10. os wp 2471-19 2477-19.doc R.M. AMBERKAR (Private Secretary) IN HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. WRIT PETITION NO. 2471 OF 2019 Cavalier Trading Pvt Ltd Petitioner Versus Dy. Commissioner of Income Tax - OSD-II, Central Range 7 & Anr. Respondents WITH WRIT PETITION NO. 2477 OF 2019 Kalpit Trading Pvt Ltd Petitioner Versus Dy. Commissioner of Income Tax - OSD-II, Central Range 7 & Anr. Respondents Mr. Devendra Jain a/w Ms. Radha Halbe for Petitioner Mr. Ashok Kotangle a/w P.A. Narayanan, Arun Nagarjun & Sakshi Pandhelkar for Respondents CORAM : UJJAL BHUYAN & MILIND N. JADHAV, JJ. DATE : JANUARY 31, 2020. P.C.: 1. Heard Mr. Jain, learned counsel for petitioner and Mr. Kotangle, learned standing counsel, revenue for respondents. 1 of 7 10. os wp 2471-19 2477-19.doc 2. Issue arising in both writ petitions being same, those have been heard together and are being disposed of by this common order. 3. However, for sake of convenience, relevant facts may be noted from Writ Petition No. 2471 of 2019 4. This petition has been filed under Article 226 of Constitution of India assailing legality and correctness of order dated 13.3.2019 passed by Income Tax Appellate Tribunal, "A" Bench, Mumbai ("Tribunal" for short) in M.A. No. 658/M/2018 arising out of Income Tax Appeal No. 4875/Mum/2014 for assessment year 1999- 2000. 4.1. From perusal of order dated 13.3.2019, it is seen that petitioner had challenged order of Commissioner of Income Tax (Appeals) restricting its profit to extent of 1.5% of sale and 1.5% on purchase before Tribunal by filing related appeal. Initially, petitioner urged following grounds:- 2 of 7 10. os wp 2471-19 2477-19.doc "1. CIT(A) is not justified in confirming or reducing estimation from 3% to 1.5% on sale and purchases made / estimated by Assessing Officer in violation of principle of natural justice. 2. He ought to have restricted estimation upto 1% proposed by Assessing Officer, in similar circumstances in group company's appeal being ITA No. 4876/Mum/2014 in his letter / SCN dated 20.7.2001. 3. CIT(A) is further not justified in reducing addition / estimation to 1.5% from 3% on sales and purchases. He ought to have restricted 1% on sale or purchase either, not on both. 4. CIT(A) is not justified in confirming rejection of audited book results without going into background facts and compelling circumstances to save other's skin in proceedings before Settlement Commission. appellant craves leave to add, amend and modify any of above grounds of appeal." 4.2. Thereafter, during pendency of appellate proceedings, petitioner submitted application dated 27.7.2017 seeking leave to file modified / amended grounds which were as follows:- "1. CIT(A) is not justified in confirming or reducing estimation from 3% to 1.5% on sale and purchases made / estimated by Assessing Officer in violation of principle of natural justice. 2. He ought to have restricted estimation upto 1% proposed by Assessing Officer in similar circumstances in group company's appeal being ITA No. 4876/Mum/2014, in his letter / SCN dated 20.7.2007. 3 of 7 10. os wp 2471-19 2477-19.doc 3. CIT(A) is further not justified in reducing addition / estimation to 1.5% from 3% on sales and purchases. He ought to have restricted 1% on sale or purchase either, not on both. 4. CIT(A) is not justified in confirming rejection of audited book results without going into background facts and compelling circumstances to save other's skin in proceedings before Settlement Commission." 4.3. related appeal was heard by Tribunal on 29.5.2018 and by order of even date, Tribunal affirmed findings of Commissioner of Income Tax (Appeals). 5. Petition filed Misc. Application before Tribunal under Section 254(2) of Income Tax Act, 1961 ("the Act" for short) contending that modified grounds were not considered by Tribunal while disposing of appeal. 6. Tribunal, by impugned order dated 13.3.2019 took view that modified / additional grounds were nothing but reiteration of basic issue which was restricting profit of petitioner. Therefore, Tribunal held that there was no mistake apparent in face of record within meaning of Section 254(2) of Act and 4 of 7 10. os wp 2471-19 2477-19.doc dismissed Misc. Application. 7. On query by Court, learned counsel for petitioner submits that as on date, petitioner has not filed appeal before this Court against order passed by Tribunal dismissing appeal. 8. We have compared grounds initially taken by petitioner in appeal as well as grounds subsequently submitted by petitioner contending those to be modified grounds. On considering two sets of grounds, we find that Tribunal had rightly opined that core issue for adjudication in appeal before Tribunal was restriction of profit of petitioner on sale and purchase from 3% to 1.5%. In fact, so-called modified or additional grounds were nothing but reiteration of original grounds. 9. Section 254(2) of Act provides that Tribunal may, at any time within six months from end of month in which order was passed, with view to 5 of 7 10. os wp 2471-19 2477-19.doc rectifying any mistake apparent from record, amend any order passed by it while disposing of appeal and shall make such amendment if mistake is brought to its notice by assessee or by Assessing Officer. Substance of Section 254(2) of Act is rectification of mistake apparent from record. error or mistake apparent from record is one which is manifest on face of record. No long-drawn hearing is required for rectification of such mistake. 10. In instant case, what we notice is that not only was there no mistake apparent from record but in garb of Misc. Application, petitioner had sought for review of final order passed by Tribunal and for re- hearing of appeal which is not permissible in law. In our view, Writ Petition does not appear to be bonafide. 11. In light of above, we dismiss both Writ Petitions and impose cost of Rs. 10,000/- on each of petitions on petitioner. costs be paid by petitioner to Maharashtra State Legal Services Authority 6 of 7 10. os wp 2471-19 2477-19.doc within two months from date of this order. 12. Both Writ Petitions are dismissed with cost as above. [MILIND N. JADHAV, J.] [UJJAL BHUYAN, J.] Digitally signed by Ravindra Ravindra M. Amberkar M. Date: Amberkar 2020.02.05 10:56:13 +0530 7 of 7 Cavalier Trading Pvt. Ltd. v. Dy. Commissioner of Income-tax-OSD-II, Central Range-7 & Anr