MAHESH ENTERPRISES, V. ITO WD 22(1)(1),

MA 565/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7070 (ITAT-MUMBAI)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-08-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 05-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K G KUTTY
• Assessee Lawyers: G C LALKA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B, MUMBAI BEFORE SHRI D. MANMOHAN,VICE PRESIDENT AND SHRI P.M.JAGTAP, ACCOUNTANT MEMBER M.A. NO. 565/MUM/2011 (ITA NO. 180/MUM/2008) ASSESS MENT YEAR : 2005-06. M/S MAHESH ENTERPRISES, THE INCOME-TAX OFFICER, T.M. GOSHER & CO., C.AS., VS. WARD-22(1)(1), 12, SHIVAJI FORT COOP.HSG. MUMBAI. SOC LTD., N.S.MANKIKAR MARG, SION (E), MUMBAI 400 022. PAN : AABFM0973D APPLICANT. RESPONDENT. APPLICANT BY : SHRI G.C.LALKA. RESPONDENT BY: S HRI K.G. KUTTY. O R D E R PER P.M. JAGTAP, A.M. : BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE I S SEEKING RECTIFICATION OF THE MISTAKES ALLEGED TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DATED 30 TH JULY, 2010 PASSED IN I.T.A. NO. 180/MUM/2008 2. AS SUBMITTED BY THE ASSESSEE IN THE PRESENT MIS CELLANEOUS APPLICATION AND FURTHER REITERATED BY ITS COUNSEL AT THE TIME OF HE ARING BEFORE US, THE FOLLOWING MISTAKE HAS ALLEGEDLY CREPT IN THE ORDER OF THE TR IBUNAL: 2 M.A.NO. 565/MUM/2011 WE ARE IN RECEIPT OF THE ORDER DATED 30.7.2010 OF INCOME TAX APPELLATE TRIBUNAL B BENCH, WHEREIN THE HONOURABLE MEMBERS HAVE HELD THAT THE CONFIRMATION LETTER DATED 23.10.2007 FROM AKBARALLY S IN RESPECT OF GOODS SUPPLIED TO THEM COULD NOT HAE BEEN FILED WITH THE ASSESSING OFFICER AS THE ASSESSMENT ORDER WAS ALREADY PASSED ON 10.09.2007. THE HONOURABLE MEMBERS SHOULD HAVE CONSIDERED THE F ACT THAT THE CONFIRMATION LETTER DATED 23.01.2007 WAS FILED WITH THE INCOME TAX OFFICER UNDER THE COVER OF OUR CHARTERED ACCOUNTANTS LETTE R DATED 24-01-2007 IN THE COURSE OF THE ASSESSMENT PROCEEDINGS. THE RECEIPT O F THE SAID LETTER IS DULY ACKNOWLEDGED BY THE LEARNED ASSESSING OFFICER. WE R EQUEST YOUR HONOURS TO DECIDE THE MATTER IN THE LIGHT OF THESE FACTS AN D THE MATERIAL SUBMITTED EARLIER. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT THIS ASPECT OF THE MATTER AS MENTIONED BY THE ASSESSEE IN THE PRESENT APPLICATION HAS BEEN CONSI DERED BY THE TRIBUNAL IN PARAGRAPH NO. 11 OF ITS ORDER WHICH READS AS UNDER : THE LEARNED COUNSEL FOR THE ASSESSEE HAS REFERRED TO PAGE 18 OF THE PAPER BOOK WHICH IS A CERTIFICATE ISSUED ON 23.10.2 007 BY THE ADS TO THE EFFECT THAT THEY HAD PURCHASED GOODS FROM THE ASSES SEE FOR RS.38,07,328/- ON WHICH COUNT OF RS.8,04,527/- WAS PAID TO THEM. THIS PAPER HAS BEEN CERTIFIED BY THE ASSESSEE TO HAVE BEEN FILED BEFORE THE ASSES SING OFFICER AS INDEXED IN THE PAPER BOOK. BUT WHEN WE LOOK AT THE ASSESSMENT ORDER, WE FIND THAT IT HAS BEEN PASSED ON 10.09.2007, MORE THAN A MONTH BE FORE THE DATE OF THE CERTIFICATE. THE CERTIFICATE COULD NOT HAVE BEEN FI LED BEFORE THE ASSESSING OFFICER. WE HOWEVER DO FIND THAT THIS HAS BEEN SUBM ITTED BEFORE THE CIT(A). BE THAT AS IT MAY, NO CREDIBILITY CAN BE ATTACHHED TO THE CERTIFICATE SINCE IT IS ONLY THE OPINION OF ADS THAT WHAT THEY HAVE RECEIVE D FROM THE ASSESSEE IS A DISCOUNT WHICH GOES CONTRARY TO THE TERMS OF THE WR ITTEN AGREEMENT WHICH HAS NOT BEEN SHOWN TO HAVE BEEN ABANDONED OR TERMIN ATED. IT IS MANIFEST FROM THE OBSERVATIONS/FINDINGS RECOR DED BY THE TRIBUNAL AS ABOVE THAT ALTHOUGH THE CONFIRMATION LETTER DATED 23-10-2007 W AS TAKEN AS NOT FILED BY THE ASSESSEE BEFORE THE AO, THE SAME HAVING BEEN FILED BY THE ASSESSEE BEFORE THE LEARNED CIT(APPEALS), IT WAS TAKEN INTO CONSIDERATI ON BY THE TRIBUNAL WHILE 3 M.A.NO. 565/MUM/2011 DECIDING THE ISSUE ON MERIT. IT, THEREFORE, CANNOT BE SAID THAT ANY RELEVANT FACT OR MATERIAL WAS NOT CONSIDERED BY THE TRIBUNAL AND, IN OUR OPINION, THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL DATED 30 TH JULY, 2010 AS ALLEGED BY THE ASSESSEE IN THE PRESENT MISCELLANEOUS APPLICATION CALLING FO R ANY RECTIFICATION U/S 254(2). WE, THEREFORE, DISMISS THIS MISCELLANEOUS APPLICATI ON FILED BY THE ASSESSEE. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THIS 3 RD DAY OF AUGUST, 2012. SD/- SD/- (D. MANMOHAN) (P.M. JAGTAP) VICE PRESIDENT ACCO UNTANT MEMBER MUMBAI, DATED: 3 RD AUGUST, 2012 WAKODE COPY TO : 1. APPLICANT. 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, B-BENCH. (TRUE COPY) BY ORDE R ASSTT. REGISTRAR, ITAT, MUMBAI BEN CHES, MUMBA I.