ROHIT VALLABHADAS SHAH,MUMBAI V. INCOME TAX OFFICE-32(1)(7), MUMBAI

MA 217/MUM/2024

AI Insights

The case involves a miscellaneous application by the assessee, Rohit Vallabhdas Shah, against the order of the Income Tax Appellate Tribunal which confirmed the additions made by the lower authorities for the Assessment Year 2010-11. The assessee argued that the Tribunal's order was passed in haste and relied on a decision from the Gujarat High Court without proper discussion of the facts of the case. The Tribunal, however, found that the assessee had not established the identity and genuineness of the transactions in question, and thus upheld the addition of 100% of the alleged bogus purchases. The Tribunal also noted that the assessee's request for reconsideration was beyond the scope of Section 254(2) of the Income Tax Act.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 472750 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-11-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 25-10-2024
• Assessment Year: 2010-2011
• Appeal Filed On: 19-09-2024
• Other Referred Cases: N.K. Industries Ltd. (2016) 72 Taxma.com289, Saurashtra Kutch Stock Exchange Limited [2008] 305 ITR 227 (SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHIR KIRAN UNAVEKAR; DR
• Assessee Lawyers: ASHWIN CHHAG; AR
• Keywords: Set aside; Bogus purchase; Bogus
• Section: 254(2); 72

Judgement Text

" | आयकर अपीलीय अिधकरण \fा यपीठ, मुंबई | IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, MUMBAI BEFORE SHRI NARENDRA KUMAR BILLAIYA, HON’BLE ACCOUNTANT MEMBER & SHRI SUNIL KUMAR SINGH, HON’BLE JUDICIAL MEMBER M.A. No. 217/Mum/2024 A/o ITA No. 4202/Mum/2023 Assessment Year: 2010-11 Rohit Vallabhdas Shah B-303, Dwarka Apartment Daulat Nagar Borivali (E) Mumbai - 400051 [PAN: ACCPS2392B] Vs Income Tax Officer, 32(1)(7), Mumbai अपीला थ\u0016/ (Appellant) \u0017\u0018 यथ\u0016/ (Respondent) Assessee by : Shri Ashwin Chhag, A/R Revenue by : Shir Kiran Unavekar, Sr. D/R सुनवाई की तारीख/Date of Hearing : 25/10/2024 घोषणा की तारीख/Date of Pronouncement : 05/11/2024 आदेश/O R D E R PER NARENDRA KUMAR BILLAIYA, AM: This miscellaneous application by the assessee is directed towards the order of the Tribunal in ITA No. 4202/Mum/2023 dated 03/05/2024, pertaining to AY 2010-11. 2. The sum and substance of the contents of the miscellaneous application can be understood from the following extract of the petition:- “(i) It is submitted at the outsets, with utmost respect to the H'ble Bench, that the impugned order seems to have passed in hurry while merely relying on the decision of the H'ble Gujarat High Court in the case of N.K. Indutries Ltd.,(2016) 72 Taxma.com289, to confirm the additions made by both the lower authorities, as a result it has caused the following error of law, apparent on the face of the order, causing serious hardship to the appellant as discussed at the appropriate places; M.A. No. 217/Mum/2024 2 (a) that this Tribunal is the final fact finding authority but order reveals no discussion of facts of the case in hand vis a vis above cited decision while applying the ratio therein, to that extent order of the H'ble Bench is non speaking and hence, contrary to the rule of law. It is submitted with utmost respect that the decision relied upon is distinguishable on facts itself. (b) Appellant urges the H'ble Bench to recall the order as the facts of the case is a covered by the precedent set by the Jurisdictional High Court prior to passing this order.” 3. In support of the petition, the ld. Counsel for the assessee vehemently argued that the Tribunal grossly erred in not considering the judgment of the Hon’ble Jurisdictional High Court, though the same was never cited before the Bench. To buttress his contention, strong reliance was placed on the decisions of the Hon’ble Supreme Court in the case of Saurashtra Kutch Stock Exchange Limited [2008] 305 ITR 227 (SC) and also on the decision of the Co-ordinate Bench in the case M.A. No. 167/M/2023. Per contra, the ld. D/R supported the order of the Tribunal and stated that there is no rectifiable mistake apparent from record. 4. We have given a thoughtful consideration to the contents of the miscellaneous application and also to the submissions made by the ld. Counsel for the assessee. The relevant findings of the Tribunal in ITA No. 4202/Mum/2023, reads as under:- “8. We have given a thoughtful consideration to the orders of the authorities below. It is true that the assessee could not establish the identity of the parties and genuineness of the said transactions. It is also true that the assessee never denied that it has procured the accommodation bills to give color of genuine purchases. All that we have to see is whether the Assessing Officer is justified in making 100% addition of the bogus purchase amount or he should have added only the profit margin earned by the assessee. The Hon'ble Gujarat High Court in the case of N.K. Industries Ltd., [(2016) 72 Taxmann.com 289] has held that once it comes to a categorical finding that the amount represents alleged bogus purchases from bogus suppliers it is not incumbent to restrict the disallowance and thereby directed to make addition of 100% of the alleged bogus purchases. The SLP preferred by the assessee against this decision of the Hon'ble High M.A. No. 217/Mum/2024 3 Court has been dismissed by the Hon'ble Supreme Court in SLP (C) CC No. 769 of 2017 dated 2017 dated 16.01.2017. We find that the First Appellate Authority has followed this decision of the Hon'ble Gujarat High Court. As no distinguishing decision has been brought to our notice in favour of assessee, we do not find any reason to interfere with the findings of the Ld. CIT(A). 5. Now, the ld. Counsel wants the Tribunal to reconsider its above judgment which is beyond the scope of the provisions of Section 254(2) of the Act. Moreover, the say of the ld. Counsel that the decision of the Hon’ble Bombay High Court was available though never cited before the Bench does not hold any substance in light of Rule 18(6) of the ITAT Rules, 1963, which reads as under:- “………… [(6) Documents that are referred to and relied upon by the parties during the course of arguments shall alone be treated as part of the record of the Tribunal.] 6. This will also dislodge the challenge that the jurisdictional issue was not considered by the Bench in its order, though never argued. 7. The Hon’ble Supreme Court in the case of CIT vs. Reliance Telecom Limited in Civil Appeal No. 7110 & 7111 of 2021, had the occasion to consider issue relating to miscellaneous application filed u/s 254(2) of the Act and the Hon’ble Supreme Court interalia held as under:- “6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors Section 254(2) of the Act. As observed hereinabove, the powers under Section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that. Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case. 7. In view of the above and for the reasons stated above, the impugned common judgment and order passed by the High Court as well as the common order passed by M.A. No. 217/Mum/2024 4 the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 deserve to be quashed and set aside and are accordingly quashed and set aside. The original orders passed by the ITAT dated 06.09.2013 passed in the respective appeals preferred by the Revenue are hereby restored. 8. In light of the above, we do not find any rectifiable mistake in the order of the Tribunal. This miscellaneous application is accordingly dismissed. 9. In the result, miscellaneous application filed by the assessee is dismissed. Order pronounced in the Court on 5th November, 2024 at Mumbai. Sd/- Sd/- (SUNIL KUMAR SINGH) (NARENDRA KUMAR BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, Dated 05/10/2024 * * * *SC SrPs SC SrPs SC SrPs SC SrPs आदेश की \u0014ितिलिप अ\u0019ेिषत /Copy of the Order forwarded to : 1. अपीलाथ\u001b / The Appellant 2. \u0014\u001cथ\u001b / The Respondent 3. संबंिधत आयकर आयु! / Concerned Pr. CIT 4. आयकर आयु! ) अपील ( / The CIT(A)- 5. िवभागीय \u0014ितिनिध ,आयकर अपीलीय अिधकरण, मुंबई /DR,ITAT, Mumbai, 6. गाड% फाई/ Guard file. आदेशानुसार/ BY ORDER, TRUE COPY Assistant Registrar आयकर अपीलीय अिधकरण ITAT, Mumbai "