KAILASHNATH MALHOTRA, V. JT CIT SP RG 56,

MA 466/MUM/2010

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0311 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 8 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-04-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: misc
• Appeal Filed On: 22-07-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 132

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI .. , , BEFORE SHRI R.S.SYAL, ACCOUNTANT MEMBER !'!' '# ./ MA NO.466/MUM/2010 ( %&' ( / ARISING OUT OF IT(SS)A NO.614/MUM/2003) (BLOCK PERIOD: 1.4.1987 TO 15.12.1997) SHRI KAILASHNATH MALHOTRA 82A, ANITA, MOUNT PLEASANT ROAD MALABAR HILLS, MUMBAI 400 006. PAN : AABPM3088R. THE JOINT COMMISSIONER OF INCOME-TAX SPECIAL RANGE 56 MUMBAI. ( ' / // / APPLICANT) # # # # / VS. ( )*+,/ RESPONDENT) ' - -- - . . . . / APPLICANT BY : SHRI K.GOPAL )*+, - . - . - . - . / RESPONDENT BY : MS.NEERAJA PRADHAN #' - ' / / / / DATE OF HEARING : 05.04.2013. /01 - ' / DATE OF PRONOUNCEMENT : 05.04.2013. 2 2 2 2 / / / / O R D E R BY MEANS OF THE PRESENT MISCELLANEOUS APPLICATION, THE ASSESSEE SEEKS TO RAISE AN ADDITIONAL GROUND CHALLE NGING THE JURISDICTION OF THE ASSESSING OFFICER TO PASS ORDER U/S 158BC. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT A SEARCH ACTION U/S 132 WAS TAKEN AT THE PREMISES OF THE ASSESSEE. ON THE BASIS OF CERTAIN INCRIMINATING DOCUMENTS FOUND DURING THE COURSE OF SEARCH, AN ADDITION OF ` 11 LAKH WAS MADE. SUCH ADDITION CAME TO BE APPROVED BY THE TRIBUNAL VIDE ITS ORDER U/S 254(1). WITH A VIEW TO GET THE ORDER PASSED U/S 254(1) RECTIFIED ON THE CONFIRMATION OF SUCH ADDITION OF MA NO.466/MUM/2010 SHRI KAILASHNATH MALHOTRA. 2 ` 11 LAKH, THE ASSESSEE FILED A MISCELLANEOUS APPLICA TION U/S 254(2). THAT MISCELLANEOUS APPLICATION WAS DISMISSED. THERE AFTER, ONE MORE MISCELLANEOUS APPLICATION WAS FILED. BOTH THE LEAR NED MEMBERS, WHO HEARD SUCH MISCELLANEOUS APPLICATION, DIFFERED IN T HEIR RESPECTIVE CONCLUSIONS. A THIRD MEMBER WAS APPOINTED, WHO VID E HIS OPINION DATED 12 TH OCTOBER, 2009 AGREED WITH THE VIEW TAKEN BY THE LE ARNED AM IN SUSTAINING THE ADDITION OF ` 11 LAKH. EFFECT TO THE THIRD MEMBER ORDER WAS GIVEN BY THE DIVISION BENCH BY PAS SING A CONSEQUENTIAL ORDER ON 18 TH JANUARY, 2010 THEREBY ASSIGNING FINALITY TO THE CONFIRMATION OF ADDITION. 3. NOW AGAIN THE ASSESSEE HAS FILED STILL ANOTHER M ISCELLANEOUS APPLICATION AGAINST THE OPINION OF THE THIRD MEMBER RAISING ADDITIONAL GROUND CHALLENGING THE JURISDICTION OF T HE ASSESSING OFFICER IN PASSING ORDER U/S 158BC. 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD. IN MY CONSIDERED OPINION THERE IS NO MERIT IN THIS MISCELLANEOUS APPLICATION WHICH DESERVES TO BE AND IS HEREBY REJECTED FOR THE FOLLOWING EXCLUSIVE REASONS INDEPE NDENT OF EACH OTHER. (I) THE OPINION OF THE THIRD MEMBER DATED 12 TH OCTOBER, 2009 AGAINST WHICH THE PRESENT MISCELLANEOUS APPLIC ATION HAS BEEN FILED NO MORE STANDS ON ITS OWN AS A CONSEQUEN TIAL ORDER HAS BEEN PASSED BY THE DIVISION BENCH GIVING EFFECT TO THE MA NO.466/MUM/2010 SHRI KAILASHNATH MALHOTRA. 3 OPINION GIVEN BY THE THIRD MEMBER ON THIS ISSUE. TH US THE ORDER PASSED BY THE THIRD MEMBER STANDS MERGED WITH THAT OF THE DIVISION BENCH. AS SUCH, THERE CAN BE NO QUESTION O F FILING ANY MISCELLANEOUS APPLICATION AGAINST SUCH ORDER OF THE THIRD MEMBER. (II) THIS IS THE THIRD MISCELLANEOUS APPLICATION. ORIGINALLY, A DECISION WAS TAKEN AGAINST THE ASSESSEE ON THE ADDI TION OF ` 11 LAKH. THE ASSESSEE FILED MISCELLANEOUS APPLICATION WHICH CAME TO BE DISMISSED. ON SECOND MISCELLANEOUS APPLICATIO N ON THE SAME ISSUE, THERE WAS A DISSENT BUT BY THE FINAL O RDER, THE ORDER PASSED U/S 254(1) WAS UPHELD. NOW THE ASSESSEE HAS AGAIN COME UP WITH THIS MISCELLANEOUS APPLICATION CHALLENGING THE SAME ADDITION FROM A DIFFERENT ANGLE BY CALLING IN QUEST ION THE JURISDICTION OF THE AO TO PASS THE ASSESSMENT ORDER . IT IS SIMPLE AND PLAIN THAT THERE IS NO POSSIBILITY OF ENTERTAIN ING SECOND OR THIRD MISCELLANEOUS APPLICATION(S) WHEN THE FIRST M ISCELLANEOUS APPLICATION HAS UPHELD THE ORIGINAL ORDER PASSED U/ S 254(1). ONCE A VIEW IS TAKEN AND THE FIRST MISCELLANEOUS AP PLICATION IS ALSO REJECTED, THE ASSESSEE CANNOT BE ALLOWED TO FI LE MISCELLANEOUS APPLICATIONS TIME AND AGAIN THEREAFTE R CHALLENGING THE SAME ADDITION FROM ONE ANGLE OR THE OTHER. SINCE THIS IS THE THIRD MISCELLANEOUS APPLICATION, IT CANNOT BE ALLOWED. MA NO.466/MUM/2010 SHRI KAILASHNATH MALHOTRA. 4 (III) LASTLY AND MOST IMPORTANTLY, THE ASSESSEE IS PROPOSING TO RAISE AN ADDITIONAL GROUND CHALLENGING THE JURISDIC TION OF THE ASSESSING OFFICER TO FRAME ASSESSMENT U/S 158BC BY THE PRESENT MISCELLANEOUS APPLICATION. NO SUCH ISSUE W AS TAKEN UP EITHER AT THE ASSESSMENT OR AT THE APPELLATE STAGE. NOW ONCE AN ORDER HAS BEEN PASSED BY THE TRIBUNAL ON THE BASIS OF THE ADDITIONS MADE BY THE ASSESSING OFFICER AS ASSAILE D BY THE ASSESSEE THROUGH HIS GROUNDS OF APPEAL, IT IS NOT O PEN TO THE ASSESSEE TO FILE ONE MORE MISCELLANEOUS APPLICATION ON AN ALTOGETHER NEW ISSUE CHALLENGING THE VERY JURISDICT ION OF THE ASSESSING OFFICER TO FRAME ASSESSMENT. IT IS AXIOMA TIC THAT NO ADDITIONAL GROUND IS PERMISSIBLE IN THE MISCELLANEO US APPLICATION. SCOPE OF PROCEEDINGS U/S 254(2) IS LI MITED TO RECTIFYING A MISTAKE WHICH IS APPARENT FROM RECORD. TWO NECESSARY CONDITIONS MUST BE SATISFIED FOR TAKING R ECOURSE TO THE PROVISIONS OF SECTION 254(2). FIRST, THERE SHOULD BE SOME MISTAKE IN THE ORDER OF THE TRIBUNAL AND THE SECOND SUCH MISTAKE SHOULD BE APPARENT FROM RECORD. ADVERTING T O THE FACTS OF THE MISCELLANEOUS APPLICATION, I FIND THAT BOTH OF THESE TWO CONDITIONS ARE LACKING. THERE IS NO MISTAKE IN THE TRIBUNAL ORDER MUCH LESS AN APPARENT MISTAKE REQUIRING ANY RECTIFI CATION. IN FACT, THE ASSESSEE IS TRYING TO SET UP AN ALTOGETHE R NEW CASE BY TAKING AN ADDITIONAL GROUND IN THE MISCELLANEOUS AP PLICATION. THE SUBJECT MATTER OF THIS ADDITIONAL GROUND WAS NE VER THE POINT OF CONSIDERATION BY THE AUTHORITIES BELOW OR THE TR IBUNAL EITHER MA NO.466/MUM/2010 SHRI KAILASHNATH MALHOTRA. 5 IN THE ORIGINAL ORDER U/S 254(1) OR THE ORDERS U/S 254(2). ALL THE PROCEEDINGS QUA THE TRIBUNAL HAVE NOW ATTAINED FINALITY WITH THE PASSING OF THE ORDER BY THE DIVISION BENCH PURSUANT TO THE RENDERING OF THE OPINION BY THE THIRD MEMBER. IT IS WHOLLY IMPERMISSIBLE TO FILE MISCELLANEOUS APPLICATION WIT H AN ADDITIONAL GROUND TO UNSETTLE THE PROCEEDINGS ALREA DY FINALIZED. 5. IN VIEW OF THE ABOVE THREE INDEPENDENT REASONS, I AM OF THE CONSIDERED OPINION THAT THE MISCELLANEOUS APPLICATI ON CANNOT BE ALLOWED. 6. 3 '4 ' - !'!' '# 35 - 5' 67 IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED ON THIS 05 TH DAY OF APRIL, 2013. 2 - /01 8#4 0 - 9 SD/- (R.S.SYAL) / ACCOUNTANT MEMBER MUMBAI ; 8# DATED : 05 TH APRIL, 2013. DEVDAS* 2 - ):';!