IN INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D , KOLKATA BEFORE SH. P.M. JAGTAP, VICE PRESIDENT & SH.S.S.VISWANETHRA RAVI, JUDICIAL MEMBER M.A. No. 99/Kol/2019 Arising out of ITA No. 1536/Kol/2017 (ASSESSMENT YEAR- 2013-14) M/s. Shailaja Park Pvt.Ltd., vs ACIT, 10/4D, Elgin Road, Central Circle-2(3), Room No.403, Kolkata-700020. 4th Floor, Aayakar Bhawan, Poorva, 110, Shanti Pally, E.M.Bye Pass, PAN-AAICS6064P Kolkata-700107. (Appellant) (Respondent) M.A. Nos. 100 & 101/Kol/2019 Arising out of CO No. 106/Kol/2017 In ITA No. 1537/Kol/2017 (ASSESSMENT YEAR- 2013-14) Vishal Agarwal, vs ACIT, 547, Block-N, Central Circle-2(3), Room No.403, New Alipore, 4th Floor, Aayakar Bhawan, Poorva, Kolkata-700053. 110, Shanti Pally, E.M.Bye Pass, Kolkata-700107. PAN-ADCPA9882F (Appellant) (Respondent) M.A. Nos. 102 & 103/Kol/2019 Arising out of CO No. 107/Kol/2017 In ITA No. 1540/Kol/2017 (ASSESSMENT YEAR- 2013-14) Vikash Agarwal, vs ACIT, 547, Block-N, Central Circle-2(3), Room No.403, New Alipore, Kolkata-700053. 4th Floor, Aayakar Bhawan, Poorva, 110, Shanti Pally, E.M.Bye Pass, PAN-ADCPA9855E Kolkata-700107. (Appellant) (Respondent) Appellant by Sh. A.K. Tibriwal, FCA & Sh. Amit Agarwal, Adv. Respondent by Sh. C.J. Singh, Sr.DR, JCIT Date of Hearing 21.06.2019 Date of Pronouncement 06.09.2019 Page | 1 M.A. Nos. 99, 100, 101, 102 & 103/Kol/2019 (ASSESSMENT YEAR- 2013-14) ORDER PER S.S. VISWANETHRA RAVI, JUDICIAL MEMBER above said five Miscellaneous Applications ( M.A. for short) filed by three different assessees in their respective Cross Objections praying to rectify mistake apparent on record in Consolidated Order dated 16.11.2018 passed by this Tribunal in above said appeals and Cross Objections and consequently recall said order and to restore appeals to fresh hearing. 2. We find issues raised in above mentioned five M.A.s are similar and based on same identical facts, therefore, with consent of both parties, we proceed to hear all M.A.s together and pass consolidated order for sake of convenience. 3. Heard both parties and perused material available on record. We note that Ld. AR Shri A.K. Tibriwal advanced his arguments and placed reliance and supported contents of M.A.s. Ld. DR Shri C.J. Singh supported order of this Tribunal. contention of Ld. AR is that assessee filed written note containing submissions and placed reliance in case laws and placed same on record which were not at all considered by this Tribunal, particularly in paragraph no. 10 of said note questioning show cause notice issued without specifically referring to nature of charge of guilty of Clauses of (a), (b) or (c) of Section 271AAB of Income Tax Act, 1961 ( Act for short) and consequently to declare said notice is defective. Further, specifically for not considering order dated 29.06.2018 in case of Kanwar Sain Gupta of this Tribunal. 4. We find regarding questioning of show cause notice, we recorded submissions of Ld. AR vide para 9 of impugned order dated 16.11.2018. said arguments relating to defective notice answered by this Tribunal vide paragraphs 12, 14, 15 and 19 of impugned order wherein Tribunal upheld order of AO in imposing penalty under Clause (a) of sub-Section 1 of Section 271AAB of Act by placing reliance in case of Sandip Chandak of Hon ble High Court of Allahabad. Therefore Page | 2 M.A. Nos. 99, 100, 101, 102 & 103/Kol/2019 (ASSESSMENT YEAR- 2013-14) contention of Ld. AR that this Tribunal did not consider at all submissions advanced during course of hearing of main appeal does not arise and devoid of merit, therefore, M.A. in this regard is liable to be dismissed. 5. Further, regarding question of non-consideration of order dated 29.06.2018 in case of Kanwar Sain Gupta (supra). It is to be held that this Tribunal has come to conclusion in restoring order passed by AO by setting aside order of CIT(A) by placing reliance in case of Sandip Chandak of Hon ble High Court of Allahabad as relied on Ld. DR against which SLP was preferred by assessee therein i.e. Sandip Chandak before Hon ble Supreme Court wherein Hon ble Supreme Court was pleased to dismiss SLP holding that no substantial question of law is involved vide its order dated 23.04.2018 treating facts and circumstances in present case with that of case before Hon ble Supreme Court are identical and similar. Therefore, question of non- consideration of case law as relied by Ld. AR does not arise. 6. Further to say mere non-mentioning of case laws or written note of any party is not error to question same as mistake apparent on record. It is pertinent to say scope under sub-Section 2 of Section 254 of Act is limited jurisdiction available to Tribunal wherein Tribunal can only amend any order passed by it under sub-Section 1 of Section 254 of Act with view to rectify any mistake apparent from record. As discussed above, non-consideration and non-mentioning of submissions or written note or any case laws in order is not mistake, in actual fact those were considered by mentioning perused material available on record . Therefore, in our opinion reliefs sought to be prayed vide above said five M.A.s are not mistake apparent on record and to consequently recall order dated 16.11.2018 is not maintainable and accordingly all five M.A.s are dismissed. Page | 3 M.A. Nos. 99, 100, 101, 102 & 103/Kol/2019 (ASSESSMENT YEAR- 2013-14) 7. In result, M.A. Nos. 99, 100, 101, 102 & 103/Kol/2019 are dismissed. Order pronounced in open court on 06.09.2019. Sd/- Sd/- (P.M. JAGTAP) (S.S.VISWANETHRA RAVI) VICE PRESIDENT JUDICIAL MEMBER Date:- 06.09.2019 Bidhan Copy forwarded to: 1. Appellant- (i) Vishal Agarwal, 547, Block-N, New Alipore, Kolkata-700053. (ii) Vikash Agarwal, 547, Block-N, New Alipore, Kolkata-700053. (iii) M/s. Shailaja Park Pvt.Ltd., 10/4D, Elgin Road, Kolkata-700020. 2. Respondent- ACIT, Central Circle-2(3), Room No.403, 4th Floor, Aayakar Bhawan, Poorva, 110, Shanti Pally, E.M.Bye Pass, Kolkata- 700107.. 3. CIT-Kolkata 4. CIT(Appeals)- , Kolkata 5. DR: ITAT -Kolkata Benches (sent through M.A.il) By order AR/H.O.O ITAT, KOLKATA Page | 4 Shailaja Park Pvt.Ltd. v. ACIT, Central Circle-2(3), Kolkata