SAI SHIV DEVELOPERS, V. ACIT CIR 21(2),

MA 559/MUM/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5927 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-12-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2006-2007
• Appeal Filed On: 17-09-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R S SRIV ASTA
• Assessee Lawyers: D C JAIN
• Keywords: Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, E, MUMBAI BEFORE SHRI R.S.SYAL, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER MA NO. 559/MUM/2010 IN ITA NO. 2095/MUM/2010 (ASSESSMENT YEARS: 2006-07) M/S SAI SHIV DEVELOPERS AMAR MAHAL, ANANDRAO DEVLE MARG, NEAR CHAND CINEMA, JUHU MUMBAI-400089 PAN:AANFS2229J. . APPELLANT V/S ACIT 21(2), C-10, PRATYAKSHA KAR BHAVAN, BANDRA KURLA COMPKLEX, BANDRE(E), MUMBAI- RESPONDENT APPELLANT BY : SHRI D C J AIN RESPONDENT BY : SHRI R S SRIV ASTA O R D E R PER VIJAY PAL RAO,JM THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE IS FILED FOR RECTIFICATION OF MISTAKE /ERROR IN THE ORDER DA TED 11.06.2010 PASSED BY THIS TRIBUNAL IN ASSESSEES APPEAL BEARI NG ITA NO. 2095/MUM/2010 FOR THE ASSESSMENT PERIOD 2006-07. MA NO. 559/MUM/2010 IN ITA NO. 2095/MUM/2010 2 2. WE HAVE HEARD THE LEARNED AR AS WELL AS THE LEAR NED DR, PERUSED THE TRIBUNAL ORDER AND CONSIDERED THE R ELEVANT RECORD. THE LEARNED AR OF THE ASSESSEE HAS SUBMITT ED THAT THE CIT(A) HAS SUSTAINED THE PART OF THE ADDITION ON THE BASIS OF THE STATEMENT AS WELL AS THE LOOSE SHEETS IMPOU NDED. THESE LOOSE SHEETS WERE FOUND FROM THE PERSONS WHO WERE NOT IN THE EMPLOYMENT OF THE ASSESSEE AND CONTAINED ONLY ROUGH CALCULATIONS MADE BY THE ESTATE AGENT. THI S TRIBUNAL WHILE DECIDING THE ISSUE OF ADDITION OF ON MONEY ON SALE OF FLATS, BROKERAGE AND CAR PARKING CHARGES, ACCEPTED IN THE SAID IMPOUNDED DOCUMENT IN PART. THEREFORE, THIS TRIBU NAL HAS COMMITTED APPARENT MISTAKE ON RECORD THAT IT TOOK INTO CONSIDERATION THE RATE MENTIONED IN THE DOCUMENTS W HEREAS THE OTHER DETAILS ARE NOT FOUND AS CORRECT. THUS, THE MAIN CONTENTION OF THE LEARNED AR OF THE ASSESSEE IS TH AT THE THIS TRIBUNAL ACCEPTED THE PART OF THE DOCUMENT WHILE C ONFIRMING THE ADDITION MADE BY THE LOWER AUTHORITIES. 3. ON THE OTHER HAND, THE LEARNED DR HAS SUBMITTED THAT THIS ISSUE WAS DECIDED AFTER CONSIDERING ALL THE RE LEVANT CONTENTION AND RECORD AS WELL AS THE DECISIONS RELI ED UPON BY THE PARTIES. THEREFORE, THERE IS NO APPARENT MIST AKE ON THE RECORD WHICH CAN BE RECTIFIED U/S 254(2). MA NO. 559/MUM/2010 IN ITA NO. 2095/MUM/2010 3 4. AFTER CONSIDERING THE RIVAL CONTENTIONS AND RELE VANT RECORD, WE NOTE THAT WHILE DECIDING THE ISSUE INV OLVED IN THE APPEAL OF THE ASSESSEE THIS TRIBUNAL HAS ANALYZED ALL THE MATERIAL AND EVIDENCE FOUND DURING THE SEARCH AS W ELL AS THE STATEMENT RECORDED. SINCE THE LOWER AUTHORITIES HA VE TAKEN AREA OF THE FLAT AS PER THE IMPOUNDED DOCUMENTS BUT THE PURCHASER CANNOT HAVE LEGAL RIGHT AND TITLE OVER THE AREA MORE THAN THE AREA TRANSFERRED UNDER THE SALE DO CUMENT . IT WAS FURTHER OBSERVED BY THIS TRIBUNAL THAT EVEN OTHERWISE THE AREA ALWAYS REMAINS CONSTANT AND SUBJECT TO PHY SICAL VERIFICATION BUT THE AO DID NOT TAKE ANY STEP EITH ER DURING THE ASSESSMENT PROCEEDINGS OR DURING THE REMAND PROCEED INGS TO VERIFY AND SUSTAIN ACTUAL POSSESSION SOLD BY THE AS SESSEE DURING THIS YEAR. THEREFORE, THIS TRIBUNAL HAS DE LETED THE ADDITION MADE REGARDING THE AREA ON THE BASIS OF TH E IMPOUNDED DOCUMENTS. AS FAR AS THE RATE OF FLATS P ER SQ/FT. IS CONCERNED, SINCE THE RATE RECORDED IN THE IMPOUNDED DOCUMENT HAS BEEN CORROBORATED BY THE STATEMENT AND VICE- VERSA. THEREFORE, THE SAID ADDITION WAS CONFIRMED TO THE EXTENT THE RATE FOUND COMMON IN THE IMPOUNDED DOCUM ENTS AND THE STATEMENT RECORDED FROM VARIOUS PERSONS. T HUS, WHEN THIS TRIBUNAL HAS DECIDED THIS ISSUE AFTER ANALYZI NG ALL THE MATERIAL ON RECORD AND THE VERACITY OF EVIDENCE T HEN RE- CONSIDERATION OF THE EARLIER VIEW TAKEN WOULD AMOUN T TO REVIEW OF THE EARLIER ORDER WHICH IS NOT PERMISSIBLE UNDE R THE MA NO. 559/MUM/2010 IN ITA NO. 2095/MUM/2010 4 PROVISIONS OF SECTION 254(2). IT IS SETTLED PROPOSI TION OF LAW THAT A MISTAKE APPARENT ON RECORD MUST BE OBVIOUS, PATENT AND MANIFEST MISTAKE AND NOT SOMETHING WHICH CAN BE ES TABLISHED BY MAKING LONG DRAWN PROCESS OF REASONING ON THE POINT ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPA RENT FROM RECORD. THE ASSESSEE BY WAY OF THIS MISCE.APPLICAT ION SEEKS REAPPRAISAL OF THE EVIDENCE WHICH AMOUNTS TO REVIEW OF OUR EARLIER ORDER PASSED IN APPEAL, WHICH IS NOT PERMIS SIBLE UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT. THEREF ORE, IN OUR VIEW, THE RELIEF SOUGHT BY THE ASSESSEE IN THE MA IS BEYOND THE SCOPE OF SECTION 254(2). IT IS NOT A CASE OF CO NSIDERING ONLY ONE PART OF THE DOCUMENT WHICH IS AGAINST THE ASSESSEE AND OTHER WAS NOT CONSIDERED. IT IS A CASE WHERE T HE ENTIRE IMPOUNDED DOCUMENTS WERE AGAINST THE ASSESSEE BU T SINCE THE SOME PART OF THE IMPOUNDED DOCUMENTS HAS BEEN CORROBORATED BY THE OTHER EVIDENCE, THEREFORE, ONLY THAT PART HAS BEEN CONSIDERED AGAINST AND REMAINING WAS TREAT ED AS UN- CORROBORATED EVIDENCE. ACCORDINGLY, WE DO NOT FIND ANY SUBSTANCE OR MERIT IN THE MISC. APPLICATION FILED B Y THE ASSESSEE THE SAME IS DISMISSED. MA NO. 559/MUM/2010 IN ITA NO. 2095/MUM/2010 5 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE STANDS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 10.12.2010 SD SD (R.S.SYAL) (VIJAY PAL RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 10 TH DEC JUNE 2010 SRL:2610 COPY TO: 1. M/S SHIV DEVELOPERS AMAR MAHAL, ANANDRAO DEVLE MARG, NEAR CHAND CINEMA, JUHU MUMBAI-400089 PAN:AANFS2229J. 2.ACIT 21(2), C-10, PRATYAKSHA KAR BHAVAN, BANDRA KURLA COMPKLEX, BANDRE(E), MUMBAI- 3. CIT-CITY-XXI 4. ADD.CIT 21(3), MUMBAI. 5. ACIT 12(30, MUMBAI 6. CCIT(A)-XI, MUMBAI 7. CIT(A),-32, MUMBAI 7. DR E BENCH BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI MA NO. 559/MUM/2010 IN ITA NO. 2095/MUM/2010 6 ` DATE INITIALS 1. DRAFT DICTATED ON 26.11.2010 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 2.12.2010 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER VP 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM 5. APPROVED DRAFT COMES TO THE SR. PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER