VINTAGE ENTERPRISES,RAIGAD V. ACIT CIR PANVEL, PANVEL

MA 23/PUN/2024

AI Insights

The case involves M/s. Vintage Enterprises, the assessee, and the DCIT, Panvel Circle, the respondent, concerning the assessment year 2008-09. The Tribunal's earlier decision on 18-10-2023 remanded the matter back to the CIT(A) due to discrepancies in the assessment orders submitted by both the assessee and the Department. The assessee filed Miscellaneous Applications arguing that the Tribunal's order did not address the legal and factual grounds raised in their appeal. However, the Tribunal found that the correct assessment order had not been used for adjudication and thus upheld its previous decision to remand the case for a thorough examination of the correct documents.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 791801 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 7 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-12-2025
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 19-04-2024
• Other Referred Cases: Rolls-Royce Marine India (P.) Ltd. V. ITAT, Nisha Synthetics Ltd. V. CIT, ACIT V. Saurashtra Kutch Stock Exchange Ltd., Amore Jewels (P) Ltd. V. DCIT, Honda Siel Power Products Ltd. V. CIT, Mansukh Timbadia V. ACIT, State Bank of India V. DCIT, CIT V. Dhampur Sugar Mills Ltd, New Era Shipping Ltd. V. ACIT, Star India Pvt. Ltd. V. ITAT
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RATNAKAR SHELAKE
• Assessee Lawyers: M. SUBRAMANIAN
• Keywords: Set aside; Principle of natural justice; Loose papers
• Section: 147; 143(3)

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “B”, PUNE BEFORE SHRI MANISH BORAD, ACCOUNTANT MEMBER AND SHRI VINAY BHAMORE, JUDICIAL MEMBER M.A. Nos.23 & 24/PUN/2024 (Arising out of ITA Nos.1315 & 3469/PUN/2016) िनधाᭅरण वषᭅ / Assessment Year : 2008-09 M/s. Vintage Enterprises, Shop No.1, Plot No.1, 31 & 32, Patel Paradise, Sector- 35E, Owe, Kharghar, Dist.- Raigad- 410210. PAN : AAFFV5688J Vs. DCIT, Panvel Circle, Panvel. Appellant Respondent आदेश / ORDER PER VINAY BHAMORE, JM: Both the above captioned Miscellaneous Applications are filed by the assessee seeking recall of the order dated 18.10.2023 passed by this Tribunal in ITA No.1315/PUN2016 (filed by the Department) & ITA No.3469/PUN/2026 (filed by the assessee) both for the assessment year 2008-09 respectively. 2. Ld. AR appearing from the side of the assessee submitted before us that the order passed by the Tribunal is not correct since the matter has been remanded back to the file of Ld. CIT(A) without Assessee by : Shri M. Subramanian Revenue by : Shri Ratnakar Shelake Date of hearing : 12.09.2025 Date of pronouncement : 11.12.2025 Printed from counselvise.com MA Nos.23 & 24/PUN/2024 2 adjudicating the legal and factual grounds raised by the assessee. In this regard, the assessee has filed written submission in support of its Miscellaneous Applications, which is as under :- “These are two miscellaneous applications filed by the assessee against the Hon'ble I.T.A.T.'s order dated 18-10-2023 passed in appeal filed by the assesse as well as the Department bearing numbers ITA No.3469 & 1315/PUN/2016. The undisputed facts are that an assessment order passed u/s 143(3) and which has fully merged with the CIT(A)'s order has been re-opened u/s 147 to consider the very same issue which has been elaborately dealt with and discussed by both the A.O. as well as the CIT(A). Consequent to the re-opening, a fresh assessment order was passed u/s 147 r.w.s. 143(3) and on appeal the CIT(A) passed a detailed order allowing the assessee's appeal partly. The CIT(A)'s order was appealed against to the ITAT which in turn allowed both the assessee's as well as Revenue's appeal for statistical purposes by observing that \"we are unable to come to the stage of adjudication because firstly it has to be ascertained whether the Id. CIT(A) in passing the impugned order has placed reliance on the correct assessment order or not \". Now the apparent mistakes are: i) The order does not deal with any of the grounds raised in the appeal. In this connection the Hon'ble Tribunal's attention is invited to the Hon'ble Bombay High Court's decision rendered in the case of Rolls-Royce Marine India (P.) Ltd. V. ITAT 107 taxmann.com 26(Bom.) wherein it has been held that when assessee raised a ground before the Tribunal, it was duty of Tribunal to dispose of such ground and give its opinion thereon. ii) The order passed does not take into consideration paper book and various other evidences filed. In this connection the Hon'ble Tribunal's attention is invited to the Hon'ble Supreme Court's decision rendered in the case of Nisha Synthetics Ltd. V. CIT 82 taxmann.com 72 (SC). In this case the Hon'ble Supreme Court directed Tribunal to hear the appeal of the assesse on the basis of documents already received. iii) The order does not consider written submissions and supporting case laws filed. In this connection, the Hon'ble Tribunal's attention is invited to the decision of the Hon'ble Supreme Court's decision rendered in the case of ACIT V. Saurashtra Kutch Stock Exchange Ltd. 173 Taxman 322(SC) wherein it has been held that non-consideration of decision Jurisdictional High Court or of Supreme Court is a mistake apparent from record rectifiable u/s.254(2) of the act. Also see the decision of the Hon'ble Bombay High Court rendered in the case of Amore Printed from counselvise.com MA Nos.23 & 24/PUN/2024 3 Jewels (P) Ltd. V. DCIT 305 CTR 305 (Bom.) where in it has been held that non-consideration of various case laws cited and detailed in the submissions is a mistake apparent from record. iv) The order does not take into consideration the Hon'ble Pune Tribunal's decision rendered in the case of Mansukh Timbadia (ITA No. 1713/PN/2015) deleting similar addition made on the basis of very same loose papers and 132(4) statement. In this connection, the Hon'ble Tribunal's attention is invited to the Hon'ble Supreme Court's decision rendered in the case of Honda Siel Power Products Ltd. V. CIT 295 ITR 466 (SC) wherein it has been held that the Tribunal was right in rectifying the mistake on record as not considering the decision of a co-ordinate bench of the Tribunal cited before them would constitute a mistake rectifiable u/s.254(2) of the act. It has also been held that when prejudice results from an order attributable to the Tribunal's mistake or omission it is the duty of the Tribunal to set it right. v) A reading of para 2, 3,4 & 5 of the Hon'ble Tribunal's order would reveal that there are two assessment orders passed for the very same assessment year viz. one consisting of 7 pages received and enclosed by the assessee in appeals filed before both the CIT(A) as well as the Tribunal and the one consisting of 8 pages enclosed by Department in its appeal filed to the Tribunal. In this regard a letter dated 09.12.2019 enclosing therewith an affidavit was filed and the Tribunal has omitted to consider the same. vi) The Tribunal in 13th line of para 4 of its order has stated that 'we are unable to come to the stage of adjudication firstly because it has to be ascertained whether the Id. CIT(A) in passing the impugned order has placed reliance on the correct assessment order or not. However, the Hon'ble Tribunal has adjudicated the appeal by setting aside the order of the CIT(A). Here it may not be out of place to mention that a perusal of pages 11 to 14 of the CIT(A)'s order would make it clear that the CIT(A) has considered the assessment order containing 7 pages filed by the assesse and not the assessment order containing 8 pages. Further, an affidavit filed in this regard has also not been considered by the Tribunal. In this connection, the Hon'ble Tribunal's attention is invited to the Hon'ble Allahabad High Court's decision rendered in the case of CIT V. Dhampur Sugar Mills Ltd. 34 Taxman 153 (All), 170 ITR 449 (All). In this case, it has been held that under the provisions of the act only one assessment order is contemplated for a given year against an assessee. vii) Without prejudice to the above, it has to be submitted that the Hon'ble Tribunal could have disposed of the ground of appeal pertaining to the validity of the proceedings initiated u/s.147 of the act, independently without entering into any controversy as Printed from counselvise.com MA Nos.23 & 24/PUN/2024 4 to which assessment order is correct and which order the CIT(A) has placed reliance etc. viii) In addition to the above, as far as the Departmental appeal in particular is concerned, the Hon'ble Tribunal has, without considering the merits of the case set aside the CIT(A)'s order which had granted partial relief to the assesse. This is totally contrary to the decision of the Hon'ble Bombay High Court's decision rendered in the case of New Era hipping Ltd. V. ACIT 41 taxmann.com 459 (Bom.) wherein it has been held that where Tribunal without considering merits of case, set aside order of Commissioner (Appels) which had granted partial relief to assessee, order so passed by the Tribunal was invalid and thus, same deserved to be quashed with a direction to Tribunal to consider assessee's case on merits. Therefore, it is submitted that the Hon'ble Tribunal's order passed in Department's appeal also clearly erroneous needing rectificatory action. In view of the above, it is humbly submitted that the Miscellaneous applications be allowed either by recalling the Tribunal's order or by passing any such order as the Hon'ble Tribunal may deem fit in the circumstances of the case.” 3. In support of above contentions, Ld. AR for the assessee relied on the following decisions/judgements :- 1. Rolls-Royce Marine India (P.) Ltd. vs. ITAT, [2019] 107 taxmann.com 26 (Bombay). 2. Nisha Synthetics Ltd. vs. CIT, [2017] 82 taxmann.com 72 (S C). 3. ACIT, Rajkot vs. Saurashtra Kutch Stock Exchange Ltd., [2008] 173 Taxman 322 (SC). 4. Amore Jewels (P) Ltd. vs. DCIT, (2018) 305 CTR (Bom) 305. 5. Honda Siel Power Products Ltd. vs. CIT, [2007] 295 ITR 466 (SC). 6. Mansukh Timbadia vs. ACIT, ITA No.1713/PUN/2015 order dated 22.07.2022. 7. State Bank of India vs. DCIT, [2015] 370 ITR 438 (Bom). 8. CIT vs. Dhampur Sugar Mills Ltd, [1988] 170 ITR 449 (All). 9. New Era Shipping Ltd. vs. ACIT, [2014] 41 taxmann.com 459 (Bombay). 10. Star India Pvt. Ltd. vs. ITAT, Writ Petition (L) No.7813 of 2023 order dated 28.02.2024. Printed from counselvise.com MA Nos.23 & 24/PUN/2024 5 4. Ld. DR appearing from the side of the Revenue supported the order passed by the Tribunal and requested to dismiss the MAs filed by the assessee. Ld. DR also produced original case record wherein the available copy of the assessment order dated 18-03-2014 exactly matches with the copy of the assessment order furnished by the Department in their appeal. Accordingly, Ld. DR contended that the copy of assessment order relied on by the Ld. CIT(A) in his order is the one which is produced by the assessee and admittedly it does not match with the copy of assessment order which is available in the original case records. Ld. DR also submitted that the assessee through his Authorized Representative, Shri Sachin Maheshwari, Chartered Accountant has carried out the inspection of Departmental records on 12.10.2023 in the case of the assessee for assessment year 2008-09 and were also provided with certified copies of the assessment order dated 18.03.2014. Accordingly, Ld. DR submitted that order passed by the Tribunal remanding the matter back to the file of Ld. CIT(A) for de novo adjudication on the basis of correct assessment order is correct. 5. We have heard Ld. Counsels from both the sides and perused the written submissions filed by the assessee in support of the Miscellaneous Applications including case laws furnished by the Printed from counselvise.com MA Nos.23 & 24/PUN/2024 6 assessee. With regard to case laws, we find that none of them is applicable to the facts of the instant case. 6. In this regard, we find that the assessee has filed these two Miscellaneous Applications for recalling the order dated 18.10.2023 passed by the Tribunal in ITA No.1315/PUN2016 (filed by the Department) & ITA No.3469/PUN/2026 (filed by the assessee) both for the assessment year 2008-09 on the ground that the Tribunal erred in not adjudicating the legal as well as factual grounds raised by the assessee in his appeal instead set-aside the order passed by Ld. CIT(A) and remanded the matter back to the file of Ld. CIT(A) by observing as under :- “These two appeals preferred by the Revenue and the assessee for the same A.Y. 2008-09 emanates from the order of Commissioner of Income Tax [Appeals]-2, Thane (for short, „CIT(A)‟), dated 31.03.2016 as per the grounds of appeals on record. 2. At the outset, this Bench observes that there is a glaring defect much apparent in the documents filed on record. That, specifically it is noticed that in the appeal memo filed by the Department, the assessment order is dated 18/03/2014, and similarly, in the appeal memo of the appeal filed by the assessee, the assessment order is also dated 18/03/2014 and both these assessments were completed u/sec. 143(3) r.w.s. 147 of the Act. The rest of the details as appearing in the cause title of assessment order also matches, meaning thereby, it has to be construed on a reasonable basis that they are the same assessment orders filed in both the respective appeal memos from where the case has originated. Having said that, it is now observed at para 8 of the assessment order filed in the appeal memo by the Department in its appeal which reads as follows:- “8. Page No.60 & 66 of Annexure A-1 seized from the residence of Mr. Dilip Dherai on 05/03/2009. 8.1 Page No.60 is a cash receipt duly signed by Mr. Mansukh Timbadia for Rs. 20,00,000/-. As per the details submitted by M/s. Krupa Land Pvt. Ltd with the AO during their assessment Printed from counselvise.com MA Nos.23 & 24/PUN/2024 7 proceedings, they had bought 16.91 acres of land from Mr. Mansukh Timbadia in Nevali village. This also establishes that receipt of amount in cash by the purchasing parties. 8.2 Page No.66 of Annexure A-1 is a cash receipt duly signed by Mansukh Timbadia for receiving amount of Rs. 78,72,500/- wherein it is mentioned “To Mansukh Newali A/c Full & Final.” The last six figures of this receipt of full and final payment are exactly matching with the last six figures of Rs. 9,28,72,500/-, which is the amount appearing in last col for 4.425 acres of land on page nos. 190 and 196. This further establishes that receipt of amount in cash by the purchasing parties. Both the above mentioned cash receipts are duly dated and signed by Mansukh Timbadia. On page No.66 which is dated 30/12/2008, there is a clear noting that “To Mansukh Newali A/c Full & Final” which also clearly establish that cash payments have been made for purchase of land in Newali village, which are the part of the balance amount of Rs. 1.39 crore as appearing on Page No.190 (dated 29/11/2008) of Annexure A-5 impounded from the office of Mr. Dilip Dherai at Jai Tower. It is pertinent to mention here that IOM dated 23/08/2008 talks about outstanding payment in „other mode‟ 8.3 Mr. Dilip Dherai in his statement recorded on 05/03/2009 has admitted that both these pages (Page nos.60 & 66 of Annexure A-1 seized from his residence) are cash payment disbursement entries for land acquisition.” Now, in assessee‟s appeal memo the para 8 of the assessment order enclosed therein reads as follows:- “8. Plethora of incriminating evidences gathered during the search/survey from various premises of the Jain Corp Group as discussed above clearly establishes that unaccounted cash of Rs. 16,93,90,000/- for sale of land of 6.515 acre vide agreement dated 22/02/2008 was accepted by the assessee while dealing land transactions with the Group as above. This unaccounted cash receipt, which is undisclosed income of the assessee for the year, is not declared by him in his return of income filed nor it was disclosed during the assessment proceedings.” Both are substantially different in contents. In fact, para 8 of the assessment order filed in the appeal memo by the Department, consist of those clinching facts which ultimately resulted in addition. However, the contents of para 8 of the assessment order filed in the appeal memo of the assessee is altogether different and mismatched. At this juncture, we verified from the case records of the assessee and therein the contents of para 8 in the assessment order matches with para 8 of the assessment order filed by the Department in its appeal memo. Therefore, whether the assessee has filed wrong assessment order is the question and from where it had procured the said order also becomes Printed from counselvise.com MA Nos.23 & 24/PUN/2024 8 pertinent to identify whether there is any fraud or malpractice in any manner. 3. Ld.AR submitted that the assessment order which they have filed in their appeal memo is the assessment order which had been sent to them by the Department and he could not explain why there was mismatch and inconsistency in the contents of para 8 as appearing in the respective assessment orders filed by the parties herein. Ld.AR insisted that copy of the assessment order as filed in appeal memo of the assessee should be construed as the correct assessment order since the ld. CIT(A) had adjudicated, based on the said assessment order. 4. That, the case records provides considerable amount of clarity and validity regarding the facts and circumstances of each case in matters of any ambiguity on enquiry. We have already examined the contents of para 8 as appearing in the assessment order in the case record and it is matching with the contents of para 8 of the assessment order filed by the Revenue in its appeal memo. Therefore, without any doubt the correct assessment order has to be the one as appearing in the case record. Now, neither the ld.AR nor ld.DR could demonstrate through evidence as to which assessment order had been considered for adjudication by the ld. CIT(A). This Bench further observes that this kind of situation, have never been encountered with and it is a very serious matter where the records itself are suffering from ambiguity and uncertainty. We are unable to come to the stage of adjudication because firstly it has to be ascertained whether the ld.CIT(A) in passing the impugned order has placed reliance on the correct assessment order or not. That, suppose if the ld. CIT(A) had adjudicated on the basis of wrong assessment order, then the impugned order has to be quashed as being „non est‟ and the correct assessment order has to be restored. 5. Next question is that how a wrong assessment order could have been sent to the assessee by the Department. Considering these circumstances, we set aside the order passed by the ld. CIT(A) and remand the matter back to his file to verify the issues enumerated in the foregoing paras of this order and adjudicate „denovo‟ complying with the principles of natural justice. We order accordingly for both the matters filed before this Bench. Before parting we state that given the seriousness of the ambiguity and uncertainty in the present circumstances, this Bench also does not rule out the possibility of occurrence of any malpractice or fraud committed through manipulating the contents of the assessment order. In this regard, we also order a thorough enquiry by the Principle Chief Commissioner of Income Tax taking the enquiry to its complete logical end in upholding the principles of fair play, justice and judiciousness. Therefore, both the appeals stands allowed for statistical purposes as per above terms. 6. In the result, the appeals of the Revenue and the assessee are allowed for statistical purposes.” Printed from counselvise.com MA Nos.23 & 24/PUN/2024 9 7. From perusal of above order of the Tribunal, we find that the Tribunal has decided cross appeals filed against Ld. CIT(A)’s order dated 31-03-2016 for Asstt Year 2008-09, filed by the assessee as well as by the Department. We further find that the Tribunal in its order dated 18-10-2023 has observed and found that the assessment order dated 18.03.2014 for assessment year 2008-09 filed by the assessee in his appeal in ITA No.3469/PUN/2016 and filed by the Department in their appeal in ITA No.1315/PUN/2016 are not the same, however both are passed on same date, for same assessment year and passed u/s 143(3) r.w.s. 147 of the IT Act by the same Assessing Officer in the case of same assessee. 8. We further find that the Tribunal observed that there is substantial difference in para 8 of both the above assessment order furnished by the assessee and by the Department respectively. The copy of assessment order dated 18-03-2014 filed by the Department in its appeal consists of para 8, 8.1, 8.2 and 8.3, which reads as under :- “8. Page No.60 & 66 of Annexure A-1 seized from the residence of Mr. Dilip Dherai on 05/03/2009. 8.1 Page No.60 is a cash receipt duly signed by Mr. Mansukh Timbadia for Rs. 20,00,000/-. As per the details submitted by M/s. Krupa Land Pvt. Ltd with the AO during their assessment proceedings, they had bought 16.91 acres of land from Mr. Mansukh Timbadia in Nevali village. This also establishes that receipt of amount in cash by the purchasing parties. 8.2 Page No.66 of Annexure A-1 is a cash receipt duly signed by Mansukh Timbadia for receiving amount of Rs. 78,72,500/- wherein it Printed from counselvise.com MA Nos.23 & 24/PUN/2024 10 is mentioned “To Mansukh Newali A/c Full & Final.” The last six figures of this receipt of full and final payment are exactly matching with the last six figures of Rs. 9,28,72,500/-, which is the amount appearing in last col for 4.425 acres of land on page nos. 190 and 196. This further establishes that receipt of amount in cash by the purchasing parties. Both the above mentioned cash receipts are duly dated and signed by Mansukh Timbadia. On page No.66 which is dated 30/12/2008, there is a clear noting that “To Mansukh Newali A/c Full & Final” which also clearly establish that cash payments have been made for purchase of land in Newali village, which are the part of the balance amount of Rs. 1.39 crore as appearing on Page No.190 (dated 29/11/2008) of Annexure A-5 impounded from the office of Mr. Dilip Dherai at Jai Tower. It is pertinent to mention here that IOM dated 23/08/2008 talks about outstanding payment in „other mode‟ 8.3 Mr. Dilip Dherai in his statement recorded on 05/03/2009 has admitted that both these pages (Page nos.60 & 66 of Annexure A-1 seized from his residence) are cash payment disbursement entries for land acquisition.” Whereas the copy of assessment order dated 18-03-2014 filed by the assessee in its appeal consists of para 8 only, which reads as under :- “8. Plethora of incriminating evidences gathered during the search/survey from various premises of the Jain Corp Group as discussed above clearly establishes that unaccounted cash of Rs. 16,93,90,000/- for sale of land of 6.515 acre vide agreement dated 22/02/2008 was accepted by the assessee while dealing land transactions with the Group as above. This unaccounted cash receipt, which is undisclosed income of the assessee for the year, is not declared by him in his return of income filed nor it was disclosed during the assessment proceedings.” 9. Accordingly, before the Tribunal the assessee and the Department in their respective cross appeals have filed two different assessment orders for the same assessment year 2008-09 and both have claimed that the copy of assessment order filed by them is correct one. Printed from counselvise.com MA Nos.23 & 24/PUN/2024 11 10. Under the above facts and circumstances of the case, the Tribunal observed in its order in para 4 as under :- “4 -------- This Bench further observes that such kind of situation have never been encountered with and it is a very serious matter where the records itself are suffering from ambiguity and uncertainty. We are unable to come to the stage of adjudication because firstly it has to be ascertained whether the Ld. CIT(A) in passing the impugned order has placed reliance on the correct assessment order or not.----” 11. Accordingly, we find that it was not possible for the Tribunal to adjudicate the grounds of appeal raised either by the assessee or by the Department, since which assessment order is correct was not known to the Tribunal, since both the parties were claiming that the order produced by them is the correct order. Therefore, the Tribunal set-aside the order dated 31-03-2016 passed by Ld. CIT(A) and remanded the matter back to the file of Ld. CIT(A) with a direction to adjudicate de novo on the basis of correct assessment order after a thorough enquiry by Principal Chief Commissioner of Income Tax. 12. Accordingly, we are of the considered opinion that there is no error in the order dated 18-10-2023 passed by the Tribunal which needs rectification, since it would be unjustified for the Tribunal to adjudicate the grounds of appeal raised by either of the party, until & unless it is known which assessment order is correct, & Ld. CIT(A) has adjudicated the appeal on the basis of correct assessment order or wrong assessment order. Therefore, under the Printed from counselvise.com MA Nos.23 & 24/PUN/2024 12 prevailing circumstances the order passed by the Tribunal appears to be correct and no factual or apparent error arises therein which requires rectification. 13. In the result, both the above Miscellaneous Applications filed by the assessee are dismissed. Order pronounced on this 11th day of December, 2025. Sd/- Sd/- (MANISH BORAD) (VINAY BHAMORE) ACCOUNTANT MEMBER JUDICIAL MEMBER पुणे / Pune; ᳰदनांक / Dated : 11th December, 2025. Sujeet आदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The Pr. CIT concerned. 4. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “B” बᱶच, पुणे / DR, ITAT, “B” Bench, Pune. 5. गाडᭅ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune. Printed from counselvise.com "