KISHANLAL MENEKCHAND SUREYA, V. ITO 23(1)(3),

MA 476/MUM/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4983 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-09-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 26-07-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JI TENDRA YADAV
• Section: 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER AND SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER M.A. NO. 476/MUM/2010 (ARISING OUT OF ITA NO. 3778/MUM/2008) ASSESSMENT YEAR : 2005-06 SHRI KISHANLAL MANEKCHAND SURYA, THE INCOME-TAX OFFICER, C/7, POOJA VILLA, MINILAND TANK ROAD, VS. 23(1)(3), MUMBAI. BHANDUP (W), MUMBAI-78. PAN AABPS9778C. (APPLICANT) (RE SPONDENT) APPLICANT BY : SHRI RAJESH SHAH. RESPONDENT BY : SHRI JITENDRA YADAV. O R D E R PER J.SUDHAKAR REDDY, A.M. THIS IS A MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE, WHEREIN IT IS SUBMITTED THAT THE MISTAKE APPARENT ON RECORD HAS C REPT INTO THE ORDER OF THE TRIBUNAL IN RESPECT OF GROUND NO.1, WHICH DISPUTES THE ADDITION MADE U/S 68 OF THE ACT. 2. THE LEARNED COUNSEL FOR THE ASSESSEE, MR. RAJES H SHAH, SUBMITTED THAT THIS BENCH OF THE TRIBUNAL DURING THE COURSE OF HEA RING HAD STATED THAT, THE ADDITIONS IN THE HANDS OF THE ASSESSEE WOULD BE DEL ETED, FOR THE REASON THAT ADDITIONS ON THE VERY SAME ISSUE, WERE MADE IN THE ASSESSMENT OF THE LENDERS SMT. 2 KESHARBAI M. SURYA AND SMT. KUSUM K. JAIN AND THE A PPEALS REGARDING THOSE ADDITIONS WERE PENDING BEFORE THE CIT(APPEALS). THE LEARNED COUNSEL ARGUES THAT OBSERVATIONS AND ANNOUNCEMENT MADE DURING THE COURS E OF PROCEEDINGS ARE NOT REFLECTED IN THE ORDER AND THE TRIBUNAL HAS ERRONEO USLY REMANDED THE MATTER BACK TO THE FILE OF THE AO FOR FRESH ADJUDICATION. 3. THE LEARNED DR, SHRI JITENDRA YADAV, ON THE OTH ER HAND, SUBMITTED THAT THE ORDER WAS PRONOUNCED ONLY ON 10 TH MARCH, 2010 AND TO STATE THAT, THERE WAS A PRONOUNCEMENT DURING THE COURSE OF HEARING IS WRO NG. HE SUBMITS THAT THERE IS NO MISTAKE APPARENT ON RECORD IN THE ORDER OF THE TRI BUNAL. 4. IN REPLY, THE LEARNED COUNSEL FOR THE ASSESSEE, MR. RAJESH SHAH, REQUESTED THE BENCH TO VERIFY THE LOG BOOKS AND SEE THERE WAS ANY PRONOUNCEMENT RECORD. 5. AFTER HEARING RIVAL CONTENTIONS, WE ARE OF THE CONSIDERED OPINION THAT THERE IS NO MISTAKE APPARENT ON RECORD REQUIRING RE CTIFICATION U/S 254(2). THE ENTIRE CLAIM OF THE ASSESSEE IS BASED ON A BELIEF THAT THE RE WAS A PRONOUNCEMENT DURING THE COURSE OF HEARING. WE FIND THAT NO SUCH PRONOU NCEMENT OR OBSERVATION IS ON RECORD. THE PRONOUNCEMENT OF THE ORDER WAS ONLY ON 10 TH MARCH, 2010. THUS THE CLAIM THAT THE ULTIMATE ORDER IS CONTRARY TO THE OB SERVATIONS OR PRONOUNCEMENT MADE BY A MEMBER OF THE BENCH DURING THE COURSE OF HEARING CANNOT BE ENTERTAINED. THE ASSESSEES CLAIM IS THAT AN ADDITI ON OF THE SAME AMOUNT WAS MADE BOTH IN THE HANDS OF THE ASSESSEE AS WELL AS IN THE HANDS OF THE LENDERS. THE ADDITIONS MADE IN THE HANDS OF THE LENDERS IS BEING DISPUTED BY THE ASSESSEE. UNDER THESE CIRCUMSTANCES, THE TRIBUNAL DEEMED IT FIT TO SET ASIDE THE ISSUE TO THE FILE OF THE AO FOR FRESH ADJUDICATION. THIS CANNOT BE CALLE D A MISTAKE APPARENT FROM RECORD. 3 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED WITH NO COSTS. ORDER PRONOUNCED ON THIS 30 TH DAY OF SEPT., 2010. SD/ SD / (D.K. AGARWAL) (J. SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 30 TH SEPT. 2010. WAKODE COPY FORWARDED TO : 1. APPLICANT. 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, A-BENCH //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI BENCHES