Ashok Raghunath Mane, Pune V. Asst. CIT, Circle-9, Pune

MA 50/PUN/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9170 (ITAT-PUNE)
• Duration Of Justice: 1 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-09-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 14-08-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Business income; Salary income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER M.A. NO.50/PUN/19 (ARISING OUT OF ITA NO.2091/PUN/2012) / ASSESSMENT YEAR : 2009-10 ASHOK RAGHUNATH MANE, SECTOR 25, PLOT NO.55, SINDHUNAGAR, PRADHIKARAN, NIGDI, PUNE 411 044 PAN :AEQPM5955A VS. ACIT, CIRCLE-9, PUNE (APPLICANT) (RESPONDENT) / ORDER PER R.S.SYAL, VP : VIDE THIS MISCELLANEOUS APPLICATION, THE ASSESSEE SEEKS TO RECALL THE ORDER DATED 15-02-2019, PASSED BY THE TRIBUNAL IN ITA NO.2091/PUN/2012. 2. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TRIBUNAL ERRED IN SEGREGATING THE APPEAL OF ASHOK R. MANE FROM THE OTHER CONNECTED MATTERS, NAMELY, OF AGARWAL BROTHERS AND PROCE EDED TO DISPOSE IT IN ISOLATION. HE FURTHER SUBMITTED THAT ON AN EARLIER APPLICANT BY SHRI PRAMOD SHINGTE RESPONDENT BY SHRI S.P. WALIMBE DATE OF HEARING 27-09-2019 DATE OF PRONOUNCEMENT 27-09-2019 M.A NO.50/PUN/2019 ASHOK R. MANE 2 OCCASION ALL THE APPEALS WERE CLUBBED AND AS SUCH THE INSTAN T APPEAL SHOULD NOT HAVE BEEN DISPOSED OFF SEPARATELY. 3. HAVING HEARD BOTH THE SIDES AND PERUSING THE RELEVANT MATERIAL ON RECORD, IT IS OBSERVED THAT THE APPEAL WAS HEARD REGULARLY FOR 4 DAYS FROM 11-02-2019 TO 14-02-2019. I T IS NOT A CASE WHERE THE APPEAL WAS HEARD EX PARTE QUA THE ASSESSEE. NO OBJECTION WAS RAISED TO THE SEPARATE HEARING OF THIS APPEAL A T THE TIME OF ARGUMENTS. ONCE THE APPEAL HAS BEEN DISMISSED ON MERITS, THE ASSESSEE HAS COME OUT WITH SUCH AN ARGUMENT. SINCE TH E APPEAL WAS ARGUED BY THE ASSESSEE AND HEARD EXTENSIVELY FOR 4 DAYS, WE DO NOT FIND ANY REASON TO RECALL THIS ORDER FOR CLUBBING ALONG WITH THE APPEALS OF AGARWAL BROTHERS. IT IS MORE SO BECAUSE THE LD. AR HIMSELF STATED THAT OUT OF THE SUCH APPEALS OF AGARWAL BROTH ERS, TWO APPEALS HAVE ALREADY BEEN HEARD AND ORDERS PASSED . THIS GROUND IS, THEREFORE, DISMISSED. 4. THE SECOND ISSUE RAISED BY THE LD. AR IS QUA PARA NO. 17 OF THE TRIBUNAL ORDER IN WHICH IT HAS BEEN RECORDED THAT THE INCOME OFFERED FOR TAXATION BY AGARWAL BROTHERS WAS AT RS.9.88 LA KH AND RS.41.9 LAKH AND IF THE SALARY INCOME ETC. IS EXCLUDED, THE AVAILABLE `BUSINESS INCOME REMAINS AT RS.3.34 LAKH AND RS.3.76 LAK H RESPECTIVELY. THE LD. AR SUBMITTED THAT THE TRIBUNAL ACCESSED TO M.A NO.50/PUN/2019 ASHOK R. MANE 3 THE FILES OF AGARWAL BROTHERS AT THE BACK OF THE ASSESSEE. THIS WAS STRONGLY COUNTERED BY THE LD. DR. 5. HAVING HEARD BOTH THE SIDES AND GONE THROUGH THE RELEVA NT MATERIAL ON RECORD, WE FIND THIS CONTENTION TO BE MERITLESS. ON PERUSAL OF THE PAPER BOOK OF THE INSTANT APPEAL, IT IS NO TICED THAT IT WAS THE LD. AR HIMSELF WHO PLACED ON RECORD THE COPIES OF THE INCOME-TAX RETURNS FILED BY AGARWAL BROTHERS DIVULGING TOTAL INCOME AND BUSINESS INCOME SEPARATELY. THE BENCH CLERK H AS REMARKED SUCH DOCUMENTS WITH AR, TO INDICATE THAT THESE DOCUMENTS WERE FILED BY THE LD. AR AT THE TIME OF HEARING OF THE APPEAL U/S 254(1) OF THE ACT. ON FINDING OUT THE COPY OF RETURNS OF AGARWAL BROTHERS IN THE PAPER BOOK, THE LD. AR WAS CONFRO NTED WITH THE SAME DURING THE COURSE OF HEARING OF THE INSTANT MISCELLANEOUS APPLICATION, TO WHICH THERE WAS NO ANSWER. IN VIEW OF THE FACT THAT THE TRIBUNAL HAS TAKEN COGNIZANCE OF SOME DOCUMENTS WHICH WERE FILED DURING THE COURSE OF HEARING BY THE LD. AR ONLY, NOW THERE CAN BE NO OBJECTION THAT HE WAS NOT CON FRONTED WITH THE SAME. THIS GROUND IS ALSO DISMISSED. 6. THE LD. AR THEN SUBMITTED THAT THE TRIBUNAL IN PARA 11 OF T HE IMPUGNED ORDER HAS STATED THAT FIRST MOU DATED 21-08-2007 HAS NO SANCTITY AND THE SAME WAS EXECUTED IN FURTHERANCE OF THE M OTIVE OF M.A NO.50/PUN/2019 ASHOK R. MANE 4 DIVERTING THE INCOME TO AGARWAL BROTHERS. HE SUBMITTED THAT TH ERE WERE TWO MOUS AND THE FIRST MOU HAS BEEN TAKEN INTO CONSIDERATION IN THE APPEALS IN THE CASE OF AGARWAL BROTHERS BY THE TRIBUNAL. 7. HAVING HEARD BOTH THE SIDES AND PERUSED THE RELEVANT MA TERIAL ON RECORD, IT IS OBSERVED THAT THE TRIBUNAL HAS RECORDED A CATEGORICAL FINDING, ON APPRECIATION OF THE RELEVANT MATERIAL EVIDENCE, THAT THE FIRST MOU DATED 21-08-2007 WAS EXECUTED JUST IN FURTHERANCE OF MOTIVE OF DIVERTING INCOME TO AGARWAL BROTHE RS. ON A SPECIFIC QUERY, THE LD. AR SUBMITTED THAT THE APPEALS IN THE CASE OF AGARWAL BROTHERS WERE HEARD AFTER PASSING OF TH E ORDER IN THE CASE OF ASSESSEE. ONCE THE POSITION IS SO, IT WAS THE DUTY OF THE LD. AR TO POINT OUT THIS FACT TO THE SUCCESSIVE BENCH WHO WER E SEIZED OF THE APPEALS OF AGARWAL BROTHERS THAT THE FIRST MOU DATED 21-08-2007 HAS BEEN CONSIDERED AS SHAM IN THE CASE OF THE PRESENT ASSESSEE. HAVING NOT DONE SO, THE ASSESSEE CANNOT NOW TURN AROUND AND CLAIM THAT THE FIRST MOU WAS GENUINE. THIS GROUND IS ALS O DISMISSED. 8. THE CRUX OF THE ARGUMENTS OF THE LD. AR IS THAT THE MOU S WERE GENUINE AND THE TRIBUNAL OUGHT TO HAVE TAKEN NOTICE OF THE SAME. THE LD. DR HAS INVITED OUT ATTENTION TOWARDS PARA 18 OF THE M.A NO.50/PUN/2019 ASHOK R. MANE 5 IMPUGNED TRIBUNAL ORDER IN WHICH CERTAIN FACTORS HAVE BEEN EXTENSIVELY DISCUSSED WHERE AFTER A CONCLUSION HAS BEEN RE ACHED THAT THE MOUS WERE NOT GENUINE. IT IS ON SUCH BASIS THAT THE CLAIM OF THE ASSESSEE HAS BEEN REJECTED. ONCE THE GROUND OF THE ASSESSEE HAS BEEN REJECTED ON MERITS, THE ASSESSEE CANNOT CONTEND TH AT THE TRIBUNAL ORDER SHOULD BE RECALLED WITH AN INTENTION TO PERSUA DE IT TO CHANGE THE EARLIER VIEW. IT GOES WITHOUT SAYING THAT THE SC OPE OF PROCEEDINGS U/S.254(2) IS LIMITED TO RECTIFYING ANY MISTAKE APPARENT FROM RECORD AND NOT REVIEWING THE EARLIER ORDER. THE AGGRIEVED PARTY CANNOT APPROACH THE TRIBUNAL FOR REVIEW OF THE EARLIER DECISION IN THE GARB OF RECTIFICATION APPLICATION. IN VIEW OF THE FOREGOING DISCUSSION, WE ARE SATISFIED THAT THERE IS NO MISTAKE MUCH LESS THE MISTAKE APPARENT FROM RECORD REQUIRING RECTIF ICATION. 9. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH SEPTEMBER, 2019. SD/- SD/- (S.S. VISWANETHRA RAVI) (R.S.SYAL) JUDICIAL MEMBER VICE PRESID ENT PUNE; DATED : 27 TH SEPTEMBER, 2019. M.A NO.50/PUN/2019 ASHOK R. MANE 6 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (APPEALS)-V, PUNE 4. / THE CIT-V, PUNE 5. , , / DR A, ITAT, PUNE; 6. / GUARD FILE. // TRUE COPY // / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE DATE 1. DRAFT DICTATED ON 27-09-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 27-09-2019 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *