under section 40A(3) of the Income Tax Act, 1961 (the “Act”). 4. The Ld. AR submitted that the contention of the Revenue in the said Miscellaneous Application is beyond the scope of Section 254(2) of the Act as these are not mistake apparent on record. The Ld. AR argued that by way of this Miscellaneous Application the Revenue is seeking review of the Tribunal’s order in the garb of rectification which is not permissible under the law. The Ld. AR also drew our attention to the similar Miscellaneous Application for AY 2008-09 which stands dismissed vide Tribunal’s order dated 12.07.2022 in MA No. 49/Del/2019 arising out of ITA No. 767/Del/2015. 5. We have heard both the parties, considered their arguments and carefully perused the Tribunal’s order dated 05.01.2018 in the main appeal being ITA No.1352/Del/2015 for AY 2007-08. 6. The Revenue by way of the present Miscellaneous Application contended that the Tribunal’s order (supra) is not acceptable as the Tribunal did not examine the terms of the collaboration agreement and facts of the case and also did not consider the incriminating material seized during the search operation, which according to the Revenue is mistake apparent on record. 7. In exercise of powers under section 254(2) of the Act, the Tribunal may amend any order passed by it only to rectify any mistake apparent from the record. The Tribunal cannot revisit its earlier order and go into details MA No.365/Del/2018 DCIT vs Jasmine Buildtech (P) Ltd. 4 on merit, which is beyond the scope and ambit of the power conferred under section 254(2) of the Act. 8. On perusal of the contents of the Miscellaneous Application filed by the Revenue as well as the findings of the Tribunal in its order dated 05.01.2018 in ITA No. 1352/Del/2015, we find it difficult to agree with the contentions of the Revenue. In our considered view, the Tribunal in its order (supra) had adjudicated the issues under consideration after considering all the facts and circumstances of the case and following the order of the co- ordinate Bench of the Tribunal in ITA No. 1767/Del/2013 allowed the appeal of the assessee. 9. On the other hand, we agree with the contention of the Ld. AR that what the Revenue is actually seeking by way of this Miscellaneous Application is the review of the Tribunal’s order dated 05.01.2018 in ITA No. 1352/Del/2015 in the garb of rectification which is not permissible under the law. 10. It is a settled law that review in the garb of rectification is not permissible under section 254(2) of the Act. The Hon’ble Delhi High Court in the case of Ras Bihari Bansal vs. CIT (2007) 293 ITR 365 held as under:- "Section 254 of the Income Tax Act; 1961, enables the concerned to rectify any "mistake apparent from the record". It is well settled that an oversight of a fact cannot constitute an apparent mistake rectifiable under this section. Similarly, failure of the tribunal to consider an argument advanced by either party for arriving at a conclusion, is not an error apparent on record, although it may be an error of judgment. The mere fact that the tribunal had not allowed a deduction, even if the conclusion is wrong, will be no ground for moving an application under section 254(2) of the Act. Further, in the garb of an application for rectification, the assessee cannot be permitted to reopen and re-argue the whole matter, which is beyond the scope of the section.” 11. In light of the above discussion and judicial precedent, we hold that there is no mistake apparent on record in the Tribunal’s order dated MA No.365/Del/2018 DCIT vs Jasmine Buildtech (P) Ltd. 5 05.01.2018 in ITA No. 1352/Del/2015 calling for rectification of the same. Accordingly, the Miscellaneous Application filed by the Revenue is dismissed. 12. In the result, the Miscellaneous Application No. 365/Del/2018 arising out of ITA 1352/Del/2015 filed by the Revenue is dismissed. Order pronounced in the open court on 20 th January, 2023. sd/- sd/- (N.K. BILLAIYA) (ASTHA CHANDRA) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 20/01/2023 Veena Copy forwarded to - 1. Applicant 2. Respondent 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, New Delhi Date of dictation Date on which the typed draft is placed before the dictating Member Date on which the typed draft is placed before the Other Member Date on which the approved draft comes to the Sr. PS/PS Date on which the fair order is placed before the Dictating Member for pronouncement Date on which the fair order comes back to the Sr. PS/PS Date on which the final order is uploaded on the website of ITAT Date on which the file goes to the Bench Clerk Date on which the file goes to the Head Clerk The date on which the file goes to the Assistant Registrar for signature on the order Date of dispatch of the Order