N.H. SECURUTIES LTD, V. DY CIT CIR 40,

MA 755/MUM/2010

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1885 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-05-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 20-12-2013
• Assessment Year: 1999-2000
• Appeal Filed On: 24-12-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL
• Assessee Lawyers: DHRUV SHAH

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI , , . . , BEFORE SHRI VIJAY PAL RAO , ACCOUNTANT MEMBER AND SHRI N.K. BILLAIYA , JUDIC IAL MEMBER . / M.A . NO. 755 / MUM./20 1 0 ( . / ITA NO. 3717 / MUM./ 20 0 4 ) ( / ASSESSMENT YEAR : 1999 2000 ) N.H. SECURITIES LTD. BHUPEN CHAMBERS DALAL STREET, FORT MUMBAI 400 023 .. / APP LICANT V/S DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 40, MUMBAI .... / RESPONDENT . / PERMANENT ACCOUNT NUMBER AAACS7140Q / ASSESSEE BY : MR. DHRUV SHAH / REVENUE BY : DR. P. DANIEL / DATE OF HEARING 0 9 . 05 .201 4 / DATE OF ORDER 09.05.2014 / ORDER . . , / PER N.K. BILLAIYA , A .M. TH E PRESENT MISCELLANEOUS APPLICATION IS DIRECT ED AGAINST THE ORDER DATED 3 RD OCTOBER 2007, PASSED BY THE TRIBUNAL IN AN APPEAL PREFERRED BY THE ASSESSEE IN ITA NO.3717/MUM./2004 . THIS APPLICATION WAS FIRST POSTED FOR HEARING ON 2 ND AUGUST 2013 AND THE CASE WAS N.H. SECURITIES LTD. 2 ADJOURNED AT THE REQUEST OF THE COUNSEL F OR THE ASSESSEE. THEREAFTER, THE CASE WAS POSTED FOR HEARING ON SEVEN OCCASIONS AND ON EACH OCCASION, THE ASSESSEE SOUGHT ADJOURNMENT ON ONE OR THE OTHER GROUNDS. EVEN THIS DAY ALSO, THE ASSESSEE HAS SOUGHT ADJOURNMENT. LOOKING TO THE PAST CONDUCT OF THE A SSESSEE, THE ASSESSEES REQUEST FOR ADJOURNMENT IS DENIED. ACCORDINGLY, WE NOW PROCEED TO DISPOSE OFF THE PRESENT APPLICATION. 2 . BEFORE US, IT IS THE SAY OF THE LEARNED DEPARTMENTAL REPRESENTATIVE THAT THE TRIBUNAL HAS PASSED A DETAIL ORDER CONSIDERING ALL THE DISCUSSION MADE DURING THE COURSE OF THE HEARING. HE FURTHER STATED THAT THERE IS NO SUCH DISCUSSION WHICH NOT PART OF THE RECORD. 3 . WE HAVE CAREFULLY GONE THROUGH THE ORDER 3 RD OCTOBER 2007, PASSED BY THE TRIBUNAL ITA NO.3717/MUM./2004 AND ALSO CAREFUL LY PERUSED THE CONTENTS OF THE PRESENT APPLICATION. THE ASSESSEE, BY WAY OF THIS APPLICATION, WANT THE TRIBUNAL TO REVIEW ITS OWN ORDER WHICH IS NOT PERMISSIBLE, AS PER THE PROVISIONS OF LAW, THE RELEVANT PARA (V) AND (V I ) OF THE APPLICATION IS REPRODUCED BELOW: (V) IT WOULD NOT BE OUT OF PLACE TO MENTION THAT THE HON'BLE TRIBUNAL WHILE DEALING WITH GROUND NO.2 OF THE APPLICANTS WHERE SIMILAR FACTS ARE INVOLVED NAMELY, CONFIRMATIONS IN RESPECT OF CERTAIN CLIENTS HAVE BEEN OBTAINED AND FILED BEFORE THE C IT(A) AND IN RESPECT OF OTHER CLIENTS FROM WHOM CONFIRMATIONS COULD NOT BE OBTAINED BUT CIRCUMSTANTIAL EVIDENCES HAVE BEEN FILED BEFORE THE CIT(A) , HAVE RESTORED THE MATTER TO THE A.O. DIRECTING HIM TO DECIDE THE ENTIRE ISSUE AFRESH AFTER CONSIDERING ALL T HE EVIDENCES THAT MAY BE FILED BEFORE HIM. (VI) THE APPLICANTS HUMBLY SUBMIT THAT WITH GREATEST RESPECT THAT THE HONOURABLE BENCH WHILE DISPOSING OF GROUND OF APPEAL NO.2 HAVE ACCEPTED THE CIRCUMSTANTIAL EVIDENCES FILED AND DIRECTED THE A.O. TO VERIFY THE SAME, WHEREAS WHILE DISPOSING OF GROUND OF APPEAL NO.3 HAVE OVERLOOKED THE FACT OF CIRCUMSTANTIAL EVIDENCES FILED AND CONFIRMED THE ADDITION. IT WILL NOT BE OUT OF PLACE TO MENTION THAT THE APPLICANTS HAVE RAISED A SPECIFIC AND SIMILAR GROUND FOR ACCEPTAN CE OF THE CIRCUMSTANTIAL EVIDENCES FOR EACH OF THE AFORESAID GROUNDS. N.H. SECURITIES LTD. 3 4 . T HE HON'BLE JURISDICTIONAL HIGH COURT IN CIT V/S RAMESH ELECTRIC AND TRADING CO., [1993] 203 ITR 497 (BOM.), HAS HELD AS UNDER: UNDER SECTION 254(2) OF THE INCOME - TAX ACT, 1961, THE APPELLATE TRIBUNAL MAY, 'WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD', AMEND ANY ORDER PASSED BY IT UNDER SUB - SECTION (1) WITHIN THE TIME PRESCRIBED THEREIN. IT IS AN ACCEPTED POSITION THAT THE APPELLATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIONS OF THE ACT. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTIFY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS IS MERELY A POWER OF AMENDING ITS ORDER. THE POWER OF RECTIFICATION UN DER SECTION 254(2) CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD, AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASON ING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE TRIBUNA L CANNOT, IN THE EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION. 5 . RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT, WE HOLD THAT THE MISCEL LANEOUS APPLICATION FILED BY THE ASSESSEE DOES NOT SURVIVE . 6 . 6. IN THE RESULT, ASSESSEE S MISCELLANEOUS APPLICATION IS DISMISSED. 9 TH MAY 2014 ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH MAY 2014 SD/ - VIJAY PAL RAO JUDICIAL MEMBER SD/ - . . N.K. BILLAIYA ACCOUNTANT MEMBER MUMBAI, DATED : 9 TH MAY 2014 N.H. SECURITIES LTD. 4 / COPY OF THE ORDER FORWARDED TO : ( 1 ) / T HE ASSESSEE ; ( 2 ) / THE REVENUE; ( 3 ) ( ) / THE CIT(A ) ; ( 4 ) / THE CIT, MUMBAI CITY CONCERNED ; ( 5 ) , , / THE DR, ITAT, MUMBAI ; ( 6 ) / GUARD FILE . / TRUE COPY / BY ORDER . / PRADEEP J. CHOWDHURY / SR. PRIVATE SECRETARY / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI