M/s KMG International Ltd., New Delhi V. ACIT, New Delhi

MA 880/DEL/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5171 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 1 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 19-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH, ‘D’: NEW DELHI (Through Video Conferencing) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER MA No.880/DEL/2019 (Arising out of ITA No.5591/DEL/2010) [Assessment Year: 2007-08] KMG International Ltd. 375, Main Raod, Gazipur, New Delhi ACIT, Circle-5(1), New Delhi PAN-AACCK0590Q Assessee Revenue Assessee by Sh. Vinod Kumar Bindal, CA Revenue by Sh. M. Baranwal, Sr.DR Date of Hearing 04.02.2022 Date of Pronouncement 18.02.2022 ORDER PER R.K. PANDA, AM, The assessee, through this Miscellaneous Application, requests the Tribunal to rectify certain mistakes that have crept in the order of the Tribunal in ITA Nos.5591/Del/2010 and ITA No.6064/Del/2010, order dated 15.11.2019 for AY 2007-08. 2 MA No.880/Del/2019 2. The Ld. Counsel for the assessee referring to the contents of the Miscellaneous Application drew the attention of the Bench to the same which reads as under:- “Sub: Miscellaneous application u/r 34A of the Appellate Tribunal Rules, 1963 to rectify the appellate order dated 15/11/2019 passed in the ITA No. 5591/Del/2010 for the AY 2007-08 Reg: M/s KMG International Ltd. Hon’ble Members, In respect of the above matter, the following is respectfully submitted: 1. On perusal of Para 15 of the above appellate order in respect of the ground of appeal challenging the addition of Rs 31,55,000/- for very short term loans received for three months period from nine parties and Para 20 for an advance of Rs 15,00,000/- received from M/s Rishi Promoters (P) Ltd as an advance against sale of property but which was refunded in the next year the assessee besides filing all documents confirmations showing transactions through proper banking channel proving creditworthiness of all lenders, also submitted the judgments in the case of Pr CIT vs Skylark Build (2018-TIOL- 2323-HC- MUM-IT) PB Pg 60-62 and CIT vs Jalan Hard Coke Ltd [2018] 95 taxmann.com 331 (SC) PB Pg 66-67 and many other as per the paper book and which were referred also during the hearing as much as the Hon’ble Bench desired to distinguish the said judgments with the 3 MA No.880/Del/2019 judgment of the Apex Court in NRA Iron & Steel Pvt Ltd. and which was explained by the counsel of the appellant. 2. However, nothing is mentioned about applicability of those judgments / decisions relied by the assessee in the appellate order. This is a mistake apparent on record and the order must be recalled on these issues as has been held in the following cases: (a) Mathur Marketing (P) Ltd 2017-TIOL-367-SC- IT IWJ ' V/o9jzmJ (b) Amore Jewels (P) Ltd WP 1833/2018 Bombay HC [DoJ: 03/08/2018] (c) Aaram Softronics Civil appeals 1784/2019 SC (LB) [DoJ: 20/02/2018] (d) Lachman Dass Bhatia Hingwala (P) Ltd vs ACIT (2011) 330 ITR 243 (Del) [DoJ: 24/12/2010] 3. Further, finding given in the para 16 of the Hon’ble ITAT order does not clarify as to what the Hon’ble Tribunal has directed. The same may be clarified. 3. The ld. Counsel for the assessee, referring to the above, submitted that the contents of the Miscellaneous Application are self explanatory. He accordingly requested the Bench to pass necessary order by rectifying/modifying the order. 4 MA No.880/Del/2019 4. The ld. DR, on the other hand, heavily relied upon the order of the Tribunal and strongly opposed the Miscellaneous Application filed by the assessee. He submitted that the assessee through this Miscellaneous Application is trying to persuade the Bench to rectify/modify the order which amounts to review of its own order by the Tribunal, which is not permissible in law. He accordingly submitted that the Miscellaneous filed by the assessee should be dismissed. 5. We have heard the rival arguments made by both the sides and perused the record. We find the ld. Counsel for the assessee at the time of hearing has relied on certain decisions including the decision of the Hon’ble Bombay High Court and Hon’ble Supreme Court to the proposition that addition u/s 68 cannot be made when the amounts received during the year as loan were repaid within a very short period. In our opinion, non-consideration of any of the decisions relied upon by the ld. Counsel for the assessee and non- consideration of certain facts pointed out by the ld. Counsel for the assessee at the time of hearing constitutes a mistake apparent from record which needs rectification. We, therefore, recall the order of the Tribunal for limited purpose of 5 MA No.880/Del/2019 adjudication of grounds of appeal no.2 and 2.1 by the assessee for fresh adjudication. The miscellaneous application filed by the assessee is accordingly allowed in terms indicated hereinabove. 6. In the result, the Miscellaneous Application filed by the assessee is allowed. Oder pronounced in the open court on 18 th February, 2022. Sd/- Sd/- [KUL BHARAT] [R.K.PANDA] JUDICIAL MEMBER ACCOUNTANT MEMBER Delhi; Dated: 18 th February, 2022. f{x~{tÜ? f{x~{tÜ?f{x~{tÜ? f{x~{tÜ? fÜA fÜA fÜA fÜA P.S P.SP.S P.S Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi