SHASHI INVESTMENT AND FINANCE LTD, V. ITO WD 8(3)(1),

MA 476/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8828 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-07-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 06-07-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 16-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PARTHA SARATHI NAIK
• Assessee Lawyers: R C JAIN
• Keywords: Corroborative evidences

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'E' BENCH, MUMBAI BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER M.A. NO.476/MUM/2011 (ARISING OUT OF ITA NO. 1685/MUM/2007) (ASSESSMENT YEAR: 2003-04) M/S. SHASHI INVESTMENT & VS ITO, WARD - 8(3)(1), FINANCE LTD., AAYAKAR BHAVAN, C/O K.K. KHADARIA & CO., CA, M.K. ROAD, 1 - A, HILL VIEW APARTMENTS, MUMBAI. NEAR NAVARANG CINEMA, J.P. ROAD, MUMBAI - 400058. PAN: AAACF1667M APPELLANT RESPONDENT APPELLANT BY: MR. R.C. JAIN RESPONDENT BY: MR. PARTHASARATHI NAIK DATE OF HEARING: 06/07/2012 DATE OF PRONOUNCEMENT: 06/07/2012 O R D E R PER B. RAMAKOTAIAH, A.M. THIS MISCELLANEOUS APPLICATION PREFERRED BY THE AS SESSEE U/S 254(2) OF THE INCOME TAX ACT, 1961 IS WITH REFERENCE TO THE O RDER ITA NO.1685/MUM/2007, DATED 29.1.2010. 2. IN THIS APPLICATION THE ASSESSEE CONTENDED THAT THE HONBLE ITAT HAS GIVEN A FINDING THAT NO SUPPORTING EVIDENCE FOR INV ESTMENT IN SHARES AT SUCH A HIGH PRICE VALUATION WAS FURNISHED, WHEREAS ASSESSE E FURNISHED A PAPER BOOK. IT WAS FURTHER CONTENDED THAT ADDRESS OF THE BUYER OF SHARES IS THE SAME AS THAT OF ASSESSEE, CONCLUSION OF WHICH WAS NOT CORRE CT AS THE BUYER WAS FROM NAGPUR AND FURTHER, THAT THERE IS NO MATERIAL ON RE CORD TO ESTABLISH THAT THE LOSSES WERE BOGUS AS FOUND BY THE ITAT. THE ASSESS EE IN ITS APPLICATION RUNNING INTO 8 PARAGRAPHS IN 5 PAGES SUBMITS THAT T HE ABOVE ISSUES IN THE 2 M.A. NO.476/M/2011 ORDER OF THE ITAT CONSISTS A MISTAKE APPARENT FROM THE RECORD AND THEREFORE REQUESTED FOR RECALLING THE ORDER AND ADJUDICATING THE ISSUE AFRESH. 3. LD COUNSEL HAS REITERATED HIS SUBMISSIONS AND SUBMI TTED THAT ASSESSEE HAS FURNISHED NECESSARY EVIDENCE IN THE FORM OF PAP ER BOOK AND THE ITAT ERRED IN NOT CONSIDERING THE DETAILS PLACED IN THE PAPER BOOK. IT WAS ALSO HIS SUBMISSION THAT IN THE EARLIER YEAR ON SIMILAR FACT S THE MATTER WENT UP TO HONBLE HIGH COURT AND ON RECONSIDERATION, THE ITAT ALLOWED THE LOSS AS CLAIMED AND THEREFORE THE COORDINATE BENCH DECISION WAS NOT FOLLOWED. 4. LD DR HOWEVER SUBMITTED THAT THERE IS NO MISTAKE AP PARENT FROM THE ORDER AS THE ITAT PASSED THE ORDER ON MERITS AFTER CONSIDERING THE ORDERS OF THE AO AND CIT (A) AND PAPER BOOK. 5. WE HAVE CONSIDERED THE ISSUE. WE NOTICED THAT IN P ARAGRAPH 7 AND 8 OF THE ITAT ORDER A DETAILED DISCUSSION WAS MADE ABOUT THE ASSESSEES CLAIM OF LOSS WHICH RESULTED IN DISMISSING THE ASSESSEES AP PEAL. ASSESSEE HAS CARRIED THE MATTER TO THE HONBLE HIGH COURT BY WAY OF APPE AL IN ITA NO.3592 OF 2010 WHEREIN THE ASSESSEE HAS RAISED THE FOLLOWING GROUN DS OF APPEAL. I) THE TRIBUNAL ERRED IN APPROVING THE DISALLOWAN CE OF LOSS RS. 20,00,000/- EMANATING FROM THE SALE AND PURCHASE OF SHARES WITH REFERENCE TO RAMSONS ISPAT LTD. II) THE TRIBUNAL FURTHER ERRED IN THIS CONNECTION I N CONFIRMING THE FINDING OF THE RESPONDENT THAT THE APPELLANT IS CON NECTED WITH SMT. PADMAVATI J CHANDAK, THE BUYER OF THE SHARES. III) THE TRIBUNAL FURTHER ERRED IN THIS CONNECTION IN PLACING RELIANCE ON THE PRONOUNCEMENT OF THE SUPREME COURT IN CIT VS. DURGA PRASAD MORE 82 ITR 540. IV) THE TRIBUNAL FAILED TO APPRECIATE THAT THE TRAN SACTION OF PURCHASE AND SALE OF SHARES OF RAMSONS ISPAT LTD IS GENUINE, CREDIBLE AND AT ARMS LENGTH AS EVIDENCED BY THE PRI MARY DOCUMENTS ADDUCED IN THE PAPER BOOK FILED WHICH IT HAS FAILED TO CONSIDER AND RECKON WITH. 6. THE HONBLE HIGH COURT DISMISSED THAT ASSESSEES AP PEAL VIDE ORDER DATED 30.6.2011 AS UNDER: 3 M.A. NO.476/M/2011 WHETHER THE ITAT WAS JUSTIFIED IN UPHOLDING THE DIS ALLOWANCE OF LOSS OF RS. 20.00 LACS INCURRED BY THE ASSESSEE ON ACCOUNT OF SALE OF SHARES IS THE QUESTION RAISED IN THIS APPEAL. T HE CONCURRENT FINDING OF FACT GIVEN BY ALL THE AUTHORITIES BELOW AND MORE PARTICULARLY PARAGRAPH 8 OF THE ORDER PASSED BY ITA T, WE SEE NO REASON TO INTERFERE WITH THE ORDER OF ITAT. HENCE, THE APPEAL IS DISMISSED. 7. SINCE THE ISSUES RAISED IN THIS MISCELLANEOUS APPLI CATION WERE SIMILAR TO THE GROUNDS RAISED BEFORE THE HONBLE HIGH COURT AN D ADJUDICATED, AS FAR AS THE PRESENT MISCELLANEOUS APPLICATION IS CONCERNED, THE ITAT HAS NO JURISDICTION TO CONSIDER, AS THAT WOULD AMOUNT TO R EVIEW THE ORDER. IT ALSO CAN NOT RECALL THE ORDER AS IT GOT MERGED WITH THE ORDE R OF THE HONBLE HIGH COURT. FOR THESE REASONS, THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 06-07-12. SD/- SD/- (VIVEK VARMA) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 06-07-12. OKK COPY TO: 1. M/S.SHASHI INVESTMENT & FINANCE LTD.,MUMBAI. 2. ITO, WARD 8(3)(1), MUMBAI. 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, E BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI