Prashant Arun Sangai, Nashik V. Tax Recovery Officer,

MA 99/PUN/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2899 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-02-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 17-11-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 6; 63; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE: SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER MA NO S. 99 & 100 /PN/2014 (ARISING OUT OF ITA NO S . 62 & 6 3 /PN/ 20 12 AND CO NOS. 65 & 66 / PN/20 13 ) ASSESSMENT YEAR S : 200 6 - 07 & 2007 - 08 PRASHANT ARUN SANGAI, 02, SWASTIK SANKUL, CIDCO, PATHARDI PHATA, NASHIK VS. TAX RECOVERY OFFICER, CENTRAL, NASHIK (APPELLANT) (RESPONDENT) PAN NO. ACCPS1596F APPELLANT BY: SHRI M.K. KULKARNI RESPO NDENT BY: SHRI RAJESH DAMOR DATE OF HEARING : 06 - 02 - 2015 DATE OF PRONOUNCEMENT : 25 - 02 - 201 5 ORDER PER R.S . PADVEKAR , JM : - TH ESE TWO MISCELLANEOUS APPLICATION S ARE FILED BY THE ASSESSEE U/S. 254(2) OF THE INCOME - TAX ACT WHICH ARE PERTAINING TO A. YRS. 2006 - 07 AND 2007 - 08 RESPECTIVELY AND THESE APPLICATIONS ARE FILED IN ITA NOS. 62 & 63/PN/2012 AND CO NOS. 65 & 66/PN/2013. 2. WE FIRST TAKE THE MISCELLANEOUS APPLICATION BEING MA NO. 99/PN/2014 FOR THE A.Y. 2006 - 07. 2.1 THE ASSESSEE HAS STATED A S UNDER: 3 . THE APPEAL FILED BY THE DEPTT. IN THE CASE REFERRED TO ABOVE WAS DECIDED BY THE HON'BLE TRIBUNAL VIDE COMMON ORDER DT. 30 - 04 - 2014 IN ITA NOS. 61, 62 & 63 /PN/2012 PERTAINING TO A . Y RS . 2002 - 03, 2006 - 07 AND 2007 - 08 WITH C O NOS. 64, 65 AND 66/ PN / 2013 FILED BY THE 2 MA NO S. 99 & 100/PN/2014, PRASHANT ARUN SANGAI, NASHIK ASSESSEE. THE INSTANT MISC. APPLICATION PERTAINS TO APPEAL OF DEPTT. NO. ITA/62/P N /2012 AND C O NOS. 65/P N /2013 OF THE ASSESSEE. 4. THE FIRST APPEALS WERE FILED BEFORE CIT(A) NASIK AGAINST THE PENALTIES LEVIED BY THEN A.O. UNDER SECTION 2 71(L)(C) READ WITH EXPLN . 1 TO THAT SECTION. THE HON'BLE TRIBUNAL DECIDED THE APPEAL FILED BY THE DEPTT. NO. 61/P N /2012 IN FAVOUR OF THE ASSESSEE I . E. CONFIRMING THE DELETION OF THE PENALTY IMPOSED BY THE A .O. BY THE LD. CIT(A). THE HON'BLE TRIBUNAL VIDE P ARA 12(PAGE 17/18 OF THE ORDER HELD THAT 'THE PRINCIPLES LAID DOWN IN THE CASE OF MAK DATA PVT. LTD., VS. CIT 358 ITR 593 ARE NOT APPLICABLE TO THE ASSESSEE'S CASE. WE, THEREFORE, CONFIRM THE ORDER OF THE CIT(A) SO FAR AS ADDITION TOWARDS UNEXPLAINED LOAN CREDITORS TO THE EXTENT OF RS.50,00,000/ - FOR DELETING THE PENALTY. 5. ACCORDING TO HON'BLE SUPREME COURT THE QUESTION WAS WHETHER THE ASSESSEE HAS OFFERED ANY EXPLANATION FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF IN COME. EXPLANATION TO S EC . 271(1) RAISES A PRESUMPTION OF CONCEALMENT, WHEN A DIFFERENCE IS NOTICED BY THE A.O., BETWEEN REPORTED AND ASSESSED INCOME. THE BURDEN IS ON THE ASSESSEE TO SHOW OTHERWISE, BY COGENT AND RELIABLE EVIDENCE. WHEN THE INITIAL ONUS PL ACED BY THE EXPLANATION, HAS BEEN DISCHARGED BY THE ASSESSEE, THE ONUS SHIFTS ON THE REVENUE TO SHOW THAT THE AMOUNT IN QUESTION CONSTITUTED INCOME OF THE ASSESSEE. FURTHER, HON'BLE COURT OBSERVED 'IT IS THE STATUTORY DUTY OF THE ASSESSEE TO RECORD ALL TRA NSACTIONS IN THE BOOKS OF ACCOUNT, TO EXPLAIN THE SOURCE OF PAYMENTS MADE BY IT AND TO DECLARE ITS TRUE INCOME IN THE RETURN OF INCOME FILED BY IT FROM YEAR TO YEAR.' 6. THE HON'BLE TRIBUNAL FAILED TO APPRECIATE THE FACT THAT THE APPELLANT HEREIN HAD MAIN TAINED HIS REGULAR BOOKS OF ACCOUNT AND ALL 3 MA NO S. 99 & 100/PN/2014, PRASHANT ARUN SANGAI, NASHIK THE TRANSACTIONS WITH RESPECT TO HIS LOANS AND CREDITS WERE RECORDED IN THE SAID BOOKS OF ACCOUNT FOR A.Y. 2006 - 07. 7. THE EXPLANATION WAS SUBMITTED BEFORE A.O. IN RESPONSE TO NOTICE U/S. 274 WHICH WAS ALREADY B EFORE THE HON'BLE TRIBUNAL VIDE PAPER BOOK SUBMITTED. THE EXPLANATION APPEARS AT PP. 17 TO 21 OF THE PAPER BOOK THE COPY OF WHICH IS SUBMITTED HEREWITH FOR READY REFERENCE. THE SOURCE OF LOANS AND CREDITS APPEARING IN THE BOOKS OF ACCOUNT WERE DULY EXPLAIN ED. IT IS ANOTHER THING THE EXPLANATION REGARDING SOURCES WAS NOT ACCEPTED. 8. THE SUBMISSIONS WERE REITERATED BEFORE CIT(A) IN APPEALS AGAINST PENALTY ORDERS. THE LD. CIT(A) RECORDED A FINDING THAT THE APPELLANT HAS ALL THE TIME CATEGORICALLY DENIED IN T HE ASSESSMENT PROCEEDINGS THAT THE ENTIRE AMOUNT OF LOAN CREDITS WAS REPRESENTED BY THE CASH CREDIT WAS HIS INCOME. THE LD. CIT(A) ALSO RECORDED A FINDING THAT THE APPELLANT (ASSESSEE) DISCHARGED PRIMARY BURDEN THAT LIED UPON HIM WITH REGARDS TO THESE CRED ITS BY FURNISHING LETTERS OF CONFIRMATION, GIVING ADDRESSES, FILING EXTRACT OF ACCOUNT'. THIS FINDING WAS NOT CHALLENGED BY THE DEPTT. IN THEIR APPEALS. THE LD. CIT(A) ALSO RECORDED A FINDING IN HIS APPEAL ORDER THAT 'THE APPELLANT HAS DISCLOSED FULL FACTS REGARDING THE LOAN CREDITORS, INTEREST ON CREDITORS NATURE OF CASH INTRODUCTION, INTO CASH BOOK, ETC., (PARA 6.9/PAGE 12). THIS FINDING ALSO REMAINS UNCHALLENGED IN THE APPEAL FILED BY THE REVENUE. 9. THE A.O. HAS NOTED THE FACT THAT THE A SSESSEE SUBMITTED THE EXPLANATION IN RESPONSE TO SHOW CAUSE NOTICE UNDER SECTION 274 R.W.S. 271 (1)(C) OF THE ACT. (PARA 8/PAGE 5 OF THE PENALTY ORDER). THE CAREFUL PERUSAL OF THE PENALTY ORDER WOULD REVEAL THAT THE EXPLANATION SUBMITTED IN RESPONSE TO NOTI CE U/S. 274 WAS NO WERE 'HELD TO BE FALSE'. 4 MA NO S. 99 & 100/PN/2014, PRASHANT ARUN SANGAI, NASHIK 10. EVEN IN SUCH CIRCUMSTANCES THE HON'BLE TRIBUNAL HELD THAT THE JUDGMENT OF THE HON'BLE SUPREME COURT (RATIO DECIDENDI) APPLIES TO THE FACTS OF THIS CASES. THE HON'BLE TRIBUNAL HELD (PARA 2I/PAGE 25/26) THAT 'N O EXPLANATION IS THEREFORE ON RECORD' . 11. IN THE CIRCUMSTANCES THEREFORE, THE DECISION OF THE HON'BLE TRIBUNAL (PARA 21) RECORDING A FINDING THAT THE DECISION OF THE SUPREME COURT, IN MAK DATA P. LTD., (SUPRA) IS APPLICABLE TO THE FACTS OF ASSESSEE'S CAS E IS A 'PERVERSE FINDING' CAUSING UTMOST PREJUDICE TO THE ASSESSEE - APPLICANTS. THE HON'BLE TRIBUNAL CORRECTLY HELD, ON THE SAME SET OF FACTS AND CIRCUMSTANCES WHILE DECIDING THE APPEAL OF THE REVENUE FOR A.Y. 2002 - 03 (COMMON ORDER) IN ITA/61/P N /2012 THAT ( PARA 12/PAGE 18) 'THE ASSESSEE HAS RECORDED ALL THE TRANSACTIONS IN THE BOOKS OF ACCOUNT AND ALSO EXPLAINED THE GENUINENESS OF THE TRANSACTIONS. IN OUR HUMBLE OPINION, THE PRINCIPLES LAID DOWN IN THE CASE OF MAK DATA (P) LTD., (SUPRA) ARE NOT APPLICABLE TO ASSESSEE'S CASE.' 12. THE FACTS SHOW THAT WHILE DECIDING THE ISSUE AGAINST THE ASSESSEE THE HON'BLE TRIBUNAL HAS COMMITTED A MISTAKE WITHIN THE MEANING OF S. 254(2) OF THE ACT IN HOLDING THAT THE PRINCIPLES OF THE SUPREME COURT DECISION IN THE CASE OF MA K DATA P. LTD. ARE APPLICABLE TO THE ASSESSEE'S CASE. 13. THE BURDEN THAT LAY UPON THE ASSESSEE WAS DISCHARGED. TO THAT EFFECT THE FINDING WAS RECORDED BY CIT(A). THE SAID FINDING WAS NOT CHALLENGED BY REVENUE. THE BURDEN SHIFTED TO A.O. WHICH WAS NOT DIS CHARGED BY HIM. ON THIS COUNT ALSO MAK DATA JUDGMENT IS NOT APPLICABLE. 14. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE RECORD. THE LD. COUNSEL ARGUES THAT THE TRIBUNAL HAS NOT 5 MA NO S. 99 & 100/PN/2014, PRASHANT ARUN SANGAI, NASHIK UNDERSTOOD THE RATIO IN THE DECISION OF THE HON'BLE SU PREME COURT IN THE CASE OF MAK DATA PVT. LTD. (SUPRA) AND HAS WRONGLY INTERPRETED THE SAME AND ACCORDINGLY GIVEN THE PERVERSE FINDING. THE MAIN PLANK OF THE ARGUMENT IS THAT IF THE PRINCIPLES OF JUDGMENT ARE NOT PROPERLY INTERPRETED , AS IN HIS OPINION THA T AMOUNTS TO MISTAKE APPARENT FROM THE RECORD. 14.1 WITH DUE RESPECT TO THE LD. COUNSEL , WE ARE UNABLE TO ACCEPT HIS ARGUMENT . A DMITTEDLY THE PRESENT APPLICATION IS FILED U/S. 254(2) OF THE ACT AND AFTER CONSIDERING THE FACTS AND RECORD PLACED AVAILABLE BEFORE US , ON THE BASIS OF THAT THE TRIBUNAL HAS DECIDED THE APPEAL OF THE ASSESSEE. IF THE TRIBUNAL HAS INTERPRETED THE JUDGMENT AS UNDERSTOOD BY THE BENCH THAT CANNOT BE THE REASON TO CLAIM THAT THERE IS A MISTAKE IN THE ORDER BECAUSE AS PER THE ARGUMEN T OF THE LD. COUNSEL THAT INTERPRETATION IS NOT CORRECT. IN THIS CASE IF THE FINDING OF THE TRIBUNAL IS PERVERSED THEN THE PROPER WAY IS TO CHALLENGE THE ORDER OF THIS BENCH BEFORE THE HIGHER APPELLATE FORUM AND NOT TO SEEK THE REVIEW OF THE ORDER. THE L AW IS WELL SETTLED SO FAR AS THE SCOPE AND LIMITATION O F THE TRIBUNAL U/S. 254(2) OF THE ACT TO RECTIFY THE ORDER IF THERE IS ANY MISTAKE . U NDER THE PRETEXT OF RECTIF ICATION OF AN ORDER THERE CANNOT BE REVIEW OF THE ORDER. T HE INTERPRETATION OF LAW BY AN Y COURT OR TRIBUNAL MAY NOT BE CORRECT I N THE OPINION OF THE ASSESSEE AND THAT CAN BE THE SUBJECT MATTER OF THE APP LICATION U/S. 254(2) OF THE ACT. WE, ACCORDINGLY, HOLD THAT UNDER PRETEXT OF RECTIFICATION THE ASSESSEE IS SEEKING THE REVIEW OF THE DECISIO N OF THE TRIBUNAL IN ITA NO. 62/PN/2012 WITH CO NO. 65/PN/2013. WE FIND NO MERIT IN THE APPLICATION FILED BY THE ASSESSEE U/S. 254(2) OF THE ACT AS IT IS NOT WITHIN THE SCOPE OF THE SAID PROVISION. 15. NOW, WE TAKE UP THE MISCELLANEOUS APPLICATION BEING MA NO. 100/PN/2014 FOR THE A.Y. 200 7 - 08 . THE FACTS ARE IDENTICAL IN THIS CASE 6 MA NO S. 99 & 100/PN/2014, PRASHANT ARUN SANGAI, NASHIK AS IN MA NO. 99/PN/2014. ON PERUSAL OF THE APPLICATION FILED BY THE ASSESSEE IT IS SEEN THAT EXCEPT THE FIGURES THE OTHER FACTS ARE COP IED AND PASTE FROM MA NO. 99/PN/2014 . H E NCE, TO AVOID THE REPETITION OF THE FACTS AND PLEADING OF THE ASSESSEE IN THE MISCELLANEOUS APPLICATION, WE ADOPT THE FACTS AND PLEADING IN MA NO. 99/PN/2014. 16. IN TH IS MISCELLANEOUS APPLICATION , AGAIN THE CONTENTION OF THE ASSESSEE IS THAT IN RESPECT O F THE TRANSACTION FOUND RECORDED IN THE ROUGH CASH BOOK NATURE OF THE CASH RECEIPT S ON THE NAME OF SAHEB WERE DULLY REFLECTED IN REGULAR BOOKS OF ACCOUNT. IF THE TRANSACTIONS WERE REFLECTED IN THE REGULAR BOOKS OF ACCOUNT THEN THE ASSESSEE COULD HAVE FI LED THE RECONCILIATION SHOWING THE INCOMING AND OUTGOING CASH OUT OF THE BANK TRANSACTIONS OR OTHERWISE. THE TRIBUNAL HAS NOTED THAT THE ASSESSEE DID NOT FILE RECONCILIATION OF THOSE ENTRIES FOUND IN THE ROUGH DIARY TO SUBSTANTIATE THE CLAIM THAT THOSE TR ANSACTIONS WERE DULLY REFLECTED IN THE BOOKS OF ACCOUNT. THE TRIBUNAL HAS GIVEN CATEGORICAL FINDING THAT NO ARGUMENT WAS ADVANCED ON THE SAID ISSUE. AS NOTED BY THE TRIBUNAL , THE ASSESSEE HIMSELF OFFERED RS.17,03,874/ - AS HE FAIL ED TO PROVE THAT TRANSACT IONS FOUND IN ROUGH CASH BOOK WERE NOT RECORDED IN THE REGULAR BOOKS OF ACCOUNT. THE TRIBUNAL, THEREFORE, CONFIRM ED THE PENALTY APPLYING THE PRINCIPLES LAID DOWN IN THE CASE OF MA K DATA PVT. LTD. (SUPRA). 1 7 . WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PA RTIES AND PERUSED THE RECORD. THE ARGUMENT OF THE LD. COUNSEL IS SAME AS IN MA NO. 99/PN/2014. IN THIS CASE ALSO THE MAIN PLANK OF THE ARGUMENT OF LD. COUNSEL IS THAT THE TRIBUNAL HAS NOT PROPERLY APPRECIATED THE PRINCIPLES LAID DOWN IN THE CASE OF MAK D ATA PVT. LTD. (SUPRA) AND HAS GIVEN THE PERVERSE FINDING. IF THE FINDING OF THE TRIBUNAL IS PERVERSE , TO OUR UNDERSTANDING THAT CANNOT BE THE SUBJECT MATTER OF SEC. 254(2) OF THE ACT AS THE DECISION IS GIVEN BY THE BENCH AS THE BENCH UNDERSTOOD THE 7 MA NO S. 99 & 100/PN/2014, PRASHANT ARUN SANGAI, NASHIK JUDGME NT IN THE BACKGROUND OF THE FACTS OF THE CASE. THE ASSESSEE TRYING TO SEEK THE REVIEW OF THE ORDER IN THE PRETEXT OF RECTIFICATION BY FILING APPLICATION U/S. 254(2) OF THE ACT . WE HAVE ALREADY HELD THAT THE POWERS OF THE TRIBUNAL ARE LIMITED U/S. 254(2) OF THE ACT O NLY TO RECTIFY THE MISTAKES . I N OUR OPINION INTERPRETATION OF THE JUDGMENT CANNOT BE SAID TO BE A MISTAKE MERELY BECAUSE THE ASSESSEE INTERPRETS ANY JUDGMENT IN DIFFERENT ANGLE. WE FIND NO MERIT IN THE APPLICATION FILED BY THE ASSESSEE IN THE A.Y. 2007 - 08. 1 8 . IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATION S ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 25 - 02 - 201 5 SD/ - SD/ - ( G.S. PANNU ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE , DATED : 25 TH FEBRUARY, 2015 RK/PS COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - I , NASHIK 4 THE CIT - I , NASHIK 5 THE DR, ITAT, A BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLA TE TRIBUNAL , PUNE