HITESH S. MEHTA, MUMBAI V. ACIT CENT CIR. 23, MUMBAI

MA 74/MUM/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 5008 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-10-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 1993-1994
• Appeal Filed On: 21-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR P DANIELDR
• Assessee Lawyers: DHARMESH SHAHCA
• Keywords: Search and seizure; Opportunity of being heard
• Section: 132

Judgement Text

H BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER MA NO. 74/MUM/2016 ARISING OUT OF ITA NO. 4287/MUM/2012 ( / ASSESSMENT YEAR : 1993-94) SH. HITESH S. MEHTA 32, MADHULI DR. A.B.ROAD, WORLI MUMBAI-400 018 / V. THE ASSISTANT COMMISSIONER OF INCOME TAX- CENTRAL CIRCLE 23 R.NO. 409, AAYAKAR BHAVAN M K ROAD MUMBAI-400020 ./ PAN : ABAPM4491J ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI DHARMESH SHAH,CA REVENUE BY : DR. P.DANIEL(DR) / DATE OF HEARING : 29-07-2016 / DATE OF PRONOUNCEMENT : 17-10-2016 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS ABOVE MISCELLANEOUS APPLICATION , FILED BY TH E ASSESSEE, BEING MA NO.74/MUM/2016 ARISING OUT OF APPEAL BEARING ITA NO . 4287/MUM/2012 , THE ASSSESSEE HAS SOUGHT RECTIFICATION IN THE ORDER OF THE MUMBAI TRIBUNAL DATED 10-11-2015 PASSED IN ITA NO. 4287/MUM/2012 FO R THE ASSESSMENT YEAR 1993-94 BY DELETING THE OBSERVATION OF THE TRI BUNAL IN PARA 23 OF THE SAID ORDER DATED 10-11-2015 OR IN ALTERNATIVELY REC ALLING THE SAID ORDER DATED 10-11-2015 PASSED BY THE TRIBUNAL IN ITA NO. 4287/M UM/2012 FOR HEARING AFRESH AFTER GIVING OPPORTUNITY OF BEING HEARD. THU S, IN NUT-SHELL THE ASSESSEE IS AGGRIEVED BY THE OBSERVATION OF THE TRIBUNAL IN PARA 23 OF THE ORDER DATED 10-11-2015 IN ITA NO. 4287/MUM/2012 WHICH READS AS UNDER:- MA/74/MUM/2016 ARISING OUT OF ITA NO.4287/MUM/2012 2 23. WE WOULD HOWEVER LIKE TO STATE AT THIS POINT OF TI ME THAT AT THE TIME OF ADJUDICATING APPEAL NO ITA 5138/MUM/2003 FOR ASSESSM ENT YEAR 1993-94 IN THE CASE OF THE ASSESSEE ITSELF THE TRIBUNAL IN THE FIRS T ROUND OF LITIGATION HAS CLARIFIED, INTER-ALIA, IN ITS ORDER DATED 17 TH MARCH 2006 AT PARA 7 THAT THE COUNSEL OF THE ASSESSEE AGREED THAT THE ASSESSEE SHALL NOT SEEK REFUND OF TAX DEPOSITED ON THE ADMITTED AMOUNT OF INCOME IF THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER AND WE ARE OF THE CONS IDERED VIEW THAT THE SAID CONCESSION OF THE ASSESSEE WILL CONTINUE TO BE IN FORC E KEEPING IN VIEW PECULIAR FACTS, CIRCUMSTANCES AND HISTORY OF THE CASE. 2. THIS CASE HAS A CHEQUERED HISTORY. THE ASSESSEE IS A MEMBER OF HARSHAD S. MEHTA GROUP. HE IS NOTIFIED UNDER SPECIAL COURT( TRIAL OF OFFENCES RELATING TO TRANSACTIONS IN SECURITIES) ACT,1992 ON 08-06-19 92. THERE WAS A SEARCH AND SEIZURE ACTION U/S. 132 OF THE ACT BY THE REVEN UE AT THE PREMISES OF THE ASSESSEE AT 27-09-1990 WHEREIN LARGE NUMBER OF DOCU MENTS WERE SEIZED . A SECOND SEARCH AND SEIZURE OPERATION WAS CARRIED OUT AT THE ASSESSEES PREMISES ON 28-02-1992 WHEREIN LARGE NUMBER OF DOCU MENTS AND VALUABLE WERE SEIZED. THE ASSESSEE HAD NOT FILED RETURN OF I NCOME WITH THE REVENUE FOR THE RELEVANT PREVIOUS YEAR. THE INCOME FROM CAPITAL GAINS HAS BEEN OFFERED FOR TAXATION BY THE ASSESSEE VIDE LETTER DATED 28-03-19 96 AT RS.5,90,78,784/- BEFORE THE AO WHICH WAS SUBSEQUENTLY REVISED TO RS. 6,33,82,188/- AS PER WORKING GIVEN IN THE LETTER DATED 28-05-2003 FILED BEFORE THE LEARNED CIT(A) IN THE FIRST ROUND OF LITIGATION. THE INCOME WAS ASSES SED BY THE AO IN FIRST ROUND OF LITIGATION AT RS.25,30,14,505/- VIDE ASSESSMENT ORDERS DATED 29-03-1996 PASSED BY THE AO U/S.144 OF THE ACT , WHICH ASSESSM ENT WAS SET ASIDE BY THE LEARNED CIT(A) WITH CERTAIN DIRECTIONS IN THE FIRST APPEAL IN FIRST ROUND OF LITIGATION VIDE APPELLATE ORDERS DATED 28-05-2003 . THE SAID APPELLATE ORDER OF THE LEARNED CIT(A) WAS CHALLENGED BY THE ASSESSEE B EFORE THE TRIBUNAL IN FIRST ROUND OF LITIGATION WHEREIN THE TRIBUNAL VIDE ORDER S DATED 17-03-2006 IN ITA NO 5138/MUM/2003 SET ASIDE THE MATTER BACK TO THE F ILE OF LEARNED CIT(A) TO DECIDE THE ISSUE ON MERITS SINCE THE ORDER PASSED B Y LEARNED CIT(A) IN FIRST ROUND OF LITIGATION AMOUNTED TO SETTING ASIDE THE O RDER OF THE AO WHICH WAS NOT PERMITTED UNDER THE LAW AS PER PROVISIONS OF SE CTION 251(1)(A) OF THE ACT. MA/74/MUM/2016 ARISING OUT OF ITA NO.4287/MUM/2012 3 THE ISSUE AROSE BEFORE THE TRIBUNAL IN FIRST ROUND OF LITIGATION WHILE ADJUDICATING THE APPEAL OF THE ASSESSEE IN ITA NO. 5138/MUM/2003 WHETHER THE MATTER SHOULD BE RESTORED TO THE FILE OF THE AO OR LEARNED CIT(A) AND THE TRIBUNAL IN PARA 7 NOTED AS UNDER : 7. ONE MORE ASPECT HAS ARISEN IN THE COURSE OF HEARI NG AS TO WHETHER THE MATTER SHOULD BE RESTORED TO THE FILE OF ASSESSING OF FICER OR TO THE FILE OF THE LEARNED CIT(A). THE LEARNED COUNSEL FOR THE ASSESSE E HAS VEHEMENTLY ARGUED THAT ON IDENTICAL FACTS, THE TRIBUNAL HAD RESTORED THE MATTER FOR FRESH ASSESSMENT TO THE FILE OF ASSESSING OFFICER IN VARIOUS CASES, LIST OF WHICH HAS BEEN GIVEN IN PAPER BOOK NO. 1 . HE HAS ALSO ARGUED THAT THE DECISION OF CO- ORDINATE BENCH SHOULD BE FOLLOWED BY ANOTHER CO-ORD INATE BENCH WHERE THE FACTS ARE IDENTICAL. ACCORDING TO HIM, THERE IS NO CH ANGE IN THE FACTS OF THE PRESENT CASE AND THE CASES EARLIER DECIDED BY THE TRI BUNAL. RELIANCE HAS ALSO BEEN PLACED ON SUPREME COURT JUDGMENT IN THE CASE OF S.I. ROOPLAL VS. LT. GOVERNOR, DELHI LAB.I.C.370(SC) . IT WAS ALSO SUBMIT TED THAT THE ASSESSING OFFICER HAS ALL THE POWERS OF MAKING INVESTIGATIONS WHILE THE LEARNED CIT(A) WOULD HAVE TO DEPEND UPON THE ASSESSING OFFICER AND, THEREFORE, THERE IS NO POINT IN RESTORING THE MATTER TO THE FILE OF THE LEARNED CI T(A). PROCEEDING FURTHER, IT WAS SUBMITTED BY HIM THAT RESTORATION TO THE LEARNED CIT(A) WOULD CAUSE INJUSTICE TO THE ASSESSEE AS THE DEPARTMENT WOULD B E ABLE TO RECOVER THE HIGH PITCHED DEMAND THROUGH THE PROCESS CARRIED OUT BY THE SPECIAL COURT. ON THE OTHER HAND, THE LEARNED SPECIAL COUNSEL STRONG LY OPPOSED THE PRAYER OF THE ASSESSEE BY SUBMITTING-(I) THAT THE DEMAND AGAINS T THE ASSESSEE WOULD BE WIPED OUT IF THE MATTER IS RESTORED TO THE FILE OF ASS ESSING OFFICER AND AS PER UNDERTAKING GIVEN BY THE DEPARTMENT, THE DEPARTMENT WILL HAVE TO RETURN THE MONEY WHICH HAS BEEN COLLECTED ON THE ADMITTED AMOUN T OF INCOME. , (II) IF THE TRIBUNAL HOLDS THAT THE ORDER OF SETTING ASIDE OF THE LE ARNED CIT(A) IS CONTRARY TO THE PROVISIONS OF SECTION 251(1)(A) OF THE INCOME TA X ACT,1961, THEN THE MATTER SHOULD GO BACK ONLY TO THE LEARNED CIT(A) SO TH AT HE MAY DECIDE THE APPEAL ON MERIT. ACCORDING TO HIM, THE POWERS OF THE L EARNED CIT(A) ARE CO- TERMINUS TO THAT OF ASSESSING OFFICER AND ,THEREFORE, I T IS WRONG TO SAY THAT THE LEARNED CIT(A) WOULD NOT BE IN A POSITION TO MAKE NEC ESSARY ENQUIRIES . IF NECESSARY , THE REMAND REPORT CAN BE SOUGHT BY THE LE ARNED CIT(A) . IT MAY BE CLARIFIED AT THIS STAGE THAT BOTH THE COUNSELS AGREED TO THE EFFECT THAT ASSESSEE WILL NOT SEEK REFUND OF TAX DEPOSITED ON THE ADMITTED AMOUNT OF INCOME IF THE MATTER IS RESTORED TO THE FILE OF ASSESSING OFFICER AN D THE REVENUE WOULD NOT PRESS FOR THE DEMAND OF TAX ON THE DISPUTED ADDITION ON ACCOUNT OF UNEXPLAINED INCOME FROM SALE OF SHARES AND DIVIDEND /INTEREST INCOME, ETC. IN THE SECOND ROUND OF LITIGATION IN SET ASIDE PROC EEDINGS , THE LEARNED CIT(A) PARTLY ALLOWED THE APPEAL OF THE ASSESSEE AND THE A SSESSMENT WAS ALSO ENHANCED BY THE LEARNED CIT(A), VIDE ORDERS DATED 2 9-03-2012. BOTH THE MA/74/MUM/2016 ARISING OUT OF ITA NO.4287/MUM/2012 4 REVENUE AND THE ASSESSEE CAME IN APPEAL BEFORE THE TRIBUNAL IN SECOND ROUND OF LITIGATION WHICH WAS ADJUDICATED BY THE TR IBUNAL VIDE ORDERS DATED 10-11-2015 IN ITA NO. 3442/MUM/2012 AND ITA NO. 428 7/MUM/2012 AND THE TRIBUNAL VIDE OBSERVATION IN PARA 23 OF ITS ORD ER KEEPING IN VIEW PECULIAR FACTS, CIRCUMSTANCES AND HISTORY OF THE CASE STIPUL ATED THAT THE ASSESSEE SHALL NOT SEEK REFUND OF TAXES DEPOSITED ON THE ADMITTED AMOUNT OF INCOME. THE ASSESSEE HAS NOW FILED MISCELLANEOUS APPLICATION SE EKING RECTIFICATION OF THE TRIBUNAL ORDER DATED 10-11-2015 BY WAY OF DELETION OF PARA 23 OF THE SAID ORDER OR RECALLING THE ENTIRE ORDER OF THE TRIBUNAL IN ITA NO. 4287/MUM/2012 FOR ASSESSMENT YEAR 1993-94 FOR FRESH HEARING AFTER GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT IN FIRST ROUND OF LITIGATION , THE TRIBUNAL RESTORED THE MATTER TO TH E FILE OF THE LEARNED CIT(A) AS THERE WAS NON-COMPLIANCE BY THE ASSESSEE BEFORE THE AO AND PARTIAL APPEARANCE BEFORE THE LEARNED CIT(A). IT WAS SUBMIT TED THAT PRAYER WAS MADE IN FIRST ROUND OF LITIGATION BY THE ASSESSEE TO SET ASIDE THE MATTER BEFORE THE AO AND IT WAS CONTESTED BY THE ASSESSEE BEFORE THE TRIBUNAL THAT IF THE MATTER IS RESTORED TO THE FILE OF THE AO THEN NO REFUND WI LL BE SOUGHT BY THE ASSESSEE OF THE TAXES PAID ON ADMITTED INCOME WHICH WAS ADMI TTED VIDE LETTERS FILED BEFORE THE AUTHORITIES FROM TIME TO TIME. IT WAS SU BMITTED THAT IT WAS ARGUED THAT SIMILARLY REVENUE SHOULD ALSO NOT PRESS FOR TH E DEMAND. OUR ATTENTION WAS DRAWN TO TRIBUNAL ORDER IN ITA NO. 5138/MUM/200 3 DATED 17-03-2006 PARA 7/PAGE 5 IN THE CASE OF THE ASSESSEE FOR THE A SSESSMENT YEAR 1993-94 WHEREIN THE TRIBUNAL HELD AS UNDER:- 7. ONE MORE ASPECT HAS ARISEN IN THE COURSE OF HEARI NG AS TO WHETHER THE MATTER SHOULD BE RESTORED TO THE FILE OF ASSESSING OFFICER OR TO THE FILE OF THE LEARNED CIT(A). THE LEARNED COUNSEL FOR THE ASSES SEE HAS VEHEMENTLY ARGUED THAT ON IDENTICAL FACTS, THE TRIBUNAL HAD RESTORE D THE MATTER FOR FRESH ASSESSMENT TO THE FILE OF ASSESSING OFFICER IN VARIOUS CASES, LIST OF WHICH HAS BEEN GIVEN IN PAPER BOOK NO. 1 . HE HAS ALSO ARGUED THAT THE DECISION OF CO- MA/74/MUM/2016 ARISING OUT OF ITA NO.4287/MUM/2012 5 ORDINATE BENCH SHOULD BE FOLLOWED BY ANOTHER CO-ORD INATE BENCH WHERE THE FACTS ARE IDENTICAL. ACCORDING TO HIM, THERE IS NO CH ANGE IN THE FACTS OF THE PRESENT CASE AND THE CASES EARLIER DECIDED BY THE TR IBUNAL. RELIANCE HAS ALSO BEEN PLACED ON SUPREME COURT JUDGMENT IN THE CASE OF S.I. ROOPLAL VS. LT. GOVERNOR, DELHI LAB.I.C.370(SC) . IT WAS ALSO SUBMIT TED THAT THE ASSESSING OFFICER HAS ALL THE POWERS OF MAKING INVESTIGATIONS WHILE THE LEARNED CIT(A) WOULD HAVE TO DEPEND UPON THE ASSESSING OFFICER AND, THEREFORE, THERE IS NO POINT IN RESTORING THE MATTER TO THE FILE OF THE LEARNED CI T(A). PROCEEDING FURTHER, IT WAS SUBMITTED BY HIM THAT RESTORATION TO THE LEARNED CIT(A) WOULD CAUSE INJUSTICE TO THE ASSESSEE AS THE DEPARTMENT WOULD B E ABLE TO RECOVER THE HIGH PITCHED DEMAND THROUGH THE PROCESS CARRIED OUT BY THE SPECIAL COURT. ON THE OTHER HAND, THE LEARNED SPECIAL COUNSEL STRONG LY OPPOSED THE PRAYER OF THE ASSESSEE BY SUBMITTING-(I) THAT THE DEMAND AGAINS T THE ASSESSEE WOULD BE WIPED OUT IF THE MATTER IS RESTORED TO THE FILE OF ASS ESSING OFFICER AND AS PER UNDERTAKING GIVEN BY THE DEPARTMENT, THE DEPARTMENT WIL L HAVE TO RETURN THE MONEY WHICH HAS BEEN COLLECTED ON THE ADMITTED AMOUN T OF INCOME. , (II) IF THE TRIBUNAL HOLDS THAT THE ORDER OF SETTING ASIDE OF THE LE ARNED CIT(A) IS CONTRARY TO THE PROVISIONS OF SECTION 251(1)(A) OF THE INCOME T AX ACT,1961, THEN THE MATTER SHOULD GO BACK ONLY TO THE LEARNED CIT(A) SO TH AT HE MAY DECIDE THE APPEAL ON MERIT. ACCORDING TO HIM, THE POWERS OF THE L EARNED CIT(A) ARE CO- TERMINUS TO THAT OF ASSESSING OFFICER AND ,THEREFORE, I T IS WRONG TO SAY THAT THE LEARNED CIT(A) WOULD NOT BE IN A POSITION TO MAKE NEC ESSARY ENQUIRIES . IF NECESSARY , THE REMAND REPORT CAN BE SOUGHT BY THE LE ARNED CIT(A) . IT MAY BE CLARIFIED AT THIS STAGE THAT BOTH THE COUNSELS AGREED TO THE EFFECT THAT ASSESSEE WILL NOT SEEK REFUND OF TAX DEPOSITED ON THE ADMITTED AMOUNT OF INCOME IF THE MATTER IS RESTORED TO THE FILE OF ASSESSING OFFICER AN D THE REVENUE WOULD NOT PRESS FOR THE DEMAND OF TAX ON THE DISPUTED ADDITION ON ACCOUNT OF UNEXPLAINED INCOME FROM SALE OF SHARES AND DIVIDEND /INTEREST INCOME, ETC. IT IS ADMITTED BY THE LEARNED COUNSEL THAT NO RETUR N OF INCOME WAS FILED BY THE ASSESSEE FOR THE IMPUGNED ASSESSMENT YEAR WITH THE REVENUE AND THE INCOME IS ADMITTED BY FILING LETTERS BEFORE THE AUT HORITIES BELOW FROM TIME TO TIME WHICH ALSO FIND MENTIONED IN PRECEDING PARAS OF THIS ORDER .IT IS SUBMITTED THAT THE REVENUE CANNOT APPROPRIATE AND W ITHHELD TAXES SO DEPOSITED AS NO RETURN OF INCOME WAS EVER FILED BY THE ASSESSEE WITH THE REVENUE . THUS, IT WAS SUBMITTED BEFORE THE TRIBUNA L THAT THE ERROR HAS CREPT IN THE ORDER OF THE TRIBUNAL DATED 10-11-2015 WHERE BY THE TRIBUNAL HAS IMPOSED THE CONDITION THAT ON ADMITTED INCOME , THE ASSESSEE WILL NOT SEEK REFUND OF TAXES DEPOSITED , AS NOW THE MATTER IS SE T ASIDE AND RESTORED TO THE FILE OF THE AO BY THE TRIBUNAL VIDE ORDERS DATED 10 -11-2015 AND HENCE THERE IS NO ADDITIONS TO THE INCOME LEFT FOR THE TIME BEI NG TILL THE DE-NOVO MA/74/MUM/2016 ARISING OUT OF ITA NO.4287/MUM/2012 6 ASSESSMENT IS FRAMED BY THE AO. ALTERNATIVELY, IT W AS SUBMITTED THAT THE DIRECTIONS MAY BE ISSUED TO THE REVENUE FOR NOT PRE SSING THE OUTSTANDING DEMAND AGAINST THE ASSESSEE. IT WAS ALSO SUBMITTED THAT IN THE SECOND ROUND OF LITIGATION , NO SUCH CONCESSION WAS OFFERED BY T HE ASSESSEE THAT IF THE TRIBUNAL SET ASIDE THIS MATTER TO THE FILE OF THE A O FOR DE-NOVO DETERMINATION OF THE ISSUE ON MERITS, THE ASSESSEE WILL NOT SEEK REFUND OF TAXES DEPOSITED ON ADMITTED INCOME. SINCE, NOW THE TRIBUNAL HAS RESTOR ED THE MATTER TO THE FILE OF THE AO FOR DE-NOVO DETERMINATION OF THE MATTER I N SECOND ROUND OF LITIGATION, THEN NO SUCH CONDITIONS FOR NOT SEEKING REFUND OF TAXES DEPOSITED ON ADMITTED INCOME CAN BE IMPOSED ON THE ASSESSEE. 4.THE LEARNED DR ON THE OTHER HAND SUBMITTED THAT T HERE IS NO MISTAKE WHICH HAS CREPT IN THE ORDER OF THE TRIBUNAL WHICH CAN NO W BE RECTIFIED UNDER THIS MISCELLANEOUS APPLICATION U/S 254(2) OF THE ACT AS THE SCOPE OF RECTIFICATION IS LIMITED TO THE MISTAKES APPARENT FROM THE RECORD. I T WAS SUBMITTED THAT THE TRIBUNAL HAS CORRECTLY STIPULATED THE CONDITION OF NON-SEEKING OF REFUND OF TAXES ON ADMITTED INCOME AS THE ASSESSEE HAS NOT FI LED RETURN OF INCOME WITH THE REVENUE FOR THE IMPUGNED ASSESSMENT YEAR AND TH E CONCESSION WAS ALSO GIVEN BY THE COUNSEL IN THE FIRST ROUND OF LITIGATI ON BEFORE THE TRIBUNAL ITSELF THAT THE ASSESSEE WILL NOT SEEK REFUND OF TAXES DEP OSITED ON ADMITTED INCOME THROUGH LETTERS FILED DURING ASSESSMENT AND APPELLA TE PROCEEDINGS BEFORE THE LEARNED CIT(A) IF THE MATTER IS RESTORED TO THE FIL E OF AO FOR DENOVO ADJUDICATION OF MATTER ON MERITS IN THE FIRST ROUND OF LITIGATION. ALTERNATIVELY, IT WAS SUBMITTED THAT IF THE ORDER DATED 10-11-2015 OF THE TRIBUNAL IS RECTIFIED THEN THE MATTER SHOULD BE RESTORED TO THE FILE OF T HE LEARNED CIT(A) IN BOTH THE CROSS APPEALS WHICH WERE ADJUDICATED BY THE TRIBUNA L VIDE ORDERS DATED 10- 11-2015. 5. WE HAVE HEARD THE LEARNED COUNSELS AND GONE THRO UGH THE ENTIRE RECORDS. WE HAVE OBSERVED THAT THIS CASE HAS A CHEQUERED HIS TORY WHICH DULY FIND MA/74/MUM/2016 ARISING OUT OF ITA NO.4287/MUM/2012 7 MENTIONED IN DETAILS IN PRECEDING PARAS AS WELL OR DERS OF THE AUTHORITIES PASSED FROM TIME TO TIME FOR THE IMPUGNED ASSESSMEN T YEAR. THE ASSESSEE DID NOT FILE RETURN OF INCOME WITH THE REVENUE FOR THE IMPUGNED ASSESSMENT YEAR WHICH IS A LAPSE ON THE PART OF THE ASSESSEE MEANIN G THEREBY THERE IS NO RETURNED INCOME AND NO TAXES WERE DEPOSITED ON THE ACCOUNT OF RETURNED INCOME FOR THE IMPUGNED ASSESSMENT YEAR. THE ASSESS EE ADMITTED CERTAIN INCOME DURING THE COURSE OF ASSESSMENT PROCEEDINGS BEFORE THE AO AS WELL APPELLATE PROCEEDINGS BEFORE LEARNED CIT(A) IN FIRS T ROUND OF LITIGATION VIDE LETTERS WHICH FOUND MENTIONED IN PRECEDING PARAS O F THIS ORDER ON WHICH ADMITTEDLY TAXES WERE DEPOSITED WITH THE REVENUE. T HE TRIBUNAL AFTER KEEPING IN VIEW PECULIAR FACTS AND CIRCUMSTANCES OF THE CAS E AS WELL HISTORY OF THE CASE HAS SET ASIDE THE MATTER IN THE SECOND ROUND O F LITIGATION TO THE FILE OF THE AO FOR DE-NOVO DETERMINATION OF THE ISSUES ON MERIT S, WHICH CONSEQUENTIALLY HAS LED TO THE WIPING OF THE OUTSTANDING DEMAND AGA INST THE ASSESSEE INCLUDING THE ADMITTED INCOME OF THE ASSESSEE WHIC H WAS ADMITTED BY THE ASSESSEE THROUGH LETTERS BEFORE THE AUTHORITIES BEL OW, TILL THE MATTER IS DE- NOVO ADJUDICATED BY THE AO ON MERITS IN THE SET ASI DE PROCEEDINGS. THIS WILL LEAD TO A SITUATION WHEREBY THE ASSESSEE ALTHOUGH B EING A DEFAULTER OF HAVING NOT FILED RETURN OF INCOME WITH THE REVENUE BUT HAV ING ADMITTED INCOME THROUGH LETTERS BEFORE THE AO AND THE LEARNED CIT(A ) WILL BE IN AN ADVANTAGEOUS POSITIONS VIS--VIS WHEREBY IF HE HAD ADMITTED INCOME BY FILING RETURN OF INCOME WITH THE REVENUE , THEN IN THAT CA SE IF THE ASSESSEE HAD FILED RETURN OF INCOME THEN THE ADMIITED INCOME WOULD NOT HAVE GOT WIPED OUT BUT DESPITE BEING DEFAULTER OF NOT HAVING FILED ANY RET URN OF INCOME WITH THE REVENUE WILL BE IN A ADVANTAGEOUS POSITION AS EVEN THE ADMITTED INCOME FOR THE TIME ALTHOUGH THROUGH LETTERS FILED BEFORE THE AUTHORITIES BELOW BEING WIPED OUT AND THE ASSESSEE WILL BE IN A POSITION TO SEEK REFUND OF TAXES DEPOSITED WITH THE REVENUE ON ADMITTED INCOME THROU GH LETTERS FILED WITH THE AUTHORITIES BELOW. THE ASSESSEE CANNOT BE ALLOWED T O PROFIT DESPITE BEING DEFAULTER OF HAVING NOT FILED RETURN OF INCOME VIS- -VIS THE TAX-PAYER WHO ARE MA/74/MUM/2016 ARISING OUT OF ITA NO.4287/MUM/2012 8 TAX COMPLIANT AND COME FORWARD AND FILE THEIR RETUR N OF INCOME WITH THE REVENUE AND PAY THEIR TAXES VOLUNTARILY ON INCOME A DMITTED THROUGH FILING RETURN OF INCOME WITH THE REVENUE , AS IT WILL LEAD TO A ANOMALOUS SITUATION WHICH WILL ACT AS DISCOURAGEMENT TO THE TAX COMPLIA NT TAX-PAYERS WHEREBY THE DEFAULTERS ARE ALLOWED TO PROFIT AT THE COST OF TAX COMPLIANT TAX-PAYERS WHICH IS AGAINST EQUITY , EQUALITY AND CANNONS OF JUSTICE . THE COURT CANNOT BE PART OF ENCOURAGEMENT TO SUCH ABUSE OF PROCESS OF LAW AN D IF THE ASSESSEE HAS COME TO SEEK RELIEF FROM THE COURT IT HAS TO COME T O COURT WITH CLEAN HANDS. THUS, THE CONDITIONS IMPOSED BY THE TRIBUNAL IN PAR A 23 OF THE ORDERS DATED 10-11-2015 THAT THE ASSESSEE WILL NOT SEEK REFUND O F TAXES DEPOSITED ON ADMITTED INCOME ALBEIT THROUGH LETTERS BEFORE THE A UTHORITIES BELOW WAS A CONSCIOUS DECISION OF THE TRIBUNAL KEEPING IN VIEW PECULIAR FACTS , CIRCUMSTANCES AND CHEQUERED HISTORY OF THE CASE AND WAS A CONSCIOUS ACT ON THE PART OF THE TRIBUNAL TO GRANT GREATER JUSTICE T O BOTH THE PARTIES AND NO MISTAKE WHATSOEVER HAD CREPT IN THE AFORE-STATED OR DER OF THE TRIBUNAL DATED 10-11-2015 WHICH COULD BE RECTIFIED WITHIN THE LIMI TED MANDATE OF SECTION 254(2) OF THE ACT. WE ORDER ACCORDINGLY. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION BEI NG MA NO. 74/MUM/2016 FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH OCTOBER, 2016. # $% & ' 17-10-2016 ( ) SD/- SD/- (AMIT SHUKLA) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER $ MUMBAI ; & DATED 17-10-2016 [ , MA/74/MUM/2016 ARISING OUT OF ITA NO.4287/MUM/2012 9 !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. 9 ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. 9 / CIT- CONCERNED, MUMBAI 5. <=( >>?@ , ?@ , $ / DR, ITAT, MUMBAI H BENCH 6. (BC D / GUARD FILE. / BY ORDER, < > //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , $ / ITAT, MUMBAI