MANMAL METAL SYNDICATE, MUMBAI V. INCOME TAX OFFICER 19(2)(3), MUMBAI

MA 741/MUM/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5562 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-10-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 18-12-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJEEV GUBGOTRA
• Section: 254(2); 64

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM) AND SHRI RAM LAL NEGI (JM) M .A. N O. 741 / MUM /2018 ( ARISING OUT OF ITA N O. 1864 /MUM /201 8) ( ASSESSMENT YEAR : 2009 1 0 ) M.A. NO. 742 / MUM /2018 ( ARISING OUT OF ITA N O. 1865 /MUM /201 6 ) ( ASSESSMENT YEAR : 2011 1 2 ) MANMAL METAL SYNDICATE, SHOP NO. 18, BALKRISHNA NIWAS, 54, 3 RD PANJRAPOLE LANE, MUMBAI - 400004 PAN: AAPFM3218B VS. THE INCOME TAX OFFICER 19(2)(3), ROOM NO. 218, 2 ND FLOOR, MATRU MANDIR, TARDEO, MU MBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PIYUSH CHH A JED (A R) REVENUE BY : SHRI RAJEEV GUBGOTRA (D R) DATE OF HEARING: 12/07 /201 9 DATE OF PRONOUNCEMENT: 09 / 10 /201 9 O R D E R PER RAM LAL NEGI, JM THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION S FOR RECTIFICATION/RECALLIN G OF THE COMMON ORDER DATED 20.06.2018 PASSED BY SMC BENCH OF THE MUMBAI TRIBUNAL IN THE ASSESSEES CASE ITA NO . 1864 AND 1865 /M UM /2018 PERTAI NING TO THE AS SESSMENT YEAR S 2009 - 10 AND 2011 - 12 . THE APPLICANT/ASSESSEE HAS POINTED OUT THAT THE FINDINGS OF THE TRIBUNAL ARE CONTRARY TO THE EVIDENCE ON RECORD AND THE TRIBUNAL HAS PASSED THE AFORESAID ORDER WITHOUT TAKING INTO CONSIDERATION, THE CASES RELIED UPON BY THE ASSESSEE DURING THE ARGUMENTS OF THE APPEALS ITA NOS. 1864 &1865/MUM/2018 . 2 M.A. NO S . 741 AND 742 /MUM/2018 ASSESSMENT YEAR S : 2009 - 10 AND 2011 - 12 2. IN THE LIGHT OF THE ISSUE S RAISED BY THE APPLICANT/ASSESSEE, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE TRIBUNAL HAS WRONGLY HELD THAT THE ASSESSEE HAS FA ILED TO PROVE THE ACTUAL DELIVERY OF GOODS BY THE ALLEGED HAWALA DEALERS BY PRODUCING DETAILS OF TRANSPORTATION OF GOODS, I.E. LORRY RECEIPTS, RECORD REFLECTING ENTRIES OF HAVING RECEIPT GOODS SUPPLIED BY THE DEALERS IN THE PREM ISES OF THE ASSESSEE. THE L D. COUNSEL INVITED OUR ATTENTION TO PAGE 46 TO 77 AND 92 TO 135 OF THE PAPER BOOK , WHICH ARE THE COPIES OF INVOICES ISSUED BY THE PARTIES CONCERNED IN RESPECT OF QUESTION ED SALES PERTAINING TO THE ASSESSMENT YEAR 2009 - 10 AND PAGE 32 TO 56 AND 64 TO 96 OF T HE PAPER BOOK IN RESPECT OF THE PURCHASES PERTAINING TO THE AY 2011 - 12. THE LD. COUNSEL FURTHER SUBMITTED THAT SINCE THE FINDINGS OF THE TRIBUNAL ARE CONTRARY TO THE EVIDENCE ON RECORD, TH IS MISTAKE REQUIRES RECTIFICATION. 3. THE LD. COUNSEL FURTHER POINTE D OUT THAT THE TRIBUNAL HAS PASSED THE AFORESAID ORDER DESPITE THE FACT THAT DURING THE COURSE OF HEARING, IT WAS SPECIFICALLY POINTED OUT THAT THE APPELLANT BEING A TRADER HAS FURNISHED THE DETAILS TO ESTABLISH ONE - TO - ONE CO - RELATION OF PURCHASES AND SALE S. 4. THE LD. COUNSEL FURTHER POINTED OUT THAT THE TRIBUNAL HAS PASSED THE IMPUGNED ORDER WITHOUT FOLLOWING/DISCUSSING THE CASES RELIED UPON BY THE ASSESSEE AND FURTHER SUBMITTED THAT NON CONSIDERATION OF JUDICIAL PRECEDENTS AMOUNTS TO MISTAKE APPARENT FR OM THE RECORD , WHICH REQUIRES RECTIFICATION U/S 254(2) OF THE ACT. 5. ON THE BASIS OF THE AFORESAID ISSUES, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT SINCE THE ORDER SUFFERS FROM MISTAKE APPARENT FROM THE RECORD THE ORDER PASSED BY THE TRIBUNAL MAY B E RECTIFIED. 6. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) OPPOSED THE APPLICATIONS ON THE GROUND THAT SINCE THE TRIBUNAL HAS DECIDED THE ISSUES IN QUESTION AFTER TAKING INTO CONSIDERATION, THE SUBMISSIONS MADE BY THE ASSESSEE , THERE IS N O MISTAKE APPARENT FROM THE RECORD TO RECTIFY THE SAID ORDER. THE LD. DR FURTHER POINTED OUT THAT IF THE APPLICATIONS ARE ALLOWED AND THE ORDER IS RECTIFIED, THE SAME WILL AMOUNT TO REVIEW OF THE EARLIER ORDER BY THE 3 M.A. NO S . 741 AND 742 /MUM/2018 ASSESSMENT YEAR S : 2009 - 10 AND 2011 - 12 TRIBUNAL , WHICH IS NOT PERMISSIBLE UNDE R LAW. ACCORDINGLY, THE LD. DR SUBMITTED THAT THE APPLICATIONS FILED BY THE ASSESSEE MAY BE DISMISSED. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND ALSO GONE THROUGH THE ENTIRE MATERIAL ON RECORD IN THE LIGHT OF THE RIVAL CONTENTIONS. THE TRIB UNAL HAS PASSED THE ORDER IN QUESTION AFTER TAKING INTO CONSIDERATION THE ENTIRE MATERIAL ON RECORD INCLUDING THE DOCUMENTS AT PAGE 46 TO 77 AND 92 TO 135 AND PAGE 198 IN RESPECT OF PURCHASES PERTAINING TO THE AY 2009 - 10 AND PAGE 37 TO 56, 64 TO 96 AND 118 TO 136 IN RESPECT OF THE PURCHASES PERTAINING TO THE ASSESSMENT YEAR 2011 - 12. THE INVOICES/TAX INVOICES/DELIVERY CHALLANS SUBMITTED BY THE ASSESSEE ARE DIFFERENT FROM THE DETAILS OF TRANSPORTATION OF GOODS I.E. LORRY RECEIPTS, OCTROI RECEIPTS WEIGH BRIDGE SLIP ETC. WHICH WERE NOT PRODUCED BY THE ASSESSEE EITHER BEFORE THE AUTHORITIES BELOW OR BEFORE THE TRIBUNAL. THE TRIBUNAL HAS UPHELD THE ADDITION MADE BY THE LD. CIT (A) ON ESTIMATION BASIS , AFTER COMING TO THE CONCLUSION ON THE BASIS OF EVIDENCE ON RECO RD THAT THE ASSESSEE HAS FAILED TO ESTABLISH THE GENUINENESS OF THE TRANSACTION OF QUESTIONED PURCHASES FROM THE PARTIES CONCERNED. 8. UNDER SECTION 254 (2) OF THE ACT, THE APPELLATE TRIBUNAL CAN AMEND ANY ORDER PASSED BY IT TO RECTIFY ANY MISTAKE APPAREN T FROM THE RECORD ONLY. I N OUR CONSIDERED VIEW, THE ISSUES RAISED BY THE ASSESSEE DO NOT COME WITHIN THE PURVIEW OF MISTAKE APPARENT FROM THE RECORD UNDER SECTION 254 (2) OF THE ACT. . HENCE, WE DISMISS BOTH THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSES SEE IN THE RESULT, MISC. APPLICATION S FILED BY THE ASSESSEE FOR A SSESSMENT YEAR 2009 - 10 AND 2011 - 12 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH OCTOBER , 2019 . SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 09 / 10/ 2019 ALINDRA, PS 4 M.A. NO S . 741 AND 742 /MUM/2018 ASSESSMENT YEAR S : 2009 - 10 AND 2011 - 12 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A ) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI