Sri M Sushil Kumar, KGF V. Deputy C ommissioner of Income tax, Bangalore

MA 75/BANG/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 7313 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-10-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 13-06-2016
• Court: TRIBUNAL
• Department Lawyers: MEERA SRIVASTAVA
• Assessee Lawyers: H N KINCHA
• Keywords: Search and seizure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SMT ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER MP NO.75/BANG/2016 (IN ITA NO. 644/B/15) ASSESSMENT YEAR : 2012-13 SHRI. M. SUSHIL KUMAR, M/S. ABHISHEK BANKERS, SANTOSH NIVAS MAHARAJA ROAD, ROBERTSONPET, K.G.F. 563122. VS. DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 2(1) BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI. H. N. KINCHA, CA REVENUE BY : SMT. MEERA SRIVASTAVA, ADDL. CIT DATE OF HEARING : 30.09.2016 DATE OF PRONOUNCEMENT : 31.10 .2016 O R D E R PER INTURI RAMA RAO, ACCOUNTANT MEMBER THE PRESENT MISCELLANEOUS PETITION WAS FILED BY T HE ASSESSEE SEEKING RECTIFICATION OF THE ORDER PASSED BY THIS T RIBUNAL IN ITA NO.644/BANG/2015 DATED 30-12-2015 ON THE GROUND THA T THIS TRIBUNAL HAS NOT FOLLOWED THE DECISION OF COORDINATE BENCH IN TH E CASE OF M. VIMAL KUMAR AND M. SANJAY KUMAR IN ITA NOS. 642/BANG/2015 AND MP NO.75/BANG/2016 PAGE 2 OF 4 643/BANG/2015 DATED 14.08.2015 RELIED UPON BY THE A SSESSEE IN SUPPORT OF PROPOSITION THAT THE GOLD AND JEWELLERY FOUND ON AC COUNT OF SEARCH AND SEIZURE TO THE EXTENT OF 500 GRAMS PER EACH MEMBER OF THE FAMILY SHOULD BE TREATED AS EXPLAINED AND CANNOT BE ADDED AS UNE XPLAINED INCOME. THE LEARNED AR SUBMITTED THAT NON-CONSIDERATION OF THE DECISION OF THE COORDINATE BENCH AMOUNTS TO MISTAKE APPARENT FROM T HE RECORD CAPABLE OF BEING RECTIFIED UNDER SECTION 254(2) AND IN SUPPORT OF THIS PROPOSITION, HE RELIED UPON THE FOLLOWING DECISION: 1. PROMAIN LTD., V/S. CIT 382 ITR 25 (DEL) 2. GOPAL RAM PEMA RAM V/S. ACIT 50 TAXMANN.COM 132 3. MOHAN MEAKIN LTD., V/S. ITO 89 ITD 177 (DEL) (TM ) 4. HONDA SIEL POWER PRODUCTS LTD., V/S. CIT 165 TAX MANN 307 2. HE THUS PRAYED THAT THE IMPUGNED ORDER MAY BE RE CTIFIED BY HOLDING THAT OUT OF 4226.58 GRAMS OF JEWELLERY FOUND, 1800 GRAMS OF THE GOLD SHOULD BE TREATED AS EXPLAINED IN TERMS OF CIRCULAR NO. 1916. ON THE OTHER HAND, THE LEARNED DR OPPOSED THE PRESENT PETITION A ND SUBMITTED THAT THE IMPUGNED ORDER WAS PASSED AFTER APPRECIATING THE EV IDENCE ON RECORD AND THE DECISION WAS RENDERED ON MERIT. THEREFORE NO R ECTIFICATION PETITION IS MAINTAINABLE. 3. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL ON RECORD. THERE IS NO QUARREL AS TO THE PROPOSITION ADVANCED BY THE LEARNED COUNSEL FOR THE APPLICANT THAT THE NON-CONSIDERATION OF THE DECISION CITED CONSTITUTES MP NO.75/BANG/2016 PAGE 3 OF 4 A MISTAKE APPARENT FROM THE RECORD. BUT IN THE PRE SENT CASE, THE TRIBUNAL AFTER APPRECIATION OF THE LEGAL POSITION AS WELL AS THE FACTS, HAD GIVEN A CATEGORICAL FINDING THAT THE ASSESSEE IS NOT ELIGIB LE TO THE BENEFIT OF THE CIRCULAR NO. 196 DATED 11.5.1994. IN VIEW OF THE F ACT THAT THERE IS NO CLARITY AS TO THE NUMBER OF FAMILY MEMBERS OF THE ASSESSEE, AS THE ASSESSEE WAS JOINTLY RESIDING WITH HIS FATHER AND IT WAS THE FAT HER OF THE ASSESSEE WHO HAD GIVEN EXPLANATION IN SUPPORT OF THE JEWELLERY FOUND AS A RESULT OF SEARCH AND SEIZURE OPERATIONS. THIS TRIBUNAL HAD RENDERED A C ONSCIOUS DECISION THAT THE ASSESSEE IS NOT ELIGIBLE TO THE BENEFIT OF THE SAID CIRCULAR. THUS THE DECISION WAS RENDERED BASED ON THE FACTS OF CASE IN VOLVED. IT IS NOT THE CASE OF THE APPLICANT THAT CERTAIN FACTS ON RECORD HAVING BASIS ON THE ISSUE ARE NOT CONSIDERED. THE QUESTION OF APPLYING LAW LA ID DOWN BY THE COORDINATE BENCH DOES NOT ARISE. THEREFORE, THE CO NTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT NON-CONSIDERATION OF THE DECISION OF THE COORDINATE BENCH CONSTITUTES MISTAKE APPARENT FROM THE RECORD CANNOT BE ACCEPTED. 4. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF OCTOBER, 2016. SD/- (ASHA VIJAYARAGHAVAN) SD/- (INTURI RAMA RAO) JUDICIAL MEMBER ACCO UNTANT MEMBER BANGALORE. DATED: 31 ST OCTOBER, 2016. /NS/ MP NO.75/BANG/2016 PAGE 4 OF 4 COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.