RAMONA PINTO, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX 23(3), THANE

MA 569/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6731 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 31-08-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S ABI RAMA KARTHIKEYAN
• Keywords: Reopening of assessment; Rectification of order; Additional evidence; Difference of opinion; Valuation report; Reason to believe; Change of opinion
• Section: 142(1); 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI RAM LAL NEGI, JM M .A. NO. 569/MUM/2018 (ARISING OUT OF ITA NO. 3523/MUM/2017 ) ( ASSESSMENT YEAR: 2010 - 11 ) RAMONA PINTO K P D & ASSOCIATES 201 - 202, 2 ND FLOOR, C OMET BUILDING, NEAR BANDRA LAKE, GURU NANAK ROAD, BANDRA (W), MUMBAI - 400 050 / VS. DY. CIT - 23(3), MATRU MANDIR, 1 ST FLOOR, TARDEO ROAD, MUMBAI - 400 007 ./ ./ PAN/GIR NO. ( / APPELLANT ) : ( / RESPONDENT ) APPELLANT BY : SHRI PERCY J. PARDIWALA RESPONDENT BY : SHRI S. ABI RAMA KARTHIKEYAN DATE OF HEARING : 28.12.2018 DATE OF PRONOUNCEMENT : 23.01 .2019 ORDER U/S. 254(2) OF THE INCOME TAX ACT, 1961 PER SHAMIM YAHYA, A. M.: THE SUBJECT MATTER OF THE INCOME TAX APPEAL BY THE ASSESSEE IN ITA NO. 3523 /MUM/2017 FOR ASSESSM ENT YEAR 2010 - 11 VIDE ORDER DATED 02.04.2018 WAS EXIGIBILITY T O TAXATION OF THE SUM OF RS.28 CRORES R ECEIVED B Y THE ASSESSEE PURSUANT TO AN ARBITRATION AWARD, CHALLENGED BOTH ON THE ISSUE OF VALIDITY OF REOPENING AND UPON MERITS. THE ITAT HAD D ECIDED BOTH THE ISSUE AGAINST THE ASSESSEE. NOW B Y WAY OF THIS MISCELLANEOUS APPLICATION THE ASSESSEE SEEKS ORDER U/S. 254(2) OF THE INCOME TAX ACT, 1961 (THE ACT' FOR SHORT) AGAINST THE ABOVE ORDER. 2 M.A. NO. 569/MUM/2018 2. THE FIRST SUBMISSION OF THE LD. COUNSEL OF THE ASSESSEE IS THA T IT IS WELL SETTLED BY NOW BASED ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF PARIMISETTI SEETHARAMAMMA 57 ITR 532 AND THE HIGH COURT AT BOMBAY IN THE CASE OF MEHBOOB PRODUCTIONS PVT. LTD . 106 ITR 758 THAT THE BURDEN TO SHOW THAT A RECEIPT IS OF AN INCOME NATURE , IS ON THE REVENUE. IT IS SUBMITTED THAT BASED UPON IT, IT WAS PLEADED THAT THE REASON RECORDED BY THE A.O. FOR ALLEGED ESCAPEMENT OF INCOME WITHOUT SHOWING HOW THE AMOUNT RECEIVABLE AS PER THE ARBITRATION AWARD COULD BE OF AN INCOME NATURE. IN THIS REGARD, IT HAS BEEN SUBMITTED THAT THE TRIBUNAL HAS CONSIDERED THE HONBLE APEX COURT DECISION IN THE CASE OF CIT VS. RAJESH JHAVERI STOCK BROKERS P. LTD. (291 ITR 500) AND DCIT VS. ZUARI ESTATE DEVELOPMENT AND INVESTMENT CO. LTD. 373 ITR 661. FURTHER, IT HAS BEEN SUBMITTED THAT THE LD. COUNSEL OF THE ASSESSEES RELIANCE UPON THE HON'BLE BOMBAY HIGH COURT DECISION IN THE CASE OF PRASHANT S. JOSHI VS. ITO 324 ITR 154 AND KHUBCHANDANI HEALTHPARKS PVT. LTD. VS. ITO 384 ITR 322 HAS NOT BEEN CON SIDERED BY THE ITAT. HENCE, IT IS THE PLEA OF THE ASSESSEE THAT SINCE THE A.O. HAD NOT DISCHARGED THE BURDEN PLACED ON HIM AND SHOWN HOW THE SAID AMOUNT AS PER THE ARBITRATION AWARD COULD BE REGARDED AS HER INCOME, THE REASONS RECORDED BEFORE REOPENING THE ASSESSMENT WAS INVALID. 3. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (LD. DR FOR SHORT) SUBMITTED THAT ALL THE ISSUES HAVE BEEN CONSIDERED BY THE ITAT IN ITS ORDER AND SUBMITTED THAT WHAT THE ASSESSEE IS SEEKING IS A REVIEW OF THE ORDER , WHICH IS NOT PERMISSIBLE IN THE LAW. 4. UPON CAREFUL CONSIDERATION, WE FIND THAT IN THIS REGARD WE MAY GAINFULLY REFER TO THE TRIBUNALS CONCLUDING ADJUDICATION O N THE ISSUE OF REOPENING WHICH READS AS UNDER: 3 M.A. NO. 569/MUM/2018 18. UPON CAREFUL CONSIDERATION, WE FIND THAT THE INFO RMATION WAS RECEIVED BY THE ASSESSING OFFICER FROM THE ITO - 17(3)(3), MUMBAI, THAT AN AMOUNT OF RS.28,00,00,000/ - WAS AGREED TO BE PAID TO THE ASSESSEE AS SETTLEMENT THROUGH ARBITRATION AWARD BY M/S, P.N. WRITER & CO. OUT OF WHICH AN AMOUNT OF RS.7,05,04, 72/ - WAS PAID TO THE ASSESSEE IN THE A.Y. 2010 - 11. THE ASSESSING OFFICER CALLED FOR THE CASE RECORDS OF M/S. P.N. WRITER & CO. FROM ITO - 17(3)(3), MUMBAI, AND AFTER GOING THROUGH THEM IT WAS OBSERVED BY THE ASSESSING OFFICER THAT PRIMA FACIE THERE WAS MAT ERIAL ON RECORD WHICH SHOWED THAT INCOME HAD ESCAPED ASSESSMENT. THEREFORE, AFTER RECORDING REASONS, A NOTICE U/S.148 OF THE ACT WAS ISSUED ON 19.03.2014 WHICH WAS DULY SERVED ON THE ASSESSEE. SUBSEQUENTLY, NOTICES U/S 143(2) AND 142(1) DATED 18.06.2014 WE RE ALSO ISSUED AND SERVED ON THE ASSESSEE. THE ASSESSEE HAD FILED OBJECTIONS AGAINST THE REOPENING OF ASSESSMENT WHICH WERE DISPOSED OFF VIDE ORDER DATED 21,08.2014. THE ASSESSEE HAD FILED A WRIT PETITION AGAINST THIS ORDER DATED 21.08.2014 WHICH WAS TREAT ED AS DISMISSED BY THE HON'BLE BOMBAY HIGH COURT AS THE SAME WAS WITHDRAWN. 19. IN THE ABOVE FACTUAL SCENARIO, WE NOTE THAT ON THE BASIS OF THE INFORMATION AND THE FACT THAT AN AMOUNT OF RS.7 CRORES WAS NOT OFFERED TO TAX IN THE RETURN OF INCOME, THE ASS ESSING OFFICER FORMED A REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. IN OUR CONSIDERED OPINION, UNDOUBTEDLY THERE IS A LIVE LINK BETWEEN THE INFORMATION RECEIVED AND THE ESCAPEMENT OF INCOME. SUCH REOPENING OF ASSESSMENT ALSO CAN NOT BE SAID TO BE ON ACCOUNT OF CHANGE OF OPINION AS THE RETURN OF INCOME AND ASSESSEE WAS PROCESSED ONLY U/S. 143(1) OF THE ACT WHEREIN THE ISSUE OF TAXABILITY OF ARBITRATION AWARD WAS NOT CONSIDERED. A MENTION IN THE FINE PRINTS CAN BY NO STRETCH OF IMAG INATION BE CONSIDERED SUFFICIENT INFORMATION GIVEN IN THE ORIGINAL RETURN. HENCE, THERE CAN BE NO QUESTION OF CHANGE OF OPINION, WHEN NO OPTION ON THE ISSUE WAS FORMED IN THE FIRST PLACE. IN THIS REGARD, IN OUR CONSIDERED OPINION, THE LD. COMMISSIONER OF I NCOME TAX (APPEALS) HAS PASSED A REASONABLE ORDER BY APPRECIATING THE FACTS AND LAW IN THIS REGARD. THE RELIANCE BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) UPON THE DECISION OF HONBLE APEX COURT IN THE CASE OF DCIT VS ZUARI ESTATE DEVELOPMENT & INVES TMENT CO. LTD [2015] REPORTED IN 63 TAXMANN.COM 177 (SC) AND THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME TAX V. RAJESH JHAVERI STOCK BROKERS P. LTD. REPORTED IN (2007) 291 ITR 500 ARE GERMANE AND DULY SUPPORT THE CASE OF THE REVENUE. THE DECISIONS REFERRED BY THE LD. COUNSEL OF THE ASSESSEE ARE DISTINGUISHABLE ON FACTS AND MOREOVER, SINCE THE REOPENING HAS TO BE FOUND TO BE VALID ON THE TOUCHSTONE OF THE ABOVE HONBLE APEX COURT DECISIONS, THE DECISIONS REFERRED BY THE LD. COUNSEL OF THE ASSESSEE DO NOT OXYGENATE THE CASE OF THE ASSESSEE. HENCE, IN THE ABOVE FACTUAL SCENARIO AND THE CASE LAW OF THE HONBLE APEX COURT, WE ARE OF THE CONSIDERED OPINION THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS PASSED A REA SONABLE ORDER UPHOLDING THE VALIDITY OF THE REOPENING. HENCE, WE DO NOT FIND ANY INFIRMITY IN THE SAME. HENCE, THE ASSESSEES CHALLENGE TO THE REOPENING FAILS. 5. FROM THE ABOVE, WE FIND THAT THE ITAT HAS DULY CONSIDERED THE ISSUE BASED ON THE JUDGMENT S PLACING RELIANCE UPON THE CASE LAWS AS ABOVE. T HE ITAT HAS ALSO CATEGORICALLY REFERRED THAT THE DECISIONS REFERRED BY THE LD. COUNSEL OF THE ASSESSEE ARE DISTINGUISHABLE 4 M.A. NO. 569/MUM/2018 ON THE FACTS. THE TRIBUNAL HAD DULY NOTED THAT ON THE BASIS OF THE INFORMATION AND THE FACT THAT AN AMOUNT OF RS.7 CRORES WAS NOT OFFERED TO TAX IN THE RETURN OF INCOME, THE ASSESSING OFFICER FORMED A REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. THE TRIBUNAL FOUND LIVE LINK BETWEEN THE INFORMATION RECEIVED AND THE ESCAPEMENT OF INCOME. IT WAS ALSO NOTED THAT THE ISSUE OF REOPENING OF ASSESSMENT ALSO CANNOT BE SAID TO BE ON ACCOUNT OF CHANGE OF OPINION. IT WAS ALSO MENTIONED THAT A MENTION IN THE FINE PRINTS CAN BY NO STRETCH OF IMAGINATION BE CONSIDERED SUFFICIENT INFORMATION GIVEN IN THE ORIGINAL RETURN. THE ITAT UPHELD THE L D. C IT(A)S ORDER WHICH NOTED THAT IT IS NOT THE STATUTORY REQUIREMENT THAT THE ESCAPEMENT OF INCOME CHARGEABLE TO TAX SHOULD BE PROVED TO THE HILT BEFORE REOPENING OF THE ASSESSMENT. 6. IN VIEW OF THE ABOVE, WE ARE OF THE CONSIDERED OPINION THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD WHICH IS RECTIFIABLE U/S. 254(2) OF THE ACT IN THE ORDER OF THE ITAT WITH REGARD TO THE REOPENING. WHAT THE LD. COUNSEL OF THE ASSESSEE IS SUBMITTING IS THAT THE ITAT HAS ERRED INASMUCH AS IT HAS NOT UPHELD THE PROPOSITION THAT THE A.O. SHOULD HAVE CONCLUSIVELY PR OVE IN THE REASONS RECORDED THAT THERE WAS ESCAPEMENT OF INCOME. THUS, THE LD. COUNSEL OF THE ASSESSEE IS SEEKING A REVIEW OF THE ORDER. MOREOVER , T HIS IS NEITHER THE INTENDMENT OF THE ACT NOR HAS THE SUPPORT OF ANY CASE LAWS MENTIONED HEREINABOVE. ACCORDINGLY, THE MISCELLANEOUS APPLICATION QUA THE ISSUE OF REOPENING IS DISMISSED. 7. AS REGARDS THE MERITS OF THE ISSUE, IT IS THE SUBMISSION OF TH E LD. COUNSEL OF THE ASSESSEE THAT IN GROUND NO. 8, IT WAS URGED THAT THE LD. CIT(A) WAS WRONG IN IGNORING THE VALUATION REPORTS OF THE PROPERTIES OF THE FIRM OF P. N. WRITER & CO. IT HAS BEEN SUBMITTED 5 M.A. NO. 569/MUM/2018 THAT THE REASON GIVEN BY THE LD. CIT(A) AS WELL AS TH E TRIBUNAL IS THAT THE ASSESSEE HAS NOT BEEN ABLE TO JUSTIFY THE BASIS ON WHICH THE SAID AMOUNT HAS BEEN DELETED. TH AT TH IS INFORMATION IS AVAILABLE ON RECORD. IT HAS FURTHER BEEN SUBMITTED THAT BY GROUND NOS. 9 & 10 , THE ASSESSEE INTER ALIA URGED THAT TH E LD. CIT(A) ERRED IN HOLDING THAT THE ARBITRATION AWARD HAS BEEN RECEIVED IN LIEU OF A COMPOSITE BUNDLE OF RIGHT. IT HAS FURTHER BEEN SUBMITTED THAT VIDE GROUND NO. 12, THE ASSESSEE URGED ON WITHOUT PREJUDICE BASIS THAT THE AMOUNT RECEIVED BY THE ASSESSE E WAS NOT WHOLLY AND EXCLUSIVELY RECEIVED ON HER RETIREMENT FROM THE PARTNERSHIP FIRM OF P. N. WRITER & CO., THAT THE REVENUE HAS NOT ESTABLISHED HOW THE SAID RECEIPT WAS OF AN INCOME CHARACTER. IT HAS FURTHER BEEN SUBMITTED THAT IT WAS ALSO REQUIRED TO CO NSIDER WHAT THE COMPONENT OF AMOUNT WOULD RELATE TO RIGHTS UNDER FATHERS WILL AND/ OR FAMILY SETTLEMENT AND TAXABILITY THEREUNDER . IT HAS BEEN FURTHER SUBMITTED THAT THE ENTIRE RECEIPTS ALSO CANNOT BE RECORDED AS INCOME UNDER THE HANDS OF THE RECIPIENT. IT HAS FURTHER BEEN SUBMITTED THAT THE A.O. AS WELL AS THE LD. CIT(A) AND THE TRIBUNAL HAVE REFERRED TO THE STATEMENT OF DENZIL D'SOUZA AND SINCE HIS CROSS EXAMINATION WAS NOT PERMITTED, RELIANCE UPON THE SAME IS A MISTAKE APPARENT FROM THE RECORD. 8. P ER CONTRA, THE DR SUBMITTED THAT ALL THE SUBMISSIONS AND THE ARGUMENTS OF THE LD. COUNSEL OF THE ASSESSEE HAS BEEN DULY CONSIDERED BY THE ITAT. HENCE, HE SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF THE TRIBUNAL. 6 M.A. NO. 569/MUM/2018 9. UPON CAR EFUL CONSIDERATION, WE NOTE THAT IN THIS REGARD, WE MAY GAINFULLY REFER TO THE ORDER OF THE TRIBUNAL, ADJUDICATIN G UPON THE MERITS OF THE ISSUES WHICH READ AS UNDER: 20. AS REGARDS THE MERITS OF THE CASE, WE FIND THAT THE ASSESSEE HAS RECEIVED AN ARBITRAT ION AWARD FOR RS.28 CRORES, UPON RELINQUISHMENT OF HER RIGHTS IN THE PARTNERSHIP OF M/S. P. N. WRITER & CO. HERE IT MAY BE GAINFUL TO RECOUNT THE BRIEF HISTORY OF THE CASE WHICH LEADS TO THE ARBITRATION WARD. T HE ASSESSEE WAS A PARTNER IN M/S P.N.WRITER & CO. A FRESH PARTNERSHIP DEED WAS EXECUTED IN 1997 WHEREIN THE NAME OF THE ASSESSEE WAS EXCLUDED FROM THE PARTNERSHIP FIRM. HOWEVER, AS CLAIMED BY THE ASSESSEE, THIS NEW PARTNERSHIP DEED WAS PREPARED WITHOUT HER CONSENT AND SHE WAS SHOWN AS RETIRED FROM TH E SAID FIRM WITHOUT HER KNOWLEDGE. THE ASSESSEE, THEREFORE, FILED VARIOUS SUITS AGAINST THE PARTNERS, FIRM AND VARIOUS ENTITIES HELD BY THE PARTNERSHIP FIRM. ULTIMATELY, THE ASSESSEE WAS GRANTED ARBITRATION AWARD OF RS.28,00,00,000/ - ON 25.09.2009 BY THE A RBITRATOR APPOINTED BY THE HON'BLE SUPREME COURT AS PER MUTUALLY AGREED CONSENT TERMS FOR RELINQUISHMENT OF ALL HER RIGHTS AND BENEFITS IN THE FIRM AND FOR WITHDRAWAL OF ALL CLAIMS AGAINST THE PARTNERS, FIRM AND ENTITIES HELD BY PARTNERS, THE ARBITRATION A WARD, HOWEVER, MADE NO MENTION OF WHETHER THE ASSESSEE WAS ACTUALLY RETIRED FROM THE FIRM IN 1997. 21. IN THIS REGARD, IT MAY ALSO BE GAINFUL TO REFER TO CERTAIN POINTS OF THE CONSENT TERM WHICH READ AS UNDER: (I) THE CONSENT TERMS DID NOT SPEAK ANYTHING ABOUT RETIREMENT OF MRS. RAMONA PINTO FROM THE PARTNERSHIP FIRM M/S P.N. WRITER & COMPANY. (II) IT WAS NOWHERE MENTIONED IN CONSENT TERMS THAT THE ARBITRATION AMOUNT OF RS. 28 CRORES WAS AN AMOUNT AWARDED TO MRS. RAMONA PINTO FOR HER RETIREMENT FROM M/S P .N. WRITER & COMPANY. (III) THE AMOUNT AWARDED TO THE APPELLANT WAS ALSO FOR WITHDRAWAL OF HER RIGHTS AND BEQUESTS MADE TO HER UNDER THE WILL DATED 16.09.1990 OF HER LATE FATHER SHRI CHARLES D'SOUZA. (IV) THE ARBITRATION AWARD WAS GIVEN NOT ONLY FOR WITHDR AWAL OF SUIT AGAINST PARTNERS AND PARTNERSHIP FIRM BUT IT WAS ALSO GRANTED FOR WITHDRAWING ALL THE SUITS AGAINST ENTITIES OWNED AND CONTROLLED BY THE PARTNERS. (V) CONDITION NO.9 OF CONSENT TERMS STATED THAT THE APPELLANT AND HER HUSBAND ETIENNE PINTO HAD NO INTEREST IN PROPERTIES LISTED IN CLAUSE 9 AND THEY WOULD ENSURE EXECUTION OF NECESSARY DOCUMENTS FOR TRANSFER OF PROPERTIES WHICH PRESENTLY STOOD IN THEIR NAMES IN FAVOUR OF EXISTING PARTNERS. THIS CONDITION HAD NO REFERENCE WITH THE RETIREMENT OF THE A PPELLANT FROM THE PARTNERSHIP FIRM. (VI) AS PER CONDITION NO.12, THE APPELLANT'S HUSBAND WAS ALSO REQUIRED TO SIGN THE CONSENT TERMS IN ACCEPTANCE OF HIS OBLIGATIONS AS SET OUT IN THE CONSENT TERMS. THOUGH HER HUSBAND HAD NO RELATION TO M/S P.N.WRITER & CO ., IT WAS AGREED THAT THE HUSBAND SHALL ALSO SIGN CONSENT TERMS AND SHALL ALSO TRANSFER BACK ASSETS MENTIONED IN CONDITION NO.9 WHICH WAS IN THE NAME OF THE APPELLANT AS WELL AS IN THE NAME OF HER HUSBAND. 22. WHEN THE ABOVE FACTS ARE VIEWED IN THE LIGHT OF THE FACT THAT THERE ARE NO POSITIVE BALANCE OF THE CAPITAL ACCOUNT OF THE ASSESSEE WITH M/S. P. N. WRITER & CO., THE QUESTION 7 M.A. NO. 569/MUM/2018 OF THE BALANCE IN HER CAPITAL ACCOUNT BEING RETURNED BACK TO HER CERTAINLY DOES NOT ARISE. THE ABOVE FACTS CLEARLY INDICATE THA T THE ARBITRATION AWARD WAS RECEIVED BY THE ASSESSEE NOT FOR RETIREMENT FROM PARTNERSHIP FIRM BUT WAS IN LIEU OF RELINQUISHMENT OF ALL HER RIGHTS, CLAIM AND DEMAND OF ANY NATURE WHATSOEVER AGAINST THE PARTNERSHIP FIRM M/S P.N.WRITER & CO. AND ALL OTHER ENT ITIES OWNED AND CONTROLLED BY THE FIRM AND PARTNERS AND FOR WITHDRAWING ALL THE SUITS AGAINST ALL THE ENTITIES. IT IS FURTHER TO BE NOTED HERE THAT AS PER PARA 9 OF THE CONCERNED TERMS, THE ASSESSEE AND HER HUSBAND WHO HAD NOTHING TO DO WITH THE SAID FIRM IN ANY CAPACITY ARE TO EXECUTE ALL NECESSARY DOCUMENTS TO FACILITATE TRANSFER OF PROPERTIES (LISTED AT A. TO F. UNDER PARA 9 OF CONSENT TERMS) PRESENTLY STANDING IN THEIR NAMES EITHER TO THE OTHER PARTNERS OF THE FIRM AND/OR TO PERSONS NOMINATED BY THEM. T HE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER FOUND THAT THIS PROPERTY AND ASSETS INCLUDED THE FOLLOWING : I. 55 EQUITY SHARES OF RS.1,000 EACH FULLY PAID UP IN OCEAN AIR TRANSPORT AND INVESTMENT COMPANY PVT. LTD. HELD IN THE NAME OF THE APPELLA NT WHICH HAS NO CONNECTION WITH HER INTEREST IN THE FIRM OR THE ASSETS OF THE FIRM. II. 2001 EQUITY SHARES OF RS. 1,000 EACH FULLY PAID UP IN JOSCO INTERNATIONAL SHIPPING AGENCY PVT. LTD. HELD IN THE NAME OF MR. ETIENNE PINTO, HUSBAND OF THE APPELLANT, WH ICH HAS NO CONNECTION WITH HER INTEREST IN THE FIRM OR THE ASSETS OF THE FIRM. 23. FROM THE ABOVE, WE AGREE WITH THE LD. COMMISSIONER OF INCOME TAX (APPEALS) THAT WHEN THE ARBITRATION AWARD WAS GIVEN IN CONSIDERATION OF THE ASSESSEE GIVING CERTAIN RIGHTS A ND INTERESTS IN ASSETS WHICH INCLUDED RIGHTS AND INTERESTS IN ASSETS WHICH HAVE NOT EVEN A REMOTE CONNECTION WITH HER INTEREST IN THE FIRM OR THE ASSETS OF THE FIRM, THE ARBITRATION AWARD CANNOT BE SAID TO BE GIVEN ON ACCOUNT OF HER RETIREMENT FROM THE FIR M. FURTHER, AS RIGHTLY OBSERVED BY THE AUTHORITIES BELOW, THE ACCEPTED PRACTICES UPON RETIREMENT FROM THE FIRM IS THAT THE SHARE IN THE PARTNERSHIP SHIP IS WORKED OUT BY DRAWING OF ACCOUNTS IN THE MANNER PRESCRIBED BY THE RELEVANT PROVISION OF THE PARTNERS HIP LAW. HIS/HER SHARE IN NET PARTNERSHIP ASSET AFTER DEDUCTION OF LIABILITIES AND PRIOR CHARGES IS DETERMINED AND THE SAME IS GIVEN TO HIM. IN THE PRESENT CASE, NO SUCH DETERMINATION REGARDING THE SHARE OF THE ASSESSEE IN THE PARTNERSHIP FIRM HAS BEEN DON E. THE ASSESSEE DESPITE REQUEST MADE IN THIS REGARD BY THE ASSESSING OFFICER HAS NOT BEEN ABLE TO PROVIDE THE WORKING OF THE SHARE IN THE NET ASSET OF THE FIRM AND HAS GENERALLY STATED THAT IT WAS BASED ON THE MARKET VALUE OF THE ASSET OF THE FIRM. BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ALSO NO DETAIL WORKING HAS BEEN GIVEN EXCEPT FOR SUBMITTING THE VALUATION REPORT OF THE ASSETS BY WAY OF ADDITIONAL EVIDENCE. 24. THUS FROM THE ABOVE, IT IS CLEAR THAT NEITHER THE ARBITRATION AWARD NOR THE CONC ERNED TERMS MADE ANY MENTION OR A DECLARATION OR A DECISION FOR A FINDING THAT THE ASSESSEE RETIRED FROM THE FIRM IN THE YEAR 1997. NEITHER DOES THE ARBITRATION AWARD OR CONSENT TERMS ANYWHERE SPECIFY THAT THE SUM OF RS.28 CRORES REPRESENTS THE PAYMENT TO THE ASSESSEE FOR HER RETIREMENT FROM P.N.WRITER & CO. AS A MATTER OF FACT, THE BASIS OF THE ARBITRATION AWARD WAS NEVER GIVEN. AS RIGHTLY OBSERVED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) THAT THE RETIREMENT OF A PARTNER FROM THE FIRM HAS TO BE AN E VIDENT FACT AND IS NOT REQUIRED TO BE INDIRECTLY INFERRED OR TO BE GUESSED IN SUBSTANCE. THE ASSESSEE HAS RECEIVED A CONSIDERATION IN LIEU OF A COMPOSITE BUNDLE OF CONDITIONS WHICH INCLUDED GIVING UP HER RIGHTS AND INTERESTS IN ASSETS WHICH HAVE NO CONNECT ION WITH HER INTEREST IN THE FIRM OR ITS ASSETS AND ALSO FOR WITHDRAWAL OF ALL SUITS/LEGAL PROCEEDINGS FILED BY HER AGAINST THE OTHER PERSONS AND AGAINST FIRMS AND ENTITIES OWNED OR CONTROLLED BY THEM. 8 M.A. NO. 569/MUM/2018 25. AS RIGHTLY HELD BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) SINCE THE ARBITRATION AWARD IS IN CASH ON THE TOUCH STONE OF THE HON'BLE JURISDICTIONAL HIGH COURT DECISION IN THE CASE OF MAHINDRA & MAHINDRA LIMITED V CIT 261 ITR 501, SECTION 28(IV) CANNOT BE INVOKED. HOWEVER, THE LD. COMMISSIONER OF INCO ME TAX (APPEALS) IS VERY CORRECT IN HOLDING THAT THE SAME IS TAXABLE U/S. 56(1) AS INCOME FROM OTHER SOURCES. THE FACT REMAINS THAT THE ASSESSEE HAS RECEIVED BENEFIT OF ARBITRATION AWARD FOR CONDITIONS, WHICH INCLUDED GIVING UP HER RIGHTS AND INTERESTS IN ASSETS WHICH HAVE NO CONNECTION WITH HER INTEREST IN THE FIRM OR ITS ASSETS AND ALSO FOR WITHDRAWAL OF ALL SUITS/LEGAL PROCEEDINGS FILED BY HER AGAINST THE RESPONDENTS (OTHER PARTNERS) AND AGAINST FIRMS AND ENTITIES OWNED OR CONTROLLED BY THEM. THIS SHOULD ALSO BE VIEWED IN LIGHT OF THE FACT THAT THERE IS NO POSITIVE BALANCE OF HER IN THE PARTNERSHIP ACCOUNT. 26. HENCE, WE AGREE WITH THE LD. COMMISSIONER OF INCOME TAX (APPEALS) THAT IT IS JUDICIALLY SETTLED THAT THE SPECIAL INCOME MUST BE CONSIDERED IN ITS WIDER SENSE. THE DEFINITION OF INCOME IS AN INCLUSIVE ONE HAVING A WIDE AMPLITUDE. SECTION 56(1) PROVIDES THAT INCOME OF EVERY KIND WHICH IS NOT TO BE EXCLUDED FROM THE TOTAL INCOME IN THIS ACT SHALL BE CHARGEABLE TO TAX INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES IF IT IS NOT CHARGEABLE TO INCOME TAX UNDER ANY OF THE HEAD AS SPECIFIED IN SECTION 14. ACCORDINGLY, IN THE BACKGROUND OF THE AFORESAID DISCUSSION AND PRECEDENT, WE UPHOLD THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 27. THE A LTERNATE CLAIM OF THE LD. COUNSEL OF THE ASSESSEE THAT THE RECEIPT IS ACTUALLY RECEIPT ON ACCOUNT OF FAMILY SETTLEMENT HAS NOT BEEN ARISING OUT OF THE GROUNDS RAISED BY THE ASSESSEE. EXCEPT FOR MAKING THE CLAIM, NO DETAIL HAS BEEN FURNISHED WHATSOEVER BY T HE LD. COUNSEL OF THE ASSESSEE AS TO HOW THE RECEIPT FROM THE ARBITRATION AWARD AMOUNT TO A FAMILY SETTLEMENT. THERE IS NO MENTION WHATSOEVER IN THE ARBITRATION AWARD AS TO HOW THE SAID AMOUNT HAS BEEN DETERMINED OR THAT IT IS A FAMILY ARRANGEMENT. IN THE ABSENCE OF ANY DETAIL THEREOF, THE AMOUNT RECEIVED CANNOT BE HELD TO BE A RECEIPT ON ACCOUNT OF FAMILY ARRANGEMENTS. ACCORDINGLY, IN THE BACKGROUND OF THE AFORESAID DISCUSSION AND PRECEDENT WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS). ACCORDINGLY, WE UPHOLD THE SAME. 10. UPON CAREFUL CONSIDERATION, WE NOTE THAT A LL THE ISSUES RAISED IN THESE MISCELLANEOUS APPLICATIONS HA VE BEEN CONSIDERED BY THE TRIBUNAL. A S REGARDS THE ISSUE ON NON CONSIDERATION OF THE VALUA TION REPORT SUBMITTED BY THE ASSESSEE IS CONCERNED, WE NOTE THAT THE SAME WAS DULY CONSIDERED AND FOUND TO BE NOT ACCEPTABLE AT PARAGRAPH NOS. 23 AND 24 ABOVE. FURTHER, ALL THE ISSUE ON MERITS REFERRED ABOVE HAS BEEN DULY ANSWERED IN THE ORDER BY THE ITAT. 11. AS REGARDS THE SUBMISSION REGARDING RELIANCE BY THE ITAT ON THE STATEMENT OF DENZIL D'SOUZA , IT IS FO UND THAT NOWHERE IN ITS ORDER ON ADJUDICATION OF THE MERITS, THE 9 M.A. NO. 569/MUM/2018 ITAT HAS RELIED UPON ITS STATEMENT OF DENZIL D'SOUZA . IT IS THE MATTER OF FACT THAT THE LD. CIT(A) IN HIS ORDER REPRODUCED IN THE ITAT ORDER HAS REFERRED THAT A COPY OF THE STATEMENT OF DENZIL D'SOUZA WAS DULY GIVEN TO THE ASSESSEE AND THAT THE STATEMENT GIVEN BY DENZIL D'SOUZA WAS JUST AN AFFIRMATION OF WHAT HAD ALREADY GATHERED BY THE A.O. FROM THE FACTS ON RECORD. 12. AS REGARDS THE ALTERNATIVE CLAIM OF THE ASSESSEE, IT IS NOTED THAT THE TRIBUNAL HAS DULY CONSIDERED THE SAME. IN PARAGRAPH 27 HEREINABOVE, IT WAS NOTED THAT EXCEPT FOR MAKING THE CLAIM, NO DETAIL HAS BEEN FURNISHED WHAT SOEVER BY THE LD. COUNSEL OF THE ASSESSEE AS TO HOW THE RECEIPT FROM THE ARBITRATION AWARD AMOUNT TO A FAMILY SETTLEMENT. THAT THERE IS NO MENTION WHATSOEVER IN THE ARBITRATION AWARD AS TO HOW THE SAID AMOUNT HAS BEEN DETERMINED OR THAT IT IS A FAMILY ARRA NGEMENT. THAT IN THE ABSENCE OF ANY DETAIL THEREOF, THE AMOUNT RECEIVED CANNOT BE HELD TO BE A RECEIPT ON ACCOUNT OF FAMILY ARRANGEMENTS. THUS, WE FIND THAT THE TRIBUNAL HAS CONSIDERED ALL THE ARGUMENTS AND PASSED THE ORDER. 13. W E ARE OF THE OPINION T HA T WHAT THE LD. COUNSEL OF THE ASSESSEE IS SEEKING IS A REVIEW OF THE ORDER WHICH IS NOT PERMISSIBLE IN THE LAW. NONE OF THE ISSUES RAISED BY THE LD. COUNSEL OF THE ASSESSEE IN THE MISCELLANEOUS APPLICATION S CAN BE TERMED AS MISTAKE APPARENT FROM RECORD. IS SUES WHICH CAN BE TAKEN UP U/S.254(2) OF THE ITAT HAVE TO BE OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING W HICH CAN BE ESTABLISHED BY A P ROCESS OF ARGUMENTS AND R EASONING. FURTHER ON THE SAME BASIS, AN ERROR IN JUDGMENT ALSO CANNOT BE TAKEN UP AS MISTAKE A PPARENT FROM RECORD LIABLE FOR RECTIFICATION U/S. 254(2). 10 M.A. NO. 569/MUM/2018 ACCORDINGLY, IN THE BACKGROUND OF AFORESAID DISCUSSION, W E FIND THAT THE ISSUE RAISED IN THE MISCELLANEOUS APPLICATION CAN NOT BE A SUBJECT MATTER OF RECTIFICATION OF MISTAKE APPARENT FROM RECORD. 1 4. IN THE RESULT, THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23.01.2019 SD/ - SD/ - ( RAM LAL NEGI ) (S HAMIM YAHYA) J UDICIAL MEMBER A CCOUNTANT MEMBER MUMBAI ; DATED : 23.01.2019 ROSHANI , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD F ILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI