Shri Nilesh Ishwarbhai Patel, Ahmedabad V. The Dy.Commissioner of Income Tax(Intl. Taxn.), Vadodara

MA 52/AHD/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5282 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-02-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 04-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P F JAIN ALOK KUMAR
• Section: 68

Judgement Text

M.A. NO.52 /AHD/201 6 A SSESSMENT Y EAR: 20 10 - 11 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH, SMC , AHMEDABAD [CORAM: PRAMOD KUMAR AM] M.A. NO.52/AHD/2016 (IN ITA NO. 3526/AHD/2015) ASSESSMENT Y EAR : 20 10 - 11 NILESH ISHWARBHAI PATEL, .......... . APPELLANT C/O. VISHVESH A. SHAH & C O., 316, ABHISHEK PLAZA, B/H. NAVGUJARAT COLLEGE, I NCOME TAX, AHMEDABAD 380 013. [PAN: ASAPP 1362 L ] VS. DY. COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION), VADODARA. .... ................ RESPONDENT APPEARANCES BY: P.F. JAIN F OR THE APPELLANT ALOK KUMAR FOR THE RESPONDENT D ATE OF CONCLUDING THE HEARING : 2 0 . 01.2017 DATE OF PRONOUNCING THE ORDER : 03 . 0 2 .2017 O R D E R 1. BY WAY OF THIS PETITION, THE ASSESSEE APPLICANT SEEKS RECALL OF THE ORDER DATED 23.02.201 6 ON THE GROUND THAT IT DOES NOT SPECIFICALLY DEAL WITH THE GRIEVANCES RAISED BEFORE THE TRIBUNAL. 2. THE RECTIFICATION PETITION FILED BY THE ASSESSEE , INTER ALIA, STATES AS FOLLOWS : - THE ABOVE GROUNDS HAVE BEEN MENTIONED IN PARA 2 OF THE ORDER BY THE T RIBUNAL BUT THEY HAVE NOT BEEN AT ALL ADJUDICATED. IN PARA 6 BY MAKING SIMPLY GENERAL OBSERVATION ALL THE GROUNDS OF THE ASSESSEE HAVE BEEN DISMISSED WITHOUT ANY ADJUDICATION THEREOF. THE ASSESSEE HAS FILED PAPER BOOK CONTAINING 26 PAGES WHICH HAVE NOT BE EN CONSIDERED. DURING COURSES OF HEARING DECISION OF CHANDIGA RH ITAT IN THE CASE OF GURPREET SINGH V/S. ITO REPORTED IN (2015) 40 ITR (TRIB) 0467 WAS FURNISHED AND RELIED UPON FOR THE PURPOSE OF CONSIDERING CASH FLOW AND PEAK WHICH HAS NOT BEEN CONSIDERED . M.A. NO.52 /AHD/201 6 A SSESSMENT Y EAR: 20 10 - 11 PAGE 2 OF 4 THE NON C ONSID ERATION OF ABOVE GROUNDS , FACTS, CONTENTIONS, AND DECISION OF ITAT ARE APPARENT MISTAKES . 3. LEARNED COUNSEL SUBMITS THAT THE TRIBUNAL DEALT WITH THE SPECIFIC GROUNDS OF APPEAL, RAISED BEFORE IT, BUT BY WAY OF SWEEPING GENERALIZATIONS. THE GROUND NOS . 2 , 3 & 4 HAVE NOT BEEN TOUCHED AT ALL. IT IS FURTHER SUBMITTED THAT JUDICIAL PRECEDENT RELIED UPON BY THE ASSESSEE, I.E. GURPREET SINGH VS. ITO [(2015) 40 ITR (TRIB) 467] HAS NOT BEEN DEALT AT ALL. LEARNED COUNSEL TAKES US THROUGH THE ORDE R TO DEMONSTRATE THE ABOVE POINTS, AND SUBMITS THAT THIS INACTION OF THE TRIBUNAL CONSTITUTES A MISTAKE APPARENT ON RECORD AND LIABLE TO BE RECTIFIED UNDER SECTION 254(2). RELIANCE IS PLACED ON HON BLE HIGH COURT S JUDGEMENT IN THE CASE OF CIT VS . RAMSH C HAND MODI [(20 01 ) 249 ITR 323 (RAJ)], OF HON BLE ALLAHABAD HIGH COURT S JUDGEMENTS IN THE CASES OF CIT VS . K . M . S U GAR MILLS PVT . LTD . [(2005) 275 ITR 247 (ALL)] AND C I T VS . KESHAV FRU I T MART [(1993) 199 ITR 771 (ALL)], AND FINALLY HON B L E JURISDICTIONAL HI GH COURT S JUDGEMENT IN THE CASE OF SHAILESH C . MEHTA VS. ITO (TAX APPEAL NO.1374 OF 2006; JUDGEMENT DATED 12.07.2016). 4. LEARNED DEPARTMENTAL REPRESENTATIVE , ON THE OTHER HAND, RELIES UPON THE O RDER OF THE TRIBUNAL. IT IS SUBMITTED TH A T BREVITY OF THE ORDER CANNOT BE REASON ENOUGH TO RECALL THE SAME. IT IS SUBMITTED THAT THERE IS NO BAR ON ALL THE GROUNDS BEING TAKEN UP TOGETHER, AND THAT SPECIFIC ADJUDICATION ON EACH GROUND IS NOT NECESSARY UNLESS THIS IS ARGUED AT THE TIME OF HEARING. I AM URGED TO HOLD THAT THERE IS NO SUCH MISTAKE, EVEN IF ANY, WHICH IS INCAPABLE OF TWO VIEWS BEING TAKEN, AND, THEREFORE, DECLINE TO INTERFERE IN THE MATTER. 5. I HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE I N THE LIGHT OF THE APPLICABLE LEGAL POSITION. M.A. NO.52 /AHD/201 6 A SSESSMENT Y EAR: 20 10 - 11 PAGE 3 OF 4 6. I F IND T HAT IN THE BRIEF OPERATIVE PORTION OF THE ORDER THE TRIBUNAL HAS HELD AS FOLLOWS : - 6. I HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE U NDISPUTED FACTS IN THE PRESENT CASE IS THAT THE ASSESSEE HAS NOT BEEN ABLE TO EXPLAIN THE SOURCE OF RS.5,61,650 / - WHICH HAS BEEN STATED TO BE OUT OF SAVINGS. WHERE SUCH SAVINGS HAVE BEEN KEPT, HAS NOT BEEN EXPLAINED BEFORE AUTHORITIES BELOW OR BEFORE ME. IN THE CIRCUMSTANCES, AND FACTS OF TH E CASE, ALL THE ARGUM ENTS RAISED BY THE ASSESSEE AND THE RELIANCE ON DECISIONS OF VARIOUS COURT OF LAW, ARE NOT GOING TO RESCUE THE ASSESSEE, AND ACCORDINGLY, I FIND NO INFIRMITY IN THE ORDER OF THE ID. CIT(A), THUS, ALL THE GROUNDS OF APPEAL OF THE ASSESS EE ARE DISMISSED. 7. THE ABOVE FINDINGS , HOWEVER , DO NOT DEAL WITH THE SPECIFIC ISSUES RAISED IN GROUND NOS . 2, 3 & 4 WHICH ARE AS FOLLOWS 2. HE HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN NOT PROPERLY CONSIDERING AND APPRECIATING THE WRITTEN SUBMISSI ON DATED 12/10/2015 FURNISHED TO HIM ALONG WITH VARIOUS DOCUMENTS WHICH INCLUDED STATEMENT SHOWING CASH DEPOSITS AND WITHDRAWALS IN THE BANK STATEMENT AND MAKING WRONG OBSERVATION OF NON FURNISHING CASH FLOW. 3. HE HAS GRIEVOUSLY ERRED IN NOT CONSIDERING TOTAL MISTAKE OF 80,000/ - POINTED OUT IN THE WRITTEN SUBMISSION AND THE FACT THAT CASH DEPOSIT IS COVERED BY THE CASH WITHDRAWALS IN THE BANK FOR THE REASONS BEST KNOWN TO HIM. 4. HE HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN UPHOLDING THE ADDITION WIT HOUT APPRECIATING THE FACT THAT PROVISION OF SECTION 68 WERE NOT APPLICABLE TO THE FACTS OF THE ASSESSEE IN AS MUCH AS THAT NO BOOKS WERE MAINTAINED. 8. TO THE ABOVE EXTENT, THEREFORE, THERE IS INDEED AN ERROR OF OMISSION IN NOT ADJUDICATING UPON THE SPE CIFIC ISSUES R AISED IN GROUND NOS . 2 , 3 & 4 . I, THEREFORE, DEEM IT FIT AND PROPER TO RECALL THE ORDER FOR THE LIMITED PURPOSES OF DEALING WITH THE ABOVE ISSUES. LET THE APPEAL BE FIXED AFRESH, FOR HEARING ON ABOVE LIMITED ISSUES, IN LAST WEEK OF APRIL, 20 17. M.A. NO.52 /AHD/201 6 A SSESSMENT Y EAR: 20 10 - 11 PAGE 4 OF 4 9. IN THE RESULT, THE APPLICATION IS PARTLY ALLOWED AS ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS 3 RD DAY OF FEBRUARY , 2017 . SD/ - PRAMOD KUMAR (ACCOUNTANT MEMBER) DATED: THE 3 RD DAY OF FEBRUARY , 2017 . PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD