10. os wp 2471-19 2477-19.doc
\nR.M. AMBERKAR
\n(Private Secretary)
\nIN THE HIGH COURT OF JUDICATURE AT BOMBAY
\nO.O.C.J.
\nWRIT PETITION NO. 2471 OF 2019
\nCavalier Trading Pvt Ltd .. Petitioner
\nVersus
\nDy. Commissioner of Income Tax – OSD-II, Central Range
\n7 & Anr. .. Respondents
\nWITH
\nWRIT PETITION NO. 2477 OF 2019
\nKalpit Trading Pvt Ltd .. Petitioner
\nVersus
\nDy. Commissioner of Income Tax – OSD-II, Central Range
\n7 & Anr. .. Respondents
\n……………….
\n\uf0b7 Mr. Devendra Jain a\/w Ms. Radha Halbe for the Petitioner
\n\uf0b7 Mr. Ashok Kotangle a\/w P.A. Narayanan, Arun Nagarjun & Sakshi
\nPandhelkar for the Respondents
\n……………….
\nCORAM : UJJAL BHUYAN &
\nMILIND N. JADHAV, JJ.
\nDATE : JANUARY 31, 2020.
\nP.C.:
\n1. Heard Mr. Jain, learned counsel for the petitioner
\nand Mr. Kotangle, learned standing counsel, revenue for the
\nrespondents.
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\n2. Issue arising in both the writ petitions being the
\nsame, those have been heard together and are being
\ndisposed of by this common order.
\n3. However, for the sake of convenience, relevant
\nfacts may be noted from Writ Petition No. 2471 of 2019
\n4. This petition has been filed under Article 226 of
\nthe Constitution of India assailing the legality and
\ncorrectness of order dated 13.3.2019 passed by the Income
\nTax Appellate Tribunal, “A” Bench, Mumbai (“Tribunal” for
\nshort) in M.A. No. 658\/M\/2018 arising out of Income Tax
\nAppeal No. 4875\/Mum\/2014 for the assessment year 1999-
\n2000.
\n4.1. From a perusal of the order dated 13.3.2019,
\nit is seen that petitioner had challenged the order of the
\nCommissioner of Income Tax (Appeals) restricting its profit to
\nthe extent of 1.5% of the sale and 1.5% on the purchase
\nbefore the Tribunal by filing the related appeal. Initially,
\npetitioner urged the following grounds:-
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\n“1. The CIT(A) is not justified in confirming or reducing the
\nestimation from 3% to 1.5% on sale and purchases made \/
\nestimated by Assessing Officer in violation of principle of
\nnatural justice.
\n2. He ought to have restricted the estimation upto 1% proposed
\nby the Assessing Officer, in similar circumstances in group
\ncompany’s appeal being ITA No. 4876\/Mum\/2014 in his letter \/
\nSCN dated 20.7.2001.
\n3. The CIT(A) is further not justified in reducing the addition \/
\nestimation to 1.5% from 3% on sales and purchases. He
\nought to have restricted 1% on sale or purchase either, not on
\nboth.
\n4. The CIT(A) is not justified in confirming the rejection of audited
\nbook results without going into the background facts and
\ncompelling circumstances to save other’s skin in the
\nproceedings before the Settlement Commission.
\nThe appellant craves leave to add, amend and modify any of
\nthe above grounds of appeal.”
\n4.2. Thereafter, during the pendency of the appellate
\nproceedings, petitioner submitted an application dated
\n27.7.2017 seeking leave to file modified \/ amended grounds
\nwhich were as follows:-
\n“1. The CIT(A) is not justified in confirming or reducing the
\nestimation from 3% to 1.5% on sale and purchases made \/
\nestimated by Assessing Officer in violation of principle of
\nnatural justice.
\n2. He ought to have restricted the estimation upto 1% proposed
\nby the Assessing Officer in similar circumstances in group
\ncompany’s appeal being ITA No. 4876\/Mum\/2014, in his
\nletter \/ SCN dated 20.7.2007.
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\n3. The CIT(A) is further not justified in reducing the addition \/
\nestimation to 1.5% from 3% on sales and purchases. He
\nought to have restricted 1% on sale or purchase either, not on
\nboth.
\n4. The CIT(A) is not justified in confirming the rejection of audited
\nbook results without going into the background facts and
\ncompelling circumstances to save other’s skin in the
\nproceedings before the Settlement Commission.”
\n4.3. The related appeal was heard by the Tribunal on
\n29.5.2018 and by order of even date, Tribunal affirmed the
\nfindings of the Commissioner of Income Tax (Appeals).
\n5. Petition filed a Misc. Application before the
\nTribunal under Section 254(2) of the Income Tax Act, 1961
\n(“the Act” for short) contending that the modified grounds
\nwere not considered by the Tribunal while disposing of the
\nappeal.
\n6. Tribunal, by the impugned order dated 13.3.2019
\ntook the view that the modified \/ additional grounds were
\nnothing but reiteration of the basic issue which was
\nrestricting the profit of the petitioner. Therefore, Tribunal
\nheld that there was no mistake apparent in the face of the
\nrecord within the meaning of Section 254(2) of the Act and
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\ndismissed the Misc. Application.
\n7. On a query by the Court, learned counsel for the
\npetitioner submits that as on date, petitioner has not filed
\nappeal before this Court against the order passed by the
\nTribunal dismissing the appeal.
\n8. We have compared the grounds initially taken by
\nthe petitioner in the appeal as well as the grounds
\nsubsequently submitted by the petitioner contending those
\nto be modified grounds. On considering the two sets of
\ngrounds, we find that Tribunal had rightly opined that the
\ncore issue for adjudication in the appeal before the Tribunal
\nwas restriction of profit of the petitioner on sale and
\npurchase from 3% to 1.5%. In fact, the so-called modified or
\nadditional grounds were nothing but reiteration of the
\noriginal grounds.
\n9. Section 254(2) of the Act provides that Tribunal
\nmay, at any time within six months from the end of the
\nmonth in which the order was passed, with a view to
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\nrectifying any mistake apparent from the record, amend any
\norder passed by it while disposing of the appeal and shall
\nmake such amendment if the mistake is brought to its notice
\nby the assessee or by the Assessing Officer. Substance of
\nSection 254(2) of the Act is rectification of mistake apparent
\nfrom the record. An error or mistake apparent from the
\nrecord is one which is manifest on the face of the record. No
\nlong-drawn hearing is required for rectification of such
\nmistake.
\n10. In the instant case, what we notice is that not only
\nwas there no mistake apparent from the record but in the
\ngarb of the Misc. Application, petitioner had sought for
\nreview of the final order passed by the Tribunal and for rehearing
\nof the appeal which is not permissible in law. In our
\nview, Writ Petition does not appear to be bonafide.
\n11. In the light of the above, we dismiss both the Writ
\nPetitions and impose cost of Rs. 10,000\/- on each of the
\npetitions on the petitioner. The costs be paid by the
\npetitioner to the Maharashtra State Legal Services Authority
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\nwithin two months from the date of this order.
\n12. Both the Writ Petitions are dismissed with cost as
\nabove.
\n[ MILIND N. JADHAV, J. ] [ UJJAL BHUYAN, J. ]
\n7 of 7<\/p>\n","protected":false},"excerpt":{"rendered":"
In the instant case, what we notice is that not only was there no mistake apparent from the record but in the garb of the Misc. Application, petitioner had sought for review of the final order passed by the Tribunal and for rehearing of the appeal which is not permissible in law. In our view, Writ Petition does not appear to be bonafide<\/p>\n