SURESH U. MEHTA , HUF, MUMBAI V. ITO - 19 (3)(4), MUMBAI

MA 73/MUM/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3188 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-08-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 26-05-2022
• Assessment Year: 2007-2008
• Appeal Filed On: 13-03-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL "SMC" BENCH, MUMBAI SHRI PRAMOD KUMAR, VICE PRESIDENT SHRI RAHUL CHAUDHARY, JUDICIAL MEMBER MA No. 73/MUM/2022 (Arising out of ITA No. 1414/Mum/2020) (Assessment Year: 2007-08) Suresh U. Mehta, HUF, 9/1, Saphalya Building, Tarabaug, Sheth Motishah Lane, Mazgaon, Mumbai - 400007 [PAN: AAAHM6719E] Income Tax Officer – 19(3)(4), Mumbai, 2 nd Floor, Room No. 210, Matru Mandir, Tardeo Road, Mumbai - 400007 .................. Vs ................ Appellant Respondent Appearances For the Appellant/Assessee For the Respondent/Department : : None Shri Mehul Jain Date of conclusion of hearing Date of pronouncement of order : : 27.05.2022 18.08.2022 O R D E R Per Rahul Chaudhary, Judicial Member: 1. The present Miscellaneous Application has been filed for seeking rectification of order, dated 14.09.2021, passed in ITA No. 1414/Mum/2020 whereby the appeal filed by the Revenue against the order, dated 17.12.2019, passed by the Commissioner of Income Tax (Appeals)-29, Mumbai was dismissed by the Tribunal. MA No. 73/Mum/2022 Assessment Year: 2007-08 2 2. Though none appeared for the Applicant/Assessee when the matter was taken up for hearing, we proceeded to hear the Revenue after perusing the application for deciding the same on merits. 3. In the application filed, the Assessee has contended that the Assessee did not receive communication or notice regarding filing of the appeal by the Revenue and the hearing fixed for 14.09.2021. Therefore, the Assessee could not attend the hearing, wherein the Assessee was proceeded ex-parte and the appeal filed by the Revenue was dismissed with the following observations: “6. On a careful perusal of the order of the Ld.CIT(A) and the reasons given therein, I do not find any infirmity in the order passed by the Ld.CIT(A) in restricting the addition/disallowance to the extent of 12.5% of the purchases. Grounds raised by the revenue are dismissed.” 4. In the application, it has been contended that in the cross appeal filed by the Assessee (ITA No. 1066/Mum/2020), which was listed for hearing on 21.10.2021, the Tribunal was pleased to partly allow the appeal of the Assessee holding as under: “7. I respectfully following the aforesaid judgment of Hon’ble High Court, set aside the matter to the file of the Assessing Officer with the direction to restrict the addition as regards the bogus purchases by bringing the gross profit rate on such bogus purchases at the same rate as that of the other genuine purchases. Needless to add the assessee should be granted MA No. 73/Mum/2022 Assessment Year: 2007-08 3 adequate opportunity of being heard. Learned Counsel of the assessee fairly agreed to the same.” 5. In the application it has been further contended by the Assessee that passing of two separate order dated 14.09.2021 and 21.10.2021 in cross-appeals has resulted in a mistake apparent placed on record requiring recall/setting aside of the order, dated 14.09.2021, passed by the Tribunal dismissing the appeal filed by the Revenue, necessitating the filing of the present miscellaneous application by the Assessee. 6. We are of the view that the no prejudice has been caused to the Assessee vide order, dated 14.09.2021, passed by the Tribunal as the Tribunal has dismissing the appeal filed by the Revenue after examining the same on merits. The cause for concern for the Appellant is the observations made by the Tribunal in paragraph 6 of the order, dated 14.09.2021, which, in our view, are to be read and understood in the context of the issue before the Tribunal. In that appeal filed by the Revenue, the Revenue was aggrieved by the order of the CIT(A) restricting the disallowance on account of bogus purchases to 12.5% of such purchases. While examining the aforesaid issue the Tribunal had observed that it did not find any infirmity in the order passed by the CIT(A) in restricting the addition/disallowance to the extent of 12.5% of the purchases. We note that by way of subsequent order, dated 21.10.2021, passed in appeal filed by the Assessee (ITA No. 1414/Mum/2020), the Tribunal has granted further relief to the Assessee by setting aside the issue to the file of the MA No. 73/Mum/2022 Assessment Year: 2007-08 4 Assessing Officer with the directions to restrict the addition/disallowance regarding bogus purchases by adopting the actual gross profit rate pertaining to genuine purchases after giving the Assessee adequate opportunity of being heard, and therefore, it is hereby clarified that to this extent the observations made in Paragraph 6 of the order, dated 14.09.2021, stand supplemented/modified by the subsequent order, dated 21.10.2021. Since it has been clarified as aforesaid, in our view, no fruitful purpose would be served in recalling the order, dated 14.09.2021, dismissing the appeal filed by Revenue. Further, we are also of the view that the order, dated 14.09.2021, sought to be recalled/set aside by the present application, was passed prior in time and therefore, error apparent on record, if any, can be said to have crept into the subsequent order, dated 21.10.2021, passed in appeal filed by the Assessee. 7. In view of the above, the present miscellaneous application is dismissed. Order pronounced on 18.08.2022. Sd/- Sd/- (Pramod Kumar) Vice President (Rahul Chaudhary) Judicial Member म ुंबई Mumbai; दिन ुंक Dated : 18.08.2022 Sr.PS/PS MA No. 73/Mum/2022 Assessment Year: 2007-08 5 आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपील र्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आय क्त(अपील) / The CIT(A)- 4. आयकर आय क्त / CIT 5. दिभ गीय प्रदिदनदि, आयकर अपीलीय अदिकरण, म ुंबई / DR, ITAT, Mumbai 6. ग र्ड फ ईल / Guard file. आिेश न स र/ BY ORDER, सत्य दपि प्रदि //True Copy// उप/सह यक पुंजीक र /(Dy./Asstt. Registrar) आयकर अपीलीय अदिकरण, म ुंबई / ITAT, Mumbai