Appeal Details
Counselvise Citation
[2020] 110 COUNSELVISE.COM (IT) 7529 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
5 month(s) 23 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
19-03-2020
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
A
Assessment Year
2001-2002
Appeal Filed On
26-09-2019
Judgement Text
1 MA NOS.538 TO 544/MUM/2019 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) M.A. NOS.538 TO 544 /MUM/2019 (ARISING OUT OF ITA NOS.5713 TO 5719/MUM/2012) (ASSESSMENT YEARS: 2001-02 TO 2007-08) & SHRI. ATUL A.SANGHVI B 1607, SHANKAR SETH PALACE 16 TH FLOOR NANA CHOWK MUMBAI-400 007 PAN NO:AHZPS2788P VS DCIT,CENTRAL CIRCLE - 11 MUMBAI APPLICANT RESPONDENT APPLICANT BY SHRI. PRAKASH K.JOTWANI, AR RESPONDENT BY MS. KAVITA P.KAUSHIK, DR DATE OF HEARING 28/02 /2020 DATE OF PRONOUNCEMENT 19 /03/2020 O R D ER PER G MANJUNATHA: AM THE ASSESSE HAS FILED THESE SEVEN MISCELLANEOUS APP LICATIONS U/S 254(2) OF THE I.T.ACT, 1961 AGAINST ORDER OF THE TR IBUNAL, DATED 25/09/2017 IN ITA NOS. 5713 TO 5719/MUM/2012 FOR AS ST.YEARS 2001-02 TO 2007-08. 2. THE ASSESSEE HAS NARRATED FACTS AND MISTAKES STA TED TO BE APPARENT ON RECORD IN THE ORDER OF THE TRIBUNAL, DA TED 25/09/2017 FOR ALL ASST. YEARS AND RELEVANT CONTENTS OF THE MISCELLANE OUS APPLICATION FILED 2 MA NOS.538 TO 544/MUM/2019 BY THE ASSESSEE ARE MORE OR LESS COMMON FOR ASST.YE AR 2001-02 TO 2007-08. THEREFORE, FOR THE SAKE OF BREVITY, THE CO NTENTS OF MISCELLANEOUS APPLICATION FILED FOR ASST.YEAR 2002- 03 IN MA.NO.539/MUM/2019 ARE REPRODUCED AS UNDER:- 1. THE APPLICANT RAISED THE FOLLOWING ISSUES BEFORE ITAT: A) CIT (A) ERRED IN HOLDING THAT APPLICANT WAS INDU LGED IN THE BUSINESS OF ISSUANCE OF BOGUS BILLS AND CONFIRMING ADDITION OF RS.44,73,47,843/- ON ACCOUNT OF ALLEGED SALES ON PROTECTIVE BASIS. B) CIT (A) ERRED IN CONFIRMING ADDITION OF RS.89,46 ,957/- TO INCOME OF APPLICANT AS COMMISSION EARNED @ 2% ON BOGUS SALE A ND PURCHASE. C) CIT(A) ERRED IN HOLDING THE CASH DEPOSITS IN THE BANK ACCOUNTS OF THE PERSONS OTHER THAN ASSESSEE (THIRD PARTIES) AS UNDI SCLOSED INCOME OF THE APPLICANT. D) CIT (A) ERRED IN CONFIRMING ADDITION OF RS,18,40 ,500/- TO INCOME OF APPLICANT AS CASH DEPOSITS IN THE VARIOUS BANK ACCO UNTS OF THE PERSONS OTHER THAN ASSESSEE (THIRD PARTIES). 2. THE TRIBUNAL HAS DISPOSED OFF THE FOLLOWING AS U NDER: GROUND 1 (A) - 'ON THE FACT AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LEARNED CIT{A) HAS ERRED IN CONFIRMING THE ACTION OF LEARNE D ASSESSING OFFICER IN LAW AND ON FACTS INFERRING AND HOLDING THAT THE APPELLA NT WAS INDULGED IN BUSINESS OF ISSUANCE OF BOGUS BILLS.' AS PER PARA 21 PG 32 OF THE ORDER, THE TRIBUNAL HEL D THAT THE LOWER AUTHORITIES CAME TO CONCLUSION THAT THE ASSESSEE IS A H AWALA OPERATOR INVOLVED IN PROVIDING ACCOMMODATION ENTRIES. AS PER PARA 24 PG 34 OF THE SAID ORDER: THE TRIBUNAL HELD THAT IT IS AN UNDISPUTED FACT THAT INCRIMINATING MATERIALS FOUND AND SEIZED DURING THE COURSE OF SEARCH CLEARL Y INDICATES THAT THE ASSESSEE IS ENGAGED IN ISSUING BOGUS BILLS IN THE N AME OF VARIOUS DUMMY/FICTITIOUS CONCERN/COMPANIES AND OPERATED MOR E THAN 100 BANK ACCOUNTS IN DIFFERENT BANKS. IT IS ALSO HELD THAT THOUGH THE ASSESSEE CLAIM S TO HAVE INVOLVED IN THE BUSINESS OF COMMISSION AGENT IN STEEL MARKET, THE E VIDENCE COLLECTED DURING THE COURSE OF SEARCH UNDISPUTEDLY PROVES THE CASE O F THE REVENUE THAT IT IS CASE OF HAWALA ENTRY OPERATOR AND ISSUED BOGUS BILL S IN VARIOUS ENTITIES NAME. IT WAS ALSO CONSIDERED THAT ALL THESE FACTS LE AD TO A CONCLUSION THAT THE ASSESSEE HAS FLOATED VARIOUS DUMMY COMPANIES/FIRM T O FACILITATE ISSUING OF BOGUS PURCHASE BILLS AND OPERATED BANK ACCOUNTS BY FABRICATING DOCUMENTS. THE ASSESSEE IS ENGAGED IN ACTIVITY OF PROVIDING AC COMMODATION ENTRIES. HENCE, WE ARE INCLINED TO UPHOLD THE FINDINGS OF CI T (A) AND DISMISS THE GROUNDS RAISED BY THE ASSESSEE. 3 MA NOS.538 TO 544/MUM/2019 CONSEQUENTLY, THE TRIBUNAL IN PARA 25 HELD THA T IT IS FAIR & REASONABLE TO ESTIMATE COMMISSION @ 2% AS ASSESSEE'S INCOME FROM THE ACTIVITY OF ISSUING BOGUS BILLS. GROUND 1 (B) - ON THE FACT AND CIRCUMSTANCES OF THE CASE AS WELL A S IN LAW, THE LEARNED CIT (A) HAS ERRED IN CONFIRMING THE ACTION OF LEARNED A SSESSING OFFICER IN MAKING AN ADDITION OF RS. 44,73,47,8437- ON ACCOUNT OF ALL EGED SALES ON PROTECTIVE BASIS, WITHOUT CONSIDERING THE FACTS AND CIRCUMSTAN CES OF THE CASE.' AS PER PARA 26 PG 38 THE TRIBUNAL HELD THAT AO WAS RIGHT IN MAKING PROTECTIVE ADDITIONS TOWARDS SALE BILLS ISSUED IN T HE NAME OF M/S VARUN INDUSTRIES LTD. NEVERTHELESS, THE ASSESSEE SHALL BE ENTITLED TO RELIEF AS AND WHEN THE SUBSTANTIVE ADDITION MADE IN THE HANDS OF M/S VARUN INDUSTRIES LTD. IS CONFIRMED ONCE ALL ROUNDS OF LITIGATION ENDS AND THIS CONFIRMED THE PROTECTIVE ASSESSMENT OF ASSESSING THE ENTIRE SALE PROCEEDS AS INCOME OF THE APPELLANT. GROUND 1 (C) - 'ON THE FACT AND CIRCUMSTANCE OF THE CASE AS WELL A S IN LAW, THE LEARNED CJT (A) HAS ERRED IN CONFIRMING THE ACTION OF LEARNED A SSESSING OFFICER IN MAKING ADDITION OF RS. 89,46,957/- TO THE INCOME OF THE AP PELLANT, BEING COMMISSION EARNED @2% ON THE BOGUS SALES BILLS ISSUED DURING T HE YEAR TO VARIOUS PARTIES.' AS PER PARA 25 PG 37 THE TRIBUNAL HELD THAT WE ARE OF THE VIEW THAT THE AO WAS RIGHT IN ESTIMATING COMMISSION @ 2 % ON TOTAL S ALE BILLS ISSUED IN THE NAME OF M/S VARUN INDUSTRIES LTD. THE CIT (A) AFTER CONSIDERING THE FACTS HAS RIGHTLY UPHELD THE ORDER OF THE AO. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE CIT (A). HENCE, WE ARE INCLINED TO UPHOLD THE O RDER OF THE CIT (A) AND DISMISS THE GROUND RAISED BY THE ASSESSEE. GROUND 1 (D) 'ON THE FACT AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LEARNED CIT (A) HAS ERRED IN CONFIRMING THE ACTION OF LEARN ED ASSESSING OFFICER IN HOLDING THAT DEPOSITS IN THE BANK ACCOUNTS OF THE P ERSONS OTHER THAN ASSESSEE (THIRD PARTIES) AS UNDISCLOSED INCOME OF THE APPELL ANT.'' AS PER PARA 29 PG 41, TRIBUNAL HELD THAT HAVING HEARD BOTH THE SIDES AND CONSIDERED MAT ERIAL ON RECORD, WE FIND THAT THE ASSESSEE HAS NOT BEEN ABLE TO DISCHARGE ON US BY FILLING NECESSARY EVIDENCE TO PROVE THE CREDITS FOUND IN THE BANK ACC OUNT. IT IS INCUMBENT UPON THE ASSESSEE TO EXPLAIN EACH AND EVERY CREDIT FOUND IN THE BANK ACCOUNTS AND SOURCE OF SUCH CREDITS. THEREFORE, WE ARE OF THE VI EW THAT THE AO WAS RIGHT IN TREATING THE SUMS FOUND CREDITED IN BANK ACCOUNTS. WE DO NOT FIND ANY MERIT IN THE ARGUMENT OF AS SESSEE FOR THE REASON THAT THE EVIDENCES GATHERED DURING THE COURSE OF SEARCH AND FURTHER ENQUIRIES CONDUCTED IN THE COURSE OF POST SEARCH INVESTIGATIO N CLEARLY ESTABLISHES THE 4 MA NOS.538 TO 544/MUM/2019 FACT THAT THE ASSESSEE HAS OPERATED MORE THAN 100 B ANK ACCOUNTS IN DIFFERENT BANK. THEREFORE, WE ARE OF THE VIEW THAT THE AO WAS RIGHT IN TREATING CREDITS FOUND IN THE BANK ACCOUNTS AS UNEXPLAINED INCOME OF THE ASSESSEE. AS PER PARA 30 PG 43 TRIBUNAL HELD THAT CIT (A) HAS RIGHTLY UPHELD THE ADDITIONS MADE BY THE AO TOWARDS TOTAL CREDITS FOUN D IN THE BANK ACCOUNT AS UNEXPLAINED INCOME. GROUND 1 (E) 'ON THE FACT AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW, THE LEARNED CTT (A) HAS ERRED IN CONFIRMING THE ACTION OF LEARN ED ASSESSING OFFICER IN MAKING AN ADDITION OF RS. 18,40,500/- TO THE INCOME OF THE APPELLANT ON THE BASIS OF THE CASH DEPOSITS IN THE CARIOUS BANK ACCO UNTS OF THE PERSONS OTHER THAN ASSESSEE (THIRD PARTIES), IGNORING THE FACT TH AT THE APPELLANT WAS MERELY A COMMISSION AGENT OF THOSE PERSONS.' AS PER PARA 31 PG 44, THE TRIBUNAL HELD THAT WE ARE OF THE VIEW THAT THERE IS MERIT IN THE CLAIM OF ASSESSEE THAT TELESCOPING HAS TO BE ALLOWED TOWARDS CASH DEPOSITS TO THE INCOME ESTIMATED FOR THE RELEV ANT ASSESSMENT YEARS. HENCE, THE ISSUE NEEDS TO BE EXAMINED BY THE AO IN THE LIGHT OF THE EXPLANATIONS OF THE ASSESSEE AND HENCE, WE SET ASID E THE ISSUE TO THE FILE OF THE AO FOR THE LIMITED PURPOSE OF EXAMINING WHETHER THE INCOME ESTIMATED FOR THE YEAR IS IN EXCESS OF CASH DEPOSITS FOUND IN BAN K ACCOUNTS. 3. THE APPLICANT SUBMITS THAT THE SAID ORDER HAS OV ERLOOKED THE FACTS THAT THE APPLICANT IS AN AGENT/BROKER, WHO EARNED COMMISSION AND THE ESTIMATED COMMISSION WAS ALSO ADDED TO APPLICANT'S INCOME. TH E APPLICANT'S SUBMISSION IS THAT IF THE APPLICANT IS AN AGENT AND EARNS COMMISSION THEN HOW ENTIRE SALES & BANK CREDITS FOUND IN THE BANK ACCOU NT CAN BE APPLICANT'S INCOME. HERE, IN GROUND 1 (C) THE TRIBUNAL HELD THA T IT CLEARLY SHOWS THAT COMMISSIONS IS ESTIMATED @ 2% BY TAKING INTO ACCOUN T THAT APPLICANT HAS EARNED SUBSTANTIAL INCOME IN FORM OF COMMISSION AT PARA 25 PG 37 OF THE AFORESAID ORDER. THE TRIBUNAL HAVING HELD THAT THE APPLICANT IS AN AGENT ISSUING BOGUS BILLS AND THEN CONFIRMS THAT COMMISSI ON ON THE SAID BOGUS BILLS SHOULD BE TAXED AS ERRED IN THEN CONFIRMING THE FOL LOWINGS: I. ENTIRE SALES SHOWN IN THE SAID COMPANIES AS INCOME ON PROTECTIVE BASIS. THE ISSUE IS NOT PROTECTIVE OR SUBSTANTIVE. THE ISSUE IS THAT IF THE APPLICANT IS AN AGENT, THEN THE SALES CANNOT BE HIS INCOME. IF SALES IS THE APPLICANT'S INCOME, THEN PROFIT ON SALES SHOULD BE ADDED AND NOT ENTIRE SALES. THE TRIBUNAL HAS NOT DONE SO BUT HAS CONFIRM ED THE ACTIVITIES OF THE APPLICANT AS AGENT. HAVING DONE THAT THEN THE TRIBU NAL SHOULD HAVE DELETED THE ADDITION MADE ON ACCOUNT OF SALES. IF NOT, IT S HOULD HAVE SET ASIDE THE ADDITION BACK TO AO ONLY TO FIND THE VALUE OF SALES . SO THAT A CORRECT FIGURE OF COMMISSION ONLY THAT COULD BE TAXED. II. SECONDLY WITHOUT PREJUDICE TO THE ABOVE THE BANK CREDITS IN THE BANK ACCOUNT ARE ONLY SALE PROCEEDS. THE CONFIRMATION FR OM BUYER, I.E., VARUN INDUSTRIES PVT. LTD. WAS PRODUCED BEFORE AO AND THE AO HAS ACCEPTED THE 5 MA NOS.538 TO 544/MUM/2019 SAME. EVEN IN VARUN INDUSTRIES PVT. LTD, IT WAS ACC EPTED THAT THEY HAD BOUGHT GOODS FROM APPLICANT'S COMPANY. THEN HOW THE SAME B ANK CREDITS COULD BE TAXED AGAIN. IT IS RESPECTFULLY SUBMITTED THAT THE ADDITION OF T HE CREDITS FOUND IN THE BANK ACCOUNTS LEADS TO DOUBLE ADDITION OF THE INCOME BEC OME ONLY COMMISSION CAN BE APPLICANT'S INCOME NOT THE ENTIRE CREDITS DEPOSI TED WHICH IS ALSO NOT APPLICANT'S MONEY BUT SALE PROCEEDS. HENCE, THERE I S A MISTAKE APPARENT ON RECORD AND WHICH NEED TO BE RECTIFIED. 4. THE APPLICANT SUBMITS THAT THE TRIBUNAL MAY BE P LEASED TO SUITABLE AMEND ITS SAID ORDER TO RECTIFY THE SAID MISTAKE WHICH IS APPARENT ON RECORDS OR IN THE ALTERNATIVE RECALL THE ORDER FOR A FRESH HEARIN G. 3. THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THERE IS AN ERROR IN THE ORDER OF THE TRIBUNAL, DATED 25/09/2017, INASMUCH A S, THE TRIBUNAL HAS DISMISSED APPEAL FILED BY THE ASSESSEE FOR ASST.YEA R 2001-02 TO 2007- 08, ON THE BASIS OF FINDINGS RECORDED IN THE APPEAL S FILED BY SHRI DILIP SHAH IN ITA NO.5739 TO 5745/MUM/2012, WITHOUT CONSI DERING FACTS OF THE ASSESSEE CASE. THE LD. AR, FURTHER SUBMITTED THAT, TRIBUNAL HAS OVERLOOKED CERTAIN VITAL FACTS, WHILE DECIDING THE ISSUE OF ADDITIONS MADE BY THE LD. AO TOWARDS UNEXPLAINED CASH CREDIT BEING CREDITS FOUND IN BANK ACCOUNTS OF THE ASSESSE AND AT THE SAME TIME, HAS ALSO CONFIRMED ADDITIONS MADE BY THE LD. AO TOWARDS ESTIMATION OF COMMISSION INCOME @2% ON TOTAL VALUE OF ACCOMMODATION BILLS ISSUED TO VARIOUS PARTIES. HE FURTHER SUBMITTED THAT SAID MISTAKE CONSTITUTES A M ISTAKE APPARENT ON RECORD, WHICH NEEDS TO BE RECTIFIED U/S 254(2) OF T HE I.T.ACT, 1961 AND HENCE, THE ORDER OF THE TRIBUNAL MAY BE RECALLED IN THE INTEREST OF JUSTICE. 4. THE LD. DR PRESENT FOR THE REVENUE, ON THE OTHER HAND STRONGLY OPPOSED MISCELLANEOUS APPLICATIONS FILED BY THE ASS ESSEE AND SUBMITTED THAT THE MISCELLANEOUS APPLICATIONS FILED BY THE AS SESSEE FOR ALL ASST.YEARS ARE NOT MAINTAINABLE, BECAUSE ALL MISCEL LANEOUS APPLICATIONS HAVE BEEN FILED AFTER SIX MONTHS FROM THE DATE OF R ECEIPT OF ORDER OF THE 6 MA NOS.538 TO 544/MUM/2019 TRIBUNAL BY THE ASSESSEE, WHICH IS EVIDENT FROM THE FACT THAT THE TRIBUNAL ORDER DATE IS 25/09/2017 AND THE MISCELLANEOUS APPL ICATION HAS BEEN FILED ON 26/09/2019, I.E. ALMOST TWO YEARS LATER. T HEREFORE, THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE AR E NOT MAINTAINABLE AND NEEDS TO BE DISMISSED. 5. PER CONTRA, THE LD. AR FOR THE ASSESSEE REFERRIN G TO THE DECISION OF HONBLE BOMBAY HIGH COURT, IN THE CASE OF PCIT VS I NCOME TAX APPELLATE TRIBUNAL IN WRIT PETITION NO.2858/2019 SU BMITTED THAT THE HONBLE HIGH COURT HAD CONSIDERED THE ISSUE OF DELA Y IN FILING MISCELLANEOUS APPLICATION AFTER AMENDMENT TO SECTIO N 254(2) BY THE FINANCE ACT, 2016 W.E.F 01/06/2016 AND HELD THAT IF , THE ASSESSMENT YEAR UNDER CONSIDERATION IS BEFORE THE DATE OF AMEN DMENT TO THE ACT, THEN, THE LIMITATION PERIOD MAY BE CONSTRUED TO BE FOUR YEAR FROM THE DATE OF THE ORDER. THEREFORE, THE MISCELLANEOUS APP LICATIONS FILED BY THE ASSESSEE ARE WITHIN THE TIME ALLOWED UNDER THE ACT AND ACCORDINGLY, THERE IS NO MERIT IN ARGUMENTS TAKEN BY THE LD. DR THAT THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE AR E NOT MAINTAINABLE. IN THIS REGARD, HE RELIED UPON THE DECISION OF HON BLE BOMBAY HIGH COURT, IN THE CASE OF BHARAT PETROLEUM CORPORATION LTD. VS ITAT & OTHERS (2013) 359 ITR 371. THE LD. AR HAS ALSO RELI ED UPON THE DECISION OF HONBLE GUJARATH HIGH COURT, IN THE CAS E OF PCIT VS CHARTERED LOGISTICS LTD. (2017) 250 TAXMANN.COM 385 AND THE DECISION OF HONBLE MADHYAPRADESH HIGH COURT, IN THE CASE OF DISTRICT CENTRAL CO-OPERATIVE BANK LIMITED VS UNION OF INDIA (2017) 398 ITR 161. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE C ONTENTS OF MISCELLANEOUS APPLICATIONS FILED BY THE ASSESEE ALO NG WITH ORDER OF THE TRIBUNAL, DATED 25/09/2017 AND FIND THAT THE MISCEL LANEOUS APPLICATIONS 7 MA NOS.538 TO 544/MUM/2019 FILED BY THE ASSESSEE FOR ASST.YEARS 2001-02 TO 200 7-08 ARE NOT MAINTAINABLE, BECAUSE AS PER THE AMENDED PROVISIONS OF SECTION 254(2) OF THE I.T.ACT, 1961, AS AMENDED BY THE FINANCE ACT , 2016 W.E.F. 01/06/2016, THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH, THE ORDER WAS P ASSED, WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, A MEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1), AND SHALL MAKE SUCH AMENDMENT, IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSE E OR THE AO. FROM THE AMENDED PROVISIONS OF SECTION 254(2) OF THE I.T .ACT, 1961 W.E.F 01/06/2016, THE TRIBUNAL DOES NOT HAVE POWER TO ENT ERTAIN ANY MISCELLANEOUS APPLICATION FILED BEYOND THE PERIOD O F SIX MONTHS FROM THE END OF THE MONTH IN WHICH, THE ORDER WAS PASSED. IN THIS CASE, ON PERUSAL OF ORDER PASSED BY THE TRIBUNAL IN ITA NO.5 713 TO 5719/MUM/2012, THE TRIBUNAL HAS PASSED ITS ORDER ON 25/09/2017. AS PER THE PROVISIONS OF SECTION 254(2) OF THE I.T.ACT , 1961, THE ASSESSEE OUGHT TO HAVE FILED MISCELLANEOUS APPLICATIONS ON O R BEFORE SIX MONTHS FROM THE END OF THE MONTH IN WHICH, THE ORDER OF TH E TRIBUNAL HAS BEEN PASSED I.E ON 30/09/2017 AND ACCORDINGLY, THE MISCE LLANEOUS APPLICATIONS FILED BY THE ASSESSEE ON 26/09/2019 AR E CLEARLY BARRED BY LIMITATION AND CANNOT BE ENTERTAINED. INSOFAR AS, T HE DECISION OF HONBLE BOMBAY HIGH COURT, IN THE CASE OF PCIT VS INCOME TA X APPELLATE TRIBUNAL IN WRIT PETITION NO.2858/2019, WE FIND THA T IN THE SAID CASE, THE PETITIONER HAS FILED MISCELLANEOUS APPLICATIONS WIT HIN THE LIMITATION PERIOD OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH, T HE ORDER OF THE TRIBUNAL HAS BEEN PASSED, BUT THE TRIBUNAL HAS DISP OSED-OFF MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE BE YOND THE PERIOD OF SIX MONTHS FROM THE END OF THE MONTHS IN WHICH, TH E ORDER OF THE TRIBUNAL HAS BEEN PASSED. UNDER THOSE FACTS, THE TR IBUNAL AFTER CONSIDERING THE DECISION OF HONBLE SUPREME COURT, IN THE CASE OF SHRI 8 MA NOS.538 TO 544/MUM/2019 AYYANAR SPINNING & WEAVING MILLS LTD(301 ITR 434)(S C) HAD COME TO THE CONCLUSION THAT AN ORDER CAN BE RECALLED BEYOND THE PRESCRIBED PERIOD OF TIME, PROVIDED THE APPLICATION IS MADE WI THIN THE LIMITATION PERIOD. IN THIS CASE, ON PERUSAL OF FACTS AVAILABLE ON RECORD, WE FIND THAT THE ASSESSEE HAS FILED HIS MISCELLANEOUS APPLICATIO NS AFTER SIX MONTHS FROM THE END OF THE MONTH IN WHICH, THE ORDER OF TH E TRIBUNAL WAS PASSED. THEREFORE, THE CASE LAWS RELIED UPON BY THE ASSESSEE HAS NO APPLICATION. INSOFAR AS, OTHER CASE LAWS RELIED UPO N BY THE ASSESSEE ON THE ISSUE OF CONDONATION OF DELAY IN FILING OF APPE AL, IN LIGHT OF AFFIDAVIT FILED BY THE ASSESSEE, WE FIND THAT THOSE CASE LAWS ARE RENDERED IN THE CONTEXT OF CONDONATION OF DELAY AND HAS NO APPLICAT ION TO DISPOSAL OF MISCELLANEOUS APPLICATION FILED U/S 254(2) OF THE I .T.ACT, 1961. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT WHEN A STATUTE H AS BEEN PROVIDED FOR A LIMITATION PERIOD FOR RECTIFICATION OF MISTAKES A PPARENT FROM THE ORDER OF THE TRIBUNAL, THE TRIBUNAL IS BOUND TO DECIDE THE M ISCELLANEOUS APPLICATIONS, AS PER THE PROVISIONS OF SECTION 254( 2) OF THE I.T.ACT, 1961. FURTHER, AS PER PROVISIONS OF SECTION 254(2) OF THE I.T.ACT, 1961 APPLICABLE FROM 01/06/2016 ONWARDS, ANY MISCELLANEO US APPLICATION FILED BEYOND THE PERIOD OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH, THE ORDER OF THE TRIBUNAL HAS BEEN PASSED IS NOT MAINTA INABLE AND ACCORDINGLY, WE ARE OF THE CONSIDERED VIEW THAT THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE FOR ASST.YEAR 20 01-02 TO 2007-08 ARE BARRED BY THE LIMITATION. 7. IN SO FAR AS, MERITS OF MISCELLANEOUS APPLICATIO NS IS CONCERNED, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE HAS FAILED TO MAKE OUT A CASE OF MISATKES APPARENT ON RECORDS WHICH CAN BE RECTIF IED, BUT WHAT WAS SOUGHT THROUGH HIS APPLICATION IS REVIEW THE DECISI ON OF THE TRIBUNAL GIVEN IN THE FACTS AND CIRCUMSTANCES OF THE CASE, W HICH IS BEYOND THE 9 MA NOS.538 TO 544/MUM/2019 SCOPE OF SECTION 254(2) OF THE INCOME TAX ACT, 1961 . FURTHER, THE ASSESSEE SEEKS TO RECALL TRIBUNAL ORDER ON THE GROU NDS THAT, THE TRIBUNAL HAS DISMISSED APPEALS OF THE ASSESSEE WITHOUT CONSI DERING FACTS OF ITS CASE. BUT, FACTS REMAINS THAT THE TRIBUNAL AFTER CO NSIDERING FACTS OF ASSESSEE CASE AND FACTS OF SHRI. DILIP SHAH CASE CA ME TO THE CONCLUSION THAT FACTS OF ASSESSEE CASE ARE IDENTICAL TO THE FA CTS OF SHRI. DILIP SHAH CASE AND ALSO CONSIDERING FACTS THAT THE LD. AO HAS ADDED ENTIRE TRANSACTIONS 50% EACH IN BOTH ASSESSEE AS WELL AS S HRI. DILIP SHAH CASE, HAS GIVEN ITS DETAILED FINDINGS IN THE CASE O F SHRI. DILIP SHAH TO CONFIRM ADDITIONS MADE BY THE AO TOWARDS UNEXPLAINE D CASH CREDITS AND ESTIMATED COMMISSION INCOME ON SAID TRANSACTIONS. F URTHER, WHILE DISMISSING APPEALS OF THE ASSESSEE, THE FINDINGS RE CORDED IN THE CASE OF SHRI. DILIP SHAH, HAS BEEN APPLIED MUTATIS AND MUTA NDIS TO THE CASE OF THE ASSESSEE AND DISMISSED APPEALS FOR ALL ASST. YE ARS. WE, THEREFORE ARE OF THE CONSIDERED VIEW THAT THERE IS NO MISTKE IN THE ORDER OF THE TRIBUNAL WHICH COULD BE RECTIFIED U/S 254(2) OF THE INCOME TAX ACT, 1961 AND HENCE, MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE FOR ALL ASSESSMENT YEARS DESERVES TO BE DISMISSED ON MERITS . 7. IN THE RESULT, ALL MISCELLANEOUS APPLICATIONS F ILED BY THE ASSESEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 .03.202 0 SD/- SD/- SAKTIJIT DEY G M ANJUNATHA JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 19.03.2020 10 MA NOS.538 TO 544/MUM/2019 THIRUMALESH, SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//
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