Anil Purshottambhai Patel, Anand V. The Jt.C.I.T., Anand Range, Anand

MA 94/AHD/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5287 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-11-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 23-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANIL BR AHMKSTRIYA
• Keywords: Additional evidence

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER MISC. APPLICATION NO.94/AHD/2016 IN ./ ITA.NO.2341/AHD/2015 / ASSTT. YEAR: 2010-2011 ANIL PURSHOTTAMBHAI PATEL C/O. VALLABH PESTICIDES LTD. ANAND SOJITRA ROAD VITTHAL UDYOGNAGAR ANAND : 388 121. PAN : AINPP 2734 K VS JCIT, ANAND RANGE ANAND. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI ANIL BRAHMKSTRIYA, AR REVENUE BY : SHRI JAMES KURIAN, AR / DATE OF HEARING : 18/11/2017 / DATE OF PRONOUNCEMENT: 16/02/2017 $%/ 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 24.2.2016 PASSED IN ITA NO.2341/AHD/2015. 2. IT IS PLEADED IN THE APPLICATION THAT THE ASSESS EE HAS AVAILED A LOAN OF RS.5.00LAKHS FROM HIS EMPLOYER, SHRI ASHOK BABULAL SHAH THROUGH ACCOUNT PAYEE CHEQUE. OUT OF THE TOTAL BORROWINGS OF RS.5. 00 LAKHS, A SUM OF RS.2.50 LAKHS WAS REPAID IN CASH DURING THE YEAR UNDER CONS IDERATION. THIS FACT CAME TO THE NOTICE OF THE DEPARTMENT WHILE PROCESSING RE TURN OF HIS EMPLOYER SHRI ASHOK BABULAL SHAH, AND ACCORDINGLY, THE CASE WAS R EFERRED TO JCIT FOR INITIATING PENALTY UNDER SECTION 271E OF THE ACT. THE LD.AO HAS IMPOSED A MA NO.94/AHD/2016 2 PENALTY OF RS.2.50 LAKHS WHICH WAS CONFIRMED BY THE LD.CIT(A). IT IS FURTHER PLEADED IN THE APPLICATION THAT THE ASSESSEE HAS FI LED AN APPLICATION FOR ADDUCING ADDITION EVIDENCE. IT WAS FILED ON 5.2.20 16 BEFORE THE TRIBUNAL. IN THIS APPLICATION IT WAS ALLEGED THAT DURING THE COU RSE OF HEARING ON 19.1.2016, TRIBUNAL HAS OBSERVED AND NOTED THAT NO CONFIRMATIO N EITHER EMPLOYER OR THE ASSESSEE WAS ON RECORD CONFIRMING URGENCY OF FUNDS CLAIMED BY THE EMPLOYER. THAT HAS PERSUADED THE ASSESSEE TO REPAY LOAN IN CA SH. THE ASSESSEE HAS ALSO FILED AN AFFIDAVIT AND PRAYED THAT THIS BE TAKEN ON RECORD. WITHOUT LOOKING INTO THIS APPLICATION FOR PERMISSION TO LEAD ADDITI ONAL EVIDENCE AND WITHOUT THE MATERIAL EVIDENCE, THE TRIBUNAL HAS DECIDED TO PROCEED THE APPEAL ON MERIT AND DISMISSED THE APPEAL OF THE ASSESSEE. IT IS AL SO PLEADED THAT THE LD.CIT(A) HAS DELETED SIMILAR PENALTY IN THE NEXT YEAR PERTAI NING TO THE REMAINING REPAYMENT. THE ASSESSEE HAS PRODUCED EVIDENCE EXHI BITING THAT HE WAS AN AGRICULTURIST AND HE HAS NO SUBSTANTIAL SOURCE OF I NCOME. ALL THESE FACTORS HAVE NOT BEEN CONSIDERED BY THE TRIBUNAL, AND THERE FORE, APPARENT ERROR HAS BEEN COMMITTED BY THE TRIBUNAL BY OVERLOOKING THE A PPLICATION FOR ADDITIONAL EVIDENCE AND THE EVIDENCE PRODUCED BY THE ASSESSEE. 3. THE LD.DR ON THE OTHER HAND, CONTENDED THAT THES E FACTS WERE NOT BROUGHT TO THE NOTICE OF ITAT AND THE TRIBUNAL HAS RIGHTLY DISMISSED THE APPEAL OF THE ASSESSEE. 4. I HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GON E THROUGH THE RECORD CAREFULLY. THE POWER OF RECTIFICATION UNDER SECTI ON 254(2) OF THE INCOME TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE, WHICH I S SOUGHT TO BE RECTIFIED, IS AN OBVIOUS PATENT MISTAKE, WHICH IS APPARENT FROM T HE RECORD AND NOT A MISTAKE, WHICH IS REQUIRED TO BE ESTABLISHED BY ARG UMENTS AND LONG DRAWN PROCESS OF REASONING ON POINTS, ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS.. A PERUSAL OF THE RECORD WOULD INDICATE THAT APPLICATION EXHIBIT-I MA NO.94/AHD/2016 3 BEARS STAMP OF ITAT DATED 5.2.2016. THIS IS AN APP LICATION FOR PERMISSION TO LEAD ADDITIONAL EVIDENCE. ALONG WITH THIS APPLICAT ION, THE ASSESSEE HAS FILED AFFIDAVIT AND COPY OF FORM NO.7/12 EXHIBITING HIS S TATUS AS AN AGRICULTURISTS AND THE OWNERSHIP OF AGRICULTURE LAND HOLDING. THE STAND OF THE ASSESSEE BEFORE THE TRIBUNAL WAS THAT UNDER COMPULSION HE HA S TO REPAY THE LOAN OF RS.2.50 LAKHS. HIS EMPLOYER SHRI ASHOKBHAI BABULAL SHAH HAS EXPIRED ON 24.9.2015, THEREFORE, HE COULD NOT FILE THE CONFIRM ATION FROM HIM SHOWING THE URGENCY. THE TRIBUNAL HAS COMMITTED AN ERROR BY OV ERLOOKING ALL THE EVIDENCE AND THIS APPLICATION REMAINED UN-ADJUDICAT ED. SIMILARLY, THE ASSESSEE HAS RELIED UPON THE ORDER OF THE ITAT, BEN CH C, AHMEDABAD IN THE CASE OF SHREENATH BUILDERS VS. DCIT REPORTED IN 66 TTJ 113, COGNIZANCE OF THIS JUDGMENT WAS NOT TAKEN BY THE TRIBUNAL WHILE D ECIDING THE APPEAL. THEREFORE, I AM CONVINCED THAT CERTAIN APPARENT ERR ORS HAVE CREPT IN THE PROCEEDINGS WHILE ADJUDICATING THE APPEAL OF THE AS SESSEE. I ALLOW MA OF THE ASSESSEE AND RECALL THE IMPUGNED ORDER OF THE TRIBU NAL AND RESTORE THIS APPEAL TO ITS ORIGINAL NUMBER. REGISTRY IS DIRECTED TO FI X THE ORIGINAL APPEAL FOR HEARING IN REGULAR COURSE OF TIME. 5. IN THE RESULT MISC. APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 16 TH FEBRUARY, 2017 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 16/02/2017