Appeal details
Counselvise Citation
[2023] 102 COUNSELVISE.COM (IT) 7791 (ITAT-JAIPUR)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 month(s) 21 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
15-05-2023
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
B
Next Hearing Date
27-02-2023
Assessment Year
2018-2019
Appeal Filed On
24-01-2023
Judgement Text
vk;djvihyh; vf/kdj.k] t;iqjU;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”B” JAIPUR JhlaanhixkslkbZ]U;kf;dlnL; ,oaJhjkBksMdeys'kt;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM Miscellaneous Application No.08 /JP/2023 (Arising out of vk;dj vihy la-@ITA No. 49/JP/2022) fu/kZkj.k o"kZ@Assessment Year : 2018-19 The ACIT Central Circle-2 Jaipur cuke Vs. Shri Gyanendra Singh Shekhawat 101, Himmat Nagar, Tonk Road Jaipur LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: AMCPS 4557 Q vihykFkhZ@Appellant izR;FkhZ@Respondent jktLo dh vksj ls@Revenue by: Smt. Runil Pal, Addl. CIT-DR fu/kZkfjrh dh vksj ls@Assessee by : Shri Manish Agarwal, CA lquokbZ dh rkjh[k@Date of Hearing : 28/02/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 16 /05/2023 vkns'k@ORDER PER SANDEEP GOSAIN, JM The Revenue has filed a Miscellaneous Application against ITAT, Jaipur Bench order dated 27-07-2022 for rectification of mistake u/s 254(2) of the I.T.Act by praying therein as under:- ‘’1. The Hon'ble Tribunal, vide order dated 27/07/2022 passed order in the case of Sh. Gyanendra Singh Shekhawat, Himmat Nagar, Jaipur Vs. ACIT, Central Circle-2, Jaipur (ITA No.49/JP/2022) for assessment year 2018-19, has allowed the appeal of the assessee filed against the order of the Id. CIT(A)-4, Jaipur dated 31/12/2021 in the matter of order passed u/s 143(3) read with Section 153A of the Income Tax Act, 1961. 2. In ground No. 1 to 1.2 of the appeal filed before the Hon'ble Tribunal, the assessee has challenged the order of the Ld. CIT(A)-4, Jaipur in confirming the 2 M.A. NO. 8/JP/2023 ACIT, CENTRAL CIRCLE-2, JAIPUR VIS SHRI GYANENDER SINGH SHEKHAWAT, JAIPUR addition of Rs. 17,55,262/- made on account of jewellery (Rs. 15,52,634/- Gold Jewellery and Rs. 2,02,628/- Silver Jewellery) found from the residence as well as bank locker of the assessee during the course of search by disbelieving the source of acquisition owned by the assessee and his family members and alleging the same as unexplained u/s 69 of the Income Tax Act, 1961. 3. The Hon'ble Tribunal has deleted the addition sustained by the Ld. CIT(A)-4, Jaipur and allowed the ground of appeal taken by the assessee on this issue without appreciating the following facts and legal position :- (a) That during the course of hearing, the judgment of the Hon'ble Jurisdictional High Court in the case of CIT vs Satya Narain Patni, 366 ITR 325 was submitted to the Hon'ble Bench to buttress the point that any jewellery above the limit specified by the CBDT in Circular No. 1916 can be added as unexplained jewellery, if the source is not satisfactorily explained. (b) In the order dated 27.07.2022, there is no reference of reliance placed by the CIT(DR) on the judgment of Hon'ble Jurisdictional High Court in the case of CIT vs Satya Narain Patni and on the contrary it has been mentioned that although the Id. DR strongly relied upon the orders of the Id. CIT(A) but failed to rebut the specific and factual position so raised by the Id. AR of the assessee. The Hon'ble Tribunal has also held that the AO had ignored the factual position as well as failed to verify the fact that the assessee is living with his parents and belonged to Rajput family where the fact of having jewellery as Streedhan by the assessee's mother and wife cannot be ignored. From the order passed by the Hon'ble Tribunal, it is noticed that there is no reference of reliance placed on the aforesaid judgment cited by the ld. CIT(DR). No finding has also been given as to why the judgment of Hon'ble Jurisdictional High Court in the case of CIT vs Satya Narain Patni is not applicable in the facts and circumstances of the case. However, The ld. CIT(DR) strongly relied upon the orders of the ld. CIT(A) and the case-laws cited by him have not been mentioned in the appeal order passed by the Hon'ble Tribunal, nor any finding as to why the said case-laws were not applicable has been given. PRAYER In view of the facts of the case and legal position, as discussed above, the Hon'ble Tribunal is requested to consider the Miscellaneous Application u/s 254 of the Income- tax Act, 1961 and pass appropriate order after considering the submissions made by the 3 M.A. NO. 8/JP/2023 ACIT, CENTRAL CIRCLE-2, JAIPUR VIS SHRI GYANENDER SINGH SHEKHAWAT, JAIPUR Id. CIT(DR) and case-law specifically that of Satya Narain Patni of Hon'ble Jurisdictional High Court cited by him. The write up of Ld. CIT(DR) dated 22.02.2022 may please be considered for purposes of adjudication.’’ 2.1 As per the facts of the case, the assessee had challenged the addition made on account of jewellery found during the course of search by disbelieving the source of acquisition owned by the assessee and his family members. However, as per the Revenue, the Tribunal deleted the said addition by not considering the decision relied upon by the Revenue in the case of CIT vs Satya Narain Patni, 366 ITR 325 (Raj). Thus, in this manner as per the case of the Revenue, it is an error apparent committed by the Tribunal while passing the impugned order which necessitated the filing of the present Misc. Application. 2.2 Whereas on the contrary, the ld. AR strongly refuted the said arguments advanced by the Revenue and submitted that while giving relief to the assessee, ITAT had relied upon the decision of ITAT Jaipur Bench dated 24-05-2019 rendered in the case of Mohammad Akhlaq vs DCIT in ITA No. 436/JP/2017 wherein the judgement of Hon’ble Rajasthan High Court in the case of Satya Narayan Patni (supra) was discussed threadbare and relevant extracts were reproduced from Pages 6 to 9 of the decision. Therefore, in these circumstances, the ld. AR appearing on behalf of the assessee requested for dismissing the Misc. Application filed by the Revenue. 4 M.A. NO. 8/JP/2023 ACIT, CENTRAL CIRCLE-2, JAIPUR VIS SHRI GYANENDER SINGH SHEKHAWAT, JAIPUR 2.3 We have heard both the parties and perused the materials available on record including the case laws cited by the respective parties. From the records, we noticed that while deleting the addition, this Bench of ITAT had discussed the issue in detail and relied upon the judgement of ITAT Jaipur Bench dated 24-05- 2019 rendered in the case of Mohammad Akhlaq vs DCIT in ITA No. 436/JP/2017 wherein judgement of Hon’ble Rajasthan High Court in the case of Satya Narain Patni (supra) was discussed threadbare and relevant extracts were reproduced from pages 6 to 9 of the said decision. We further noticed that in the case of Mohammad Akhlaq, jewellery weighing 1979.92 gms was found during the course of search as against which the AO in that case allowed 1200 gms of gold jewellery in accordance with CBDT Instruction which was confirmed by the ld. CIT(A). On further appeal, the ITAT Jaipur Bench deleted the addition sustained by the ld. CIT(A) by placing reliance in the case of Satynarain Patni (supra) by observing as under:- ‘’15. In light of above discussion and in entirety of facts and circumstances of the case and respectfully following the decision of the Hon’ble Rajasthan High Court (supra), the matter is decided in favour of the assessee and against the Revenue. The order of the lower authorities is set aside and the appeal of the assessee is allowed.’’ In this way, the addition in respect of jewellery weighing 779.92 gms over and above as mentioned in CBDT instruction was allowed in view of social status and 5 M.A. NO. 8/JP/2023 ACIT, CENTRAL CIRCLE-2, JAIPUR VIS SHRI GYANENDER SINGH SHEKHAWAT, JAIPUR customary possessions. Even otherwise, our attention was also invited to page 9 of the impugned ITAT order where case laws relied upon by the assessee have been reproduced and going further in para 2.7 on the same page, the Bench has noted that ‘’2.7. Although ld. DR strongly relied upon the orders of the ld. CIT(A) but failed to rebut the specific and factual position so raised by the ld. AR of the assessee and has also not referred to any contrary decisions.’’ Thus in our view it makes amply clear that decision of Hon’ble Rajasthan High Court in the case of Satya Narain Patni (supra) has duly been considered by this Bench of ITAT while passing the impugned ordere dated 27-07-2022.Thus, we find no mistake apparent on record. Apart from above, we also place on record the following case laws as cited by the ld. AR of the assessee. 1. CIT Vs Karam Chand Thapar and Bros P Ltd. 176 ITR 535 (SC) Reference – Loss whether genuine or bogus –Whether loss incurred is a trading loss or capital loss – Question of fact – Finding of Tribunal that loss in sale of shares was trading loss – Irrelevant material that loss in sale of shares was trading loss – Irrelevant material not taken into consideration. No question of law arises – Unless conclusion of Tribunal – No question of law arises – Unless conclusion of tribunal is perverse – Income Tax Act, S.256 Appellate Tribunal – Duty to consider cumulative effect of circumstances and totality of facts – No need to state so in appellate order specifically – Income Tax Act, 1961, S.254 2. Commissioner of Income Tax vs Ramesh Electric and Trading Co. 203 ITR 497 (Bom. H.C.) Appellate Tribunal – Powers of Tribunal- No power to review it order – Power of Tribunal to amend its earlier order under section 254(2) – Only mistake apparent from record can be rectified – Failure of Tribunal 6 M.A. NO. 8/JP/2023 ACIT, CENTRAL CIRCLE-2, JAIPUR VIS SHRI GYANENDER SINGH SHEKHAWAT, JAIPUR to consider arguments is not an error apparent from record – Tribunal cannot re-decide matter –Income Tax Act, 1961, S.254. Therefore, looking to the totality of the facts and circumstances of the case, we noticed in the present case that the judgement cited by the Revenue has already been considered and this Misc. Application of the Department has no merit which is dismissed. 3.0 In the result, the Misc. Application of the Department is dismissed. Order pronounced in the open court on 16 /05/2023. Sd/- Sd/- ¼jkBksMdeys'kt;UrHkkbZ ½ ¼lanhi xkslkbZ½ (Rathod Kamlesh Jayantbhai) (Sandeep Gosain) ys[kklnL;@Accountant Member U;kf;dlnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 16/05/2023 *Mishra vkns'k dh izfrfyfivxzsf’kr@Copy of the order forwarded to: 1. The Appellant- The ACIT, Central Circle-2, Jaipur 2. izR;FkhZ@ The Respondent- Shri Gyanender Singh Shekhawat, Jaipur 3. vk;djvk;qDr@ The ld CIT 4. foHkkxh; izfrfuf/k] vk;djvihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 5. xkMZQkbZy@ Guard File (MA No. 8/JP/2023) vkns'kkuqlkj@ By order, lgk;diathdkj@Asstt. Registrar
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