ACIT, New Delhi V. M/s Shiv Naresh Sports Pvt. Ltd., Delhi

MA 747/DEL/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2963 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-09-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 16-06-2022
• Assessment Year: 2010-2011
• Appeal Filed On: 16-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Keywords: Search and seizure; Additional evidence
• Section: 68; 132; 154; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH ‘F’ : NEW DELHI) SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER and SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER MA No.747/Del/2019 (in ITA No.11/Del./2020) (ASSESSMENT YEAR : 2010-11) ACIT, Central Circle 5, vs. Shiv Naresh Sports Pvt. Ltd., New Delhi. E-23, Karampura, Delhi – 110 015. (PAN : AAECS7326L) (APPLICANT) (RESPONDENT) ASSESSEE BY : Shri S.B. Gupta, CA APPLICANT/REVENUE BY : Ms. Anupama Singla, Sr. DR Date of Hearing : 17.06.2022 Date of Order : 05.09.2022 ORDER PER SHAMIM YAHYA, ACCOUNTANT MEMBER : By way of this misc. application, Applicant/Revenue seeks rectification of mistake in the order of the Tribunal in the case of Shiv Naresh Sports Pvt. Ltd. vs. ACIT in ITA No.1271/Del/2016 for AY 2010-11 order dated 14.02.2019. The Revenue’s submission in this regard are as under :- “4. That the brief fact of the case are as under:- a. A search and seizure- action u/s 132 of the Income Tax Act, 1961 was conducted on 28.10.2010 in the case of the assessee. Original return of income in this case was filed on 25.09.2010 declaring a total income of Rs.69,92,830/-. In response to notice u/s 153A, assessee submitted that the original return of income may be MA NO.747/Del/2019 2 treated as return filed in response to notice u/s 153A.The order u/s 153A/143(3) was passed on 28.03.20l3 at an income of Rs.1,47,57,171/- after making several additions. One of such additions was on account of share application money of Rs.58,33,340/- u/s 68 of the Act. b. The assessee preferred an appeal before Ld. CIT (Appeals), who decided the appeal vide order dated 31.03.2015 wherein substantial relief was granted to the assessee. However, the addition on account of share application money u/s 68 of the IT Act amounting to Rs.58,33,340/- was not challenged in the original grounds of appeal for which there was no adjudication in the order of Ld. CIT(A). The assessee filed a rectification petition on 01.12.2015 before Ld. CIT(A) stating that additional ground relating to share capital was not decided in the order dated 31.03.2015 and requested for rectification of the order dated 31.03.2015. Ld. CIT(A) disposed off the rectification petition vide order dated 16.02.2016 and held that there is no mistake apparent from records; para 6 of the said order is reproduced below: “considering the above findings, I am of the view that no case has been made out by the appellant that the additional ground was filed before the Ld. CIT(A) prior to the passing of the appellate order. It is quite possible that the CIT(A) sought remand report from the AO on the additional evidence submitted for all three assessment years but at the time of passing of the assessment order, he would have seen that there is no ground of appeal in this regard for AY 2011-12. In any case, in my view, there is no mistake apparent from the record that the CIT(A) failed to consider ground of appeal filed before him prior to the passing of the appellate order. Within this limited parameter, there is no case for rectification of the appellate order under the provisions of section 154 of the Income Tax Act, 1961. Accordingly, rectification application is dismissed. c. The assessee filed separate appeals before Hon’ble Tribunal against orders of ld. CIT (A) dated 31.03.2015 and 16.02.2016 vide ITA Nos.1271/Del/2016 and 1804/Del/2016 respectively. Hon'ble Tribunal vide order dated 14.02.2019, decided the appeal in ITA Nos.1271/Del/20 16 and restored the matter back to the file of Ld. CIT(A) to adjudicate the admissibility of additional ground raised before him. d. It has been found that the assessee filed appeal against the order of Ld. CIT(A) dated 3l.03.2015 on 08.03.2016 that is after adjudication of his rectification petition on 16.02.2016. While filing appeal before Hon'ble Tribunal, the assessee suppressed the fact that the issue of admissibility of additional evidence had already been decided by Ld. CIT(A) vide order dated 16.02.2016 MA NO.747/Del/2019 3 i.e. well before the date of filing of appeal in ITA No. 1271/Del/20 16. Thus, vital facts relating to dismissal of rectification petition on admissibility of additional ground was not brought to the kind notice of Hon'ble Bench and decision of the Bench dated 14.02.2019 was made without taking into consideration of above material facts. 5. In view of the above, it is most respectfully prayed that the Hon'ble Bench be pleased to: a. Recall/withdraw the above mentioned order. b. Pass such suitable order as deemed necessary on the merits of the case as submitted above.” 2. We have heard both the parties and perused the record. We are of the considered opinion that Revenue’s plea is that certain facts were not brought by the assessee before the Tribunal. We note that it is not the case that the Tribunal has ignored any fact. If something is not brought before the Tribunal, the omission of the same cannot lead to a mistake apparent from the record in the order liable to be rectified u/s 254(2) of the Income-tax Act, 1961 (for short ‘the Act’). This plea by the Revenue is a plea of review in the garb of rectification which is not permissible in law. Hence, this misc. application by the Revenue is dismissed. Order pronounced in the open court on this 5 th day of September, 2022. Sd/- sd/- (CHALLA NAGENDRA PRASAD) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated the 5 th day of September, 2022 TS MA NO.747/Del/2019 4 Copy forwarded to: 1.Appellant 2.Respondent 3.CIT 4.CIT(A) 5.CIT(ITAT), New Delhi. AR, ITAT NEW DELHI.