TMI Blog2019 (2) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... ffirmation of what had already gathered by the A.O. from the facts on record. As regards the alternative claim of the assessee, it is noted that the Tribunal has duly considered the same. As noted that except for making the claim, no detail has been furnished whatsoever by the ld. Counsel of the assessee as to how the receipt from the arbitration award amount to a family settlement. That there is no mention whatsoever in the arbitration award as to how the said amount has been determined or that it is a family arrangement. That in the absence of any detail thereof, the amount received cannot be held to be a receipt on account of family arrangements. Thus, we find that the Tribunal has considered all the arguments and passed the order. What the assessee is seeking is a review of the order which is not permissible in the law. None of the issues raised by the assessee in the miscellaneous applications can be termed as mistake apparent from record. Issues which can be taken up u/s.254(2) of the ITAT have to be obvious and patent mistake and not something which can be established by a process of arguments and reasoning. Further on the same basis, an error in judgment also cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the ld. Departmental Representative (ld. DR for short) submitted that all the issues have been considered by the ITAT in its order and submitted that what the assessee is seeking is a review of the order, which is not permissible in the law. 4. Upon careful consideration, we find that in this regard we may gainfully refer to the tribunal s concluding adjudication on the issue of reopening which reads as under: 18. Upon careful consideration, we find that the information was received by the Assessing Officer from the ITO - 17(3)(3), Mumbai, that an amount of ₹ 28,00,00,000/- was agreed to be paid to the assessee as settlement through Arbitration Award by M/s, P.N. Writer Co. out of which an amount of ₹ 7,05,04,72/- was paid to the assessee in the A.Y. 2010-11. The Assessing Officer called for the case records of M/s. P.N. Writer Co. from ITO - 17(3)(3), Mumbai, and after going through them it was observed by the Assessing Officer that prima facie there was material on record which showed that income had escaped assessment. Therefore, after recording reasons, a notice u/s.148 of the Act was issued on 19.03.2014 which was duly served on the assessee. Subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the validity of the reopening. Hence, we do not find any infirmity in the same. Hence, the assessee s challenge to the reopening fails. 5. From the above, we find that the ITAT has duly considered the issue based on the judgments placing reliance upon the case laws as above. The ITAT has also categorically referred that the decisions referred by the ld. Counsel of the assessee are distinguishable on the facts. The Tribunal had duly noted that on the basis of the information and the fact that an amount of ₹ 7 crores was not offered to tax in the return of income, the Assessing Officer formed a reason to believe that income chargeable to tax has escaped assessment. The tribunal found live link between the information received and the escapement of income. It was also noted that the issue of reopening of assessment also cannot be said to be on account of change of opinion. It was also mentioned that A mention in the fine prints can by no stretch of imagination be considered sufficient information given in the original return . The ITAT upheld the ld. CIT(A) s order which noted that it is not the statutory requirement that the escapement of income chargeable to tax should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that all the submissions and the arguments of the ld. Counsel of the assessee has been duly considered by the ITAT. Hence, he submitted that there is no mistake apparent from the record in the order of the Tribunal. 9. Upon careful consideration, we note that in this regard, we may gainfully refer to the order of the tribunal, adjudicating upon the merits of the issues which read as under: 20. As regards the merits of the case, we find that the assessee has received an arbitration award for ₹ 28 crores, upon relinquishment of her rights in the partnership of M/s. P. N. Writer Co. Here it may be gainful to recount the brief history of the case which leads to the arbitration ward. The assessee was a partner in M/s P.N.Writer Co. A fresh partnership deed was executed in 1997 wherein the name of the assessee was excluded from the partnership firm. However, as claimed by the assessee, this new partnership deed was prepared without her consent and she was shown as retired from the said firm without her knowledge. The assessee, therefore, filed various suits against the partners, firm and various entities held by the partnership firm. Ultimately, the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts clearly indicate that the arbitration award was received by the assessee not for retirement from partnership firm but was in lieu of relinquishment of all her rights, claim and demand of any nature whatsoever against the partnership firm M/s P.N.Writer Co. and all other entities owned and controlled by the firm and partners and for withdrawing all the Suits against all the entities. It is further to be noted here that as per para 9 of the concerned terms, the assessee and her husband who had nothing to do with the said firm in any capacity are to execute all necessary documents to facilitate transfer of properties (listed at a. to f. under para 9 of Consent Terms) presently standing in their names either to the other partners of the firm and/or to persons nominated by them. The ld. Commissioner of Income Tax (Appeals) has further found that this property and assets included the following : i. 55 equity shares of ₹ 1,000 each fully paid up in Ocean air Transport and Investment Company Pvt. Ltd. held in the name of the appellant which has no connection with her interest in the firm or the assets of the firm. ii. 2001 equity shares of ₹ 1,000 each fully paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ests in assets which have no connection with her interest in the firm or its assets and also for withdrawal of all suits/legal proceedings filed by her against the other persons and against firms and entities owned or controlled by them. 25. As rightly held by the ld. Commissioner of Income Tax (Appeals) since the Arbitration Award is in cash on the touch stone of the Hon'ble jurisdictional High Court decision in the case of Mahindra Mahindra Limited v CIT 261 ITR 501, section 28(iv) cannot be invoked. However, the ld. Commissioner of Income Tax (Appeals) is very correct in holding that the same is taxable u/s. 56(1) as income from other sources. The fact remains that the assessee has received benefit of Arbitration Award for conditions, which included giving up her rights and interests in assets which have no connection with her interest in the firm or its assets and also for withdrawal of all suits/legal proceedings filed by her against the respondents (other partners) and against firms and entities owned or controlled by them. This should also be viewed in light of the fact that there is no positive balance of her in the partnership account. 26. Hence, we agree wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an affirmation of what had already gathered by the A.O. from the facts on record. 12. As regards the alternative claim of the assessee, it is noted that the Tribunal has duly considered the same. In paragraph 27 hereinabove, it was noted that except for making the claim, no detail has been furnished whatsoever by the ld. Counsel of the assessee as to how the receipt from the arbitration award amount to a family settlement. That there is no mention whatsoever in the arbitration award as to how the said amount has been determined or that it is a family arrangement. That in the absence of any detail thereof, the amount received cannot be held to be a receipt on account of family arrangements. Thus, we find that the Tribunal has considered all the arguments and passed the order. 13. We are of the opinion that what the ld. Counsel of the assessee is seeking is a review of the order which is not permissible in the law. None of the issues raised by the ld. Counsel of the assessee in the miscellaneous applications can be termed as mistake apparent from record. Issues which can be taken up u/s.254(2) of the ITAT have to be obvious and patent mistake and not something which can be es ..... X X X X Extracts X X X X X X X X Extracts X X X X
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