ASHOK J. THAKKAR, MUMBAI V. ASST CIT CEN CIR 39, MUMBAI

MA 42/MUM/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0193 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-09-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 23-01-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI
• Assessee Lawyers: DI LIP J THAKKAR
• Keywords: Rectification of order; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM M .A. NO. 42/MUM/2018 (ARISING OUT OF ITA NO. 5732/MUM/2016) ( ASSESSMENT YEAR: 2012 - 13) LATE SHRI ASHOK J. THAKKAR (THROUGH LEGAL HEIR SMT. SMITA ASHOK THAKKAR) 111 - A, MAHATMA GANDHI ROAD, KARIMJI BUILDING, FORT, MUMBAI - 400 023 VS. ASST. CIT CENTRAL CIRCLE 39, MUMBAI PAN/GIR NO. AAAPT 7132 J ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI DILIP J. THAKKAR & SHRI RAJESH P. SHAH RESPONDENT BY : SHRI RAM T IWARI DATE OF HEARING : 20.0 7 .2018 DATE OF PRONOUNCEMENT : 10.09 .2018 ORDER U/S. 254(2) OF THE INCOME TAX ACT, 1961 PER SHAMIM YAHYA, A. M.: BY WAY OF TH IS MISCELLANEOUS APPLICATION THE ASSESSEE SEEKS ORDER U/S. 254(2) OF THE INCOME TAX ACT, 19 61 (THE ACT' FOR SHORT) AGAINST THE TRIBUNALS ORDER IN ITA NO. 5732 /MUM/2016 FOR ASSESSMENT YEAR 2012 - 13 VIDE ORDER DATED 04.09.2017. 2. IN THE MISCELLANEOUS APPLICATION, THE ASSESSEE HAS MADE THE FOLLOWING SUBMISSIONS: 3) ON GOING THROUGH THIS O RDER, WITH HUMBLE REQUEST WE SUBMIT THAT FOLLOWING ARE THE POINTS WHICH REQUIRE RECTIFICATION AND THE ORDER NEEDS TO BE MODIFIED AND REHEARD. 2 ITA NO. 42/MUM/2018 LATE SHRI ASHOK J. THAKKAR A) WRONG LOCKER NO AND JEWELLERY CONSIDERED FOR ADDITION ON PAGE 10 (PARA 9) YOU HAVE GIVEN YOUR FINDING TA KING INTO CONSIDERATION LOCKER NO 321 WHICH WAS NOT IN DISPUTE WHILE IGNORING LOCKER NO 1144A. THE ITAT HAS COMPLETELY IGNORED THE APPELLANT'S SUBMISSIONS THAT THE VALUE OF JEWELLERY ADDED IN HIS ASSESSMENT FOR A. Y. 2012 - 13 WAS THE JEWELLERY IN LOCKER NO. 1144A WITH BANK OF BARODA AND NOT LOCKER NO 321 WITH BANK OF INDIA WHOSE VALUE HAS ALREADY BEEN ADDED IN MRS. SMITA ASHOK THAKKAR'S (APPELLANT'S WIFE) ASSESSMENT FOR A. Y. 2012 - 13. IT WAS SUBMITTED TO ITAT AT THE HEARING ON 4 TH JULY 2017 WITH DOCUMENTARY EVIDENCE THAT THE ADDITION OF RS. 10,02,226/ - BEING THE VALUE OF JEWELLERY IN LOCKER NO. 1144A ADDED IN THIS APPELLANT'S CASE WAS WRONG AS THAT LOCKER WAS NOT IN THE NAME OF THE APPELLANT AND THE JEWELLERY INSIDE THE LOCKER DID NOT BELONG TO HIM BUT THEY B ELONGED TO HIS MARRIED DAUGHTER MRS. DARSHITA TALIM (NEE THAKKAR) WHICH SHE OWNED IT SINCE HER WEDDING IN 1998. IN SUPPORT, HER SWORN AFFIDAVIT DATED 29.09.2011 HAS ALSO BEEN FURNISHED TO THE ITAT IN PAPER BOOKS DATED 2 ND FEBRUARY 2017 AND 16 TH JUNE 2017. THE DR HAD NO ARGUMENT AGAINST THESE SUBMISSIONS OF AR AS CAN BE EVIDENT FROM THE ORDER OF THE ITAT. THUS, THE ITAT HAS COMPLETELY IGNORED THE EVIDENCE CONTAINED IN THESE TWO PAPER BOOKS, THE ORAL SUBMISSIONS MADE BY THE AR AT THE HEARING ON 4 TH JULY 2017 AND HAS ALSO NOT MADE ANY REFERENCE TO THE ORDER OF KOLKATA TRIBUNAL IN THE CASE OF SHANKER GOSH DATED 9 TH AUGUST 2000, A COPY OF WHICH WAS GIVEN TO ITAT ON THE DAY OF THE HEARING AND RELIED UPON BY THE APPELLANT,FURTHER, THE ITAT HAS NOT MADE ANY REFERENC E TO THE STATEMENT ON OATH OF SMT. SMITA THAKKAR DATED 4 TH OCTOBER 2011, RECORDED DURING THE COURSE OF THE SEARCH. IN REPLY TO Q - 4 SHE HAS CATEGORICALLY STATED THAT THE JEWELLERY IN LOCKER NO. 1144A BELONGS TO MY DAUGHTER DR. DARSHITA TALIM. SHE FURTHER ST ATED THAT SHE IS ALSO SUBMITTING AFFIDAVIT OF HER DAUGHTER DATED 29.09.2011 STATING THAT THE JEWELLERY IN LOCKER NO. 1144A BELONGS TO HER. THE SAID STATEMENT ON OATH DATED 04.10.2011 IS IN PAPER BOOK NO. 2 DATED 16 JUNE 2017 AND THE SAID AFFIDAVIT IS IN PA PER BOOK NO. 1 DATED 2 ND FEBRUARY 2017. BOTH THESE PAPER BOOKS ARE IN THE RECORDS OF THE ITAT. 7) THERE BEING NO MENTION OF THE EVIDENCES SUBMITTED THROUGH TWO PAPER BOOKS, SUBMISSIONS MADE AT THE' HEARING ON 4 TH JULY 2017 BY AR WHICH WERE NOT CONTRO VERTED BY THE DR AND THE CASE LAW RELIED UPON, ARE THE MISTAKES APPARENT FROM RECORDS REQUIRING RECTIFICATION. THE HON MEMBERS HAVE PASSED THE ORDER BY CONSIDERING ENTIRELY DIFFERENT LOCKER AND DIFFERENT OATH STATEMENT BY OVERSIGHT. 3. BEFORE PROCEEDING F URTHER, I MAY GAINFULLY REFER TO THE PROVISIONS OF SECTION 254(2) OF THE ACT : 61 254. (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN 63 [SIX MONTHS FROM THE END OF THE MONTH IN WHI CH THE ORDER WAS PASSED], WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD 64 , AMEND ANY ORDER PASSED BY IT UNDER SUB - 3 ITA NO. 42/MUM/2018 LATE SHRI ASHOK J. THAKKAR SECTION (1), AND 64 SHALL MAKE SUCH AMENDMENT 64 IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE 65 [ASSESSING] OFFICER : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTHE RWISE INCREASING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB - SECTION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO THE ASSESSEE OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD : 66 [ PROVIDED FURTHER THAT ANY APPLICATION FILED BY THE ASSESSEE IN THIS SUB - SECTION ON OR AFTER THE 1ST DAY OF OCTOBER, 1998, SHALL BE ACCOMPANIED BY A FEE OF FIFTY RUPEES.] 4. FURTHER I FIND THAT THE HON'BLE JURISDICTIONAL HIG H COURT HAS OCCASION TO CONSIDER SECTION 254(2) OF THE ACT IN THE CASE OF CIT VS. RAMESH ELECTRIC AND TRADING CO. [1993] 203 ITR 497 (BOM). IN THE SAID ORDER, THE HON'BLE JURISDICTIONAL HIGH COURT HAS REFERRED TO AND DRAWN STRENGTH FROM THE HONBLE APEX CO URT DECISION IN THE CASE OF T.S. BALARAM, ITO V. VOLKART BROS. [1971] 82 ITR 50 (SC). THE HON'BLE JURISDICTIONAL HIGH COURT HAS REFERRED TO THE FOLLOWING FROM THE HONB LE APEX COURT DECISION: 'A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBAT ABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM THE RECORD.' 5. THEREAFTER AFTER CONSIDERING THE VARIOUS FACTS AND DECISIONS, THE HON'BLE JURISDICTIONAL HIGH COURT HAS EXPOUNDED AS UNDER: IN OUR VIEW, THE POWER OF RECTIFICATION UNDER SECTION 254(2) OF T HE 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 REASONI NG 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 AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MA Y BE AN ERROR OF JUDGMENT. 4 ITA NO. 42/MUM/2018 LATE SHRI ASHOK J. THAKKAR 6. FROM THE ABOVE, IT TRANSPIRES THAT IT IS NOT PERMISSIBLE TO REVIEW THE ORDER OF THE TRIBUNAL U/S. 254(2) OF THE ACT IN THE GARB OF THE RECTIFICATION OF MISTAKE. NOW I PROCEED TO EXAMINE THE PRESENT ISSUE ON THE TOUCH STONE O F THE ABOVE. 7. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORD. I FIND THAT THE ITAT IN ITS ORDER HAS AFTER NOTING THE FACT AND REFERRING TO CONSIDERATION OF THE SUBMISSION AND RECORDS HAS HELD AS UNDER: 9. I FIND THAT ASSESSEES PLEA THAT THE JEWEL LERY DID NOT BELONG TO THE ASSESSEE BUT BELONG TO THE MARRIED DAUGHTER IS NOT SUSTAINABLE IN LIGHT OF THE FACT THAT IN SEARCH THE ASSESSEES WIFE SMT. SMITA THAKKAR IN HER STATEMENT DATED 28.09.2011 IN RESPONSE TO Q.4 WHEREIN SHE WAS ASKED TO EXPLAIN THE S OURCE OF JEWELLERY FOUND IN LOCKER NO. 321, SHE HAS CONFIRMED THE JEWELLERY FOUND IN LOCKER NO. 321 CONSISTS OF GOLD & DIAMOND JEWELLERY ARE VALUED AT RS.39,54,600 ON 28.09.2011. THE ASSESSEES WIFE FURTHER EXPLAINED THAT JEWELLERY BELONGS TO HERSELF AND H ER DAUGHTER - IN - LAW AND ALSO OF HER FAMILY MEMBERS CONSISTING OF HERSELF AND HER HUSBAND THE ASSESSEE. IT WAS ALSO EXPLAINED BY HER THAT THE JEWELLERY PERTAINS TO ALL THE FAMILY MEMBERS. 10. FURTHER, IN RESPONSE TO THE ASSESSING OFFICERS ENQUIRY ON THE SOU RCE OF THE JEWELLERY, ASSESSEES COUNSEL HAS GIVEN EXPLANATION AND RECONCILIATION. IN THOSE SUBMISSIONS IT WAS NEVER STATED THAT ASSESSEE CANNOT GIVE ANY EXPLANATION AS THE JEWELLERY DID NOT BELONG TO HIM OR THAT THE ONUS WAS NOT UPON THE ASSESSEE TO EXPLA IN THE SAME. WHEN THE ASSESSEES EXPLANATION HAS NOT BEEN ACCEPTED, FOR BEING DEVOID OF COGENCY, ASSESSEE IS RAISING GROUND THAT THE JEWELLERY DID NOT BELONG TO THE ASSESSEE, RATHER IT BELONGED TO HIS DAUGHTER. I FIND THAT THE SUBMISSION IS NOT AT ALL SUST AINABLE. THE LEARNED CIT(A) IN THE CASE OF ASSESSEES DAUGHTER HAS CLEARLY HELD THAT THE SAID ADDITION ON ACCOUNT OF JEWELLERY WAS NOT SUSTAINABLE IN HER HANDS. IN THIS BACKGROUND, I FIND THAT ORDERS OF AUTHORITIES BELOW ARE VERY COGENT AND CORRECT. THE SH IFTING OF STAND BY THE ASSESSEE NOW DE HORS ANY COGENT EXPLANATION FOR THE SOURCE OF IMPUGNED JEWELLERY FOUND, IS NOT AT ALL SUSTAINABLE. ACCORDINGLY I DO NOT FIND ANY INFIRMITY IN THE ORDERS OF THE AUTHORITIES BELOW. HENCE I UPHOLD THE SAME. 11. IN THE RE SULT, THE APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. 5 . FROM THE ABOVE IT IS CLEAR THE ITAT HAS MENTIONED THAT IT HAS CONSIDERED AND PERUSED THE RECORDS . T HEREFORE, IT HAS DECIDED THE ISSUE AGAINST THE ASSESSEE, AFTER INTER 5 ITA NO. 42/MUM/2018 LATE SHRI ASHOK J. THAKKAR ALIA NOTING THAT THE LEARN ED CIT(A) IN THE CASE OF ASSESSEES DAUGHTER HAS CLEARLY HELD THAT THE SAID ADDITION ON ACCOUNT OF JEWELLERY WAS NOT SUSTAINABLE IN HER HANDS. 6 . NOW BY WAY OF THIS MA THE ASSESSEE SEEKS RECONSIDERATION OF VARIOUS FACTS AS MENTIONED ABOVE. IT IS CLEARLY DEBATABLE THAT ITAT HAS NOT CON SIDERED SOME OF THE SUBMISSIONS. EVEN OTHERWISE IN THAT CASE THE HON'BLE JURISDICTIONAL HIGH COURT DECISION IN THE CASE OF RAMESH ELECTRIC AND TRADING CO. (SUPRA) HAS RULED THAT SUCH RECONSIDERATION IS NOT PERMISSIBLE U/S. 25 4(2) OF THE ACT. FROM THE SUBMISSION IN MA IT IS NO W CLEAR THAT THE ASSESSEE IS SEEKING A REV IEW OF THE ORDER OF THE ITAT WHICH IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961. HENCE, THE MA IS LIABLE TO BE DISMISSED AND THE SAME IS DIS MISSED ACCORDINGLY. 7 . IN THE RESULT, THE MISCELLANEOUS APPLICATION BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10.09.2018 SD/ - (S HAMIM YAHYA) A CCOUNTANT MEMBER MUMBAI ; DATED : 10.09.2018 ROSHANI , SR. PS 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 F ILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI