PRASHANT JAIPAL REDDY, MUMBAI V. INCOME TAX OFFICER 9(1)(3), MUMBAI

MA 410/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0035 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-03-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 05-06-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D G
• Assessee Lawyers: JITENDRA JAINAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C, MU MBAI BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI M.BALAGANESH, ACCOUNTANT MEMBER M.A. NO. 410/MUM/2018 IN ITA NO.4122/MUM/2015 (A.Y. - 2011-12) PRASHANT JAIPAL REDDY C/O DHANAPAT KOTHARI & ACCOCIATES, OFFICE NO.50, WADIA BUILDING, 9- B, FORT, MUMBAI-400050 PAN: AAYPR7037E VS. I.T. O, WARD-9(1)-3, ROOM NO. 224, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI JITENDRA JAIN(AR) REVENUE BY : SHRI D.G. PANSARI (DR) DATE OF HEARING : 15.03.2019 DATE OF PRONOUNCEMENT : 15.03.2019 ORDER UNDER SECTION 254(2) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS MISCELLANEOUS APPLICATION IS FILED BY ASSESSEE FOR RECTIFICATION OF ALLEGED MISTAKE IN ORDER DATED 22.09.2017. IN THE A PPLICATION, THE APPLICANT/ASSESSEE HAS RAISED THREE CONTENTIONS INT ER ALIA I.E. FIRSTLY WHILE DECIDING THE APPEAL, THE TRIBUNAL IN PARA-8 OF THE ORDER HELD THAT THE LAND WHICH IS VACANT OR NOT USED FOR AGRICULTURE AND/OR IS UNDER DEVELOPMENT COULD NOT BE TERMED AS AGRICULTURE LAND. SUCH LAND WAS USED FOR COMMERCIAL ACTIVITIES OTHER THAN AGRICULTURE ACTIVITIES . THE OBSERVATION OF TRIBUNAL IS WITHOUT ANY FACTUAL VERIFICATION OR EVIDENCE. THE C ONVEYANCE DEED DATED 10.02.2010 RECORDS THAT LAND WAS PURCHASED FOR DEVELOPMENT PURPOSE, THE AO AS WELL AS LD. CIT(A) HAS DRAWN A PRESUMPTION ON THAT BASIS THAT LAND IS MA NO. 410 MUM 2018-PRASHANT JAIPAL REDDY 2 USED FOR COMMERCIAL ACTIVITIES. THE LD. AR SUBMITS THAT IN THE REVENUE RECORD THE LAND CONTINUES AS AGRICULTURE LAND FOR GROWING VARIOUS TYPE FRUITS AND CROPS AS MENTIONED IN 7/12 EXTRACT. 2. SECONDLY, THE TRIBUNAL PARA 8 OF THE ORDER OBSERVED THAT IN THE RETURN OF INCOME, THE ASSESSEE HAS NOT REVEALED ANY AGRICULTU RE INCOME . THE LD. AR SUBMITS THAT ASSESSEE EXPLAINED AND PROVIDED THE DE TAILS OF AGRICULTURE INCOME AND THAT THE INCOME WAS INSUFFICIENT TO MEET THE EXPENSES AND THEREFORE, THE SAME WAS NOT SHOWN IN THE RETURN OF INCOME. 3. THIRDLY, IN PARA 9 THE TRIBUNAL OBSERVED THAT THE ASSESSEE CLAIMED THAT DURING THE PERIOD OF HOLDING INSTALLED IRRIGATION S YSTEM, CREATED CHECK DAM, WATER SPRINKLE ETC. NO EVIDENCE OF SUCH ACTIVITY CA RRIED BY THE ASSESSEE DURING THE PERIOD QUALIFIED AS AGRICULTURE ACTIVITY . THE LD. AR SUBMITS THAT COPY OF THE LEDGER ACCOUNTS WAS FILED SHOWING THE D ETAILS OF EXPENDITURE INCURRED EACH YEAR. THE EXPENSES WERE NO DOUBTED BY THE ASSESSING OFFICER. THE LD. AR PRAYED THAT NON CONSIDERATIONS OF THE AB OVE EVIDENCES ARE MISTAKE APPARENT ON RECORD AND THUS THE ORDER MAY B E RECALLED. 4. ON THE OTHER HAND THE LD. DR FOR THE REVENUE SUBMIT S THAT THE CONTENTS OF THE MISCELLANEOUS APPLICATION AND THE SUBMISSIONS MADE BY THE LD AR FOR THE ASSESSEE IS BEYOND THE SCOPE OF SECTION 254(2) OF T HE ACT. THE TRIBUNAL IS NOT ENTITLED TO APPRECIATE AND RE-APPRECIATE THE EV IDENCE UNDER SECTION 254(2), THE POWER OF THE TRIBUNAL IS VERY LIMITED T O RECTIFIED THE MISTAKE MA NO. 410 MUM 2018-PRASHANT JAIPAL REDDY 3 WHICH ARE APPARENT. THE APPLICATION FILED BY THE AS SESSEE IS LIABLE TO BE DISMISSED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND PERUSED THE RECORD AND THE CONTENTS OF THE ORDER DATED 22.09.20 17. WE HAVE NOTED THAT THE APPLICANT/ ASSESSEE BY WAY OF THIS MISCELLANEOU S APPLICANT WANTS US TO APPRECIATE THE FACTS AND THE EVIDENCE FILED BY HIM , WHICH IS BEYOND THE SCOPE OF THE APPLICATION. THE SCOPE OF SECTION 254( 2) IS LIMITED TO THE RECTIFYING THE MISTAKE WHICH ARE APPARENT. IN OUR C ONSIDERED VIEW NONE OF THE CONTENTION RAISED BY THE ASSESSEE, AS RECORDED BY US, ARE MISTAKE APPARENT ON RECORD. IN THE RESULT THE APPLICATION FILED BY T HE ASSESSEE IS WITHOUT MERIT, WHICH WE DISMISSED. NO ORDER AS TO COST 6. IN THE RESULT, M.A. FILED BY ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH DAY OF MARCH 2019. SD/- SD/- (M. BALAGANESH) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 15/03/2019 S.K.PS COPY OF THE ORDER FORWARDED TO : ) 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, (ASSTT.REGISTRAR ITAT, MUMBAI //TRUE COPY/