Wp/1833/2018 Of Amore Jewels Pvt. Ltd v. The Dy. Commissioner Of Income Tax 9 (1) And 2 Others

Rane IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1833 OF 2018 Amore Jewels Private Ltd. ….PetitionerV/s.The Dy. Commissioner of Income-tax….Respondent * * * * Mr. Jehangir Mistri, Senior Counsel a/w. Mr. P.C.Tripathi, Advocate for the petitioner. Mr. Sham Walve, Advocate for respondents no.1 and 2. CORAM :- M.S. SANKLECHA, &SANDEEP K. SHINDE, JJ. DATE :3RD AUGUST, 2018. P.C. :-1. At the request of the Learned Counsel for the parties, the petition itself is being disposed of at thestage of admission. 2. This petition under Article 226 of theConstitution of India challenges the order dated 4th May, 2013 passed by the Income-Tax Appellate Tribunal Rane 2/6WP-1833-2018 (SR.25)Friday, 3.8.2018 (the Tribunal). The impugned order dated 4[th] May,2013 dismissed the petitioner's MiscellaneousApplication for rectification of order dated 13[th]February, 2015. This application was under Section254(2) of the Income-Tax Act,1961 (the Act). 3. The Tribunal, by its order dated 13[th]February, 2015 disposed of appeals filed by both theRevenue, as well as, the petitioner-assessee from theorder dated 22nd December, 2010 of the Commissionerof Income-Tax (Appeals) (CIT (A)) relating to theAssessment Year 2007-08. The issue in the Appeal filedby the Revenue before the Tribunal was in respect of theCIT(A) accepting the investment made by Ms. NirmalaBermecha in the petitioner's shareholding was agenuine investment and would not be hit by Section 68of the Act. So far as, the petitioner's appeal before theTribunal was concerned, it was in respect of the CIT (A)holding that the investment in shares by five corporateentities i.e. Coromandal Merchants P. Ltd, MapleNote : The order is corrected pursuant to speaking to minutes order dated 10[th]August, 2018. Rane 3/6 WP-1833-2018 (SR.25)Friday, 3.8.2018 Mercantile P. Ltd., Criticare Marketing P. Ltd, ZiwaniBarter P. Ltd and Deveraj Mercantile (P) Ltd. were notgenuine investment in shares and therefore hit bySection 68 of the Act. At the time of regular hearing ofthe Appeal on 27[th] November, 2014, the petitioner hadfiled detailed written submissions making a reference tovarious case laws in support of their case and also apaper-book indicating the identity, creditworthinessand genuineness of the investments made by the abovefive corporate entities in the shareholding of therespondent-Company. The Appeal was heard on 27thNovember, 2014 and the order was passed by theTribunal dismissing both the Revenue's, as well as, thepetitioner-assessee's Appeal on 13th February, 2015.This according to the petitioner, was withoutconsidering their submissions. 4. It was in the above view, that the petitionerfiled a Rectification Application on 1[st] February, 2018under Section 254(2) of the Act. The RectificationNote : The order is corrected pursuant to speaking to minutes order dated 10[th]August, 2018. Rane 4/6WP-1833-2018 (SR.25)Friday, 3.8.2018 Application invited the attention of the Tribunal to thewritten submissions which were filed at the time ofhearing in support of its case and in particular thebinding decisions in support of their appeal. Theimpugned order dated 4[th] May, 2018 on the RectificationApplication without addressing itself to the issuesraised in the application proceeded to hold that theissue has been discussed threadbare in the order dated13[th] February, 2015. Thus, no occasion to entertain theRectification Application under Section 254(2) of theAct would arise. Rane 4/6WP-1833-2018 (SR.25)Friday, 3.8.2018 Application invited the attention of the Tribunal to thewritten submissions which were filed at the time ofhearing in support of its case and in particular thebinding decisions in support of their appeal. Theimpugned order dated 4[th] May, 2018 on the RectificationApplication without addressing itself to the issuesraised in the application proceeded to hold that theissue has been discussed threadbare in the order dated13[th] February, 2015. Thus, no occasion to entertain theRectification Application under Section 254(2) of theAct would arise. 5. Mr. Walve, opposes the petition and pointsout that the order passed by the Tribunal on 13[th]February, 2015, was an order which on considering allthe material, concluded that the petitioner had failed tobring on record any positive material. Therefore, it issubmitted that, this finding in the order dated 13[th]February, 2015 would itself indicate that there is nomistake apparent on the record of the order. Rane 5/6WP-1833-2018 (SR.25)Friday, 3.8.2018 6. We find that, though the order dated 13[th]February, 2015 does render a finding that no positivematerial was brought on record, there is no discussionwhatsoever of the various case laws detailed in thesubmissions which according to the petitioner clinchesthe issues in support of its case that the shareholdinginvestment by the five Companies was genuine. In theabove view, the Tribunal ought to have allowed thepetitioner's Rectification Application and considered thepetitioner's Appeal before it on merits, inter-alia, takinginto account the material and case laws which has beenalready filed by the petitioner's during the hearingleading to the order dated 13[th] February, 2015. 7. In view of the peculiar facts of the presentcase, we are not only setting aside the impugned orderdated 4[th] May, 2018 but also the order dated 13[th]February, 2015 to the extent it dismissed thepetitioner's Appeal before it. This for the reason that,we find the order dated 13th February, 2015 in theNote : The order is corrected pursuant to speaking to minutes order dated 10[th]August, 2018. NeetaShaileshSawant 6/6 Rane context of the material available on record, to be a non- speaking order as it gives no reasons to reject theappeal in the context of the decisions admittedly relied upon at the hearing by the petitioners. 8. In the above view, the petition is allowed interms of prayer clauses (a) and (b). (SANDEEP K. SHINDE, J)(M.S. SANKLECHA, J) Digitally signedby NeetaShailesh SawantDate:2018.08.1612:40:27 +0530