Appeal Details
Counselvise Citation
[2018] 124 COUNSELVISE.COM (IT) 6489 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
7 month(s) 10 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
26-04-2018
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
H
Assessment Year
2005-2006
Appeal Filed On
15-09-2017
Judgement Text
H IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER M A NOS. 734 & 735/MUM/2017 ARISING OUT OF ITA NO . 5258 & 5259/MUM/2009 ASSESSMENT YEAR 2004 - 05 & 2005 - 06 MRS. PRIYA SANJEEV KOTHARI BEN NIVAS, 6 TH FLOOR, FLAT NO. 4, WARDEN ROAD, MUMBAI - 400026 PAN AFKPK1492H V. ITO - 6(3)(3) ROOM NO. 524, 5 TH FLOOR, AAYAKAR BHAVAN, M.K ROAD, MUMBAI 400020 APPLICANT RESPONDENT APPLICANT BY REEPAL TRALSHAWALA RESPONDENT BY SHRI M.C. OMI NINESHEN (DR) DATE OF HEARING : 20 - 04 - 2018 DATE OF PRONOUNCEMENT : 26 - 04 - 2018 ORDER PER RAMIT KOCHAR, ACCOUNTANT MEMBER THESE TWO M. A . S ARE FILED BY THE ASSESSEE SEEKING RECTIFICATION OF THE I NCOME - T AX A PPELLATE T RIBUNAL , H BENCH, MUMBAI COMMON ORDERS DATED 06.11.2015 IN ITA NO. 5258/MUM/2009 & 5259/MUM/2009 FOR AY 2004 - 05 & 2005 - 06 RESPECTIVELY IN THE CASE OF THE ASSESSEE , WHEREIN THE MAIN CONTENTION HAS BEEN TAKEN BY THE ASSESSEE IN THESE MAS IS THAT THE ASSESSEE HAD FILED AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCES DATED 31.08.2010 WITH THE ITAT CONTAINING BANK STATEMENT S OF THE ASSESSEE AND ONE MR. VIRESH MAHENDRA OZHA EVIDENCING PAYMENT OF RS. 19,98,000/ - BY THE ASSESSEE TO SAID MR VIRESH MAHENDRA OZHA ON 03 - 08 - 2010 , WHICH WAS CLAIMED TO BE DUL Y FILED WITH THE REGISTRY ON 31 - 08 - 2010 . THE SAID COPY OF APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE S AS PER RULE 18(4) OF THE INCOME - TAX (APPELLATE TRIBUNAL ) RULES, 1963 IS PLACED ALONG W ITH THE SE MA APPLICATION AS PAGE N O. 15 TO 17. THUS, THE LD. COUNSEL FOR THE SA NOS. 734 & 735/MUM/2017 2 ASSESSEE HAS CONTENDED THAT DESPITE THESE ADDITIONAL EVID ENCES BEING BROUGHT TO THE NOTICE OF THE TRIBUNAL AT THE TIME OF THE HEARING BY THE THEN LEARNED COUNSEL FOR THE ASSESSEE , ADVOCATE SH. SALIL KAPOOR, THE SAME WAS NOT CONSIDERED BY THE TRIBUNAL WHILE DISPOSING OF APPEALS AND HENCE IT IS A MIS TAKE APPARENT FROM RECORD IN THE ORDERS OF THE TRIBUNAL DATED 06 - 11 - 2015, WHICH NOW IS REQUIRED TO BE RECTIFIED BY THE TRIBUNAL U/S 254(2) OF THE INCOME - TAX ACT,1962. S ECONDLY , IT IS THE CONTENTION OF THE ASSESSEE THAT IF THESE REPAYMENTS EVIDENCE S ARE TAKEN INTO AC COUNT THE REQUIREMENT OF SECTION 68 OF THE ACT DULY STAND MET WITH RESPECT TO THE AMOUNTS RECEIVED OF RS. 19,98,000/ - BY THE ASSESSEE IN PREVIOUS YEARS RELEVANT TO THESE TWO ASSESSMENT YEARS I.E. AY 2004 - 05 AND 2005 - 06, AND THE TRIBUNAL HAS NOT TAKEN A CORRECT VIEW , THUS IT IS A MISTAKE APPARENT FROM RECORD WHICH NEED TO THE RECTIFIED U/S. 254 (2) OF THE ACT BY THE TRIBUNAL OR ALTERNATIVELY COMMON ORDER PASSED BY THE TRIBUNAL DATED 06 - 11 - 2015 FOR AY 2004 - 05 AND 2005 - 06 RES PECTIVELY HAS TO BE RECALLED. THE LD. DR STRONGLY OBJECTED TO THE SE TWO M.AS FILED BY THE ASSESSEE AND IT WAS SUBMI TTED THAT ASSESSEE IS SEEKING REVIEW OF THE DECISION OF THE TRIBUNAL IN ITS COMMON ORDERS DATED 06 - 11 - 2015 WHICH WAS DECIDED AGAINST THE ASS ESSEE IN THE GARB OF THESE MAS WHICH IS NOT PERMISSIBLE WITHIN THE LIMITED MANDATE OF SECTION 254 (2) OF THE ACT . I T IS FURTHER SUBMITTED BY LEARNED DR THAT THE PAYMENTS HAVE BEEN M ADE TO THE SHRI. VIRESH MAHENDRA OJHA OF RS.19,98,000/ - ON 03.08.2010 WH ICH IS SUBSEQUENT TO THE APPELLATE ORDER DATED 02 - 07 - 2009 PASSED BY THE LEARNED CIT - A WHEREIN THE ASSESSEE HAD ALREADY LOST IN TWO FORUMS NAMELY THE LEARNED ASSESSING OFFICER AND LEARNED CIT(A). 2. WE HAVE CONSIDERED RIVAL CONTENTION S AND HAVE PERUSED TH E MATERIAL ON RECORD . WE HAVE OBSERVED THAT THE TRIBUNAL HAS PASSED COMMON ORDER IN THE CASE OF ASSESSEE ON 06.11.2015 IN ITA NO. 5258/MUM/2009 AND 5259/MUM/2009 FOR AY 2004 - 05 AND 2005 - 06 SA NOS. 734 & 735/MUM/2017 3 RESPECTIVELY . I T IS THE CLAIM OF THE ASSESSEE THAT THE THEN LD. C OUNSEL FOR THE ASSESSEE ADVOCATE SH. SALIL KAPOOR WHO APPEARED BEFORE THE TRIBUNAL ON 03.09.2015 WHEN THE HEARING TOOK PLACE IN THE MAIN APPEALS I.E. ITA NO. 5258/MUM/2009 AND 5259/MUM/2009 HAD BROUGHT TO THE NOTICE OF THE TRIBUNAL THAT AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCES WERE FILED WHICH NEED TO BE ADMITTED IN THE INTEREST OF JUSTICE . WE HAVE CHECKED OUR LOG BOOKS AND THERE IS NO REFERENCE FOUND ABOUT THE THEN LD COUNSEL FOR THE ASSESSEE HAVING BROUGHT TO THE NOTICE OF THE BENCH ABOUT ANY APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCES HAVING BEEN FILED U/R 18(2) OF THE 1963 RULES. HOWEVER WE NOTE THAT CONTENTIONS WERE MADE THAT THESE AMOUNTS STOOD PAID BY THE ASSESSEE . NO AFFIDAVIT OF THE THEN LEARNED COUNSEL OF THE ASSESSEE IS NOW FIL ED ALONG WITH THESE MA APPLICATIONS. EVEN IF THESE ADDITIONAL EVIDENCES ARE TAKEN INTO ACCOUNT WHICH ARE EVIDENCING PAYMENT OF RS. 19,98,000/ - BY THE ASSESSEE TO SAID MR VIRESH MAHENDRA OJHA ON 03.08.2010 , THE PAYMENTS WERE MADE EVEN AFTER THE APPEALS WERE FILED WITH THE TRIBUNAL IN THE YEAR 2009 AND MUCH SIGNIFICANCE CANNOT BE ATTACHED TO IT AS THE ASSESSEE WAS REQUIRED TO SATISFY INGREDIENTS OF SECTION 68 OF THE 1961 ACT WHEN THE SAID AMOUNTS OF RS. 19, 98,000/ - STOOD CREDITED IN ASSESSEES BANK ACCOUNTS. THE TRIBUNAL HAS PASSED ITS ORDER DATED 06 - 11 - 2015 ON THE BASIS THAT THE ASSESSEE IS NOT ABLE TO EXPLAIN PROPERLY WITH RESPECT TO THE RECEIPT OF THIS AMOUNT WITHIN MANDATE OF SECTION 68 AND EVEN THE BAN K ACCOUNTS IN WHICH THE AMOUNTS STOOD CREDITED WERE NOT DISCLOSED TO THE REVENUE. EVEN , SWASTIK SURFACTONTS LTD. (SSL) HAS NOT SHOWN THE SAID AMOUNT IN ITS BALANCE SHEET . T HE SAID SSL WAS A SICK COMPANY AND THE AMOUNTS HELD BY THE SAID SSL WERE SIPHON ED OU T FROM THE BANK ACCOUNTS OF SAID SSL TO SEVERAL INTERMEDIARIES AND ULTIMATELY REACHED THE ASSESSEE WHO IS ONE OF THE DIRECTOR OF THE SAID COMPANY . T HE TRIBUNAL HAS PASSED WELL REASONED ORDER WHEREIN IT WAS SA NOS. 734 & 735/MUM/2017 4 HELD THAT NATURE OF SUCH CREDITS WERE NOT EXPLAIN ED BY THE ASSESSEE, BANK ACCOUNTS WERE NOT DISCLOSED AND INGREDIENTS OF SECTION 68 AT THE STAGE OF ASSESSEE HAVING RECEIVED THE MONEY COULD NOT BE FULF ILLED /EXPLAINED BY THE ASSESSEE. THUS EVEN IF THE AMOUNT IS REPAID BY THE ASSESSEE POST LEARNED CIT - A ORDE R AND ALSO POST FILING OF APPEAL WITH THE TRIBUNAL , WOULD NOT HAD ANY BEARING AS THE ASSESSEE PAID THE SAID AMOUNT AFTER HAVING LOST AT TWO FOR U MS I.E. AO AND LEARNED CIT(A) AND HENCE BY FILING THESE M.AS , THE ASSESSEE IS MAKING DESPERATE ATTEMPTS TO SOME HOW GET THE WELL REASONED ORDER OF THE TRIBUNAL RECALLED BY SEEKING TRIBUNAL TO REVIEW ITS OWN ORDER WHICH IS NOT PERMISSIBLE WITHIN THE LIMIT ED MANDATE OF S ECTION 254(2) OF THE ACT. THUS, IN THE RESULT B OTH THE M.AS STOO D DISMISSED. WE ORDER ACCORDINGLY. ORDER PRONOUNCED IN THE OPEN COURT ON 2 6 .04.2018 2 6 .04.2018 S D / - S D / - (JOGINDER SINGH ) (RAMIT KOCHAR) JUDICIA L MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 2 6 .04.2018 COPY TO NISHANT VERMA SR. PRIVATE SECRETARY 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR SA NOS. 734 & 735/MUM/2017 5 ITAT, MUMBAI DRAFT DICTATED ON 25 - 04 - 2018 SR PS 2 DRAFT PLACED BEFORE AUTHOR ON 26 - 04 - 2018 SR PS 3 DRAFT PROPOSED & PLACE BEFORE THE 2 ND MEMBER - 04 - 2018 JM/AM 4 DRAFT DISCUSSED/APPROVED BY 2 ND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR PS SR.PS 6 KEPT FOR PRONOUNCEMENT ON 20 - 04 - 2018 SR PS 7 FILE SENT TO THE BENCH CLERK 20 - 04 - 2018 SR PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE ON WHICH FILE GOES TO THE AR 10 DATE OF DISPATCH SR PS
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