Shri Neelesh H. Agrawal, Ahmedabad V. The Asstt. Commissioner of Income Tax, Circle-12, Ahmedabad

MA 9/AHD/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7047 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 03-01-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: APOORVA BHARDWAJA
• Assessee Lawyers: S N DIVETIA

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER MISC. APPLICATION NO.09/AHD/2018 IN ./ ITA NO. 1436/AHD/2016 / ASSESSMENT YEAR: 2011-12 SHRI NEELESH H. AGRAWAL PROP. SHRINATHJI COMMUNICATION B-609, FAIRDEAL HOUSE NR.SWASTIK CHAR RASTA NAVRANGPURA AHME,DABAD 380 009. VS ACIT, CIR.12 AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI S.N. DIVETIA, AR REVENUE BY : SHRI APOORVA BHARDWAJA, SR.DR / DATE OF HEARING : 07/12/2018 /DATE OF PRONOUNCEMENT : 16/ 01/2019 O R D E R PRESENT MISC. APPLICATION IS DIRECTED AT THE INSTAN CE OF THE ASSESSEE POINTING OUT APPARENT ERROR IN THE ORDER OF THE TRI BUNAL DATED 4.12.2017 PASSED IN ITA NO.1436/AHD/2016. 2. IT IS PLEADED IN THE APPLICATION THAT THE LD.AO HAS ESTIMATED HOUSEHOLD EXPENDITURE OF THE ASSESSEE AT RS.2,40,00 0/- I.E. RS.20,000/- PER MONTH. AFTER DEBITING THE WITHDRAWAL SHOWN BY THE ASSESSEE AT RS.60,000/-, HE MADE ADDITION OF RS.1,80,000/-. TH E ASSESSEE PLEADED MA NO.09/AHD/2018 - 2 - BEFORE THE AO THAT HE WAS LIVING IN JOINT FAMILY AL ONG WITH HIS PARENTS, AND HIS FATHER IS ALSO ASSESSED TO TAX VIDE PAN : A DDPA 8294 J. HE HAS SHOWN SUFFICIENT WITHDRAWALS, AND THEREFORE, NO ADD ITION OUGHT TO BE MADE IN HANDS OF THE ASSESSEE. THIS PLEA OF THE AS SESSEE WAS REJECTED BY THE AO AS WELL AS BY THE LD.CIT(A). THE TRIBUNAL C OMMITTED AN APPARENT ERROR FOR NOT TAKING INTO COGNIZANCE OF TH IS PLEA OF THE ASSESSEE. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TRIBUNAL HAS COMMITTED APPARENT ERROR BY NOT GIVING BENEFIT OF T HE EXPENDITURE MADE BY THE FATHER OF THE ASSESSEE WHILE CONSIDERING TOT AL HOUSEHOLD EXPENDITURE. ON THE OTHER HAND, LD.DR RELIED UPON THE ORDER OF THE TRIBUNAL. 3. I HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GON E THROUGH THE RECORD. I FIND THAT POWER OF RECTIFICATION UNDER S ECTION 254(2) OF THE INCOME TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTA KE, WHICH IS SOUGHT TO BE RECTIFIED, IS AN OBVIOUS PATENT MISTAKE, WHIC H IS APPARENT FROM THE RECORD AND NOT A MISTAKE, WHICH IS REQUIRED TO BE E STABLISHED BY ARGUMENTS AND LONG DRAWN PROCESS OF REASONING ON PO INTS, ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. A PERUSAL OF THE RECORD WOULD SUGGEST THAT PLEA OF THE ASSESSEE WAS REJECTED BY T HE AO ON THE GROUND THAT COMPLETE FUND FLOW STATEMENT SHOWING WITHDRAWA LS OF HIS FATHER TOWARDS HOUSEHOLD EXPENDITURE WAS NOT PRODUCED. TH E TRIBUNAL INDEPENDENTLY HARBOURED A BELIEF THAT EVEN IF THE F ATHER HAS MADE WITHDRAWAL FOR HOUSEHOLD EXPENSES, IT IS TO BE CONS TRUED THAT THE ASSESSEE MUST HAVE SPENT MORE THAN RS.20,000/- PER MONTH TOWARDS PERSONAL EXPENDITURE, BECAUSE, THE LD.AO HAS NOTICE D HIS LIFE-STYLE, MA NO.09/AHD/2018 - 3 - FOREIGN VISIT ETC. THUS, IT WAS A CONSCIOUS DECISI ON TO CONFIRM THE DECISION. THERE IS NO APPARENT ERROR IN THE ORDER OF THE TRIBUNAL. 4. IN THE RESULT, MISC. APPLICATION OF THE ASSESSEE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 16 TH JANUARY, 2019. SD/- (RAJPAL YADAV) JUDICIAL MEMBER