AJAY TRIVEDI, MUMBAI V. INCOME TAX OFFICER 2(1), THANE

MA 77/MUM/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5288 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 04-02-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Assessee Lawyers: SURJIT CHHADA
• Keywords: Rectification of order; Set aside
• Section: 143(3); 254(2); 148; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM) AND SHRI RAM LAL NEGI (JM) M .A. N O. 77 / MUM /2019 ( ARISING OUT OF ITA N O. 354 /MUM /201 8 ) ( ASSESSMENT YEAR : 2009 1 0 ) M.A. NO. 78 / MUM /2019 ( ARISING OUT OF ITA N O . 355 /MUM /201 8 ) ( ASSESSMENT YEAR : 2010 1 1 ) AJAY TRIVEDI, B - 106, RIDHI SIDHI APARTMENT, NAVGHAR ROAD, BHATANDER (EAST), MUMBAI - 401105 PAN: ACPPT0186P VS. THE INCOME TAX OFFICER 2(1), ROOM NO. 9, A - WING, 6 TH FLOOR, ASHAR IT PARK, WAGLE INDUSTRI AL ESTATE, THANE (WEST) THANE (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SURJIT CHHADA (A R) REVENUE BY : SHRI CHAITANYA ANJARIA (D R) DATE OF HEARING: 05/04 /201 9 DATE OF PRONOUNCEMENT: 03 / 07 /201 9 O R D E R PER RAM LAL NEGI, JM THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION S FOR RECTIFICATION OF ORDER DATED 04.09.2018 PASSED BY THE SMC BENCH MUMBAI IN THE ASSESSEES APPEALS ITA NO . 354 AND 355 /M UM /2018 PERTAI NING TO THE ASSESSME NT YEAR S 2009 - 10 AND 2010 - 11 RESPECTIVELY. 2. IN THE LIGHT OF THE APPLICATIONS, T HE LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE ASSESSEE HAS RAISED A SPECIFIC GROUND IN ITS APPEALS THAT SINCE THE ASSESSEE HAD NOT FILED ANY RETURN IN RESPONSE TO THE NOTICE U/S 148 OF THE ACT, THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT IS BAD IN LAW. THE TRIBUNAL OUGHT TO HAVE DECIDED THIS ISSUE AS A SEPARATE GROUND 2 M.A. NO S . 77 AND 78/MUM/2 019 ASSESSMENT YEAR S : 2009 - 10 AND 2010 - 11 IN THE LIGHT OF THE JUDGMENT OF CALCUTTA HIGH COURT IN THE CASE OF MAYA DEVI BANSAL VS. CI T 117 ITR 125 . 2 . T HE LD. COUNSEL FURTHER CONTENDED THAT THE FINDINGS OF THE TRIBUNAL THAT THE VITAL DOCUMENTS WERE NOT PRODUCED BEFORE THE AO ARE CONTRARY TO THE FACTS ON RECORD AS THERE IS NO FINDINGS IN CIT (A) ORDER THAT ASSESSEE HAS NOT PRODUCED THE COPY OF TRANSFER RECEIPT DETAILS AND VEHICLE EXPENSES ETC. FURTHER, THE LD. COUNSEL SUBMITTED THAT SINCE THE LD. CIT (A) HAD WRONGLY FOLLOWED THE PRINCIPLES OF LAW LAID DOWN BY THE HONBLE GUJARAT HIGH COURT IN THE C A SE OF SIMIT P. SHETH 356 ITR 451 (GUJ ), THE TRIBUNAL HAS WRONGLY UPHELD THE FINDINGS OF THE LD. CIT(A) IGNORING THAT THE FACTS OF THE ASSESSEES APPEALS ARE DIFFERENT FROM THE FACTS OF THE CASE RELIED UPON BY THE LD. CIT (A ). IN THE LIGHT OF THE AFORESAID CONTENTIONS, T HE LD. COUNSEL FURTHER SUBMITTED THAT THE OMISSION AND INCORRECT FINDINGS OF THE TRIBUNAL POINTED OUT ARE MISTAKE APPARENT ON RECORD , THEREFORE, THE SAME ARE REQUIRED TO BE RECTIFIED. 4. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) OPPOSED THE MISCELLANEOUS APPLICATION O N THE GROUND THAT THE POINTS RAISED BY THE ASSESSEE IN THESE APPLICATION S DO NOT COME WITHIN THE AMBIT OF MISTAKE APPARENT TO RECTIFY THE SAME. THE LD. DR FURTHER SUBMITTED THAT IF THE APPLICATIONS ARE ALLOWED AND THE ORDERS ARE MODIFIED , IT WILL AMOUNT T O REVIEW OF THE ORDERS BY THE TRIBUNAL, WHICH IS NOT PERMISSIBLE UNDER LAW. SINCE, THE GROUND RAISED BY THE ASSESSEE IN THE MISCELLANEOUS APPLICATION S DO NOT DISCLOSE ANY MISTAKE APPARENT TO RECTIFY U/S 254( 2 ) OF THE ACT THE APPLICATIONS ARE LIABLE TO SET ASIDE . 5. WE HAVE PERUSED THE MATERIAL ON RECORD INCLUDING THE CASE RELIED UPON BY THE LD. COUNSEL IN THE LIGHT OF THE RIVAL CONTENTIONS OF THE PARTIES. THE FIRST ISSUE RAISED BY THE ASSESSEE PERTAINS TO THE VALIDITY OF THE ASSESSMENT ORDER PASSED BY THE AO U/S 143(3) READ WITH SECTION 148 OF THE ACT. THE LD. COUNSEL SUBMITTED THAT THE ASSESSEE IN ITS APPEAL CHALLENGED THE ASSESSMENT ORDER PASSED BY THE AO ON THE GROUND THAT SINCE THE ASSESSEE HAD NOT FILED ANY RETURN IN RESPONSE TO THE NOTICE U/S 148 OF THE ACT, THE ASSESSMENT ORDER 3 M.A. NO S . 77 AND 78/MUM/2 019 ASSESSMENT YEAR S : 2009 - 10 AND 2010 - 11 PASSED BY THE AO IS BAD IN LAW IN VIEW OF THE FINDINGS OF THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE MAYA DEVI BANSAL VS. CIT (SUPRA). 6. THE SECOND ISSUE PERTAINS TO THE EVIDENCE ON RECORD TO ESTABLISH THE G ENUINENESS OF THE TRANSACTION. 7. THE THIRD ISSUE RAISED BY THE APPLICANT/ASSESSEE PERTAINS TO THE APPLICABILITY OF THE JUDGMENT OF THE HON B LE GUJARAT HIGH COURT RENDERED IN THE CASE OF SIMIT P. SHETH (SUPRA). 8. WE HAVE CAREFULLY EXAMINED THE ORDERS PA SSED BY THE TRIBUNAL IN THE LIGHT OF THE CONTENTIONS OF THE LD. COUNSEL FOR THE ASSESSEE . THE TRIBUNAL HAS PASSED THE ORDERS IN QUESTION AFTER TAKING INTO CONSIDERATION ALL THE ASPECTS POINTED OUT BY THE ASSESSEE. NOW, BY WAY OF THESE APPLICATIONS , THE ASS ESSEE SEEKS REVIEW OF THE ORDERS PASSED BY THE TRIBUNAL ON MERITS , UNDER THE GARB OF RECTIFICATION OF MISTAKE APPARENT ON THE RECORD U/S 254(2) OF THE ACT, WHICH IS NOT PERMISSIBLE. 9 . AS PER THE SETTLED LAW, THE POWERS U/S 254(2) OF THE ACT IS LIMITED AND THE TRIBUNAL HAS NO JURISDICTION TO REVIEW IT S ORDER PASSED U/S 254 OF THE ACT. IN OUR CONSIDERED OPINION , SINCE THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE DO NOT POINT OUT ANY MISTAKE APPARENT IN THE ORDERS PASSED BY THE TRIBUNAL TO RECTIFY THE SAME U/S 254(2) OF THE ACT , THESE APPLICATIONS ARE NOT MAINTAINABLE . HENCE, WE DISMISS BOTH THE APPLICATIONS. IN THE RESULT, MISC. APPLICATION S FILED BY THE ASSESSEE PERTAINING TO A SSESSMENT YEAR S 2009 - 10 AND 2010 - 1 1 ARE DISMISSED. ORDER PRO NOUNCED IN THE OPEN COURT ON 3 RD JULY , 2019 . SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 03 / 07 / 2019 ALINDRA, PS 4 M.A. NO S . 77 AND 78/MUM/2 019 ASSESSMENT YEAR S : 2009 - 10 AND 2010 - 11 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI