Subhash Rajaram Potdar, Jalgaon V. Income-tax Officer, Jalgaon

MA 7/PUN/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5747 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-07-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 18-10-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Recovery proceedings; Rectification of order
• Section: 68; 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE , , , BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWASTHY, JM . / MA NO. 07 /P U N/201 7 (ARISING OUT OF ITA NO. 343 /P U N/20 1 2 ) / ASSESSMENT YEAR : 20 0 5 - 06 SHRI SUBHASH RAJARAM PO D DAR, VARANGAO, TALUKA. - BHUSAWAL, JALGAON 425201 PAN : AIGPP7116C ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD 2(3), JALGAON / RESPONDENT ASSESSEE BY : SHRI M.K. KULKARNI REVENUE BY : SHRI AJAY MODI / DATE OF HEARING : 23 - 06 - 2017 / DATE OF PRONOUNCEMENT : 31 - 07 - 2017 / ORDER PER VIKAS AWASTHY, JM : TH IS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE FOR RECTIFICATION OF ALLEGED MISTAKE IN ORDER OF TRIBUNAL DATED 21 - 03 - 2014 IN ITA NO. 343/PN/2012 FOR ASSESSMENT YEAR 2005 - 06. 2 MA NO. 07/PUN/2017, A.Y. 2005 - 06 2. THE ASSESSEE/APPLICANT FILED AFORESAID APPEAL BEFORE THE TRIBUNAL A GAINST THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) - II, NASHIK DATED 09 - 12 - 2011. THE TRIBUNAL AFTER CONSIDERING THE SUBMISSIONS OF RIVAL SIDES AND THE DOCUMENTS ON RECORD OBSERVED AS UNDER : 5. THE LD. COUNSEL VEHEMENTLY ARGUED THAT THE ASSESSEE HAS DRAWN THE DD FROM THE JALGAON JANTA SAHAKARI BANK LTD., BHUSAWAL IN THE NAME OF M/S. DRIVE INDIA.COM LTD. FOR GETTING THE HANDSETS. APART FROM THAT NOTHING IS FILED BEFORE US EXCEPT THE STATEMENT OF JALGAON JANTA SAHAKARI BANK LTD., BHUSAWAL. THE LAW IS WELL SETTLED THAT IS BURDEN ON THE ASSESSEE TO EXPLAIN THE SOURCE OF DEPOSITS. WE ALSO FIND THAT THERE IS NO CONSISTENCY IN THE EXPLANATION OF THE ASSESSEE AND THE ASSESSEE HAS TAKEN THE DIFFERENT STANDS BEFORE THE ASSESSING OFFICER AND THE LD. CIT(A) . WHATEVER THE EVIDENCES ARE FILED BY THE ASSESSEE, DO NOT REMOTELY SUPPORT THE CASE OF ASSESSEE. WE ALSO FIND THAT THE COPIES OF THE AGREEMENT FILED BY THE ASSESSEE ARE BETWEEN THE TATA TELE SERVICES (MAHARASHTRA) LTD. AND M/S. HARI SERVICES WHICH IS TH E PARTNERSHIP FIRM. APART FROM THAT NOTHING HAS BEEN PLACED BEFORE US EXPLAINING THE SOURCE. AFTER GIVING OUR ANXIOUS CONSIDERATION TO THE REASONS RECORDED BY THE LD. CIT(A), IN OUR OPINION NO INTERFERENCE IS CALLED FOR AS BEFORE US ALSO THE ASSESSEE FAI LED TO EXPLAIN THE SOURCE IN RESPECT OF THE DEPOSITS MADE IN THE JALGAON JANTA SAHAKARI BANK LTD., BHUSAWAL. ACCORDINGLY, ORDER OF THE LD. CIT(A) IS CONFIRM AND GROUNDS TAKEN BY THE ASSESSEE ARE DISMISSED. 3 . SHRI M.K. KULKARNI APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE TRIBUNAL HAS CONFIRMED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) QUA THE ADDITIONS MADE U/S. 69 O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ). THE LD . COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TRIBUNAL HAS MERELY AFFIRMED THE FINDINGS OF AUTHORITIES BELOW WITHOUT TAKING ITS OWN INDEPENDENT VIEW. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. BHAICHAND H. GANDHI REPORTED AS 141 ITR 67 HAS HELD THAT WHERE CASH CREDIT IS FOUND ONLY IN BANK PASS BOOK AND NOT IN THE CASH 3 MA NO. 07/PUN/2017, A.Y. 2005 - 06 BOOK MAINTAINED BY ASSESSEE, NO ADDITION U/S. 68 IS TO BE MADE. THE LD. AR SUBMITTED THAT HENCE, THE ORDER OF THE TRIBUNAL NEEDS RECTIFICATION. THE ASSESSEE HAS ALSO FILED DETAILED APPLICATION FOR RECTIFICATION OF ORDER OF THE TRIBUNAL. 4 . ON THE OTHER HAND SHRI AJAY MODI REPRESENTING THE DEPARTMENT VEHEMENTLY OPPOSED THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE FOR RECTIFICATION OF THE ALLEGED MISTAK E. THE LD. DR SUBMITTED THAT THE ORDER OF THE TRIBUNAL IS WELL REASONED AND JUSTIFIED . THE ORDER HAS BEEN PASSED BY THE TRIBUNAL AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE SIDES. THE ASSESSEE HAS NOT PIN POINTED ANY ERROR APPARENT IN THE ORDER OF TRI BUNAL. THE SUBMISSIONS MADE ON BEHALF OF THE ASSESSEE AND THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE DOES NOT SPECIFY THE APPARENT MISTAKE, THE SUBMISSIONS ARE GENERAL IN NATURE , FOR SEEKING REVIEW OF THE ORDER PASSED BY THE TRIBUNAL . 5 . W E HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESENTATIVES OF RIVAL SIDES AND HAVE EXAMINED THE CONTENTS OF THE MISCELLANEOUS APPLICATION. AFTER PERUSAL OF PARA 5 OF THE SAID APPLICATION IT IS EVIDENT THAT MISCELLANEOUS APPLICATION U/S. 254(2) OF THE ACT HA S BEEN FILED AS A REVIEW PETITION IN THE GARB OF PETITION FOR RECTIFICATION. THE PARA 5 OF THE APPLICATION IS REPRODUCED HERE - IN - BELOW : 5) THE A.O. HAS MADE THE ADDITION UNDER SECTION 69 OF THE ACT IN VIEW OF AIR INFORMATION RECEIVED BY THE A.O. DURING COURSE OF ASSESSMENT PROCEEDINGS. IT IS NOT THE INTENTION OF THE ASSESSEE AT THIS JUNCTURE, TO ARGUE ON MERITS OF THE CASE WHEN AT A STAGE COERCIVE RECOVERY PROCEEDINGS ARE INITIATED AGAINST BY WAY OF PROCLAMATION OF SALE OF HIS AGRICULTURAL LANDS ONLY BUT CERTAINLY IS WITHIN HIS RIGHTS TO POINT OUT HOW THE ADDITION MADE ON THE BASIS OF AIR INFORMATION R.W.S. 69 4 MA NO. 07/PUN/2017, A.Y. 2005 - 06 OF THE ACT IS ILLEGAL AND WITHOUT JURISDICTION. IT IS UNFORTUNATE THAT HIS CASE WAS NOT PROPERLY ARGUED BEFORE EITHER - THE A.O . OR THE APPELLATE AUTHORITIES. THE ASSESSEE IS NOT TO SUFFER AS A RESULT OF MISTAKES OF LAW COMMITTED BY THE AUTHORITIES BUT ON THE CONTRARY HAS INHERENT RIGHT TO BRING TO NOTICE OF THE AUTHORITIES, SO THAT THE ASSESSEE DOES NOT BECOME VICTIM OF INJUSTICE SUFFERED BY HIM . THE ADDITIONS MADE UNDER SECTION 69 READ WITH AIR INFORMATION IS HELD TO BE NOT ACCORDING TO LAW AS STATED UNDER: - ITAT MUMBAI BENCH ANS LAW ASSOCIATES V. ACIT [2015J 63 (I I J) ITCL 216 (MUM 'A' BENCH) AIR INFORMATION ADDITION MADE SOLELY ON THE BASIS OF AIR INFORMATION ARE NOT SUSTAINABLE IN THE EYES OF LAW. IF THE ASSESSEE DENIES THAT HE IS IN RECEIPT OF INCOME FROM A PARTICULAR SOURCE, IT IS FOR THE AD TO PROVE THAT ASSESSEE HAS RECEIVED INCOME AS THE ASSESSEE CAN NOT PROVE NEGATIVE. IN SUCH CIRCUMSTANCES, THE MATTER WAS REMANDED BACK TO AD TO CONSIDER THE REPLY OF ASSESSEE AS WELL AS CONFIRMATION FROM THAT COMPANY VIS - A - VIS THE AIR INFORMATION AND DECIDE THE ISSUE IN ACCORDANCE WITH LAW. ASSESSMENT - ADDITIONS TO INCOME - ADDITION ON BASIS OF AIR ASSESSEE WAS A' REGISTERED PARTNERSHIP FIRM OF ADVOCATES AND SOLICITORS. THE AIR INFORMATION SHOWED THAT ASSESSEE HAD RECEIVED PROFESSIONAL/TECHNICAL FEES FROM VARIOUS PERSONS WHICH REQUIRED / ASSESSEE TO RECONCILE. ASS ESSEE RECONCILED MAJOR PORTION OF THE AMOUNT' BUT COULD NOT RECONCILE THE AMOUNT OF RS. 4,49,440/ - ALLEGEDLY RECEIVED FROM A COMPANY. ASSESSEE STATED BEFORE A O THAT IT HAD NEVER RECEIVED ABOVE AMOUNT. BUT, THE AO DID NOT AGREE WITH THE CONTENTION OF ASSESSEE AND MADE THE ADDITION. ASSESSEE BEFORE CIT(A) NOT ONLY SUBMITTED BANK STATEMENTS OF ITS ALL ACCOUNTS BUT IT ALSO FILED CONFIRMATION OF THAT COMPANY SHOWING RECEIPT OF ONLY RS. 1,00,000/ - DURING THE YEAR TO ASSESSEE. CIT(A) CON FIRMED THE ADDITION MADE BY A O. HELD: ADDITIONS MADE SOLELY ON THE BASIS OF AIR INFORMATION ARE NOT SUSTAINABLE IN THE EYES OF LAW. IF ASSESSEE DENIED THAT HE IS IN RECEIPT OF INCOME FROM A PARTICULAR SOURCE, IT IS FOR THE AD TO PROVE THAT ASSESSEE HA S RECEIVED INCOME AS THE ASSESSEE CANNOT PROVE THE NEGATIVE. IN SUCH CIRCUMSTANCES, THE. MATTER WAS REMANDED BACK TO AO 5 MA NO. 07/PUN/2017, A.Y. 2005 - 06 TO CONSIDER THE REPLY OF ASSESSEE AS WELL AS CONFIRMATION FROM THAT COMPANY VIS - A - VIS THE AIR INFORMATION AND DECIDE THE ISSUE IN ACC ORDANCE WITH THE LAW. 6 . THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT NO INDEPENDENT VIEW HAS BEEN TAKEN BY THE TRIBUNAL. IT IS ONLY THE VIEW OF COMMISSIONER OF INCOME TAX (APPEALS) WHICH HAS BEEN AFFIRMED. WE DO NOT CONCUR WITH THE SUBMISSIONS MADE BY THE LD. COUNSEL FOR THE ASSESSEE. THE RELEVANT EXTRACT OF THE FINDINGS OF TRIBUNAL HAVE ALREADY BEEN REPRODUCED HERE - IN - ABOVE. THE TRIBUNAL HAS TAKEN A CONSCIOUS VIEW AFTER CONSIDERING THE TOTALITY OF THE FACTS AND THE SUBMISSIONS OF THE ASSESSEE . THE LD. COUNSEL HAS FAILED TO PINPOINT THE ERROR APPARENT IN THE ORDER OF TRIBUNAL THAT CAN BE RECTIFIED IN PROCEEDINGS U/S. 254(2) OF THE ACT. A PERUSAL OF PARA 5 OF THE MISCELLANEOUS APPLICATION REPRODUCED ABOVE CLEARLY SHOWS THAT THE ASSESSEE WANTS RE - HEARING OF THE APPEAL ON MERITS. PROVISIONS OF SECTION 254(2) OF THE ACT GRANT LIMITED POWER TO THE TRIBUNAL TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD AND NOT TO REVIEW THE ORDER OF TRIBUNAL THAT HAS BEEN PASSED AFTER TAKING INTO CONSIDERATION TH E ENTIRETY OF THE FACTS AND SUBMISSIONS OF BOTH THE SIDES. 7 . IT IS A WELL SETTLED LAW THAT THE ACT DOES NOT PROVIDE POWER TO THE TRIBUNAL TO REVIEW ITS OWN ORDER. IN THE PRESENT CASE, WE ARE OF CONSIDERED OPINION THAT THE ASSESSEE HAS FILED REVIEW PET ITION IN THE GARB OF PETITION FOR RECTIFICATION , WHICH OBVIOUSLY CANNOT BE ENTERTAINED UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT. IF THE ASSESSEE IS AGGRIEVED BY THE ORDER OF TRIBUNAL, HE IS AT LIBERTY TO AVAIL THE REMEDIES 6 MA NO. 07/PUN/2017, A.Y. 2005 - 06 AVAILABLE TO HIM UNDER THE PROVISIONS OF ACT , BUT SEEKING REVIEW OF THE ORDER OF TRIBUNAL UNDER THE PROVISIONS OF SECTION 254(2) IS NOT THE RIGHT COURSE. THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED BEING DEVOID OF ANY MERIT. 8 . IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED . ORDER PRONOUNCED ON MONDAY, THE 31 ST DAY OF JULY, 2017 . SD/ - SD/ - ( / ANIL CHATURVEDI) ( / VIKAS AWASTHY ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 31 ST JULY, 2017 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT . 2. / THE RESPONDENT . 3. ( ) / THE CIT (A) - II, NASHIK 4. / THE CIT - II, NASHIK 5 . , , , / DR, ITAT, B BENCH, PUNE . 6 . / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE