2015 (10) TMI 1626 - AT - Income Tax

Rectification of mistake - additional grounds of appeal filed by the assessee with reference to Cross Objection were not considered by the ITAT - Held that - The ITAT, after the considering the arguments of the both the sides, dismissed the Revenue s appeal and the ground No. 2 of the assessee s cross objection which was with regard to addition sustained by the CIT(A). In paragraph 9, the ITAT has mentioned that ground No. 1 of the assessee s cross objection is not pressed by the ld. Counsel for the assessee at the time of hearing. From the above, the clear indication is that the only argument from both the side was with regard to the addition partly reduced by the CIT(A). There was no other ground in the Revenue s appeal and in the assessee s cross objection, though there were other grounds which were not pressed. When the regular grounds raised in the cross objections were not pressed except ground No. 2 of the cross objection, the question of pressing of the additional ground could not have arose. Moreover, on the record of the ITAT in the folder of cross objection there is no additional ground, though the assessee has furnished the copy of the additional ground alongwith Miscellaneous Applications. However, despite number of opportunities allowed by the ITAT to the assessee, none appeared on behalf of the assessee or if appeared, sought adjournment. Even in the Miscellaneous Application, the only assertion by the assessee is that there was a passing discussion about the additional ground. There cannot be a passing discussion on any ground, except when the assessee s Counsel says that the ground is not pressed, because, if the ground is to be argued, then it is to be argued by both the parties and there cannot be a passing discussion in respect of such ground. In view of above, we are of the opinion that additional ground, if any, was not pressed by the assessee at the time of hearing. Therefore, now in the Miscellaneous Application the assessee cannot claim that there is apparent mistake in the order of the ITAT. We, therefore, reject the assessee s Miscellaneous Application. - Decided against assessee.

Summary

Issues Involved:
Miscellaneous Applications filed by two different assessees against a consolidated order of the Tribunal dated 31.08.2010 for the Assessment Year 2003-04.

Detailed Analysis:

1. Failure to Appear for Hearing:
The four Miscellaneous Applications were filed by the assessees against a consolidated order of the Tribunal. Despite being fixed for hearing on 05.06.2015, none appeared on behalf of the assessee without any request for adjournment. The history of adjournments due to the absence of the assessee's Counsel led the Tribunal to decide ex-parte on the Miscellaneous Applications.

2. Allegation of Additional Grounds Not Considered:
The assessees claimed that additional grounds of appeal were not considered by the ITAT. However, upon examination, it was found that there was no application for additional grounds in the records. The main discussion during the appeal hearing revolved around the Revenue's appeal and related cross objection, with only a passing discussion about the additional grounds.

3. Dismissal of Miscellaneous Applications:
In the specific case of Jindal Fashion for Assessment Year 2003-04, it was noted that during a survey, certain amounts were surrendered by the assessee, which were not disclosed in the income tax return. The ITAT's order detailed the additions made by the Assessing Officer, the relief provided by the CIT(A), and the subsequent appeals. The ITAT dismissed the Revenue's appeal and the second ground of the assessee's cross objection. The first ground of the cross objection was not pressed during the hearing, indicating that the additional grounds were not pursued.

4. Rejection of Claims:
The Tribunal emphasized that if regular grounds raised in cross objections were not pressed, the question of pressing additional grounds did not arise. Despite opportunities, the assessee did not appear to argue the additional grounds. The Tribunal concluded that the additional ground, if any, was not pressed during the hearing, leading to the rejection of the assessee's Miscellaneous Application.

5. Dismissal of all Miscellaneous Applications:
Given the identical nature of the facts in all four Miscellaneous Applications, the Tribunal dismissed all the applications based on the discussion and decision regarding the first application. The order pronounced on 19.6.2015 confirmed the dismissal of all four Miscellaneous Applications filed by the Assessees.

This detailed analysis highlights the procedural history, the specific contentions raised by the assessees, and the Tribunal's reasoning for dismissing the Miscellaneous Applications in the context of the consolidated order for the Assessment Year 2003-04.