ITO WD 4(1), V. ASHA H. LALVANI,

MA 850/MUM/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4512 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-03-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 1999-2000
• Appeal Filed On: 15-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MADHUK
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI B. RAMAKO TAIAH ,(AM) M.A. NO.850/MUM/2009 ARISING OUT OF ITA NO.2660/MUM/2004 ASSESSMENT YEAR : 1999-2000 INCOME TAX OFFICER WARD 2(1) KALYAN. ..( APPLICANT ) VS. SMT. ASHA H. LALWANI B.K. NO. 368, ASHA BHAVAN ULHASNAGAR-1. ..( RESPONDENT ) P.A. NO. (AAJPL 2106 K) APPLICANT BY : SHRI S.K. MADHUK RESPONDENT BY : SHRI K. GOPAL O R D E R PER D.K. AGARWAL (JM). BY THIS MISCELLANEOUS PETITION DATED NIL THE REVENUE CO NTENDED THAT THE TRIBUNAL WHILE PASSING THE ORDER IN ITA NO.2 660/MUM/04 FOR ASSESSMENT YEAR 1999-00 DATED 18.5.2009 HAS DISMISSED THE DEPARTMENTAL APPEAL BY MENTIONING THE FOLLOWING : (I) REVENUE FILED NO MATERIAL ON RECORD TO SHOW AS TO WHETHER ANY APPEAL WAS FILED AGAINST DELETION OF AD DITION MADE BY THE LD. CIT(A) IN HIS ORDER DATED 12.01.200 4. (II) REVENUE HAS NOT CHALLENGED THE SIMILAR ADDITIO N IN RESPECT OF JEWELLERY SOLD TO M/S. DHANANJAY DIAMOND S. MA NO.850/M/09 A.Y:99-00 2 (III) IT IS NOT A CASE OF REVENUE THAT THE RATIO O F DECISION OF DELETION OF IMPUGNED ADDITION IS DIFFERENT THAN WHAT WAS APPLIED IN RESPECT OF THE SALES MADE TO M/S. DHANANJAY DIAMONDS. THE ABOVE COMMENTS MADE BY THE TRIBUNAL ARE NOT APPRO PRIATE AND THEREFORE, THERE IS AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL WHICH REQUIRES RECTIFICATION WITHIN THE MEANING OF SEC. 254 (2) OF THE ACT. 2. AT THE TIME OF HEARING THE LD. DR SUBMITS THAT FOR THE REASONS AS MENTIONED IN THE MISCELLANEOUS PETITION, THE ORDER PASSE D BY THE TRIBUNAL BE RECALLED. 3. ON THE OTHER HAND THE LD. COUNSEL FOR THE ASSESSEE, A T THE OUTSET, SUBMITS THAT IT HAS BEEN MENTIONED BY THE DE PARTMENT IN ITS MISCELLANEOUS PETITION THAT THE HONBLE BOMBAY HIGH COUR T VIDE ITS ORDER DATED 02.07.2009 DISMISSED THE DEPARTMENTAL APPE AL IN INCOME TAX APPEAL NO.359 OF 2009, THEREFORE, THE MISCELLANEO US APPLICATION FILED BY THE REVENUE IS LIABLE TO BE REJECTED. 4. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND MERIT THAT ON AN APPEAL FILED BY THE REVENUE AGAINST THE AFORESAID ORD ER OF THE TRIBUNAL, THE HONBLE JURISDICTIONAL HIGH COURT IN BA TCH OF APPEALS INCLUDING THE APPEAL IN CIT VS. ASHA H. LALWANI IN INCO ME TAX APPEAL MA NO.850/M/09 A.Y:99-00 3 NO.359 OF 2009 VIDE JUDGMENT DATED 02.07.2009 HAS OB SERVED AND HELD AS UNDER : 2. THESE APPEALS ARE DIRECTED AGAINST THE ORDER DA TED 1-6-2006 PASSED BY THE INCOME TAX APPELLATE TRIBUNA L H BENCH, MUMBAI, WHEREBY THE TRIBUNAL HAS HELD THAT T HE A.O. WAS NOT JUSTIFIED IN MAKING ADDITIONS UNDER SE CTION 68 OF THE ACT. IT IS NOT IN DISPUTE THAT THE FACTS OF THESE CASES ARE IDENTICAL TO THE FACTS IN THE CASE OF CIT V/S. UTTAMCHAND JAIN BEING APPEAL NO.634 OF 2009 DECIDED ON 2-7-2009(UNREPORTED). IN FACT, THE TRIBUNAL HAS RE LIED UPON ITS OWN DECISION IN THE CASE OF UTTAMCHAND JAI N AND DECIDED THE ISSUE IN FAVOUR OF THE RESPONDENT/ASSES SEE. 3. THE APPEAL FILED BY THE REVENUE AGAINST THE DECISION OF THE TRIBUNAL IN THE CASE OF UTTAMCHAND JAIN BEING INCOME TAX APPEAL NO.634 OF 2009 IS CONCERNED , THE SAME IS DISMISSED BY THIS COURT AS STATED HEREI N ABOVE BY REASONED ORDER DATED 2-7-2009. AS THERE I S NO DISPUTE THAT THE FACTS IN THESE CASES ARE IDENTICAL WITH THAT OF UTTAMCHAND JAINS CASE, THE PRESENT APPEALS ARE ALSO LIABLE TO BE DISMISSED FOR THE REASONS RECORDE D IN OUR JUDGMENT IN THE CASE OF UTTAMCHAND JAIN (SUPRA). 4. NEEDLESS TO MENTION THAT THE QUESTIONS SOUGHT TO BE RAISED REVOLVE AROUND FINDING OF FACT WHICH ARE RECORDED BY THE TRIBUNAL AFTER DUE APPRECIATION OF FACTS AND CIRCUMSTANCES OF THE CASE WITH WHICH NO FAULT C AN BE FOUND. EVEN OTHERWISE, THE TAX IMPACT INVOLVED IN THESE APPEALS IS LESS THAN RS.4 LAKHS. IN THE RESULT, AL L THE APPEALS ARE DISMISSED ON THIS COUNT AS WELL AS ON M ERITS, WITH NO ORDER AS TO COSTS. IN THE LIGHT OF THE AFORESAID JUDGMENT OF THE HONBL E JURISDICTIONAL HIGH COURT WHEREIN IT HAS INTERALIA BEEN HELD ..... THAT THE QUESTIONS SOUGHT TO BE RAISED REVOLVE AROUND FINDING OF FACT WHI CH ARE RECORDED BY THE TRIBUNAL AFTER DUE APPRECIATION OF FACTS AND CI RCUMSTANCES OF THE CASE WITH WHICH NO FAULT CAN BE FOUND.. , WE ARE OF THE VIEW MA NO.850/M/09 A.Y:99-00 4 THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL INASMUCH AS THE APPEAL HAS ALREADY BEEN DECIDED BY THE HONBLE JURISDI CTIONAL HIGH COURT AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE . THE REVENUE WANTS REVIEW WHICH IS NOT PERMISSIBLE UNDER THE SCHEME OF SEC. 254(2) OF THE ACT AND ACCORDINGLY THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS REJECTED. 5. IN THE RESULT THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE STANDS REJECTED. ORDER PRONOUNCED IN THE OPEN COURT ON 26.3.2010. SD/- SD/- (B. RAMAKOTAIAH) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 26.3.2010. JV. COPY TO: THE APPLICANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI. MA NO.850/M/09 A.Y:99-00 5 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 19.3.10 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 22.3.10 SR.PS/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/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 26.3.2010 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK 29.3.2010 SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER