TaxTMI 
TaxTMI 
2009 (12) TMI 614
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.... power of review under the Act including the power of suo motu review of their order. In such circumstances, it was claimed that the hearing fixed for 21st Jan., 2009 adjourned from 20th Jan., 2009 is not legally valid. The learned counsel further submitted that participation in an invalid proceedings by the respondents should not be construed as a concession of their jurisdiction and the participation in the present proceedings is only to highlight the illegality of the proceedings and to protect the interest of the respondents. 3. These appeals were earlier heard by the Tribunal, 'B' Bench, Chennai comprising Shri U.B.S. Bedi, JM and Shri Shamim Yahya, AM (me, the author in this case) on 18th Sept., 2008. On the same day, upon conclusion of hearing, order was pronounced in the open Court and seal was affixed on the order sheet to the effect that, "order is pronounced in the open Court. Appeal stands dismissed." This entry was duly signed by both the Members. The files were allotted to the AM for dictating the detailed order. The detailed order dt. 18th Sept., 2008 was dictated by the AM in which in the conclusion it was mentioned that, "All these appeals by the Revenue are dis....
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....ns, both the counsel have been heard and relevant records perused. The files were again allotted to the AM for dictation. Upon careful consideration, it is the considered opinion that in merits of the case there is no need to change the view taken on 18th Sept., 2008 that the Revenue's appeals are liable to be dismissed in this case. The adjudication remains the same which is as under: "These appeals by the Revenue are directed against the respective orders of the two assessees being husband and wife for the respective assessment years. Since the issue is connected, these are being consolidated and disposed of together for the sake of convenience. "2. ITA Nos. 2569 to 2571/Mad/2007: Asst. yrs. 1999-2000 to 2001-02: 2. 1 The issue raised is that the CIT(A) erred in holding that the investment and income belonged to the wife of the assessee, Smt. B. Meenakshi. 2.2 In this case, a survey under s. 133A of the IT Act was conducted at the business premises of the assessee. During the course of survey, certain documents pertaining to income and investment were found. During this period, sworn statements were recorded from the assessee and his wife. On the basis of sworn statem....
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.... the assessee's husband Mr. Vijayan, substantively, who was the real owner. Further, the CIT(A) failed to note that the assessee's husband himself admitted in the sworn statement recorded on the date of survey and thereafter that none other than he himself had got any independent source of income and he is the only earning member of his family who is assessed to tax and which was confirmed by the assessee and no books of accounts were maintained. 3.2 We find that in the earlier appeals by the husband, Shri Vijayan we have already deleted the addition made by the AO on substantive basis and these protective assessments in the hands of the wife are liable to be dismissed. We had followed the Hon'ble jurisdictional High Court decision in the case of S. Khader Khan Son, cited for the proposition that sworn statement under s. 133A cannot be the sole basis for addition. Accordingly, these appeals by the Revenue are dismissed. 4. In the result, all these appeals by the Revenue are dismissed. Pronouncement to this effect was made in the open Court on 18th Sept., 2008." 7. Now, as regards the proposition that there is a mistake apparent from record in this order, it is found that t....
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..... In this case it was held that: "Once an announcement is made in the open Court, then that is the order of the Tribunal and the order which is written subsequently merely contains the reason for it to come to the conclusion which it did. If the written order is at variance with the announcement, there is a mistake in the written order which can be rectified." 10. As regards the decision of Tribunal in the case of Mafatlal Securities Ltd. vs. Jt. CIT, the same is, not applicable on the facts of this case. The said decision of the Tribunal was rendered in a context that, upon pronouncement the Bench was of the opinion that the case needed fresh hearing. In this decision, the case law from Hon'ble apex Court in ITAT vs. V.K. Agarwal & Anr. (1998) 150 CTR (SC) 513 was also considered, wherein the Hon'ble apex Court was of the opinion that, unless the order of a Bench is signed by all Members constituting it and is dated, it is not an order of the Tribunal. In the present case before us, it was only one Member of the Bench who was of the view that, after pronouncement in open Court, the case needs to be reopened as there is mistake apparent from record. The other Member constitut....
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....gment delivered has to be taken as final." 12. A reading of the above makes it clear that once the Court pronounces a judgment, the same should not. be reopened unless there are some exceptional circumstances or a review is asked for and is granted. In this case, order was not only pronounced in the open Court but order to that effect was entered in the order sheet, which was also signed by both the Members. None of the parties has asked for a review. Moreover, in this case, only one Member of the Bench was of the opinion that the case needed to be reopened, for hearing the limited point of applicability of Hon'ble jurisdictional High Court decision in the case of H. Shahul Hameed vs. Asstt. CIT, on the facts of this case. As already dealt with in para 7 above, this decision of Hon'ble jurisdictional High Court is not found applicable on the facts of the case. Hence, on the anvil of this case law from the apex Court, when in the present case, the order has not only been pronounced in the open Court, but order to that effect, and the conclusion, was entered in order sheet, which was also signed by the Members comprising the Bench and no exceptional circumstances warranting any va....
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....p; Sd/- Chennai." (U.B.S, Bedi) 14.2 Files were received back on 22nd Dec., 2008 from the learned AM without any response to the above said letter and case was refixed for hearing by passing following order in the order sheet at p. 6: "Dt. 23rd Dec., 2008 Following letter was addressed to the learned AM and sent along with concerned files: "Dt. 8th Dec., 2008 Dear Shamim ji, Ref: ITA Nos. 2554-2559/Mad/2007 and ITA Nos. 2569-2571/Mad/2007 in the cases of Smt. V. Meenakshi and Shri M. Vijayan for various assessment years. The Hon'ble Supreme Court in the ease of Asstt. CIT vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 219 CTR (SC) 90 : (2008) 12 DTR (SC) 346 : (2008) 305 ITR 227 ....
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....p; JM 14.3 Note de 23rd Dec., 2008 sent to the Hon'ble Vice President by the learned AM reads as under: "Note Subject: ITA Nos. 2554 to 2559/2007-V. Meenakshi and ITA Nos. 2569 to 2571-M. Vijayan-reg. The aforesaid cases were heard on 18th Sept., 2008. Upon hearing both the cases on 18th Sept., 2008, the order was pronounced in the open Court. The results of the cases were also endorsed in the concerned file by the Bench. Orders after my signature were duly sent to the learned JM. Now, after three months, the learned JM is sending the file to me without signing the said order. He has also made entries in the note sheet/order sheet after the pronouncement seal which was signed by the Bench. After having pronounced the order in open Court and endorsing the result in the file and signing the order three months ago, there is no scope for me to change the view. This is for your kind information and necessary action. Hon'ble Vice President"....
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.... to statutory rights of the parties to the disputes-Even if so presumed, Tribunal has inherent power to refix the cases to prevent miscarriage of justice or to grant substantial justice-Only condition which is required to be satisfied is that the aggrieved party must be given an opportunity of hearing" and the conclusion reads as under: "Oral pronouncement during the course of hearing is not an order at all; even otherwise, Tribunal has inherent power to refix the cases to prevent miscarriage of justice or to grant substantial justice, and the only condition which is required to be satisfied is that the aggrieved party must be given an opportunity of hearing" Refixation is thus, in order. Submitted please. Hon'ble Vice President Sd/- Tribunal Chennai" (U.B.S. Bedi) ....
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....as under: "Note Subject: ITA Nos. 2554 to 2559/Mad/2007- V. Meenakshi and ITA Nos. 2569 to 2571-M. Vijayan-reg. I thank your goodself for having kindly considered my note in this regard. Probably, I have not been able to convey my view properly. My view that the decision being referred by the learned JM is not applicable on the facts of the case had already been conveyed to the learned JM on 23rd Dec., 2008. The opinion sought by me was as to whether, after an order has been pronounced in the open Court by a Bench of the Tribunal comprising two Members and having the same being signed as such, when a written order duly signed has been sent to other Member, whether after three months the other Member can refuse to pass an order and ask for the case to be fixed for rehearing. Nevertheless, I have put my views in the note sheet/order sheet in these cases and the same are being sent to the learned JM. This is for your kind information. Hon'ble Vice President" Sd/- ....
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.... the Bench on the basis of latest decision of the Hon'ble Madras High Court in the case of CIT vs. S. Khader Khan Son (2008) 214 CTR (Mad) 589 : (2008) 300 ITR 157 (Mad) which was on the subject of evidentiary value of statements obtained on survey under s. 133A. The decision being referred to by the learned JM is on the subject of evidentiary value of the statements obtained under s. 132(4A) in the case of search and seizure operation. Hence, the decision referred by the learned JM is not at all applicable on the facts of this case. Hence, the question of there being a mistake apparent from record on the anvil of Hon'ble apex Court decision in the case of a Asstt. CIT vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 219 CTR (SC) 90 : (2008) 12 DTR (SC) 346 : (2008) 305 ITR 227 (SC) does not arise. Hence, there is no need to fix the case for rehearing and I stand by my order dt. 18th Sept., 2008. JM &....
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....; (U.B.S. Bedi) JM Submitted please: Hon'ble Vice President, Chennai Benches. 14.10 On the bottom of the above said comments of the JM, the Hon'ble Vice President made endorsement as "approved" on 29th Dec., 2008 and sent the same to the learned AM. 14.11 The learned AM again sent a note dt. 30th Dec., 2008 to the Hon'ble Vice President, which reads as under: "Subject: ITA Nos. 2554 to 2559/2007-V. Meenakshi and ITA Nos. 2569 to 2571-M. Vijayan-reg. I have duly given my views in the order sheet in these cases dt. 26th Dec., 2008 and had conveyed to your goodself the same in my note dt. 26th Dec., 2008. The said note was for your kind information. Your goodself had marked my aforesaid note to learned JM to seek his comments. Learned JM, in his note dt. 29....
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.... was taken. Hence, in my opinion, there was no mistake apparent from record. As a matter of fact, had the decision of S. Khader Khan Son case cited above not been considered then it would have been a mistake apparent from record as per decision of Hon'ble apex Court in the ease of Asstt. CIT vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 219 CTR (SC) 90 : (20081 12 DTR (SC) 346 : (2008) 305 ITR 227 (SC). Hence, there is no question of my agreeing to the proposal that the case be refixed for hearing for considering the case of Hon'ble Madras High Court which is not at all applicable to this case after the matter has been decided by pronouncement in open Court and duly signed and date order has been given by me. In the aforesaid background, it may kindly be clarified if it is your direction on the facts of this case, particularly in view of my note in order sheet dt. 26th Dec., 2008 in these cases, to refix the ease for hearing. I have already dated, signed and given the order to learned JM. If the learned JM is not agreeable to my view, he should take appropriate action as per rules in this regard. In this connection, Hon'ble Delhi High Court decision in the case of Delhi Pre....
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....ed, a separate contrary entry in the order sheet has been passed by the learned AM on 26th Dec., 2008, which appears to be against normal procedure and accepted principles, whereas propriety demands compliance of such order/direction dt. 24th Dec., 2008. Submitted please: Hon'ble Vice President Chennai Benches" Sd/- (U.B.S. Bedi) JM 14.13 The Hon'ble Vice President sent note Dec., 2008, which reads as under: "Note Sub: ITA Nos. 2554 to 2559/Mad/2007 (V. Meenakshi) ....
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....ere delayed for one hour, which fact is verifiable with relevant records. 15.1 On the adjourned date, hearing was further adjourned to 21st Jan., 2009, when case was heard and got concluded on the same day. 15.2 Since the cases were refixed and heard and proposed order in view of the fresh hearing there was no necessity for the learned AM to write and discuss unnecessary details from para 2 at p. 2 to para 6 at p. 5, which were not related to the issues in appeals and then to repeat from paras 7 to 12 after incorporating earlier adjudication from the end of para 6 at p. 5 to para 7 at p. 9. Since, the learned AM has discussed various events, it has become imperative to write my comments on the points raised other than the issues for adjudication in the proposed signed order of the learned AM. 15.3 So far as pronouncement of order tentatively at the conclusion of hearing is concerned, the Hon'ble Supreme Court in the case of SBI vs. S.N. Goyal AIR 2008 SC 2594 has opined as under: "19. We may first refer to the position with reference to civil Courts. Order XX of CPC deals with judgment and decree. Rule 1 explains when a judgment is pronounced. Sub-r. (1) provides that t....
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....ted. Therefore, it cannot be said that the appointing authority became functus officio when he signed the note on dt. 18th Jan., 1995. 20. Let us next consider whether the decision taken on 18th Jan., 1995 is a final decision. A careful examination shows that the order dt. 18th Jan., 1995 was intended only to be tentative and not final; firstly, the said decision was not communicated to the respondent, nor was any letter or order issued to the respondent imposing the penalty mentioned in the order dt. 18th Jan., 1995. Secondly, the appointing authority by letter de 2nd Feb., 1995 (Ex. P23) informed the Chief Vigilance Officer of the bank about the enquiry against respondent, his decision accepting the findings of the enquiry officer, and the proposal to show leniency by imposing only a punishment of reduction of pay by four stages. The Chief Vigilance Officer sent a reply dt. 7th Feb., 1995 (Ex. D2) wherein he observed that 'by pocketing the money of the customers Sri Goyal has exposed the bank's faith reposed in him' and there was no ground for showing leniency. He also expressed the view that the respondent deserved a more severe punishment and requested the appointing authori....
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....t miscarriage of justice or to grant substantial justice, and the only condition which is required to be satisfied is that the aggrieved party must be given an opportunity of hearing." 15.5 Since the Hon'ble jurisdictional High Court decision in the case of H. Shahul Hameed vs. Asstt. CIT was cited in another combination, where the JM was party in IT(SS)A Nos. 45 and 68/Mad/2002 which is direct on the point, which has neither been cited nor been considered and recent decision of Hon'ble Supreme Court as reported in the (2008) 219 CTR (SC) 90 : (2008) 12 DTR (SC) 346 : (2008) 305 ITR 227 (SC) had come, so, the whole process of giving opportunity to both the sides to hear on the limited point had become essential in order to avoid multiplicity of litigation, miscarriage of justice or to grant substantial justice, therefore, in view of the facts and circumstances, the discussion made and latest authoritative pronouncement of Hon'ble Supreme Court in the case of SBI vs. S.N. Goyal and various case law discussed by the Mumbai Bench decision and differentiating various other decisions including CIT vs. G. Sagar Suri & Sons and there being no contrary Tribunal decision direct on this p....
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....bsp; 27-11-2006 1,35,000/7,72,000 2002-03 27-11-2006 1,06,875/2,07,880 2003-04 27-11-2006 1,08,750/2,25,150 2004-05 27-11-2006 90,000/11,43,000 ----------------------------------------------------- Each year's assessed income on protective basis comprises of following items: (a) For asst. yr. 2000-01, income from interest declared at Rs. 1,57,500 was determined at Rs. 1,95,750 and income from house property assessed al Rs. 30,000 against nil declared income. (b) For the asst. yr. 2001-02, interest income declared at Rs. 1,35,000 was determined at Rs. 1,62,000, house property assessed at Rs. 45,000 against nil declared income. And an addition on account of unexplained investment in purchase of one house property at Rs. 5,65,000. (c) For the asst. yr. 2002-03, against declared interest income at Rs. 1,06,875 was determined at Rs. 1,41,875 and....
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....her husband Shri Vijayan. Though the AO made substantive assessments in the hands of Shri Vijayan, he also made protective assessments in the hands of the assessee wherein declared total income of Rs. 1,98,750 including stated opening capital of Rs. 16,98,375 was assessed (protectively) in the hands of the assessee. 16.3 The learned CIT(A), who has concluded by deleting the addition of Rs. 16,98,375 made by the AO in view of the cash gift of Rs. 4 lakhs received by the assessee in 1985 has been held to be duly supported by confirmation letters and affidavits filed by the donors, which are invested in money-lending business earning interest at 15 per cent per annum from year to year and thereby assessee got accumulated balance of Rs. 16,98,375 and while giving certain details held that accumulated balance of Rs. 16,98,375 was available with the assessee at her disposal as on 1st April, 1998, which is supported by documents like mortgages and pro-notes. So he deleted such addition by allowing the ground of appeal in this regard. Similarly, deduction under s. 24(1) from house property income determined at Rs. 30,000 was held to be allowable statutory deduction, so in the absence of....
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....ter that none other than he himself had got any independent source of income and he is the only earning member of his family who is assessed to tax and which was confirmed by the assessee and no books of account were maintained. 3. The CIT(A) has taken cognizance of the fact that the Katcha books were maintained by the assessee which were produced before the C1T(A) but not before the AO. Thus there is a violation of r. 46A of the IT Rules. However, no books of account, even the Katcha books did not exist on the day of survey. 4. The CIT(A) failed td note that the assessee had never retracted the statement made at the time of survey that he is the only earning member of his family and none others at any point of time. 5. The CIT(A) has failed to appreciate the fact that only evidence in repayment/discharge of loan on or after 1997 was supported by evidence and moneylending business carried out since 1985 was not proved and also date of payment of loans and advances was supported by any evidences. 6. The CIT(A) has erred in deleting the addition on account of money available to discharge the Allahabad Bank liability and her share of money invested in Chitrai Street Proper....
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....he learned CIT(A) has not given due opportunity to the AO nor did he adopt the procedure laid down under r. 46A of IT Rules and important aspect about admission has not been considered, therefore, his order deserves to be reversed. It was, thus urged for reversal of his order and restoring that of the AO. 16.6 The learned counsel for the assessee, while relying upon the learned CIT(A)'s order has pleaded for its confirmation as a well reasoned and detailed order has been passed after considering all relevant materials partly filed before the AO and partly before learned CIT(A), therefore the impugned order needs confirmation. It was urged for confirmation of the impugned order. 16.7 After hearing the rival sides and considering the materials on record, it was found that assessee owned several immovable properties in Madurai when she was never assessed to tax till the date of survey nor returns of income had been filed earlier to surveyor within the time allowed in the notice under s. 148 having been issued in this regard. It is not in dispute that statements of the assessee and her husband were recorded on oath at the time of survey in which the assessee has admitted that she....
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....raj Rs. 1,25,000 ------------ Total Rs. 4,00,000 ------------ These amounts were given by her for moneylending and these activities were being looked after by her husband Sri M. Vijayan. It was also further claimed that the moneys were accumulated to the extent of Rs. 16,98,375 as on 1st April, 1998 and claimed to have utilized for the purchase of properties during and after the previous year relevant to the asst. yr. 1999-2000 onwards. However, at no stage, the cash flow statement was given to show any year-wise progress from Rs. 4 lakhs in 1980 to Rs. 16.98 lakhs as on 1st April, 1998. Further she claimed to have lent money prior to 1st April, 1998 amounting to Rs. 16,98,375 to several persons and this was the opening capital as on 1st April, 1998. However, no nexus was established that these amounts were utilized ....
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.... documents, pronotes etc. just 5 days before the time period provided for completion of assessment had to expire, which shows that assessee attempted to substantiate its claim but adequate time was not there with the AO to verify and cross-verify the information provided and under such circumstances showing his inability in this regard has concluded that it is not possible to carry out such exercise at this juncture, so rejected the claim of opening capital. It is found that before the CIT(A) assessee filed some confirmation letters and affidavits purported to have been given by the brothers of the assessee to support the claim of having given cash gifts of Rs. 4 lakhs in 1985 and mortgage deed and pronotes etc. stated to have been executed in favour of the assessee by the recipients of the loans found to have also been filed for the first time before the learned CIT(A), who is found to have not complied with the relevant provisions of law before admitting and considering such documents to give relief to the assessee. When specific rule puts fetters on the right of the assessee to produce before the CIT(A) any evidence whether oral or documentary other than the evidence produced by....
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....usband is concerned, it is seen that the Hon'ble Supreme Court in the case of Thiru John (in C.A. Nos. 1895-1896 of 1974) & Subramhamanyan (in C.A. No. 1907 to 1974) vs. The Returning Officer & Ors., it has been held as under: "It is well-settled that a party's admission as defined in ss. 17 to 20 fulfilling the requirement of S. 21 of the Indian Evidence Act is substantive evidence propria vigore. An admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive shifts the onus on to the maker on the principle that what a party himself admits to be true may reasonably be presumed to be so and until the presumption is rebutted the fact admitted must be taken to be established." 16.11 And it is not the case of the assessee that there was any coercion or undue influence exerted by the Department while recording the statement of the assessee and her husband and otherwise, statements in the nature of declarations covered by provisions of s. 115, are binding on the declarant. They can neither be retracted nor do they require any corroboration. Such declarations can form the sole basis of assessment. The declaration made by ....
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....ct does not apply to the proceedings under the IT Act and further that the artificial or technical rules of evidence are not applicable to income-tax proceedings. This aspect of the matter has received careful consideration by the Hon'ble Supreme Court in Chuharmal vs. CIT (1988) 70 CTR (SC) 88 : (1988) 172 ITR 250 (SC) at 255. The Hon'ble Court has held that what is meant by saying that the Evidence Act does not apply to income-tax proceedings under the IT Act is that the rigour of the rules of evidence contained in the Evidence Act is not applicable but that does not mean that when the taxing authorities are desirous of invoking the principles of the Evidence Act in proceedings before them, they are prevented from doing so. Besides, s. 115 of the Evidence Act incorporates a salutary principle of common law based on the maxim allegans contraria non est audiendus (a person alleging contradictory facts should not be heard) and hence the said principle is fully applicable to the proceedings under the IT Act. The provisions of s. 115 of the Evidence Act provide statutory recognition to the said principle which is otherwise also applicable to all the judicial and quasi-judicial proceed....
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.... 68/Mad/2002, dt. 31st Dec., 2008 (to which the undersigned is a party) decided similar type of issue as mentioned in para 11 and has concluded as per paras 12, 13, 14 and 15, in favour of the Revenue, which are reproduced as under: "12. Before us, the learned counsel for the assessee submitted that the property was registered in the name of the wife and it was also explained that the said property has been purchased from the money given by assessee's father-in-law. He argued that apparent should be taken as real and since the property is in the name of the wife the assessee should not be fastened with the liability. In any case no material has been found and, therefore, this addition is not justified. In this regard he relied on the judgment in the case of S. Khader Khan Son and in the case of Murarji Gokuldas Spinning & Weaving Mills Co. Ltd. vs. Dy. CIT. 13. On the other hand, the learned Departmental Representative submitted that the documents regarding the property were found during the search and detection of documents of the property itself during the search should be construed as material. He argued that the assessee had merely tried to explain the source by making a ....
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....ounting for the sum of Rs. 1,50,000. The finding of the Tribunal that the amount would represent the undisclosed income of the assessee was a finding of fact. The finding was rendered with reference to the facts of the case and it did not affect substantial rights of the parties either directly or indirectly. Therefore, the appeal, in respect of question Nos. 1 to 8 as framed by the assessee, was liable to be dismissed in the admission stage.' 15. From the above it is clear that in case of investment made in the name of the wife, if the wife has no source of income then addition has to be confirmed. In the case before us, no source of income of the wife was proved and, therefore, we are of the view that CIT(A) has rightly confirmed the addition regarding investment in the property in the name of the wife. In these circumstances, we find nothing wrong with the order of the C1T(A) and the same is confirmed." 17. Carefully considering the materials on record, the arguments of rival sides, in the light of precedents relied upon and relevant provisions of law, it is seen that the assessee despite service of notice under s. 148 dt. 29th March, 2006, returns for all the years came t....
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.... the day of survey and thereafter that none other than he himself had got any independent source of income and he is the only earning member of his family who is assessed to tax and no books of account are maintained. 3. The CIT(A) has taken cognizance of the fact that the Katcha books were maintained by the assessee which were produced before the CIT(A) but not before the AO thus there is a violation of r. 46A of the IT Rules. However, no books of account, even the Katcha books did not exist on the day of survey. 4. The CIT(A) failed to note that the assessee had not detracted the statement made at the time of survey that he is the only earning member of family and none others at any point time. 5. The CIT(A) has wrongly relied on the Katcha books produced before him and also the xerox copies of mortgage deed, lease deed release deed which were fabricated and concocted one and not produced before the AO in time for completion of assessment. 6. The CIT(A) failed to note that the revised returns of income in consequence to notice under s. 148 were filed after a lapse of nearly one year from the date of survey. 7. The CIT(A) has erred in deleting the addition on accoun....
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....l authorities did not proceed for further investigation, so assessee could not deny later the truth or correctness of the declaration made at the time of survey when it was conducted on 26th Dec., 2005 and returns were filed on 27th Nov., 2006 almost more than 11 months time gap is there, so the learned CIT(A) is not justified in not holding that Smt. Meenakshi to be the Benamidar of Shri Vijayan, the assessee. Moreover, the learned CIT(A) has mentioned to have seen the so-called duplicate books of account, which were never produced before the AO and affidavits having been produced before the learned CIT(A) have also not been sent to the AO for verification nor any remand report has been obtained, therefore, the entire procedure laid down under r. 46A has been violated just to give relief to the assessee with respect to the huge, valid and proper additions made by the AO. Therefore, the order of the learned CIT(A) needs reversal. It was thus, urged for reversal of the order of the learned CIT(A) and restoring that of the AO. 18.2 The learned counsel for the assessee, relied upon the order of the learned CIT(A) and has pleaded for confirmation of the impugned order. It was furthe....
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....sessee's wife's income and another addition of Rs. 5,65,000 being the amount paid for the purchase of house property by the assessee's wife came to be deleted and addition of Rs. 1,62,000 being the income from house property, partial relief in this regard was given and as regards addition on account of deficiency in drawings, same was restricted to Rs. 3,372 in place of Rs. 39,872 while directing the AO to compute interest under s. 234B afresh being consequential after adjusting the relief granted. 18.4 Since facts, issue involved and orders of authorities below in relation to the appeals of Shri M. Vijayan in ITA Nos. 2569 to 2571/Mad/2007 for the asst. yrs. 1999-2000, 2000-01 and 2001-02 are similar, interlinked and interconnected with the facts, issues and decision taken in the case of Smt. V. Meenakshi, the wife of the assessee and in that case, order of the learned CIT(A) has been set aside, to be made afresh, in view of the directions issued and as contained in earlier part of the order, therefore, applying the same basis and reasons, the order in relation to these appeals passed by the learned CIT(A) is also set aside to be made afresh as per directions given in that case....
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.... 11th Nov., 2009 There being a difference between the Members who originally heard these appeals, the Hon'ble President was pleased to nominate the zonal Vice President as a Third Member vide his order dt. 11th Aug., 2009. Accordingly, these appeals are heard and I proceed to dispose of the matter. There is also a difference between the Members in the points referred to the Third Member. The learned JM has referred the following point of difference: "Whether in view of the facts and circumstances of both the cases, orders of the learned CIT(A) could be confirmed or could these be set aside on the file of the learned CIT(A) to decide the appeals of the assessees afresh after considering relevant provisions of law including r. 46A, case law cited/discussed and by passing a speaking order after giving due opportunity to the assessee as well as to the AO?" The learned AM has proposed the following points of difference: "1. When upon conclusion of the hearing of the cases, the order was pronounced in the open Court, the results of the cases were also endors....
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....ich the learned JM has sought to do. It was further submitted that the CIT(A) did not comply with r. 46A and therefore it was proper to send back the matter to the AO. 5. The first submission of the learned counsel was that the judgment of the Madras High Court in the case of CIT vs. S. Khader Khan Son (2008) 214 CTR (Mad) 589 : (2008) 300 ITR 157 (Mad) which was directly on the point was cited during the course of hearing and hence the learned AM was justified in applying the said decision. It was submitted that the judgment of the Madras High Court in the case of H. Shahul Hameed vs. Asstt. CIT (2003) 179 CTR (Mad) 449 : (2002) 258 ITR 266 (Mad) relied upon by the learned JM was not cited by either party during the course of hearing. It was argued that if a judgment which was not cited during the course of hearing, though applicable, and hence not applied, was not a mistake apparent on record. In support of this argument, the learned counsel referred to the catchnotes given in the case of Asstt. CIT vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 219 CTR (SC) 90 : (2008) 12 DTR (SC) 346. Relying on these catchnotes, it was contended that decision of High Court which has not be....
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....for the trees. Referring to the judgment of the Supreme Court cited and elaborately quoted by the learned JM in the case of SBI vs. S.N. Goyal AIR 2008 SC 2594, it was contended that the matter could be refixed for hearing as it was merely an oral pronouncement. 7. I have duly considered the rival contentions and the material on record. The learned JM has held that oral pronouncement during the course of hearing, which is tentative, cannot come in the way to rehear the matter under the inherent powers of the Tribunal to prevent miscarriage of justice or to grant substantial justice, when rehearing gives another opportunity to the parties to appeal and same cannot amount to passing of the order. In this connection, three issues arise for consideration: (a) Whether oral pronouncement made in the Court is tentative or final? (b) Whether order pronounced in the Court amounts to passing of the order? (c) If the reply to question (b) is yes, whether can it be recalled to rectify any mistake apparent on record? The learned JM has relied on the decision of the Mumbai Bench of the Tribunal in the case of Mafatlal Securities Ltd. vs. Jt. CIT (2008) 119 TTJ (Mumbai) 501 : (2008....
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.... for a given number of days for inspection. An important point, therefore, arises. It is evident that the decision which is so pronounced or intimated must be a declaration of the mind of the Court as it is at the time of pronouncement. We lay no stress on the mode or manner of delivery, as that is not of the essence, except to say that it must be done in a judicial way in open Court. But, however it is done, it must be an expression of the mind of the Court at the time of delivery. We say this because that is the first judicial act touching the judgment which the Court performs after the hearing. Everything else up till then is done out of Court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion. Judges may, and often do, discuss the matter among themselves and reach a tentative conclusion. That is not their judgment. They may write and exchange drafts. Those are not the judgments either, however heavily and often they may have been signed. The final operative act is that which is formally declared in open Court with the intention of making it the operative decision of the Court. That is what constitutes the 'judgm....
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..... Confidence of the litigants in the judicial process would be shaken. A judgment pronounced in open Court shal1 be acted upon unless there be some exceptional feature and if there be any such, the same should appear from the record of the case. In the instant matter, we find that there is no material at al1 to show as to what led the Division Bench which had pronounced the judgment in open Court not to authenticate the same by signing it. In such a situation, the judgment delivered has to be taken as final and the writ petition should not have been placed for fresh hearing. The subsequent order dismissing the writ petition was not available to be made once it is held that the writ petition stood disposed of by the judgment of the Division Bench on 28th July, 1986." From the above two judgments it is clear that when a judgment is pronounced at the conclusion of the hearing, it is an expression of the mind of the Court at the time of delivery. Also, if what is pronounced in Court is not acted upon, litigants would be prejudiced. In the case of Courts, the parties often proceed to conduct their affairs on the basis of the pronouncement. Of course, in the case of our Tribunal, the ....
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....general reply to this question has to be in the affirmative in view of the judgment of the Supreme Court in the case of Saurashtra Kutch Stock Exchange Ltd. If there is mistake apparent on record the order pronounced in the Court which is an oral order call be recalled to rectify such order. Let us examine this issue in the light of the facts of the present case. The learned JM proposed to recall the order on the ground of non-consideration of a judgment of the jurisdictional High Court. The Supreme Court held in the case of Saurashtra Kutch Stock Exchange Ltd. that non-consideration of a judgment of the jurisdictional High Court is a mistake apparent on record and hence the order is rectifiable. We, therefore, need to examine whether the judgment in the case of H. Shahul Hameed relied upon by the learned JM is directly applicable or not. In this case there was a search under s. 132 of the Act and the statements of the assessee and his wife were recorded under s. 132(4) of the Act. On the other hand, in the present case, there was no search but only survey under s. 133A of the Act in the course of which statements of the asses sees were recorded and on the basis of which additions ....
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....al, is not a mistake apparent on record. In my opinion, the learned counsel has wrongly interpreted the catchnotes. What the Court wants to convey is that non-consideration of the High Court judgment, whether cited or not, is a mistake apparent on record and that the Tribunal has not committed any error of law or of jurisdiction in exercising power under s. 254(2) of the Act. In fact, in the case of Saurashtra Kutch Stock Exchange itself, the decision of the jurisdictional High Court was not brought to the notice of the Tribunal and hence was not considered. The action of the Tribunal to rectify this was held to be justified by the Supreme Court. Therefore, though per se, the order pronounced in the Court is rectifiable under s. 254(2), in the facts of the present case it cannot be said to be so rectifiable. Another reason given by the learned JM to recall the order and set it aside is that the CIT(A) has violated the provisions of r. 46A. This aspect is deemed to have been considered when the order was pronounced on 18th Sept., 2008. Thus, to set aside the matter for this reason would amount to review of the order pronounced and hence beyond the scope of s. 254(2) of the Act. 9....