Sharon Ashok Ranpise, Pune V. Assistant Commissioner of Income-tax, Central Circle -2(2), Pune

MA 55/PUN/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4183 (ITAT-PUNE)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-08-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 21-12-2018
• Assessment Year: 2008-2009
• Appeal Filed On: 19-07-2018
• Court: TRIBUNAL

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / M .A. NO.55/PUN/2018 (ARISING OUT OF ITA NO.2187/PUN/2013) / ASSESSMENT YEAR : 2008-09 THE ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(2), PUNE. APPLICANT. V/S MRS. SHARON ASHOK RANPISE, FLAT NO.701 TO 704, JASMINE BUILDING, FLOWER VALLEY, WANWORIE, PUNE 411 040. PAN : AFHPR1986B. RESPONDENT ASSESSEE BY : SHRI HARI KRISHAN. REVENUE BY : SHRI PANKAJ GARG. / ORDER PER ANIL CHATURVEDI, AM : 1. THE MISCELLANEOUS APPLICATION (M.A.) ARISING OUT OF THE ORDE R OF TRIBUNAL IN ITA NO.2187/PUN/2013 FOR A.Y. 2008-09 HAS BE EN FILED BY THE ASSESSEE. 2. BEFORE US, LD.A.R. SUBMITTED THAT WHILE DECIDING THE REVEN UES APPEAL THE HONBLE ITAT VIDE ORDER DATED 21.01.2018 HAD PARTL Y ALLOWED THE REVENUES APPEAL WHEREBY WITH RESPECT TO GROUND NO.1 O F REVENUE, ON ADDITION OF RS.7,50,000/-, THE TRIBUNAL HAS REVERSED THE OR DER OF LD.CIT(A) AND UPHELD THE ORDER OF AO. HE SUBMITTED THAT WHILE REVE RSING THE ORDER OF LD.CIT(A), THE HONBLE ITAT HAS HELD THAT REQUIREMENTS OF S EC.68 OF THE ACT HAVE NOT BEEN PROVED BUT HAD AT THE SAME TIME IGNORED THE PROVISIONS OF / DATE OF HEARING : 26.07.2019 / DATE OF PRONOUNCEMENT: 19.08.2019 2 SEC.132(4A)(II) AND THUS AN ERROR HAS OCCURRED IN THE ORDER OF THE TRIBUNAL. WITH RESPECT TO GROUND NO.2 WHICH WAS IN CONNECTION WITH THE SCALING DOWN OF THE COST OF RENOVATION OF FOUR FLATS ESTIMATED BY AO A T RS.1,50,00,000/- TO RS.30,00,000/- BY LD.CIT(A), ITAT HAD RESTRICTED THE ADDITION TO RS.50,00,000/-. LD.A.R. SUBMITTED THAT THE TRIBUNAL HAS PAS SED AN ORDER ON THIS ISSUE WHICH IS ADVERSE TO ASSESSEE. HE SUBMITTED T HAT MERE FACT THAT ASSESSEE HAS NOT FILED APPEAL AGAINST THE ORDER OF LD.CIT (A) TO AVOID PROTRACTED LITIGATION DOES NOT MEAN THAT ASSESSEE HAS A CCEPTED THE CORRECTNESS OF THE ADDITION UPHELD BY LD.CIT(A). HE FURTHER SUBMITTED THAT WHILE PASSING THE ORDER TO RESTRICT THE ADDITION TO RS.50 LACS, ITAT HAS IGNORED THE CONTENTIONS RAISED BY ASSESSEE OF THE INCORR ECTNESS OF THE VALUATION REPORT AND MATTER OF VALUATION REPORT BE REFERR ED TO DVO, BEFORE AO AND LD.CIT(A). HE THEREFORE SUBMITTED THAT IT HAS RESULTED INTO ERROR IN THE ORDER OF TRIBUNAL AND THEREFORE THE ORDER PASSED BY THE TRIBUNAL BE RECALLED TO CORRECT THE ALLEGED ERRORS. 3. THE LD DR ON THE OTHER HAND OBJECTED TO THE SUBMIS SIONS MADE BY LD AR AND SUBMITTED THAT THAT THE HONBLE BENCH WHILE DECID ING THE APPEAL OF THE ASSESSEE HAD CONSIDERED THE SUBMISSIONS OF THE ASSE SSEE AND HAS THEREAFTER DECIDED THE ISSUES. HE SUBMITTED THAT THERE WAS NO APPARENT MISTAKE IN THE ORDER OF TRIBUNAL. HE FURTHER SUBMITTED THAT THROUGH THIS M.A., THE ASSESSEE IS SEEKING A REVIEW OF THE ORDER PASS ED BY THE TRIBUNAL WHICH IS NOT PERMISSIBLE UNDER THE ACT. HE ALSO RELIED ON TH E DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. RAMES H ELECTRIC AND TRADING CO. REPORTED IN [1993] 203 ITR 497 FOR THE PROPO SITION THAT THE APPELLATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIONS OF THE ACT. HE THEREFORE SUBMITTED THAT THE M.A. FILED BY THE ASSESSEE BE DISMISSED. 3 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL ON RECORD. THE GRIEVANCE OF THE ASSESSEE AS STATED IN M.A. IS THAT THE TRIBUNAL WHILE UPHOLDING THE ORDER OF AO WITH RESPECT TO ADDITION OF RS.7.50 LACS HAS OBSERVED THAT THE REQUIREMENT OF SEC.68 OF THE ACT WERE NOT PROVED BY ASSESSEE BUT HAS IGNORED THE PROVISIONS OF SEC.132(4A)(II) OF T HE ACT. WITH RESPECT TO THE COST OF RENOVATION OF FOUR FLATS WHERE THE ADDITION HAS BEEN RESTRICTED TO RS.50 LACS AS AGAINST RS.30 LACS ESTIMATED BY LD.CIT(A), IT IS THE CONTENTION OF ASSESSEE THAT THE CONTENTIONS RAISED BY A SSESSEE BEFORE AO AND LD.CIT(A) HAVE NOT BEEN CONSIDERED. IT IS A SETTLED LAW TH AT THE POWER OF RECTIFICATION UNDER SECTION 254(2) OF THE INCOME-TAX ACT CA N BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBV IOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD, AND NOT A MIST AKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCES S OF REASONING. FURTHER, THE TRIBUNAL CANNOT IN EXERCISE OF ITS POWER OF RE CTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SU PPORT ITS CONCLUSION SO ARRIVED AT. THE MISTAKE WHICH THE TRIBUNAL IS ENTITLED T O CORRECT IS NOT AN ERROR OF JUDGMENT BUT A MISTAKE WHICH IS APPARENT FROM T HE RECORD ITSELF. IN THE PRESENT CASE, LD.CIT(A) RESTRICTED THE ADDITION TO R S.30 LACS AS AGAINST RS.1.50 CRORE MADE BY THE AO AND BEFORE THE TRIBUNAL, AS SESSEE HAS ALSO NOT PLACED ANY MATERIAL ON RECORD TO SUBSTANTIATE THE EXPEN DITURE INCURRED BY THE ASSESSEE TOWARDS THE RENOVATION COST OF FLATS AND IT IS A LSO A FACT THAT AGAINST THE ADDITIONS UPHELD BY LD.CIT(A), ASSESSEE WAS NOT IN APP EAL. WE ARE THUS OF THE VIEW THAT THERE IS NO MISTAKE WHICH IS APPARENT FROM THE RECORD. FURTHER, THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORD ER AS HELD BY HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. RAMESH ELECTRIC & TRADING CO. (1993) 203 ITR 497 (BOM.). WE FURTHER FIND THAT HONBLE CALCUTTA HIG H COURT IN THE CASE OF CIT VS. GOKUL CHAND AGARWAL REPORTED IN (19 93) 202 ITR 14 HAS HELD THAT AN OVERSIGHT OF A FACT CANNOT CONSTITUTE A N APPARENT MISTAKE 4 RECTIFIABLE U/S 245(2) OF THE ACT. IN VIEW OF THE AFORESAID FAC TS AND FOLLOWING THE DECISIONS CITED HEREINABOVE, WE ARE OF THE VIEW THAT S INCE THE ASSESSEE HAS FAILED TO POINT OUT ANY MISTAKE APPARENT FROM RECORD IN THE ORDER AS CONTEMPLATED U/S 254(2) OF THE ACT, WE ARE NOT INCLINED T O RECALL THE ORDER OF CO-ORDINATE BENCH OF THE TRIBUNAL IN ITA NO.2187/PUN/201 3 ORDER DATED 23.01.2018 AND THUS THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF ASSESSE E IS DISMISSED. ORDER PRONOUNCED ON 19 TH DAY OF AUGUST, 2019. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) # / JUDICIAL MEMBER $# / ACCOUNTANT MEMBER PUNE; DATED : 19 TH AUGUST, 2019. YAMINI %&'()*) ' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. ! / THE RESPONDENT 3. 4. 5 6. CIT(A), CENTRAL, PUNE. CIT, CENTRAL, PUNE. '#$!% %&',)! !&' , / DR, ITAT, A PUNE; $,-./ GUARD FILE. / BY ORDER // TRUE COPY // / 01%2&3 / SR. PRIVATE SECRETARY )! !&' , / ITAT, PUNE.