J.K.M OFFSHORE (I) P. LTD, V. ITO CIR 2(2)_1,

MA 529/MUM/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5314 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-11-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2001-2002
• Appeal Filed On: 30-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUM EET KUMAR
• Assessee Lawyers: RITIKA GARG

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'D' BENCH, MUMBAI BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER MA NO. 529/MUM/2010 (ARISING OUT OF ITA NO. 1021/MUM/2005) (ASSESSMENT YEAR: 2001-02) M/S. J.K.M. OFFSHORE (I) P. LTD. INCOME TAX OFFICER - 2(2)(1) DUBASH HOUSE, 15 J.N. HEREDIA MUMBAI MARG, BALLARD ESTATE, MUMBAI VS. PAN - AAACJ 0492 K APPELLANT RESPONDENT APPELLANT BY: SMT.RITIKA GARG RESPONDENT BY: SHRI SUMEET KUMAR O R D E R PER B. RAMAKOTAIAH, A.M. THIS MISCELLANEOUS APPLICATION IS FILED AGAINST THE MODIFICATION ORDER PASSED VIDE MA NO. 619/MUM/2009 DATED 08.02.2010. T HE APPEAL IN THIS CASE WAS ORIGINALLY DISPOSED OFF IN ITA NO. 1021/MU M/2005 BY THE ORDER DATED 20 TH AUGUST 2009 AND CONSEQUENT TO CERTAIN MISTAKES POI NTED OUT WITH REFERENCE TO THE DATE OF SALES, PARA 10 OF THE ORDER WAS MODIFIED WHERE THERE WAS A REFERENCE OF TAKING PURCHASE DATE OF 29 .03.2001. THE ASSESSEE IN THE PRESENT SECOND MA RAISED THE FOLLOWING PRAYE R: - FROM THE ABOVE SAID AMENDMENT, IT IS SEEN THAT THE HON'BLE ITAT HAS OBSERVED THAT. . THERE IS NO EVIDENCE WITH REFERENCE TO PURCHASE OF SHARES IN SEPTEMBER, 2000 .. AND HAVE DIRECTED THE ASSESSING OFFICER TO TAKE THE DATE OF PURCHASE IN CORRELATION TO THE DA TE OF SALE , EVEN THOUGH THE DATE OF PURCHASE OF SHARES AS ALS O THE CONSIDERATION PAID FOR THE SAME, STOOD ALREADY ASCE RTAINED WITH THE EVIDENCES AS ENUMERATED IN PARA 3 ABOVE, AS WERE AV AILABLE IN THE PAPER BOOK. THEREFORE, INSTEAD OF LEAVING THE MATTER TO THE CHO ICE AND DISCRETION OF THE ASSESSING OFFICER, DIRECTION NEED TO BE GIVEN TO HIM TO RECOMPUTE THE QUANTUM OF SHORT TERM CAPIT AL LOSS, ON THE BASIS OF DOCUMENTARY EVIDENCES AS AFORESAID. 2. WE HAVE HEARD THE LEARNED COUNSEL AND THE DR. THE O BJECTION WITH REFERENCE TO THE PURCHASE OF SHARES IN SEPTEMBER 20 00 WAS A FINDING GIVEN BY THE ITAT WITH REFERENCE TO GENUINENESS OF PURCHA SE OF THE SHARES BY THE MA NO. 529/MUM/2010 M/S. J.K.M. OFFSHORE (I) P. LTD. 2 ASSESSEE COMPANY ON THAT DATE AND AN ELABORATE DISC USSION WAS MADE VIDE PARA 7, 8 AND 9 TO HOLD THAT THE PURCHASE IN SEPTEM BER 2000 WAS NOT PROVED. ACCORDINGLY IN THE ORDER PASSED ON 20 TH AUGUST 2009 IT WAS HELD THAT THERE WAS NO EVIDENCE WITH REFERENCE TO PURCHA SE OF SHARES IN SEPTEMBER 2000 AS POINTED OUT BY THE ASSESSEE. THIS FINDING WAS GIVEN AFTER ELABORATE DISCUSSION AND EXAMINING THE EVIDENCE PLA CED ON RECORD. NOT ONLY THAT IN THE MA ORIGINALLY FILED VIDE MA DATED 2 ND NOVEMBER 2009 THE ASSESSEE HAS POINTED OUT THE ISSUE WITH REFERENCE T O THE BROKER NOTE DATED 23.09.2000 WHICH WAS ALREADY CONSIDERED ON FACTS AN D REJECTED. SINCE THE ORIGINAL FINDINGS HAVE BEEN CONSIDERED AND MODIFICA TION TO THE EXTENT OF PURCHASE DATE HAS ALSO BEEN UNDERTAKEN IN THE MA FI LED EARLIER IN MA NO. 619/MUM/2009, THE PRESENT MA IS A SECOND MA ON THE SAME FACTS, WHICH THE TRIBUNAL HAS NO POWER TO CONSIDER. MOREOVER, A DECISION WAS TAKEN ON MERITS AFTER CONSIDERING THE DOCUMENTS PLACED ON RE CORD, AFTER ELABORATE DISCUSSION AND ANY CHANGE WOULD AMOUNT TO REVIEW AN D NOT MODIFICATION. 3. IN VIEW OF THIS, WE ARE OF THE OPINION THAT THE MIS CELLANEOUS APPLICATION CANNOT BE ENTERTAINED AND ACCORDINGLY T HE SAME IS DISMISSED. 4. IN THE RESULT, THE MA IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH NOVEMBER 2010. SD/- SD/- (D.K. AGARWAL) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 19 TH NOVEMBER 2010 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) II, MUMBAI 4. THE CIT II, MUMBAI CITY 5. THE DR, D BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.