Shri Dnyaneshwar S. Rangre, Solapur V. Dy.CIT, Cir.2(1), Solapur, Solapur

MA 59/PUN/2003

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7088 (ITAT-PUNE)
• Duration Of Justice: 7 year(s) 10 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 01-07-2011
• Assessment Year: misc
• Appeal Filed On: 20-10-2003
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HA RESHWAR SHARMADR
• Assessee Lawyers: S N DOSHI
• Keywords: Block assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI I.C.SUDHIR, JUDICIAL M EMBER AND SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMB ER M.A. NO. 59/PN/2003 (IN ITA NO.1 281/PN/2002) (BLOCK ASSESSMENT YEARS: 1988-89 TO 1998-99) SHRI DNYANESHWAR S.RANGRE 550, DNYANESHAR SIDRAMA RANGRE EAST MANGALWAR PETH SOLAPUR APPLICANT PAN AARPC2458F VS. DY.COMMISSIONER OF INCOME TAX, CIRCLE 2(1), SOLAPUR RESPONDENT APPLICANT BY: SHRI S.N.DOSHI, AR RESPONDENT BY: SHRI HA RESHWAR SHARMA,DR ORDER PER D.KARUNAKARA RAO, A.M .: THIS IS THE MA BY THE ASSESSEE. EARLIER, APPEAL OF THE ASSESSEE WAS DISMISSED BY SMC BENCH OF THE TRIBUNAL VIDE THE APPEAL ITA NO.1281/PN/2002. THE GRIEVANCE OF THE ASSESSEE IS THAT THE ISSUE RAISED IN THE APPEAL IS FULLY COVERED BY THE DECISI ON OF THE HONOURABLE JURISDICTIONAL HIGH COURT IN THE CASE OF 249 ITR 501 (MUM) AND BY THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF SALVI DIVAKAR SHANKAR V. ACIT 72 ITD 552 (P UNE) AND IN THE CASE OF SOU.VIDYA MADANLAL MALANI V. ACIT 74 ITD 34 1 (PUNE). AS PER THE ASSESSEE, NON-CONSIDERATION OF THE ABOVE DE CISIONS BY THE TRIBUNAL WHILE DISPOSING OF THE APPEAL ON 12-9-2003 HAS RESULTED IN A MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL WHICH NEEDS RECTIFICATION U/S 254(2) OF THE INCOME TAX AC T, 1961. REITERATING THE CONTENTS OF THE APPLICATION, THE LE ARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WAS A SEARCH ON T HE PREMISES OF THE ASSESSEE ON 18-11-1997 AND DURING THE BLOCK ASS ESSMENT PROCEEDINGS, THE ASSESSEE DID NOT FILE THE RETURN O F INCOME FOR ASSESSMENT YEAR 1997-98 AND IN THE ASSESSMENT PROCE EDINGS, THE ASSESSING OFFICER INCLUDED RS.43,720 FOR THAT YEAR AS UNDISCLOSED INCOME OF THE ASSESSEE. IN APPEAL BEFORE THE CIT(A ), IT WAS SUBMITTED THAT ALTHOUGH THE ASSESSEE HAD NOT FILED THE RETURN OF M.A. NO 59/PN/2003 SHRI DNYANESHWAR SIDRAMA RANGRE INCOME HE IN FACT PAID THE ADVANCE TAX OF RS.6,000/ - FOR THAT YEAR BEFORE THE DATE OF SEARCH AND THEREFORE, THE INCOME OF THE ASSESSEE FOR THAT YEAR WAS WITHIN THE KNOWLEDGE OF THE DEPAR TMENT AND ACCORDINGLY, THIS INCOME SHOULD NOT HAVE BEEN CONSI DERED AS UNDISCLOSED INCOME. THE ASSESSEE COULD NOT SUCCEED EITHER BEFORE THE ITAT (SMC) AND THE CIT(A). 2. BEFORE THE TRIBUNAL, LD COUNSEL MENTIONED THAT T HE AFORESAID DECISIONS WERE CITED IN SUPPORT OF HIS CLAIM BUT TH E SAME HAS NOT BEEN DISCUSSED BY THE TRIBUNAL WHILE UPHOLDING THE FIRST APPELLATE ORDER ON THE ISSUE. THE LEARNED COUNSEL FOR THE AS SESSEE SUBMITTED THAT AS PER THE DECISION OF THE BOMBAY HIGH COURT I N THE CASE OF CIT GOODLASS NEROLEK LTD. 188 ITR 1 (BOM), IF THE SUBSE QUENT BENCH DOES NOT WISH TO FOLLOW THE ORDER OF THE EARLIER BE NCH, IT OUGHT TO REFER THE ISSUE TO A LARGER BENCH. IN THE PRESENT CASE, THE TRIBUNAL IN SMC HAS DIFFERED FROM THE DECISION OF THE DIVISI ON BENCH AND HENCE THE ORDER OF THE TRIBUNAL SUFFERS FROM A MIST AKE APPARENT FROM RECORD IE NOT FOLLOWING THE JUDGMENT OF THE HO NOURABLE BOMBAY HIGH COURT SUPRA AND OF THE DIVISION BENCH O F THE TRIBUNAL IN THE CASES OF SALVI DIVAKAR 72 ITD 552 AND SOU.VI DYA MADANLAL MALANI V. ACIT 74 ITD 341 (PUNE) SUPRA. 3. PER CONTRA, LEARNED DEPARTMENTAL REPRESENTATIVE OPPOSED THE APPLICATION WITH THE SUBMISSION THAT THE TRIBUNAL H AS ALREADY DISMISSED THE CITATIONS MADE BY THE ASSESSEE AS MEN TIONED IN THE ORDER OF THE TRIBUNAL. HE, ACCORDINGLY, SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TR IBUNAL AS ALLEGED BY THE ASSESSEE. HENCE, THERE IS NO NEED TO INVOKE THE PROVISIONS OF SEC. 254(2) OF THE ACT IN THE PRESENT CASE AS IT WO ULD BE OTHERWISE AMOUNTING TO REVIEW OF ITS ORDER BY THE TRIBUNAL, W HICH IS NOT PERMITTED UNDER LAW. 4. WE HAVE HEARD THE PARTIES AND PERUSED DT. 12-9-2 003 OF THE TRIBUNAL AND FIND SUBSTANCE IN THE ABOVE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE. WE FIND THAT CITED DECISI ONS THOUGH REFERRED BY THE TRIBUNAL IN ITS ORDER, IN THE PARAG RAPHS DEVOTED TO THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSE SSEE BUT THE SAME HAS NOT BEEN DISCUSSED IN THE FINDING OF THE T RIBUNAL WHILE UPHOLDING THE FIRST APPELLATE ORDER ON THE ISSUE AN D PARAGRAPH NO.8 OF THE ORDER OF THE TRIBUNAL IS RELEVENT. SINCE TH E CITED DECISIONS ARE M.A. NO 59/PN/2003 SHRI DNYANESHWAR SIDRAMA RANGRE OF JURISDICTIONAL HIGH COURT AND OF DIVISION BENCH OF PUNE ITAT ARE NOT DULY CONSIDERED MEANINGFULLY, WE ARE OF THE VIE W THAT NON- CONSIDERATION OF THE SAME BY THE TRIBUNAL IN ITS FI NDING ON THE ISSUE, HAS RESULTED IN GENERATING A MISTAKE APPARENT FROM RECORD IN THE ORDER DT. 12-9-2003 OF THE TRIBUNAL, WHICH NEEDS TO BE RECTIFICATION U/S 254(2) OF THE ACT. ACCORDINGLY, THE IMPUGNED OR DER OF THE TRIBUNAL IS RECALLED AND THE REGISTRY IS DIRECTED T O POST THE CASE IN THE REGULAR MANNER FOR HEARING OF THE CASE ON THE A PPEAL OF THE ASSESSEE. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 30-8-2011. SD/- SD/- (I.C.SUDHIR) (D.KARUNAKA RA RAO) JUDICIAL MEMBER ACCOUNTANT MEM BER PUNE, DATED: 30-8- 2011 COPY TO:- 1) ASSESSEE 2) THE ACIT, CIRCLE-9, PUNE 3) THE CIT (A) II, PUNE 4) THE CIT CONCERNED 5) THE DEPARTMENTAL REPRESENTATIVE, B BENCH, I.T.A.T., PUNE. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., PUNE