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Vishesh Carbon Pvt. Ltd. 77/83, J. K. Chambers, Nagdevi Street, Masjid, Mumbai-400 003 Vs. Income Tax Officer, Ward 7(3)(1), Room No. 616, 6th Floor, Aaykar Bhawan, Mumbai-400 020
December, 15th 2014

          .  ,                              ,                                    

                           ./MA No. 319/Mum/2014
                       (Arising out of ITA No. 5872/Mum/2012)
                    (   / Assessment Years: 2007-08)

Vishesh Carbon Pvt. Ltd.                            Income Tax Officer,
77/83, J. K. Chambers, Nagdevi Street,              Ward 7(3)(1),
Masjid, Mumbai-400 003                     /        Room No. 616, 6th Floor,
                                           Vs.      Aaykar Bhawan,
                                                    Mumbai-400 020

     . /  . /PAN/GIR No. AAACV 9557 C
    (Applicant)     :           (Respondent)

                         Applicant by        :     Shri R. C. Jain
                        Respondent by        :     Shri Vivek Perampuna

                          /                  :     19.09.2014
                    Date of Hearing
                                             :     12.12.2014
           Date of Pronouncement

                                    / O R D E R
Per Sanjay Arora, A. M.:

      This is a Miscellaneous Petition by the Assessee arising out of the Tribunal's
Order in the captioned appeal dated 28.05.2005, dismissing its appeal.

2.    The assessee has now moved an application stating that while reliance stood
placed by it on para 8 of the Tribunal's order in Goyal Industries vs. Dy. CIT (in ITA No.
702/Ahd/2008 dated 28.05.2010), the tribunal in the impugned order however adverts to
                                                           MA No. 319/Mum/2014 (A.Y. 2007-08)
                                                               Vishesh Carbon Pvt. Ltd. vs. ITO

the instead paras 9 to 11 thereof. The facts of its case were similar to that before the
tribunal qua the disallowance discussed by it vide para 8. To this extent, therefore, a
mistake has occurred at the end of the tribunal, and which therefore needs to be rectified,
amending its order accordingly.
       The Revenue, through the ld. Departmental Representative (DR), on the other
hand, defends the impugned order, submitting that there is no infirmity in the impugned
order, which is passed considering the assessee's reliance on the cited decision. There is
nothing to indicate that the tribunal was not aware of para 8 of the said order. It had taken
a conscious decision in the matter, further relying on paras 9 to 11 of the said order.

3.     We have heard the parties, and perused the material on record.
       We are completely unable to appreciate the assessee's case. Does it therefore
mean to say that the order by the tribunal relied upon is internal inconsistent in-as-much
as reliance on its different paras gives rise to different results! Was the reliance on para 8
of the said order to the exclusion of the other paras thereof? The only thing similar
between the assessee's case and that discussed by the tribunal vide para 8 of the order
relied upon, is nature of the expenditure qua the disallowance whereof penalty u/s.
271(1)(c) stands levied, i.e., travel expenditure. That by itself would be of little
consequence; the decision in respect of the levy or otherwise of penalty being dependent
on the totality of the facts and circumstances of the case, including the assessee proving
(or not so) the expenditure claimed; furnishing an explanation in its respect, which it
substantiates, i.e., irrespective of the nature of the expenditure. The disallowance in the
said case was on account of the inability to produce evidence about the nature of the
meetings and persons who attended the same (refer para 8, pg. 4 of the said order). The
disallowance in the instant case, on the other hand, is on account of a complete failure on
the part of the assessee to furnish the primary evidences, much less establishing the
business purpose of the foreign visit, toward which the expenditure is claimed to be
incurred (refer paras 2 and 3.3 of the impugned order). The tribunal, accordingly, was
unmoved by the assessee's said reliance.
                                                           MA No. 319/Mum/2014 (A.Y. 2007-08)
                                                               Vishesh Carbon Pvt. Ltd. vs. ITO

       Further on, stating the position of law in the matter (vide para 3.2 of its' order), it
further found the assessee's explanation to be also totally unsubstantiated, so that
Explanation 1(B) to section 271(1)(c) was attracted. The discussion and the findings by
the tribunal in respect of the second disallowance, i.e., qua which levy of penalty stood
confirmed by it in the cited case, was, on the contrary, found by the tribunal to be
applicable in the facts of the present case, so that the same in effect supported the stand of
the Revenue, as indeed it did in that case qua the said disallowance. Hence the reference
to paras 9 to 11 - whereat the same finds statement, of the said order, in the impugned
order. Instead of, therefore, realizing its' reliance to be misplaced, or, rather, misleading,
i.e., considering that the tribunal, per the said order itself (vide paras 9 to 11), had
explained the correct position of law - much in the same manner as it does in the instant
case and, in fact, actually applied the same where the facts and circumstances so
warranted, as qua the said second disallowance, the assessee-applicant finds a mistake
with the tribunal's adverting to said paras of the said order. The said reference is in fact
only supportive; the tribunal issuing definite findings of fact in adjudicating the matter
before it. Paras 3.2 and 3.3 delineate its understanding of law as well as its' decision in
the facts of the case. The same has not been impugned by the assessee in any manner,
which explains our stating of our complete loss in appreciating the assessee's case. Under
the circumstances, we find no mistake in the impugned order, much less one rectifiable
u/s. 254(2). We, accordingly, decline any interference.

4.     In the result, the assessee's miscellaneous application is dismissed.
               Order pronounced in the open court on December 12, 2014

             Sd/-                                          Sd/-
        (D. Manmohan)                                 (Sanjay Arora)
          / Vice President                              / Accountant Member

 Mumbai;  Dated : 12.12.2014

. ../Roshani, Sr. PS
                                     MA No. 319/Mum/2014 (A.Y. 2007-08)
                                         Vishesh Carbon Pvt. Ltd. vs. ITO

         /Copy of the Order forwarded to :
1.  / The Appellant
2.  / The Respondent
3.     () / The CIT(A)
4.      / CIT - concerned
5.           ,     ,  / DR, ITAT, Mumbai
6.     / Guard File
                                   / BY ORDER,

                             /  (Dy./Asstt. Registrar)
                            ,  / ITAT, Mumbai
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