Non-mention in order does not mean that submission not considered

IN THE INCOME TAX APPELLATE TRIBUNAL

DELHI BENCH : F : NEW DELHI

BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER

AND

SHRI J.S. REDDY, ACCOUNTANT MEMBER

M.A No.349/Del/2011

(ITA No.5360/D/2010)

Assessment Year: 2001-02

Shri Kaushal Sethi,

DU-18, Pitampura,

Delhi.

(Applicant)

Vs.

 Income Tax Officer,

Ward 25 (1),

New Delhi.

 (Respondent)

Applicant by: Shri Shailesh Gupta, CA

Respondent by: Shri Deepak Sehgal, Sr. DR

O R D E R

PER A.D. JAIN, JUDICIAL MEMBER:

The assessee’s appeal in ITA No.5360/Del/2010, for Assessment Year 2001-02 was allowed and the department’s appeal in ITA No. 5252/Del/2010 for Assessment Year 2001-02 was dismissed as infructuous vide order dated 09.09.2011.

2. In the present application, the assessee has contended that in the aforesaid order, a typographical mistake has crept in inasmuch as in para 10 of our said order, we have wrongly extracted the portion of para 3 of the CIT (A)’s order, taking it to be the submissions of the assessee before the Ld. CIT (A); that the said extracted portion of the CIT (A)’s order is, in fact, not the submissions of the assessee before the CIT (A), but the operative portion of the CIT (A)’s order, whereas the submissions of the assessee before the CIT (A) are contained in para 2.7 at page 3 of the CIT (A)’s order. This para 2.7 of the CIT (A)’s order has  been reproduced in para 3 of the application. The ld. counsel for the assessee, before us, has reiterated the contents of the application.

3. The Ld. DR, on the other hand, has contended that there is no error apparent from record in our order dated 09.09.2011. He has, as such, requested the dismissal of the application.

4. We have considered the matter and we find that there is no error apparent from record in our order dated 09.09.2011. In the opening portion of the para 10 of our order, we have observed as follows:-

“The issue, it is seen, was specifically raised by the assessee before the Ld. CIT (A). It has been pointed out that in para 3 of the impugned order, the Ld. CIT (A) has taken note of the assessee’s contentions in this regard. The relevant portion thereof is as follows:

……………………………………………………………………………………

……………………………………………………………………………………

………………..…”

5. Now, it is seen that in the afore-extracted portion of para 10 of our order, we have merely stated that it was pointed out that in para 3 of the CIT (A)’s order, the CIT (A) had taken note of the assessee’s contentions.

6. In the succeeding portion of para 10 of our order, we have reproduced the relevant portion of para 3 of the CIT (A)’s order. The first sentence thereof is as follows:-

“3. The submissions made on behalf of the appellant have been carefully considered.”

7. As such, in the second sentence of para 10 of our order, as extracted above, we have reiterated what the CIT (A) has said in the first sentence of para 3 of his order.

8. Now, the assessee’s grievance in the present application is that the submissions of the assessee before the Ld. CIT (A) are contained in para 2.7 at page 3 of the CIT (A)’s order and not in para 3 (at page 4) thereof; and that this is a typographical mistake. However, as discussed above, this is not the case. To reiterate, in the second sentence of para 10 of our order, we have not mentioned the contentions of the assessee before the CIT (A). Rather, what we have observed is that in para 3 of the CIT (A)’s order, the Ld. CIT (A) has taken note of the assessee’s contentions. That being so, there is no typographical error in the portion of our order which has been called in question by the assessee.

9. Even otherwise, the assessee’s appeal was allowed and so, non-mention in our order all the assessee’s submissions before the Ld. CIT (A) would not amount to leading to an inference that such submissions as made before the Ld. CIT (A), were not taken into consideration by us. On this score too, no error apparent from record has occurred in our order.

10. For the above discussion, finding no merit therein, the grievance sought to be raised by the assessee is rejected.

11. In the result, the Miscellaneous Application filed by the assessee is dismissed.

The order was pronounced in the open court on 26.10.2012.

Sd/- Sd/-

[J.S. REDDY] [A.D. JAIN]

ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated, 26.10.2012.

dk

Copy forwarded to: -

1. Appellant

2. Respondent

3. CIT

4. CIT(A)

5. DR, ITAT

Deputy Registrar,

ITAT, Delhi Benches