SUMIT JEWELLERY, V. ASST CIT CEN CIR 2,

MA 497/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9511 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-11-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 12-10-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 07-10-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: REEPAL G TRAISHAWALA
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI BEFORE AND SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA, JUDICIAL MEMBER. M.A. NO.497/MUM/2011. (IN ITA NO . 6054/MUM/2009) ASSESSM ENT YEAR : 2006-07. M/S SAMMIT JEWELLERY, ASSTT. COMMISSIONER OF 604, SUKH SAGAR CHS, VS. INCOME-TAX, CENTRAL CIR.-21, MUMBAI. MUMBAI. PAN AAGFS 6991Q APPLICANT. RESPONDENT. APPLICANT BY : SHRI REEPAL G. TRAISHAWALA. RESPONDENT BY : SHRI RAKESH RANJAN.. DATE OF HEA RING : 12-10-2012. DATE OF PRONOUNCEM ENT : 09-11-2012. O R D E R PER P.M. JAGTAP, A.M. : BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF THE FOLLOWING MISTAKES ALLEGED TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DATED 22 ND JULY, 2011 PASSED IN ITA NO. 6054/MUM/2009: (I) THE APPLICANT SUBMITS THAT THE ISSUE IN APPEAL WAS IN RESPECT OF ADJUSTMENT OF SEIZED ASSETS TOWARDS ADVANCE TAX LIA BILITY AND THE BIFURCATION OF ASSETS SEIZED IN COURSE OF SEARCH AC TION WAS GIVEN IN PAPER BOOK PAGE 32, WHICH APART FROM JEWELLERY ALSO INCLUDED CASH OF RS.2,75,000/- AND IN RESPECT OF THIS, THERE IS NO F INDING IN THE ORDER AS TO WHETHER ADJUSTMENT OF CASH IS GIVEN AGAINST ADVA NCE TAX LIABILITY. (II) THE APPLICANT SUBMITS THAT WITH RESPECT TO THE SEIZ URE OF OTHER ASSETS I.E. JEWELLERY, THE SAME HAD 2 LIMPS I.E. PART JEWE LLERY VALUED AT 2 M.A.NO.497/MUM/ 2011 RS.30,01,050/- WAS STOCK IN TRADE OF APPLICANT, WHI CH AS PER THE PROVISIONS OF SECTION 132(1)(III) COULD NOT BE SEIZ ED IN THE FIRST PLACE AND HENCE, THE SEIZURE ITSELF BEING ILLEGAL, THE SA ME OUGHT TO BE ADJUSTED AGAINST THE ADVANCE TAX LIABILITY HOWEVE R, THOUGH THE ARGUMENTS OF THE AR IS REERRED TO IN THE ORDER, THE RE IS NO FINDING ON THIS ISSUE IN THE ORDER. (III) THE APPLICANT FURTHER SUBMITS THAT WITH RESPECT TO THE ADJUSTMENT OF JEWELLERY I.E. OTHER THAN MONEY, A SPECIFIC QUESTIO N WAS PUT BY BENCH AS TO WHETHER THERE IS ANY DECISION SUPPORTING THE ARGUMENT THAT EVEN ASSETS OTHER THAN MONEY COULD BE ADJUSTED AGAINST T HE EXISTING TAX LIABILITY, IN RESPONSE TO THIS, THE A.R. CITED SUPR EME COURT DECISION IN M.M. MALANI V. CIT 306 ITR 196 (SC) AND ALSO READ T HE RELEVANT CONTENTS AS REPRODUCED IN THE SUBMISSION MADE TO TH E CIT(A) AT PAPER BOOK PAGES 33 TO 35. HOWEVER, THE ORDER IS SILENT W ITH RESPECT TO THE DECISION OF SUPREME COURT AND THE SAME IS NOT REFER RED TO IN THE ORDER AT ALL. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT THE ISSUE I NVOLVED IN THE APPEAL OF THE ASSESSEE FOR THE CONSIDERATION OF THE TRIBUNAL WAS RELATING TO ALLOWING THE ADJUSTMENT OF SEIZED ASSETS AGAINST ADVANCE TAX LIA BILITY AND GIVING CONSEQUENTIAL RELIEF IN CHARGING INTEREST U/S 234B AND 234C AND T HE SAME WAS DECIDED BY THE TRIBUNAL HOLDING THAT THE VALUE OF SEIZED JEWELLERY COULD NOT BE ADJUSTED AGAINST THE ADVANCE TAX LIABILITY IN THE LIGHT OF THE PROVI SIONS OF SECTION 132B(1)(I) AS RIGHTLY HELD BY THE LEARNED CIT(APPEALS). WHILE ARR IVING AT THIS CONCLUSION, THE TRIBUNAL HELD THAT THE CASE LAWS RELIED UPON BY THE ASSESSEE WERE DISTINGUISHABLE ON FACTS AND THE SAME, THEREFORE, COULD NOT BE OF A NY HELP TO THE ASSESSEES CASE. KEEPING IN VIEW THIS CATEGORIC OBSERVATIONS/CONCLUS IONS RECORDED BY THE TRIBUNAL IN ITS ORDER DATED 22 ND JULY, 2011, WE ARE OF THE VIEW THAT THERE ARE NO S UCH MISTAKES AS ALLEGED BY THE ASSESSEE AS MISTAKE NO. (II) AND (III). WE, HOWEVER, FIND THAT THERE IS A MISTAKE IN THE SAID ORDER OF THE TR IBUNAL AS POINTED OUT BY THE ASSESSEE IN THIS MISCELLANEOUS APPLICATION AS MISTA KE NO. (I) INASMUCH AS THE ISSUE RELATING TO ADJUSTMENT OF SEIZED CASH AMOUNTING TO RS.2,75,000/- AGAINST ADVANCE 3 M.A.NO.497/MUM/ 2011 TAX LIABILITY HAS NOT BEEN SEPARATELY CONSIDERED AN D DECIDED BY THE TRIBUNAL. WE, THEREFORE, RECTIFY THE SAID MISTAKE BY RECALLING TH E ORDER OF THE TRIBUNAL DATED 22 ND JULY, 2011 FOR THE LIMITED PURPOSE OF DECIDING THE ISSUE RELATING TO ADJUSTMENT OF SEIZED CASH AMOUNTING TO RS.2,57,000/-. THE REGISTR Y IS DIRECTED TO POST THIS CASE FOR THIS LIMITED PURPOSE. 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED COURT ON THIS 9 TH DAY OF NOV., 2012. SD/- SD/- (VIVEK VARMA) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED : 9 TH NOV., 2012. WAKODE COPY TO : 1. APPLICANT. 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. D.R., E-BENCH. (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.