OMPRAKASHK TO MEHTA, V. ITO 21(3)(4),

MA 440/MUM/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4994 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-08-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 09-07-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: N M PORWAL
• Keywords: Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VP & SHRI R.K. PANDA, AM M.A. NO. 440/MUM/2010 ARSING OUT OF I.T.A. NO. 251/MUM/2010 (ASSESSMENT YEAR 2005-06) SHRI OMPRAKASH T. MEHTA 8-A, MEHTA ESTATE, KURLA ANDHERI ROAD, SAKINAKA, MUMBAI-400 072 PAN: AADPM0852H VS. INCOME TAX OFFICER 21(3)(4) MUMBAI APPELLANT RESPONDENT APPELLANT BY: MR. N.M. PORWAL RESPONDENT BY: MR. ABANI KANTA NAYAK O R D E R DATE OF HEARING: 20.08.2010 DATE OF ORDER: 27.08.2010 PER R.K. PANDA, AM: THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATION REQUESTS THE TRIBUNAL TO RECALL THE ORDER DECIDED AGAINST THE AS SESSEE ON THE GROUND THAT CERTAIN MISTAKES HAVE CREPT IN THE ORDER OF TH E TRIBUNAL. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT IN THIS CASE THE ASSESSEE HAS SOLD A PLOT OF LAND AT VASAI ALONG WITH OTHER CO-OWNERS AND OFFERED HIS SHARE OF CAPITAL GAIN ON RECEIPT BASIS. THE ASSESSING OFFIC ER BROUGHT THE ENTIRE CAPITAL GAIN TO TAX IN THE YEAR OF SALE. SUBSEQUEN TLY, THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS U/S.271(1)(C) OF THE INCOME-TAX ACT, 1961 AND LEVIED PENALTY OF RS.11,23,906 WHICH WAS UPHELD BY THE CIT(A). ON FURTHER APPEAL, THE TRIBUNAL ALSO CONFIRMED THE LEV Y OF PENALTY. 3. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRING TO T HE MA SUBMITTED THAT THE TRIBUNAL WHILE DECIDING THE ISSUE HAS NOT CONSIDERED THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF D.M . DAHANUKAR VS. CIT REPORTED IN 65 ITR 280 (BOM) ACCORDING TO WHICH IGN ORANCE OF LAW IS A M.A. NO. 440/MUM/2010 SHRI OMPRAKASH T. MEHTA ================= 2 VALID EXPLANATION U/S. 271(1)(C) OF THE ACT. FURTH ER THE ASSESSEE HAS FILED THE REVISED RETURN IMMEDIATELY AFTER THE MISTAKE WA S DETECTED AND THE CAPITAL GAIN WHICH WAS OFFERED DURING THE SUBSEQUEN T ASSESSMENT YEARS WAS OFFERED DURING THIS YEAR. THEREFORE, IT IS NOT A CASE OF SUPPRESSION OF CAPITAL GAIN BUT SHIFTING OF THE CAPITAL GAIN. HE ALSO REFERRED TO THE ORDER OF THE TRIBUNAL WHEREIN IT HAS BEEN STATED THAT THE ASSESSEE DID NOT FILE REVISED RETURN WHICH ACCORDING TO THE LEARNED COUNS EL FOR THE ASSESSEE IS CONTRARY TO THE FACTS SINCE THE ASSESSEE HAS FILED THE REVISED RETURN FOR THE A.YS. 2005-06 AND 2006-07 ON 21 ST AUGUST, 2008 AND FOR THE A.Y. 2007-08 ON 22 ND AUGUST, 2008. REFERRING TO A NUMBER OF DECISIONS, HE SUBMITTED THAT THE PENALTY SHOULD NOT HAVE BEEN CONFIRMED. 4. THE LEARNED DR, ON THE OTHER HAND, SUBMITTED THAT T HERE IS NO MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL. THE TRIBUNAL AFTER CONSIDERING THE VARIOUS ARGUMENTS ADVANCED DURING T HE COURSE OF HEARING HAS PASSED A DETAILED AND ELABORATE ORDER. THE LEA RNED COUNSEL FOR THE ASSESSEE IS NOW ARGUING THE CASE AGAIN ON MERITS AN D IS ASKING THE TRIBUNAL TO PASS NECESSARY ORDER WHICH AMOUNTS TO R EVIEW OF ITS OWN ORDER BY THE TRIBUNAL WHICH IS NOT PERMISSIBLE IN L AW. HE ACCORDINGLY SUBMITTED THAT THE MA FILED BY THE ASSESSEE SHOULD BE DISMISSED. 5. AFTER HEARING BOTH THE SIDES, WE DO NOT FIND ANY ME RIT IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. T HE ISSUE OF FILING OF REVISED RETURNS HAS ALREADY BEEN CONSIDERED BY THE TRIBUNAL AT PARA 11 WHEREIN IT HAS BEEN MENTIONED THAT THE ASSESSEE HAS FILED THE REVISED RETURN AFTER THE MISTAKE WAS DETECTED BY THE ASSESS ING OFFICER. THE DECISION IN THE CASE OF D.M. DAHANUKAR (SUPRA) HAS ALREADY BEEN CONSIDERED AND DISTINGUISHED BY THE TRIBUNAL IN PAR A 12 OF THE ORDER OF THE TRIBUNAL. THE VARIOUS OTHER ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING OF THE APPEAL ARE ALREADY CONSIDERED BY THE TRIBUNAL AND AN ELABORATE ORDER H AS ALREADY BEEN PASSED. THE LEARNED COUNSEL FOR THE ASSESSEE COULD NOT POINT OUT ANY OTHER MISTAKE IN THE ORDER OF THE TRIBUNAL SO AS TO INVOKE THE PROVISIONS M.A. NO. 440/MUM/2010 SHRI OMPRAKASH T. MEHTA ================= 3 OF SECTION 254(2) OF THE ACT. THE LEARNED COUNSEL F OR THE ASSESSEE IS TRYING TO ARGUE THE CASE AGAIN ON MERIT AND IS ASKING THE TRIBUNAL TO PASS THE ORDER ACCORDINGLY WHICH, IN OUR OPINION, AMOUNTS TO REVIEW OF ITS OWN ORDER BY THE TRIBUNAL WHICH IS NOT PERMISSIBLE IN L AW. SINCE THE LEARNED COUNSEL FOR THE ASSESSEE COULD NOT POINT OUT ANY MI STAKE IN THE ORDER OF THE TRIBUNAL WHICH IS APPARENT ON RECORD, THEREFORE , WE DO NOT FIND ANY MERIT IN THE MA FILED BY THE ASSESSEE. THE SAME IS ACCORDINGLY DISMISSED. 6. IN THE RESULT, THE MA FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH AUGUST, 2010. SD/- (D. MANMOHAN) VICE PRESIDENT SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI, DATED 27 TH AUGUST, 2010 COPY TO: (1) THE APPELLANT, (2) THE RESPONDENT, (3) THE CIT(A)-32, MUMBAI, (4) THE CIT, CITY-21, MUMBAI, (5) THE DR, C BENCH, ITAT, MUMBAI. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI TPRAO