Amit Vinod Bansal, Pune V. Income-tax Officer, Ward - 9(1), Pune

MA 45/PUN/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4491 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-05-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 11-07-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VITTHAL BHOSALE
• Keywords: Rectification of order
• Section: 254(2); 13

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE (THROUGH VIRTUAL COURT) BEFORE SHRI INTURI RAMA RAO , ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, J UDICIAL M EMBER M.A. NO. 45 /PUN/ 2020 ( ARISING OUT OF ITA NO. 86 /PUN/ 2018 ) / ASSESSMENT YEAR : 2012 - 13 AMIT VINOD BANSAL, PRIYAMIT, PLOT 142, SECTOR 27/A, PRADHIKARAN, NIGDI, PUNE - 411 044 PAN : AHJPB9077E .. /APPLICANT / V/S. THE INCOME TAX OFFICER, WARD 9(1), PUNE. / RESPONDENT A SSESSEE BY : SHRI SHARAD VAZE REVENUE BY : SHRI VITTHAL BHOSALE / DATE OF HEARING : 21.05.2021 / DATE OF PRONOUNCEMENT : 25 . 0 5 .2021 / ORDER PER PARTHA SARATHI CHAUDHU RY, JM : THIS MISCELLANEOUS APPLICATION FILED BY THE AS SESSEE ARISING OUT OF ITA NO. 86/PUN/2018 FOR THE ASSESSMENT YEAR 2012 - 13 WHEREBY THE ASSESSEE CONTENDS THAT THE T RIBUNAL IN ITS ORDER DATED 21.02.2019 VIDE PARA NO. 9 HAS OBSERVED AS FOLLOWS: 9. ON HEARING BOTH THE SIDES, WE FIND IT IS A CASE OF ADDITION BOTH ON ACCOUNT OF AD - HOCISM AND ON ACCOUNT OF LACK OF COMPARABLE CASES. 2 M A NO. 45 /PUN/20 20 A.Y. 2012 - 13 NEITHER THE ASSESSING OFFICER NOR THE CIT(A) GATHERED ANY COMPARABLE CASES FROM THE OPEN MARKET WITH SIMILAR LINE OF BUSINESS ACTIVITY BEFORE HOLDING THE PAYMENTS ARE EXCESSIVE OR UNREASONABLE. IN OUR CONSIDERED OPINION, SUCH AD - HOCISM IS UNACCEPTABLE AND UNSUSTAINABLE. THEREFORE, IN OUR OPINION, THE GROUNDS NO.1, 2 AND 3 BY THE ASSESSEE SHOULD BE ALLOWED IN FULL FOR WANT OF ASSESSING OFFICER FAILURES TO DISCHARGE THE ONUS. IT IS A SETTLED LEGAL PROPOSITION IN MATTERS OF PRINCIPLES OF PROVISIONS TO SECTION 40A(2)(B) OF THE ACT, THE ASSESSING OFFICER IS UNDER OBLIGATION TO PROVE THAT THE CLAIMS MADE BY THE ASSESSEE ARE UNACCEPTABLE. THIS IS A CASE WHERE THE ASSESSEE DEMO NSTRATED THE PRIMARY ONUS BY FURNISHING THE BASIC FACTS. ACCORDINGLY, THE GROUNDS NO.1, 2 AND 3 ARE STAND ALLOWED. 2. THE ASSESSEE FURTHER CONTENDS THAT GROUND N O.3 IS ALTERNATE TO GROUND NOS. 1 & 2. IF THE FIRST TWO GROUNDS I. E. GROUND NOS.1 & 2 ARE B EING ALLOWED, GR OUND NOS. 3 BECOMES INFRUCTUOUS /ACADEMIC. THE TRIBUNAL THOUGH HAS ALLOWED GROUND NOS. 1, 2 & 3. FURTHER THE ASSESSEE HAS SUBMITTED THAT THE ASSESSING OFFICER IS NOT GIVING APPEAL EFFECT TO THE ORDER OF THE TRIBUNAL. 3. THAT ON PERUSAL OF THE ENTIRE CASE RECORD AND THE ORDER OF THE TRIBUNAL DATED 21.02.2019 , WE DON'T FIND ANY MISTAKE APPARENT FROM RECORD NECESSITATING OUR JURISDICTION AS ENVISAGED U/S.254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT '). WHAT THE ASSESSEE CONTENDS IS ACTUALLY ASKING REVIEW OF THE ENTIRE DECISION ALREADY TAKEN ON FACTS BY THE TRIBUNAL . WHETHER THE ASSESSING OFFICER IS GIVING APPEAL EFFECT OR NOT, THERE ARE OTHER LEGAL RECOURSE S AVAILABLE WITH THE ASSESSEE. THAT HOWEVER, THE JURISDICTION AS ENVISAGED U/S.254(2) OF THE ACT DOES NOT ENTITLE SUCH REMEDY AS CLAIMED BY THE ASSESSEE BEFORE US. 4. THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. RAMESH ELECTRIC & TRADING COMPANY REPORTED AS 203 ITR 497 HAS HELD THA T THE SCOPE OF SECTION 254(2) IS LIMITED TO RECTIFICATION OF MISTAKE APPARENT FROM RECORD ITSELF AND NOT RECTIFICATION IN ERROR OF JUDGMENT. THE RELEVANT OBSERVATIONS OF THE HON'BLE HIGH COURT ARE AS UNDER: 3 M A NO. 45 /PUN/20 20 A.Y. 2012 - 13 THE TRIBUNAL CANNOT, IN EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION SO ARRIVED AT. THE MISTAKE WHICH THE TRIBUNAL IS ENTITLED TO CORRECT IS NOT AN ERROR OF JUDGMENT BUT A MISTAKE WHICH IS APPARENT FROM THE RECORD ITSELF. WE ARE OF CONSIDERED VIEW THAT IN THE GUISE OF RECTIFICATION, THE ASSESSEE IS SEEKING REVIEW OF THE ORDER OF TRIBUNAL, WHICH IS BEYOND THE SCOPE OF POWERS AS ENVISAGED U/S. 254(2) OF THE ACT. 5 . IN VIEW THEREOF, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRO NOUNCED ON 25 TH DAY OF MA Y , 20 2 1 . S D/ - S D/ - INTURI RAMA RAO PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 25 TH MA Y , 202 1 SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS) - 6, PUNE. 4. THE PR. CIT - 5, PUNE. 5. , , - , / DR, ITAT, SMC BENCH, PUNE. 6 . / GUARD FILE. / BY ORDER, // T RUE C OPY // / PRIVATE SECRETARY , / ITAT, PUNE . 4 M A NO. 45 /PUN/20 20 A.Y. 2012 - 13 DATE 1 DRAFT DICTATED ON 21.05.2021 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 25.05.2021 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER