DCIT, Central Circle-1, Baroda V. M/s. Heaven Associates, Baroda

MA 76/AHD/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 8021 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-04-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 18-01-2024
• Assessment Year: 2013-2014
• Appeal Filed On: 04-09-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOKUMAR SUTHAR

Judgement Text

आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरणआयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण, अहमदाबाद यायपीठ अहमदाबाद यायपीठअहमदाबाद यायपीठ अहमदाबाद यायपीठ ‘B’ अहमदाबाद। अहमदाबाद।अहमदाबाद। अहमदाबाद। IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, AHMEDABAD ] ] BEFORE SMT.ANNAPURNA GUPTA, ACCOUNTANT MEMBER AND SHRI T.R. SENTHIL KUMAR, JUDICIAL MEMBER Misc.Application No.75 and 76/Ahd/2023 IN IT(SS)A No.245/Ahd/2017 and 86/Ahd/2018 [Asstt.Year 2012-13 and 2013-14 AND Misc.Application No.77/Ahd/2023 IN ITA No.716/Ahd/2018 Assessment Year : 2014-15 DCIT, Cent.Cir.1 Vadodara. Vs M/s.Heaven Associates A-23, Mit bungalows Nr.Amin Party Plot Subhanpura Baroda. (Applicant) (Responent) Assessee by : Shri Bandish Soparkar, AR Revenue by : Shri Ashokumar Suthar,Sr.DR सुनवाई क तारीख/D a t e o f He a r in g : 19/01/2024 घोषणा क तारीख /D a t e o f P r o no u nc e me nt: 03/04/2024 आदेश आदेशआदेश आदेश/O R D E R PER ANNAPURNA GUPTA, ACCOUNTANT MEMBER By way of above three Misc. Applications, the Department seeks recall of the order of the Tribunal dated 24.3.2023 passed in IT(SS)A.No.245/Ahd/2017, 86/Ahd/2018 and ITA NO.716/Ahd/2018 in respect of assessment years 2012-13, 2013-14 and 2014-15 pointing out certain apparent mistakes therein as MA No.75 to 77/Ahd/2023 2 pleaded in the MA. The ITAT had passed a consolidated order for the said years. 2. The applications filed by the Department are identically worded for all the impugned years before us seeking identical rectification of mistake for all the years. The contents of the application therefore, for Asst.Year 2012-13 in IT(SS)A No245/Ahd/2017 is reproduced hereunder for the sake of convenience of adjudication. “The applicant has received the order dated 24.03.2023 in IT(SS)A No. 245/Ahd/2017 for A.Y.2012-13. The miscellaneous application is arising out of the above referred order (copy enclosed) 2. On perusal of the order, it is seen that a mistake has creeped in the order of the Hon'ble ITAT wherein it has been held that the Revenue has neither challenged the factual finding of the Ld. CIT(A) nor, we find, that the Revenue has contested the legal proposition of law applied by the Ld. CIT(A) following the decision of the Hon'ble jurisdictional High Court in the case of Pr. CIT Vs. Saumya Construction P. ltd. despite the facts that all the three additions were contested on merits as well as the Revenue has contested the legal proposition of law applied by the Ld. CIT(A) as evident from the grounds of appeal and statement of facts filed before the Hon'ble ITAT. 4. The above mistake is apparent on record. Therefore it is requested that the Hon'ble ITAT may kindly rectify the mistake and pass necessary order accordingly. 5. Copy of letter of the Pr. Commissioner of Income Tax(Cenrtal), Surat vide letter No SRT/Pr.CIT(Central)/ITO(Tech)/MA/2023-24 dated 22.08.2023 for filing Miscellaneous Application in the case of M/s Heaven Associates (PAN AAGFH1011C) for AY 2012-13 is enclosed herewith along with copy of Hon'ble ITATs order. 3. As transpires from the same, the mistake pointed out by the Revenue in the order of the ITAT for the impugned assessment years i.e. AY 2012-13 to 2014-15 is with respect to the finding of the ITAT “that neither the Revenue had challenged the factual finding of the ld.CIT(A) nor contested the legal proposition applied by the ld.CIT(A) following the decision of the Hon’ble jurisdictional High Court in the case of Pr.CIT Vs.Saumya Construction P.Ltd., despite the fact that all the additions are contested on merits as well as Revenue had contested the legal proposition of the law applied by the ld.CIT(A), which as per MA No.75 to 77/Ahd/2023 3 the Revenue is evidenced from the grounds of appeal and statement of facts filed before the Tribunal.” 4. As per the Revenue, therefore, the finding of the ITAT that the Revenue had neither challenged the factual finding nor the legal proposition applied by the Ld.CIT(A), was a mistake apparent from record ,since the assessee had challenged all the additions on merits and even challenged the legal proposition of law applied by the Ld.CIT(A). During the course of hearing before us, the ld.DR was unable to point out any such finding by the ITAT in its order passed for A.Y.2012-13 and 2014-15. In fact the grounds of appeal raised by the Revenue for both the years related to the merits of the additions made by the AO for these two years which was deleted by the ld.CIT(A), which we have noted from the order of the Tribunal, has been exhaustively dealt with by its order passed for both years. There was no legal ground raised b the Revenue in both the years. 5. The ld.DR fairly conceded to the above fact and since admittedly, it was unable to point out the mistake as stated in its application before us, in the order of the ITAT for Asst.Year 2013-14 and 2014- 15, MAs. filed for both the years being MA Nos.76 and 77/Ahd/2023 are dismissed for want of merit. 6. As for the MA filed in the order passed by the Tribunal pertaining to Asst.Year 2012-13, the Tribunal has given this finding at para-10 of its order which was pointed out by the ld.DR during the course of hearing before us. However, the ld.DR was unable to demonstrate as to how this finding tantamounted to mistake apparent from record. 7. We have noted from the order of the ITAT that the ld.CIT(A) had allowed the assessee’s appeal applying the proposition of law down by MA No.75 to 77/Ahd/2023 4 the Hon’ble jurisdictional High Court in the case of Pr.CIT Vs. Saumya Construction P.Ltd., (2016) 387 ITR 0529 (Guj) to the effect that in the absence of any incriminating material found during the course of search, no addition could have been made in the hands of the assessee for the assessment year whose assessment was unabated. The Tribunal upheld the order of the ld.CIT(A) noting that the Revenue had, in the grounds raised before it, neither challenged the factual finding of the ld.CIT(A) that the addition made in its case was not based on any incriminating material found during the course of search, nor contested the legal proposition of law applied by the ld.CIT(A) in the case of Saumya Construction P.Ltd. (supra). It is this finding of the Tribunal, which the Department states in its application now filed before us to be a mistake apparent from record. But neither in the application nor the ld.DR before us was unable to point out how it tantamounted to a mistake apparent from record. Ld.DR, was unable to point out from the grounds raised by the Revenue in its appeal, as to which ground challenged the factual finding that the additions were not based on any incriminating material found during search or for that matter the legal proposition applied by the Ld.CIT(A), which the ITAT had failed to take note of, thus resulting in an alleged incorrect finding recorded in its order. On the contrary the order of the ITAT reveals that it had noted from the grounds raised by the Revenue before it in its appeal that the only grievance raised was that the Revenue had not accepted the legal proposition of the law laid down by the Hon’ble jurisdictional High Court, having challenged by it before the Hon’ble Apex Court. 8. We have noted in the application filed by the Revenue, however, that it mentions that all three additions made by the Revenue were challenged on merits. But this fact still does not take away the fact that the Revenue did not challenge the finding of the ld.CIT(A) of the MA No.75 to 77/Ahd/2023 5 additions not having based on any incriminating material found during the course of search or challenged any legal proposition of law applied by it. 9. In view of the above, since the Revenue was unable to demonstrate any mistake worth-its-while in the order of the Tribunal, the application deserves to be dismissed. In view of the above, the MA filed by the Revenue in MA No.75/Ahd/2023 is also dismissed. 10. In the result, all three Misc. Applications of the Revenue are dismissed. Order pronounced in the Court on 3 rd April, 2024 at Ahmedabad. Sd/- Sd/- (T.R. SENTHIL KUMAR) JUDICIAL MEMBER (ANNAPURNA GUPTA) ACCOUNTANT MEMBER Ahmedabad,dated 03/04/2024