Wp/2364/2010 Of Indrakumar Patodia v. The Income Tax Officer 24 (2) (4)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2364 OF 2010 Indrakumar Patodia]Residing at A-401, Gurukripa ]Building, Evershine Nagar, ]Malad (W), Mumbai - 400 064.]..Petitioner. V/s. The Income Tax Officer 24 (2)(4)]having office at Pratyakshkar Bhavan,]B.K. Complex, Bandra (E), ]Mumbai-400 051.]..Respondent. Mr. B.L. Gandhi with S.A. Jabbar i/b. K.C. Pandey for Petitioner.Ms. Suchitra Kamble for respondent. CORAM : J.P. DEVADHAR AND MRS. MRIDULA BHATKAR, JJ.DATED : 1ST FEBRUARY, 2011 ORAL JUDGMENT [PER J.P. DEVADHAR] 1.This petition is filed to challenge the assessment order passed on 29/12/2009 under Section 143(3) r/w. 254 (2) of the Income Tax Act and also order passed by the ITAT on 13/08/2010 thereby rejecting the Misc. Application filed by the petitioner. 2.In the original assessment order passed for the A.Y. 1998-99 addition to the extent of Rs.77 lakhs were made on account of the failure on the part of the assessee to produce confirmation letters relating to loans allegedly taken by the petitioner. The said additions were confirmed by the Commissioner of Income Tax (A). The assessee filed further appeal before the ITAT. During the pendency of the appeal, the assessee obtained loan confirmation letters from some of the parties and requested the ITAT to produce the same as and by way of additional evidence. By an order dated 13/05/2008 passed in I.T.A. No.4652/ Mum/2006, the ITAT allowed additional evidence and restored the matter to the file of the assessing officer for consideration of the additional evidence. 3.When the matter was taken up by the assessing officer for consideration of the additional evidence, the assessee filed some more loan confirmations which were not produced before the ITAT. The assessing officer declined to consider those loan confirmations on the ground that the direction of the ITAT was to consider the specified number of loan confirmations and not beyond. Accordingly, the assessing officer rejected the claim of the petitioner and passed the 4.Instead of challenging the said assessment order, the petitioner filed a Misc. Application in ITA No.4652/Mum/2006 seeking modification of the order dated 13/05/2008 so that the additional evidence allowed is not restricted to the loan confirmations received during the pendency of the appeal but also to include loan confirmations that were received after the disposal of the appeal. By the impugned order dated 13/08/2008, the Tribunal rejected the Miscellaneous Application on the ground that it has no power to review its order dated 13/05/2008 so as to allow additional evidence received after the disposal of the appeal on 13/08/2008. The present Writ Petition is filed to challenge the order dated 29/12/2009 as well as the order of the Tribunal dated 13/08/2009 rejecting the Misc. Application. 5.It is contended on behalf of the petitioner that once the matter was remanded, the adjudicating authority ought to have permitted all additional evidence, whether received before or after the disposal of the appeal by the ITAT. Since the assessing officer erroneously declined to consider the additional evidence gathered after the disposal of the appeal, the petitioner had no option but to move the ITAT by way of Miscellaneous Application. In these circumstances, it is submitted that the Tribunal ought to have allowed the Miscellaneous Application in the 6.In our opinion, the challenge to the assessment order dated 29/12/2009 cannot be entertained as the assessee has an alternate remedy of filing an appeal and agitate the issue as to whether the assessing officer was bound to consider the additional evidence other than those permitted by the ITAT, by filing an appeal. 6.In our opinion, the challenge to the assessment order dated 29/12/2009 cannot be entertained as the assessee has an alternate remedy of filing an appeal and agitate the issue as to whether the assessing officer was bound to consider the additional evidence other than those permitted by the ITAT, by filing an appeal. 7.As regards the challenge to the order of the Tribunal in rejecting the Miscellaneous Application is concerned, in our opinion, no fault can be found with the order of the Tribunal because the Tribunal has no power to review. Once the Tribunal has disposed off the appeal on merits, the ITAT cannot review its order. Civil Courts have been expressly granted power of review in the Code of Civil Procedure. No such powers are conferred upon the ITAT under the Income Tax Act. Hence, no fault can be found with the order of the Tribunal in rejecting the Miscellaneous Application filed by the petitioner. 8.Strong reliance was placed by the counsel for the petitioner on the decisions of the Apex Court in the case of Board of Control for Cricket, India V/s. Netaji Cricket Club reported in A.I.R. 2005 Supreme Court, 592 and Inderchand Jain (Dead) Through LR's V/s. Motilal (Dead) through LR's reported in (2009) 14 Supreme Court Cases, 663. In our opinion, both the aforesaid decisions have no relevance to the facts of the present case, because, those decisions relate to the review power of the Civil Courts under the provisions of the Civil Procedure Code. No such provisions are there in the Income Tax Act. Hence, both the aforesaid decisions have no relevance to the facts of the present case. 9.Similarly, reliance placed on the decisions of this Court in the case of Smt. Prabhavati S. Shah V/s. Commissioner of Income Tax reported in (1998) 231 ITR 1 and Sushila Shantilal Jhaveri V/s. Union of India & Anr. reported in [2006] 286 ITR 428 (Bom) are also misplaced, because, in both the aforesaid cases, the issue was regarding allowability of the additional evidence before the disposal of the appeal by the ITAT and not after the disposal of the appeal by the ITAT. Therefore, these two decisions also do not support the case of the petitioner. 10.In the result, we see no merit in the petition and the same is hereby dismissed with no order as to costs. (MRS. MRIDULA BHATKAR, J.) (J.P. DEVADHAR, J.)