VISHINDA DIAMONDS, V. DCIT 16(3),

MA 539/MUM/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6216 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-03-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2003-2004
• Appeal Filed On: 03-09-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SRAVAN KUMAR
• Keywords: Business income
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, F, MUMBAI BEFORE SHRI R V EASWAR, PRESIDENT AND SHRI T R SOOD, ACCOUNTANT MEMBER MISCELLANEOUS APPLICATION NO: 539/MUM/2010 (ARISING OUT OF I T A NO: 5341/MUM/2009) (ASSESSMENT YEAR: 2004-05) M/S VISHINDA DIAMONDS, MUMBAI APPLICANT (PAN: AACFV3647G) VS DEPUTY COMMISSIONER OF INCOME TAX 16(3) RESPONDEN T MUMBAI APPLICANT BY: SHRI RAJ M SHROFF RESPONDENT BY: SHRI SRAVAN KUMAR O R D E R R V EASWAR, PRESIDENT: THIS IS A MISCELLANEOUS APPLICATION FILED BY THE A SSESSEE SEEKING RECALL OF THE ORDER OF THE TRIBUNAL PASSED ON 21.05.2010. A PERUSAL OF THE TRIBUNALS ORDER SHOWS THAT THE APPE AL FILED BY THE REVENUE WAS DISMISSED FOLLOWING ANOTHER ORDER OF TH E TRIBUNAL IN THE CASE OF DCIT VS. SHRI DILIPKUMAR V LAKHI IN ITA NO: 624/MUM/2007 DATED 11.03.2008. THE TRIBUNAL ALSO N OTICED THAT WHILE DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE, THE CIT(A) HAS FOLLOWED THE JUDGMENT OF THE HONBLE BOMBAY HIGH CO URT IN CIT VS. BADRIDAS GAURIDU (P) LTD., 261 ITR 256 (BOM), IN WH ICH IT WAS HELD THAT THE GAINS FROM FOREIGN EXCHANGE CONTRACTS SHOU LD BE TREATED AS BUSINESS INCOME QUALIFYING FOR THE DEDUCTION UNDER SECTION 80HHC OF THE INCOME TAX ACT, 1961. WE ARE UNABLE TO APPR ECIATE THE ASSESSEES PRESENT PLEA FOR RECALL OF THE TRIBUNAL S ORDER IN WHICH MA NO: 539/MUM/2010 (ITA NO: 5341/MUM/2009) 2 THE APPEAL OF THE REVENUE WAS DISMISSED. AT THE TIME OF THE HEARING BEFORE US THE LEARNED COUNSEL FOR THE ASSES SEE SUBMITTED THAT AS A RESULT OF THE ORDER OF THE TRIBUNAL, SOME OTHER ORDER PASSED BY THE CIT(A) IN FAVOUR OF THE ASSESSEE GOT NULLIFIED WITH THE RESULT THAT THE RELIEF GRANTED TO THE ASSESSEE GOT NULLIFIED. HE THEREFORE PLEADS THAT THE ORDER OF THE TRIBUNAL SHO ULD BE RECALLED. THESE ARE NOT MATTERS WHICH FALL WITHIN THE SCOPE O F MISTAKE APPARENT FROM THE RECORD WITHIN THE MEANING OF SECT ION 254(2) OF THE INCOME TAX ACT, 1961. THE CONTENTIONS OF THE L EARNED COUNSEL FOR THE ASSESSEE DO NOT ARISE OUT OF THE ORDER OF T HE TRIBUNAL, WHICH IS A SIMPLE ORDER CONFIRMING THE ORDER OF THE CIT(A ) WHO HAD APPLIED THE JUDGMENT OF THE HONBLE BOMBAY HIGH COURT CITED ABOVE. THE POSSIBLE RAMIFICATIONS OR CONSEQUENCES OF THE ORDER OF THE TRIBUNAL CANNOT BE LOOKED INTO FOR THE PURPOSE OF INVOKING S ECTION 254(2) OF THE ACT. PERHAPS THE REMEDY OF THE ASSESSEE LIES E LSEWHERE AND MAY BE DIFFERENT PROCEEDINGS HAVE TO BE TAKEN BEFOR E DIFFERENT AUTHORITIES. WE ACCORDINGLY REJECT THE ASSESSEES APPLICATION. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 11 TH MARCH 2011. SD/- SD/- (T R SOOD) (R V EASWAR) ACCOUNTANT MEMBER PRESIDENT MUMBAI, DATED 11 TH MARCH 2011 SALDANHA MA NO: 539/MUM/2010 (ITA NO: 5341/MUM/2009) 3 COPY TO: 1. M/S VISHINDA DIAMONDS 102, PRASAD CHAMBERS, OPERA HOUSE MUMBAI 400 004 2. DCIT 16(3), MUMBAI 3. CIT-16, MUMBAI 4. CIT(A)-XVII, MUMBAI 5. DR F BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI