ITO 5(1)(3), V. DEEPAK CLASSESS BORIVALI P. LTD,

MA 515/MUM/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5940 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-12-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2000-2001
• Appeal Filed On: 17-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: MEGHANA BUTALA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI J. SUDHAKAR REDDY (A.M.) AND SHRI R.S. PADVEKAR (J.M.) M.A NO. 515/MUM/2010 ARISING OUT OF ITA NO.3382/MUM/2009 (ASSESSMENT YEAR : 2000-2001) THE INCOME TAX OFFICER-5(1)(3), R.NO.569,AAYAKAR BHAVAN, M.K. RD., MUMBAI 400 020. VS. M/S. DEEPAK CLASSES BORIVALI (P) LTD. SUBEAM APTS., 1 ST FLR., OPP. HINDUJA COLLEGE, OPERA HOUSE, MUMBAI 400 004. PAN : AVCD0780A (APPLICANT) (RESPONDENT) APPLICANT BY : SMT. ASHIMA GUPTA RESPONDENT BY : SMT. MEGHANA BUTALA O R D E R PER J. SUDHAKAR REDDY, A.M. THIS IS A MISCELLANEOUS APPLICATION FILED BY THE RE VENUE, ALLEGING THAT THERE IS A MISTAKE APPARENT ON RECORD IN THE ORDER OF THE TRIBUNAL IN ITA NO.3382/MUM/09 ORDER DATED 19.04.2010. 2. SMT ASHIMA GUPTA, THE LEARNED DR, SUBMITTED THAT THERE IS A MISTAKE APPARENT ON RECORD IN THE ORDER OF THE TRIBUNAL, AS THE ASSESSEE HAS NEVER FURNISHED ANY EVIDENCE OF MAKING PAYMENTS TO PROFES SORS BY WAY OF CROSSED CHEQUES, DESPITE REPEATED DIRECTIONS TO DO SO. THU S, SHE SUBMITS THAT THERE IS A MISTAKE IN APPRECIATION OF THE FACTS IN THIS C ASE AND THE SAME SHOULD BE RECTIFIED BY CONFIRMING THE PENALTY IN QUESTION LEV IED U/S.271(1)(C) OF THE ACT. 3. SMT MEGHANA BUTALA, LEARNED COUNSEL FOR THE ASSE SSEE, ON THE OTHER HAND, SUBMITTED THAT, IF THE CONTENTIONS ARE ACCEPT ED, THEN IT WOULD AMOUNT TO REVIEW. SHE SUBMITTED THE FACT THAT THE PAYMENTS WERE MADE THROUGH CROSS CHEQUES WAS NOT IN DISPUTE. M.A NO. 515/MUM/2010 2 4. RIVAL CONTENTIONS HEARD. ON CAREFUL CONSIDERAT ION OF THE FACTS AND CIRCUMSTANCES OF THE CASE WE HOLD AS FOLLOWS. THE TRIBUNAL IN ITS ORDER DATED 19.04.2010 AT PARA 8 OBSERVED THAT, MR. NIRAJ VORA HAD PAID THESE AMOUNTS TO PROFESSORS BY WAY OF CROSS CHEQUES. WHEN THE ASSESSEE TOOK OVER THE BUSINESS FROM MR. NIRAJ VORA, THE EXPENDIT URE WAS INCORPORATED IN ITS BOOKS OF ACCOUNTS ALONG WITH THE INCOME. IT IS A CASE OF TAKE OVER OF BUSINESS. THE EXPENDITURE WAS INCURRED BY MR. NIR AJ VORA OF PLUTO CLASSES, WHICH WAS TAKEN OVER BY THE ASSESSEE. THE ASSESSE E ONLY PAID MR. NIRAJ VORA. 5. THERE IS NO EVIDENCE ON RECORD THAT, THE ASSESSI NG OFFICER HAS ASKED MR. NIRAJ VORA TO FURNISH EVIDENCE OF HAVING INCURR ED EXPENDITURE BY WAY OF CROSSED CHEQUES. IN THESE CIRCUMSTANCES, WE ARE OF THE OPINION THAT THERE IS NO MISTAKE APPARENT ON RECORD REQUIRING ANY RECTIFI CATION. IN ANY EVENT CONSIDERING THIS ISSUE IN MISCELLANEOUS APPLICATION TANTAMOUNT TO REVIEW OF AN ORDER AND SUCH REVIEW IS NOT PERMITTED. 6. IN THE RESULT, MISCELLANEOUS APPLICATION IS DISM ISSED. ORDER PRONOUNCED ON THIS 3 RD DAY OF DECEMBER, 2010. SD/- (R.S. PADVEKAR) (JUDICIAL MEMBER) SD/- (J.SUDHAKAR REDDY) (ACCOUNTANT MEMBER) MUMBAI, DATED 3 RD DECEMBER, 2010. M.A NO. 515/MUM/2010 3 JANHAVI COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- , MUMB AI 4. COMMISSIONER OF INCOME TAX, CITY- , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH , MUM BAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI