Late Manrupehand Surtingji Parmar, Dhule V. ITO, Wd-1, Dhule, Dhule

MA 78/PUN/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6474 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 2 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 1995-1996
• Appeal Filed On: 06-02-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHAY DAMLE; HARESHWAR SHARMA
• Section: 260A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI I.C. SUDHIR (JM) AND SHRI D. KARUNAKARA RAO (AM) M.A. NO. 78 /PN/20 1 0 (ARISING OUT OF ITA NO. 161 /PN/20 0 3 ) ( ASSTT. YEAR : 199 5 - 96 ) LATE SHRI MANRUPCHAND S. PARMAR,DHULE PAN: NOT AVAILABLE .. APPLICANT V. INCOME TAX OFFICER, WARD - 1, DHULE , . RESPONDENT APP LICANT BY : SHRI SUNIL GANOO RESPONDENT BY : S/ SHRI HARESHWAR SHARMA & ABHAY DAMLE ORDER PER I.C. SUDHIR J M REITERATING THE CONTENTS OF THE APPLICATION, T HE LD. A.R. POINTED OUT THAT REFERENCE OF DECISION OF THE TRIBUNAL IN THE CASE OF MOTILAL JAVERCHAND PARMAR, ITA NO. 60/PN/2003 WAS MAD E AS COMPARABLE CASE BUT IT HAS BEEN INADVERTENTLY MENTIONED IN THE ORDER OF THE TRIBUNAL AS RELATED CASE. THE ORDER OF THE TRIBUNAL HAS BEEN PASSED UNDER THIS BACKGROUND LEADING TO A MISTAKE APPARENT FROM THE RECORD IN THE ORDER. THE LD. A.R SUBMITTED THAT THE FACTS OF THE CASE OF MOTILAL JAVERCHAND PARMAR(SUPRA) ARE SIMILAR TO THE FACTS OF THE ASSESSEES CASE BUT THE FACTS ARE NOT IN ANY WAY RELATED TO THAT CASE. HE SUBMITTED THAT ASSESSEE AND TWO SONS OF THE ASSESSEE ARE RATANLAL JAVERCHAND PARMAR AND NARENDRA MANRUPCHAND PARMAR ARE RELATED CASES WITH EACH OTHER AND FIVE BROTHERS AS REFERRED IN THE ORDER OF THE TRIB UNAL ARE NOT RELATED CASES WITH THIS ASSESSEE. HE SUBMITTED FURTHER THAT THERE IS NO CONCERN WHATSOEVER WITH THE ALLEGED SET OFF OF RS.48,500/ - OF THE STOCK OF GOODS BELONGING TO JAYANTILAL PARMAR AS REFERRED IN PARA NO. 10 OF THE ORDER OF THE TRIBUNAL. THE LD. A.R. M.A. NO 78 /PN/20 10 LATE SHRI. MANRUPCHAND SURTINJI PARMAR.. A.Y. 1995 - 96 PAGE OF 3 2 ACCORDINGLY REQUESTED FOR RECTIFICATION OF THE ORDER OF THE TRIBUNAL UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT. 2 . THE LD. D.R., ON THE OTHER HAND, OPPOSED THE APPLICATION WITH THIS SUBMISSION THAT ORDER OF THE TRIBUNAL HAS BEEN PA SSED , C ONSIDERING THE SUBMISSIONS OF THE PARTIES AND MATERIAL AVAILABLE ON RECORD, HENCE THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL AND THUS, REMEDY TO THE ASSESSEE IS AVAILABLE BY PREFERRING APPEAL U/S. 260A OF THE ACT ONLY. HE SUBMITTED THAT IF THE PRESENT APPLICATION IS ALLOWED, IT WOULD BE AMOUNTING TO REVIEW OF ITS ORDER BY THE TRIBUNAL WHICH IS NOT THE OBJECT OF THE PROVISIONS U/S. 254(2) OF THE ACT. 3. CONSIDERING THE ABOVE SUBMISSIONS, WE FIND SUBSTANCE IN THE CONTENTIO N OF THE LD. A.R THAT THERE IS MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL SINCE INADVERTENTLY ORDER HAS BEEN PASSED UNDER A MISTAKEN FACT THAT THE CASE OF MOTILAL JAVERCHAND PARMAR (SUPRA) IS RELATED TO THE ASSESSEE WHEREAS THE ACTUAL FACT WAS THAT DECISION OF THE TRIBUNAL IN THE CASE OF MOTILAL JAVERCHAND PARMAR WAS REFERRED AS A COMPARABLE CASE. THERE WAS NO CONCERN WITH ALLEGED SET OFF OF RS.48,500/ - OF THE STOCK OF GOODS BELONGING TO JAYANTILAL PARMAR AS REFERRED IN PARA NO. 10 OF THE ORDER. THUS, THERE IS MISTAKE APPARENT FROM RECORD IN THE ORDER OF TRIBUNAL WHICH NEEDS RECTIFICATION. THE LAST PARA AT PAGE NO. 5 I.E. PARA NO. 10 OF THE ORDER OF THE TRIBUNAL THUS NEEDS RECTIFICATION. THE SAME IS ACCORDINGLY RECTIFIED AND SUBSTITUT ED AS UNDER : IN VIEW OF THE ADMITTED FACTS THAT DURING THE COURSE OF SURVEY, IT WAS FOUND THAT THE EXCESS STOCK FOUND BELONGED TO THE APPELLANT AND TO THE TWO SONS WHO WERE CARRYING ON THE BUSINESS IN M.A. NO 78 /PN/20 10 LATE SHRI. MANRUPCHAND SURTINJI PARMAR.. A.Y. 1995 - 96 PAGE OF 3 3 UTENSILS AND B H ANGAR, WE DEEM IT PROPER NOT TO INTERF ERE WITH THE FINDINGS OF THE LD CIT(A). IN RESULT, APPEAL OF THE REVENUE IS DISMISSED. IN THE RESULT, MISCELLANEOUS APPLICATION IS ACCORDINGLY ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 13 TH APRIL 201 1 . SD/ - SD/ - ( D. KARUNAKARA RAO ) ACCOUNTANT MEMBER ( I.C. SUDHIR ) JUDICIAL MEMBER PUNE , DATED THE 13TH APRIL , 20 1 1 US COPY OF THE ORDER IS FORWARDED TO : 1. THE A PP LICANT 2. THE RESPONDENT 3. THE CIT I , NASIK 4. THE CIT(A) - I,NAS IK 5. THE D.R. B BENCH, PUNE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE