TaxTMI 
TaxTMI 
2012 (9) TMI 287
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.... and errors on account of non-consideration of arguments and evidence led by the department are enumerated at paras 'P' to 'S' below. In addition, it has been found that the DR's written arguments on 33 points were not considered at all. The written arguments on 33 points have been enumerated from page 9 to 57 of this M.A. The above referred factual errors from para 'A" to 'O' are dilated as below: (A) At para 53, the Hon'ble Bench has remarked that the AO himself in the reasons recorded for the A.Y. 1996-97 leads to primary conclusion that even as per the Department the appellant was engaged in jewellery business upto the assessment 1997-98. This attribution to the Department is wrong and misplaced as the reasons recorded are never the findings of the AO but only a premise . A premise can never be a substitute for a factual truth which had been established in the order of the AO that the assessee was not engaged in the business of sale and purchase of jewellery. Therefore, it is mistake to allow an appeal on the basis of mere premise and this mistake falls within the ambit of section 254(2) of the Income tax Act, 1961. (B) At para 54, the Hon'ble Bench has squarely gone by the ....
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.... DR's claim that the three jewelers, namely, M/s. Hukan Chand Sushil Kumar, M/s. Kapoor Jewellers and M/s. Vinod Jewellers had admitted having received accommodation entries from the assessee. The Hon'ble Bench in support of its holding has reproduced assessee's application u/s 144A at page 46 of its order and missed to reproduce and also take cognizance of the para 7 of the said application which reads as under: Without prejudice, it is humbly submitted that our case was fully comparable with the case of M/s. Vinod Jewellers, Pathankot. In that case, the assessments have been made in the same Circle-2 at Amritsar and he has not been treated as beneficiary regarding jewellery purchased from others and sold to M/s. Vishnu jewelers. Our firm had also not taken any other benefit, except the profit already declared." It may be mentioned that that identical para was incorporated in the application u/s 144A in the case of M/s. Kapoor Jewellery House (Departmental Paper book pages 373 to 390). It may be mentioned here it was pointed out to the Hon'ble Bench that the AO in the case of Sh. Vinod Kumar Prop. M/s. Vishnu Jewellers, Pathankot had held that the assessee had acted as a condui....
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....Jewellers and not from the case of a beneficiary. This argument of the DR has also not been considered by the Hon'ble Bench and it constitute a mistake apparent rectifiable u/s 254(2). (H) At paras 67 to 70, the Hon'ble Bench has committed a grevious mistake in simply going by the false assertion of the assessee that he is engaged in the business of jewellery. The Hon'ble Bench has quoted several statements of the assessee. Had the Tribunal analysed the said statements of the assessee, it would have easily come to the conclusion that the assessee has only been lying. The Hon'ble Tribunal's failure to ascertain the truth from these statements again amount to mistake. It may be mentioned here that it may amount to perverse order if an erroneous view is formed but if the relevant contents of the statements are not considered, it amounts to mistake apparent from record which is rectifiable under section 254(2) of the Act. A close perusal of the versions of the statements of the assessee reveals inherent contradiction which clearly show that the assessee is only lying. In his statement recorded on 13.03.2002, he stated that he started his business in 1996 April (page 50 of the order) a....
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....sidered by the Tribunal. The Tribunal has not mentioned even a single syllable of the DR's arguments on this point. (K) At paras 81 to 87, the Hon'ble Bench has committed a mistake in placing reliance on the judgment of the Hon'ble Supreme Court in the case of KTM M. Mohd vs. UOI 197 ITR 196 as the statements were recorded by the Deputy Director of Income (Investigation) who is a gazetted office. The Hon'ble Bench further committed an error when in view of the decision of Delhi Bench of the Tribunal in the case of Asstt. CIT v. VKL Jolly & Sons (supra) Amritsar Bench of the Tribunal in the case of Pyramid Software & Technologies and Mumbai Bench of the Tribunal in the case of Mukind V Kapadia (supra), it held that the statements recorded by DDIT(Inv.) were invalid. He was gazetted officer and thus competent to record the statements. The Hon'ble Tribunal further erred in not dealing with the argument of the DR that the words "referred to in sub-s(1) of S.132 before he takes action u/s clause (i) to (v) of that sub-section in section 131(1A) do not qualify the words- Director General, Director, Joint Director, Asstt. Director, Dy. Director but only qualify the words 'the authorized....
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....essee had refused to cross-examine the two brokers and thus it proves that the assessee was engaged in any such business and has, thus, committed a mistake. (M) At page 92, the Hon'ble Bench has not dealt with the arguments of the DR that it was not sheer coincidence that both Sh. Rishi Grover and Sh. Raj Kumar of M/s. Nayyar Jewellers should have identical facts. Without considering the said arguments as augmented with the documentary evidence from pages 59 to 109 of the departmental paper book, the Tribunal's deciding the issue against the revenue, is clearly a mistake which falls within the purview of section 254(2) of the Act. (N) At para 97 to 102, the Tribunal has rejected the claim of the DR that the letters dated 13.2.2006 and 22.2.2006 were planted/inserted in the file of the Ld. CIT(A). The Tribunal has not dealt with the arguments of the DR advanced in this regard. The Ld. DR argued that both the documents were neither finding any mentioned in the order sheets maintained in the office of the CIT(A) and nor these documents contained the signatures of the worthy CIT(A) and nor these documents contained the signatures of the CIT(A) put as a mark of having seen the said do....
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....le Bench has not considered documents at page No.236 of the departmental paper book which is a letter sent by Sh. Kapil Kumar,CA counsel for the assessee which blows to the smithereens the whole cock and bull story of coercion and pressure brought upon the assessee and wrongly accepted by the Tribunal. In this letter, Sh. Kapil Kumar informs that Sh. Rishi Grover suffered acute chest pain on 6.1.2003 at 7 PM and had been hospitalized and was under medical treatment at Medical Unit 1, Guru Nanak Dev Hospital, Amritsar and further requested that he may be permitted to attend the office till he relieve from Hospital. Thereafter, he attends the office on 16.1.2003 and then on 17.1.2003 on his own volition. The Tribunal did not consider the DR's argument that he had really been coereced on 16.1.2003 then why did he come to office again on 17.1.2003. Non-consideration of these vital arguments/evidence constitute a mistake within the ambit of section 254(2) of the Act. (R) It was argued before the Hon'ble Bench that there has been no genuine purchase purchase and sale of jewellery as the jewellery had been brought and sold at varying rates which was inconsistent with the prevailing marke....
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....Company requesting for persons after few days. 7 & 9 The statements of Sh. Yudhvir and Sh. Sushil Kumar have been relied upon. 8. Statements of Sanjay Kumar have been relied upon. 10 Statements of Sanjay Grover brother of the appellant have been relied upon. 11. Statements of Sh. Jatinder Anand Vikas Seth and Sh. Ashok Kumar have been relied upon. 12. Reference has been made to the transactions with M/s. Baba Naga Rice Mills. 13. Reference is made to the complaint in the form of resolution filed by Amritsar jewelers Association to the higher authorities alleging high handedness by the Income Tax Department. Reference is also made to subsequent retraction by Sh. Sudhir Kapoor and Satish Kapoor. 14. Reference has been made to bank statement of the appellant wherein cash has been deposited. 15 & 16 Reference has again been made to bullion trade with State Bank of India. Further reference has been made to statement of various persons and bill books having been found from the office of M/s. Umat & Company. 17. It is alleged that certain documents have been inserted/planted in the file of the CIT(A). 18,19 & 20 Statements of the appellant have been referred to and been relied u....
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....llers had declared under the VDIS and Sh. Rishi Grover had sold the same, constitutes a mistake in view of the judgment of Hon'ble Jurisdictional High Court (supra). In view of the above, it is submitted that the MA already been filed by the Department may kindly be treated as revised to the extent of inclusion of the aforesaid mistake in the said MA" 5. Mr. Tarsem Lal, the ld DCIT (DR) with regard to Revenue's application from pages 1 to 9 in points 'A' to 'S', invited our attention to various pages/paras of the order of the ITAT dated 26.06.2009 i.e. pages/paras 38,39,54, 55,56, 57, 58, 62, 64, 66, 67 to 70, 71 to 75, 76 to 80, 81 to 87, 85, 88, 92, 97 to 102, 104 to 107 with reference to the mistakes as pointed out in its application at pages 1 to 9 in point 'A' to 'S' and argued that there are factual errors, errors on account of non-consideration of the arguments and evidence led by the department and therefore, whole order of the Tribunal should be recalled. 5.1 As regards the revised mistake filed through revised miscellaneous application mentioned hereinabove, the Ld. DR relied upon the decision of the Hon'ble Punjab & Haryana High Court in the case of CIT vs. Tejinder S....
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....deration the entire facts and the arguments advanced by both the sides. The Hon'ble Tribunal has taken into consideration notices/intimation placed in the paper book and also the contention of the Revenue that such notices may have been received by the appellant personally. After taking into consideration the entire material, the Tribunal had come to definite conclusion that the appellant had actually taken the shop on rent. Such conclusion has been arrived at on the basis of entirely of the facts, including statements of various persons referred in the earlier para. The allegation of the Revenue that the Tribunal has not considered the fact that dispatch register was produced is, thus, grossly misplaced, particularly when the argument addressed by the Revenue on the basis of the said dispatch register was very much considered by the Tribunal. D The contention of the Revenue is, in our respectful submission, nothing short of finding fault in the final conclusion arrived at by the Tribunal after considering various documentary evidences placed on record. The Revenue is, in fact, trying to ditate/direct the decision of the Tribunal by suggesting the conclusion that the Tribunal ....
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.... case of Vinod Jewellers is also grossly misplaced since the said order has also been considered in paras 58 to 60 of the order of the Tribunal. F The assessee fails to appreciate as to how despite the fact that the Tribunal, in para 64 of the order, has elaborately dealt with the assessment order passed in the case of M/s. Vinod Jewellers, it could even be alleged by the Revenue that the Tribunal has not considered any particular fact. On a carefully perusal of the contention of the Revenue, it is noticed that the Revenue is, in fact, again trying to dictate the conclusion that the Tribunal ought to have arrived at. In doing so, the Revenue has, in fact, contended that the Tribunal had come to a wrong conclusion, which clearly shows complete disrespect to the binding order of the Tribunal. The assessee fails to appreciate as to how such contention can even be raised in the miscellaneous application u/s 254(2) of the Act. The said proceedings are restricted to rectification of mistakes apparent from record and not for the parties to the appeal to vent its grievance against the final conclusion/finding of the Tribunal. G In this para too, the Revenue, instead of pointing out an....
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....lso be pertinent to mention here that the Tribunal in paras 71 to 75 have not only elaborately dealt with all the statements of the appellant, but also considered the then prevailing circumstances, retractions filed by the appellant etc. to come to a finding/conclusion. The Revenue is merely trying to challenge the conclusion/finding of the Tribunal, which is clearly not permissible within the scope of section 254(2) of the Act. J Again, the Revenue has shown gross disrespect to the binding order of the Tribunal by seeking to challenge the conclusion/finding of the Tribunal in the guise of miscellaneous application u/s 254(2) of the Act. The Hon'ble Tribunal has first recorded the arguments advanced on behalf of the appellant. In paras 17 to 32 the Tribunal has extensively referred to the various arguments addressed ton behalf of the Revenue. Thereafter, the Tribunal has dealt with the arguments advanced on both the sides from para 67 onwards. Each and every argument of both the sides has been fully considered by the Tribunal. In paras 76 to 80 the Tribunal dilated the legal position emanating from various judicial precedents and had applied the legal position to the facts of ....
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....cial hierarch/propriety/discipline. M. In para 92 the Hon'ble Tribunal has specifically rejected the contention of the Revenue that the facts relating to an altogether different assessee cannot be taken into consideration while deciding the case of the appellant. The Revenue is, in the miscellaneous application, indirectly seeking to suggest (intact direct) that the Tribunal should have considered the facts relating to M/s. Nayyar Jewellers and should not have rejected the said argument of the Revenue. Again there is clear attempt on the part of the Revenue in violating all the canons of principles of judicial hierarchy/propriety/discipline. There is clearly no mistake in the order of the Tribunal requiring rectification u/s 254(2) of the Act. N. The Revenue has again challenged the correctness of the finding/conclusion of the Tribunal. As elaborately discussed supra, this is clearly not permissible in law. In fact, in para 101, the Tribunal noticed that the letters mentioned by the Revenue were very much filed before the CIT(A). There is , thus, no mistake apparent from record in the order of the Tribunal. O In para 103 the Tribunal before referring to and relying upon the ....
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....nt in the submissions filed before the Bench. Reference to the said evidences and the arguments based on the said evidences have been incorporated in paras 6 and 24 of the Tribunal's order. In the aforesaid circumstances, the contention of the Revenue that the evidences filed and the argument raised have not been considered is, it is respectfully submitted, factually incorrect. S. The Hon'ble Tribunal had, vide separate order dated 27.5.2009, admitted the additional grounds of appeal preferred by the appellant. In the said order, the Tribunal has elaborately dealt with the arguments addressed on behalf of both the sides. The argument of the Department that the matter should be referred back to the lower authorities was specifically considered and rejected by the Hon'ble Tribunal. Reference, in this regard, may be made to para 17 on page 16 of the order dated 27th May, 2009. The contention of the Department that the arguments addressed have not been considered is, therefore, it is respectfully submitted, factually incorrect. 7. As regards 33 points, the reply of the said 33 points in the miscellaneous application of the Revenue from pages 9 to 57 of the application of ....
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....e also been considered in paras 39, 93 and 94 of the order. 23. This statement nowhere supports the case of the Revenue, The exact grievance of the Revenue has not been stated. 24. Issue of bullion trade with State Bank of India has been elaborately dealt with in paras 23, 32, 38, 96 to 101 of the order. 25. This issue has been discussed in paras 22, 25 and 94 of the order. 26 & 27 This issue/aspect has been considered in paras 52 and 53 of the order. 28. Statements of the appellant and subsequent retraction have been elaborately considered in paras 67 to 75 of the order. 29. Same as point Nos. 26 & 27. 30. The fact that there was an inadvertent error in typing the name of the mother of the appellant was pointed out by the appellant in its reply filed before the Tribunal. Such typographical error does not support/advance the case of the Revenue in any manner. Further, the Department book contradictory stand since in point no. 28 it was alleged that the affidavit was never filed, whereas in point no. 30 it was admitted that the affidavit was filed. 31. This issue has been dealt with in paras 32 and 55 of the order. 32. The Department has not pointed out the issue which has....
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....basis for seeking a recall/review of the detailed order passed by the Tribunal." 9. It was argued by the ld. counsel for the assessee that in the above miscellaneous application, the Revenue has taken the following grounds for seeking review and recall of the order passed by the Tribunal: (a) Alleged factual errors set out in paras A to O on pages 1 to 8 of the application. (b) Alleged non-consideration of arguments and evidences set out in paras P to S on pages 8 and 9 of the application. (c) Non-consideration of arguments and evidences, being 33 points set out on pages 9 to 57 of the application. 9.1. It was further submitted that the contentions raised in the miscellaneous application preferred by the Revenue are not only factually incorrect but in fact contains prayer for review and recall of the elaborate order passed by the Hon'ble Tribunal, which is beyond the scope and ambit of the provisions of section 254(2) of the Act. The Ld. counsel for the assessee Mr. Rohit Jain invited our attention to provisions of section 254(2) of the Act and stated that the said section is only intended to rectify mistakes apparent from record, i.e. obvious and patent mistakes. 9.2.....
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....garb of Miscellaneous Application which is not permitted under section 254(2) of the Act. Therefore, the said Miscellaneous Application of the Revenue be rejected in view of the arguments and submissions made and the decisions of various courts of law relied upon hereinabove. 11. We have heard the rival contentions and perused the facts of the case. It was argued by the Ld. DCIT(DR), Mr. Tarsem Lal that in point 'A' to 'S' in Revenue's application at pages 1 to 9, there are factual errors, errors on account of non-consideration of the arguments and evidence led by the Department. The errors on account of facts are enumerated at para "A" to "O" and errors on account of non-consideration of arguments and evidence led by the department are enumerated at paras "P" to "S". First of all, we deal with the mistakes pointed out in the application of the Revenue in paras "A" to "S" as under: a) As regards para 53 of ITAT order, the Ld. DR pointed out that the findings of Tribunal in this para are wrong and misplaced as the reasons recorded are never the findings of the AO but they are only a premise. A premise can never be a substitute for a factual truth which had been established in the....
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....er paras. The Tribunal has considered the said facts of dispatch register and other facts in totality and has come to the conclusion and therefore, we find no mistake apparent from record in the said para 55 of the Tribunal's order. The Ld. DR's contention to get the order reviewed, is outside the scope of section 254(2) of the Act Hence, the same is rejected. (d) As regards paras 56,57 & 58 of ITAT order, the Ld. DCIT(DR), Mr. Tarsem Lal appearing on behalf of the Revenue argued that the ITAT in the said paras had gone by the facts that the Sales Tax Authorities had accepted the claim of the assessee that the assessee is engaged in the sale and purchase of jewellery. The Tribunal has not considered the statement of Sh. Jatinder Kumar dated 06.01.2003. It was argued that the Tribunal has not considered the argument of the Ld. DR that the assessee had only created façade of genuineness of being a purchaser and seller of the jewellery. In this regard, it appears that the Ld. DCIT(DR), Mr. Tarsem Lal, requires from the Bench to re-write the order as per his dictates to take the view what the AO has taken. Whereas in the said paras, the Tribunal has considered the totality of t....
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.... has left no room with the Tribunal to hold that Sh. Vinod Kumar's statement was true that the assessee was engaged in the jewellery business. This application of the Revenue and argument of the Ld. DCIT(DR), Mr. Tarsem Lal, cannot be accepted that any finding of the AO becomes final and there is no room for any higher court including the Tribunal to hold that Sh. Vinod Kumar's statement was true and the assessee was engaged in the jewellery business. Whereas in para 64 of ITAT order, the assessment order passed in the case of M/s. Vinod jewelers has been dealt in detail. It appears that the ld. DCIT(DR), Mr. Tarsem Lal, requires the Bench to re-write and review the order, which is beyond the scope of section 254(2) of the Act. Therefore, this miscellaneous application of the Revenue with regard to para 64 is rejected. (g) As regards para 66, the Ld. DR argued that the ITAT in para 66 had observed that no seller had denied having sold the jewellery to the assessee. It was argued before the Bench by the then Ld. DR that no seller would deny sale of jewellery to the assessee. It was also argued by the Ld. DCIT(DR), Mr. Tarsem Lal, that the order of the Hon'ble Mumbai Bench of the Tr....
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....e Ld. DCIT(DR), Mr. Tarsem Lal using the words " that the ITAT has failed to ascertain the truth, that the order is perverse and there is erroneous view formed, are outside the scope of section 254(2) of the Act and such dictate should be avoided and cannot be subject matter of the argument by the Ld. DCIT(DR), Mr. Tarsem Lal in his arguments in application u/s 254(2) of the Act. In the facts and circumstances, we find no mistake apparent from record in paras 67 to 70 u/s 254(2) of the Act. Thus, the miscellaneous application of the Revenue in this regard is rejected. (i) As regards paras 71 to 75 of the order of the ITAT, the Ld. DCIT(DR), Mr. Tarsem Lal, appearing for the Revenue has argued that confessional statements of the assessee dated 16.01.2003 and 17.01.2003 were under substantial threat and coercion, were the findings of the Tribunal in the said paras. In this regard, the Ld. DCIT( DR), Mr. Tarsem Lal argued that ITAT while passing order in paras 71 to 75 has missed to deal with the arguments of the ld. DR that had the assessee been really humiliated and paraded in bazaar, he would not have gone to the Police Station on 07.01.2003 for filing an FIR. It was argued by the....
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....h sides from para 67 and thereafter the arguments of both the sides were considered by the ITAT and in the totality of the facts and circumstances before the Bench and the legal position as emanating from the decisions of various judicial precedents had applied the legal position to the facts of the case before the Tribunal. In this regard, we find no mistake apparent from the records u/s 254(2) of the Act and the application of the Revenue with regard to paras 76 to 80 is rejected. (k) In point 'K' of the miscellaneous application with regard to paras 81 to 87, the Ld. DR, Mr. Tarsem Lal pointed out that the Gazetted Officer like DDIT (Investigation), who had recorded the statements were valid statements and the Tribunal in para 81 to 87 has wrongly held with regard to the recording of the statement by DDIT (Inv.). In this regard, in the said paras 81 to 87, the ITAT has dealt with the legal position regarding validity of the statements recorded by the DDIT(Inv.) and has followed the decision of co-ordinate Benches of the Tribunal. As regards the decision of the Madhya Pradesh High Court in the case of Classic Builders referred by the Revenue, has been considered in para 85 of T....
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....02, it was pointed out by the Ld. DR that the Tribunal has not dealt with the arguments of the ld. DR with regard to the letters dated 13.2.2006 and 22.2.2006. In this regard, the ITAT in para 102 has noticed that the letters mentioned by the Revenue were very much filed before the ld. CIT(A). The ITAT by considering the totality of the facts of the said letters have decided the issue. We find no mistake apparent from record in the said paras 97 to 102 in the order of the Tribunal. The mistake pointed out in point 'N' of the miscellaneous application of the Revenue is thus rejected. (o) As regards point 'O' of the miscellaneous application of the Revenue, it was argued by the Ld. DCIT(DR), Mr. Tarsem Lal with regard to paras 104 to 107 of the order of the Tribunal that the Tribunal has erred in holding that the decision of the Special Bench of Delhi Bench of the Tribunal in the case of Sh. Manoj Aggarwal vs. DCIT, 113 ITD 377 is applicable to the case of the assessee. The Ld. DCIT(DR), Mr. Tarsem Lal pointed out how the said case of Special Bench (supra) is different from the case of the assessee and therefore, the said case in Special Bench has wrongly been applied by the ITAT an....
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....er considering the totality of the facts and various other circumstances. Accordingly, we find no mistake as pointed out by the Revenue in point 'Q' of its application. Thus, the same is rejected. (r) As regards point 'R' of the miscellaneous application of the Revenue, it was argued by the ld. DCIT(DR) before the ITAT that there has not been genuine purchase and sale of jewellery as jewellery had been bought and sold which was inconsistent with the prevailing market rates. A copy of market rates for Gold and Silver was filed at pages 399 to 400 of the Departmental paper book. In this regard, additional evidences filed by the Department vide Sl. No.69 of the departmental paper book at pages 399 to 400 were admitted by the ITAT, which were duly taken into consideration while deciding the appeal. The arguments of the Revenue were also rebutted by the assessee. The said evidences/arguments are found in paras 6 & 24 of the Tribunal's order In the facts and circumstances, we find no mistake in point 'R' of the miscellaneous application of the Revenue. The said application of the Revenue is, therefore, rejected. (s) As regards point 'S' of the miscellaneous application of the Revenue,....
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....hivir and Sh. Sushil Kumar, the same have been considered in paras 28 and 88(h) of the ITAT's order. viii) As regards point-8 with regard to the statements of Sh. Satish Kumar, the same have been considered in paras 27,31, 36 and 58 to 65 of the Tribunal's order. ix) As regards point-10 with regard to the statements of Sanjay Grover brother of the assessee, the same have been considered in paras 11, 23 and 69 to 70 of the Tribunal's order. x) As regards point-11 with regard to the statements of Sh. Jatinder Anand, Vikash Seth and Sh. Ashok Kumar, the same have been considered in paras 20,54, 88(a), 88(b) and 88(c) of the Tribunal's order. xi) As regards point 12 with regard to the transactions with M/s. Baba Naga Rice Mills, the same have been considered by the Tribunal in paras 29,35 and 90 of its order. xii) As regards point-13 with regard to the complaint in the form of resolution filed by Amritsar Jewellers Association to the higher authorities, the same has been considered in paras 32(a), 36, 58, 60, 61, 80 and 105 of the Tribunal's order. xiii) As regards point-14, with regard to bank statement of the assessee wherein cash has been deposited, the same has been co....
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.... the appellant in its reply filed before the Tribunal. This stand by the Department at this juncture for filing the affidavit or not filing the affidavit does not constitute a mistake apparent from record. xxvii) As regards point-31 with regard to delivery of correspondences at the address of the assessee, the same has been dealt with in paras 32 and 55 of the Tribunal's order. xxviii) As regards point-32 with regard to the reply to the submissions filed on behalf of the assessee before the Tribunal, nothing has been pointed out by the Revenue on the issue which has not been considered by the Tribunal. Whereas the entire submissions have been reproduced in the order of the Tribunal. xxix) As regards point-33 with regard to the decision of the Special Bench in the case of Sh. Manoj Aggarwal, the said decision has been considered by the Tribunal in paras 32(a) and 104 to 107 of the Tribunal's order. 13. From the said 33 points raised by the Revenue and after going through the record and submissions of both the parties, the Tribunal has considered each and every submission and evidence and facts placed on record by the Revenue including the written submissions. Therefore, t....