ACMAY CLONING, V. ACIT 18(2),

MA 757/MUM/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4957 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-09-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2003-2004
• Appeal Filed On: 17-11-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH: MUMBAI BEFORE SHRI R. S. SYAL, ACCOUNTANT MEMBER AND SHRI R. S. PADVEKAR, JUDICIAL MEMBER MISC. APPLICATION NO.757/MUM/2009 (ARISING OUT OF ITA NO.6340/MUM/2006 FOR THE ASSESSMENT YEAR:2003-04) M/S.ACME CLOTHING PVT LTD, NOW M/S. PROVOUGE (I) LTD, 105/106, PROVOGUE HOUSE, OFF LINK ROAD, ANDHERI (WEST), MUMBAI -400 018 PAN: AABCA 8524 F VS. DCIT CENTRAL CIRCLE 45, ROOM NO.659, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI -400 020 APPLICANT RESPONDENT APPLICANT BY: SHRI K. GOPAL RESPONDENT BY: SHRI R.M. TIWARI O R D E R PER R. S. PADVEKAR, JM THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATI ON (MA) U/S. 254(2) OF THE ACT, TAKING THE PLEA THAT THERE IS A MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL IN ITA NO.6340/MUM/2006 DATE D 29.01.2009. 2. IN THE APPLICATION, IT IS STATED THAT THE APPEAL WAS PREFERRED BY THE REVENUE AGAINST THE ORDER PASSED BY THE LEARNED CIT (A). ONE OF THE GROUNDS WAS RELATING TO DISALLOWANCE OF THE CLAIM O F EXPENDITURE OF ` 38,67,924/- PAID TO M/S. ASHOK INTERNATIONAL FOR DO ING THE JOB WORK. IT IS FURTHER STATED THAT THE GROUND TAKEN ON THIS ISS UE WAS DECIDED IN FAVOUR OF THE REVENUE. THE APPLICANT-ASSESSEE HAS REPRODUCED THE RELEVANT PARAGRAPH I.E. PARA 6.2 & 6.3 IN THE APPLI CATION. IT IS FURTHER STATED THAT THE OBSERVATIONS MADE BY THE TRIBUNAL I N PARAGRAPH NO. 6.2 MA 757/M/2009 M/S. PROVOUGE (I) LTD 2 & 6.3 OF THE ORDER ARE WITHOUT CONSIDERING EVIDENCE COMPLIED AT PAGE NO.57 OF THE PAPER-BOOK, WHICH CONTAINS DETAILS OF FABRICS SOLD AND GARMENTS PURCHASED FROM M/S. ASHOK INTERNATIONAL. IT IS, THEREFORE, STATED THAT THE ASSESSEE HAS ALSO GIVEN MONTH-WISE PRODUCTION AND CONSUMPTION OF THE FABRICS. ON THE SAID EVIDENCE, THE TRIBUNAL HAS NOT GIVEN ANY FINDING, WHICH WAS CONSIDERED BY THE LEAR NED CIT (A) WHILE DECIDING THE SAID ISSUE IN FAVOUR OF THE ASSESSEE. 3. IT IS FURTHER STATED THAT THE ASSESSEE HAS PROVE D THE GENUINENESS OF THE TRANSACTION BETWEEN THE APPELLANT-ASSESSEE AND M/S. ASHOK INTERNATIONAL. THE LEARNED CIT (A) AFTER CONSIDERI NG MATERIAL FURNISHED BEFORE HIM AS HELD THAT THE TRANSACTION BETWEEN THE PARTIES WERE GENUINE AND THE SAID VITAL FACTS AS WELL AS THE ARGUMENTS D URING THE COURSE OF THE HEARING WAS NOT CONSIDERED BY THE TRIBUNAL. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTI ES AND ALSO PERUSED THE RECORDS. WE HAVE ALSO PERUSED THE ORDE R PASSED BY THE TRIBUNAL IN ITA NO.6340/MUM/2006. ON THE PERUSAL O F PARA NO.6.2 & 6.3 IN WHICH THIS ISSUES HAS BEEN DEALT WITH, THE T RIBUNAL HAS GIVEN THE FINDING THAT THE ASSESSEE HAS FAILED TO PRODUCE COG ENT EVIDENCES TO PROVE THE GENUINENESS OF TRANSACTIONS WITH M/S. ASHOK INT ERNATIONAL. THE TRIBUNAL HAS ALSO OBSERVED THAT IT IS QUITE UNNATUR AL AND UNUSUAL THAT THE ASSESSEE-COMPANY DID NOT ASK FOR THE ADDRESS OF MR. ASHOK GOPINATH GHUGARE, WITH WHOM IT ENTERED THE SAID TRANSACTIONS . THEN THE TRIBUNAL HAS ALSO OBSERVED THAT THE STATEMENT OF SHRI GHUGAR E HAS ALSO RECORDED BY THE ASSESSING OFFICER AND FOUND THAT HE WAS THE EMPLOYEE OF THE ASSESSEE-COMPANY. AFTER CONSIDERING THE TOTALITY O F THE FACTS AND EVIDENCE ON RECORD, THE TRIBUNAL CAME TO CONCLUSION THAT THE TRANSACTION WAS NOT GENUINE. MA 757/M/2009 M/S. PROVOUGE (I) LTD 3 5. SO FAR AS SCOPE OF POWER OF THE TRIBUNAL U/S.254 (2) IS CONCERNED, WITH PLETHORA OF DECISIONS, IT IS A WELL SETTLED PR INCIPLE THAT POWER OF RECTIFICATION DOES NOT MEAN THE POWER TO REVIEW. I N OUR OPINION, UNDER THE PRETEXT OF PLEA OF RECTIFICATION, ASSESSEE IS T RYING TO SEEK THE REVIEW OF THE ORDER, WHICH IS NOT PERMISSIBLE U/S.254(2). WE FIND NO MERITS IN THE APPLICATION FILED BY THE ASSESSEE. 6. IN THE RESULT, APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 7TH DAY OF S EPTEMBER 2010. SD/- (R. S. SYAL) ACCOUNTANT MEMBER SD/- (R. S. PADVEKAR) JUDICIAL MEMBER MUMBAI, DATE: 7TH SEPTEMBER 2010 COPY TO:- 1) THE APPLICANT. 2) THE RESPONDENT. 3) THE CIT (A) C.III, MUMBAI. 4) THE CIT C. VI, MUMBAI. 5) THE D.R. F BENCH, ITAT, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR *CHAVAN I.T.A.T., MUMBAI MA 757/M/2009 M/S. PROVOUGE (I) LTD 4 SR.N. EPISODE OF AN ORDER DATE INITIALS CONCERNED 1 DRAFT DICTATED ON 25.08.2010 SR.PS 2 DRAFT PLACED BEFORE AUTHOR 25.08.2010 SR.PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.PS SR.PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS 7 FILE SENT TO THE BENCH CLERK SR.PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER