CAPT. NIKHIL DIVECHA, v. ITO WD 27(1)(3),

MA 514/MUM/2009 | misc
Pronouncement Date: 18-01-2010 | Result: Dismissed

Appeal Details

RSA Number 51419924 RSA 2009
Assessee PAN AEGPD4014F
Bench Mumbai
Appeal Number MA 514/MUM/2009
Duration Of Justice 5 month(s) 25 day(s)
Appellant CAPT. NIKHIL DIVECHA,
Respondent ITO WD 27(1)(3),
Appeal Type Miscellaneous Application
Pronouncement Date 18-01-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted I
Tribunal Order Date 18-01-2010
Assessment Year misc
Appeal Filed On 24-07-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I MUMBAI BEFORE SHRI T.R.SOOD AM & SMT. P.MADHAVI DEVI JM M.A.NO.514/MUM/2009 ARISING OUT OF I.T.A.NOS.894 TO 897 & 944/M/03 A.YS. 90-91 TO 93-94 95-96 96-97 & 94-95 AND M.A.NOS.666 667 668 & 669/M/03 (ARISING OUT OF I.T.A.NOS.892 TO 895/M/03) A.YS.90-91 91-92 92-93 & 93-94 CAPT. NIKHIL DIVECHA C/O. 207 BLDG. NO.4 KAMDHENU CGS LTD LOKHANDWALA COMPLEX ANDHERI [WEST] MUMBAI 400 053 PAN NO.AEGPD 4014 F VS. THE INCOME TAX OFFICER 27(1)(3) MUMBAI (APPLICANT) (RESPONDENT) ASSESSEE BY : MR. NISHAD THAKKOR. REVENUE BY : MR. T.T.JACOB. O R D E R PER P.MADHAVI DEVI JM: THESE MISCELLANEOUS APPLICATIONS ARE FILED BY THE ASSESSEE U/S.254[2] OF THE INCOME TAX ACT SEEKING RECALL OF THE TRIBUNALS ORDER DATED 20/03/2006 PASSED IN I.T.A.NOS.892 TO 897/M/0 3 FOR A.YS. 1990- 91 TO 1996-97 AND I.T.A.NO.944/M/03 FOR A.Y 1994-95 ON THE GROUND THAT IN THE ALTERNATIVE AND WITHOUT PREJUDICE THE G ROUND RAISED BY THE ASSESSEE HAS NOT BEEN DEALT WITH BY THE TRIBUNAL. 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT BEFORE THE TRIBUNAL THE ASSESSEE HAD SPECIFICALLY RAISED A GRO UND AS TO THE TERM TO BE TAKEN INTO CONSIDERATION FOR LEVY OF INTEREST U/ S.234A AND WHETHER 2 THE INTEREST CALCULATION SHOULD START FROM THE DUE DATE OF FILING OF THE RETURN U/S.139 OF THE ACT OR FROM THE DATE OF NOTIC E ISSUED U/S.148 OF THE ACT. HE SUBMITTED THAT HE HAD ALSO PLACED RELIA NCE ON THE DECISION OF THE TRIBUNAL IN THE CASE OF MS. PRITI PITHAWALA I.T.A.NO./6382/M/02 WHEREIN IT HAS BEEN HELD THAT INTEREST OUGHT TO BE CALCULATED BEGINNING FROM THE DATE OF NOTICE ISSUED U/S.148 OF THE ACT BUT THE TRIBUNAL HAS NOT CONSIDERED THE DECISION PASSED IN THE CASE OF M S. PRITI PITHAWALA AND HAS HELD THAT THE RETURNS OUGHT TO HAVE BEEN FI LED BY THE ASSESSEE AND AS THE SAME WERE NOT FILED THE CASE OF THE ASSE SSEE FELL WITHIN SEC.139(1)(B) OF THE ACT AND HENCE THERE WAS NO INF IRMITY IN THE MODE OF COMPUTATION ADOPTED BY THE AO. THE ASSESSEE FURT HER SUBMITTED THAT THESE ARE THE SECOND MISCELLANEOUS APPLICATION S FILED BY THE ASSESSEE AND THE ASSESSEE HAD INITIALLY PREFERRED M ISCELLANEOUS APPLICATIONS AND AFTER CONSIDERING THE SAME THE TRI BUNAL VIDE ORDER DATED 30/6/2006 HAD MODIFIED ITS ORDER FOR THE ASSE SSMENT YEARS 1994- 95 TO 1996-97 AND HAD DIRECTED THE AO TO VERIFY WHE THER THE RETURNS OF INCOME WERE FILED BY THE ASSESSEE AND IF SO WITHD RAW LEVY OF INTEREST CHARGED U/S.234A OF THE ACT. THE ASSESSEE NOW SUBMI TS THAT AS THE TAX AROSE ONLY IN VIEW OF THE RETROSPECTIVE CIRCULAR IS SUED BY THE CBDT AS ON THE DATE OF FILING RETURN OF INCOME THERE WAS NO TAX PAYABLE AND HENCE IN VIEW OF THE DECISION OF THE APEX COURT IN THE CASE OF DR. RANOY ROY REPORTED IN 309 ITR 231 INTEREST U/S.234 A IS NOT CHARGEABLE. 3 4. THE LD. DR ON THE OTHER HAND SUPPORTED THE ORD ER OF THE TRIBUNAL AND SUBMITTED THAT THERE IS NO MISTAKE APP ARENT FROM RECORDS AS POINTED OUT BY THE ASSESSEE AND WHAT THE ASSESSE E IS SEEKING THROUGH THESE MISCELLANEOUS APPLICATIONS IS ONLY RE VIEW OF THE ORDER OF THE TRIBUNAL WHICH IS NOT PERMISSIBLE IN LAW. FURTH ER HE SUBMITTED THAT THERE COULD NOT BE ANY MISCELLANEOUS APPLICATION AG AINST THE ORDER IN M.A. AND FOR THIS REASON ALSO THE MISCELLANEOUS APP LICATIONS ARE LIABLE TO BE DISMISSED. 5. HAVING HEARD BOTH THE PARTIES WE FIND THAT THE TRIBUNAL AT PARA- 4 OF ITS ORDER HAS MADE A REFERENCE TO THE DECISION OF THE SMC IN THE CASE OF MS. PRITI PITHAWALA AND THEREAFTER HAD PROC EEDED TO CONSIDER THE PROVISIONS OF LAW BEFORE COMING TO THE CONCLUSI ON. MERELY BECAUSE THE TRIBUNAL HAS NOT GIVEN THE REASONS FOR NOT FOLL OWING THE DECISION OF THE SMC IN THE CASE OF MS. PRITI PITHAWALA [CITED S UPRA] WHICH IS NOT BINDING ON THE DIVISION BENCH IT CANNOT BE SAID TH AT THE SAID DECISION HAS NOT BEEN CONSIDERED BY THE TRIBUNAL. FURTHER A S ALREADY SUBMITTED BY THE ASSESSEE THE ASSESSEE HAD ALREADY FILED MIS CELLANEOUS APPLICATIONS BEFORE THE TRIBUNAL AND THE TRIBUNAL H AD DIRECTED THE AO TO VERIFY WHETHER THE RETURNS OF INCOME WERE FILED BY THE ASSESSEE AND IF SO FOUND TO WITHDRAW THE LEVY OF INTEREST U/S.2 34A OF THE ACT. IN THESE CIRCUMSTANCES WE FIND THAT THERE IS NO MISTA KE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL AND WHAT THE AS SESSEE IS SEEKING IS REVIEW OF THE ORDER OF THE TRIBUNAL. THE HON'BLE BO MBAY HIGH COURT IN THE CASE OF RAMESH ELECTIC & TRADING CO. [ 203 IT R 497 ] HAS HELD 4 THAT NON CONSIDERATION OF AN ARGUMENT IS NOT A MIST AKE APPARENT FROM RECORD ALTHOUGH IT MAY BE AN ERROR OF JUDGMENTS AN D SAME CANNOT BE RECTIFIED U/S.254(2) OF THE ACT. EVEN OTHERWISE TH ERE CANNOT BE TWO MISCELLANEOUS APPLICATIONS FOR SIMILAR RELIEFS AGAI NST AN ORDER IN AN APPEAL. FOR ALL THESE REASONS THE MISCELLANEOUS AP PLICATIONS ARE DISMISSED. 6. IN THE RESULT MISCELLANEOUS APPLICATIONS ARE DI SMISSED. ORDER PRONOUNCED ON THIS 18 TH DAY OF JANUARY 2010. SD/- SD/- (T.R.SOOD) (P.MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI: 18-1-2010. P/-* COPY TO- 1) APPELLANT 2) RESPONDENT 3) CITA MUMBAI. 4) CIT CITY MUMBAI 5) DR BENCH MUMBAI TRUE COPY BY ORDER DY /ASST.REGISTRAR ITAT MUMBAI. 5 SR.NO. PARTICULARS DATE INITIALS 1 DRAFT DICTATED ON 11-12-09 P 2 DRAFT PLACED BEFORE AUTHOR 14-12-09 P 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 5 APPROVED DRAFT COMES TO SR.PS/PS 6 ORDER KEPT FOR PRONOUNCEMENT 7 FILE SENT TO BENCH CLERK 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER