AI Drafter 
TaxTMI 
TaxTMI 
2013 (10) TMI 976
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....ty to invest. 4) The Assessing Officer ought to have accepted the investment made by them and the company did not derive any income and has no source of income during the relevant previous year. 5) The Assessing Officer erred in charging interest under section 234A of Rs. 16,33,920 and u/s. 234B of Rs. 30,69,120. 6) Any other ground that may be urged at the time of hearing. 3. Further he submitted that the CIT(A) had given relief by placing reliance on the judgement of Supreme Court in the case of CIT vs. Bharat Engineering & Construction Co. (83 ITR 187) by observing that the business of the assessee has not commenced before issue of share capital and hence there was no occasion to earn unaccounted income and introduction in the form as share capital. The CIT(A) not expressed any opinion on shortcoming of enquiry on the part of the Assessing Officer. However, the Tribunal while deciding the appeal of the Revenue reversed the findings of the CIT(A) observing that the judgement relied on by the CIT(A) is not relevant by holding as follows: i) The decision was rendered under Indian Income Tax Act, 1922. ii) In that case, large amount of cash appearing on the very fi....
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....eated as income of the assessee. In India Rice Mills vs. CIT (218 ITR 508) (All.) it was held that "the Tribunal should have taken note of the fact that all the deposits aggregating to Rs. 1,43,000 represented the capital contribution of the partners in the firm and they were made before the firm started its business. It was for the partners to explain the source of the deposits and if they failed to discharge the onus, then such deposits could be added in the hands of the partners only. The Tribunal erroneously came to the conclusion that the deposits represented the undisclosed income of the assessee-firm. The approach of the CIT(A) in this case seems to be correct who clearly held that unexplained deposits in no case, could be the income of the assessee-firm because the firm started its business only after the credits had been made in its books." Therefore, it is contrary to law to say that the provisions of s. 68 of the Income Tax Act, 1961 provide for deeming the cash credit as income of the assessee even in a year when the business itself was not commenced. 6. The AR submitted that in para 10 of the order dated 20th December, 2012 the Tribunal observed that, in spite of op....
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.... more specifically on the judgement of Supreme Court in the case of CIT vs. Bharat Engineering & Construction Company (cited supra). However, the Tribunal considering the entire facts and circumstances of the case vacated the findings of the CIT(A) on this issue when the judgement relied on by the CIT(A) is distinguishable. The Tribunal also considered the fact that the assessee has not dispensed the burden cast upon it with reference to the genuineness of the transaction and creditworthiness of the parties. The learned AR before us submitted that an amount of Rs. 38.40 lakhs which represents addition made u/s. 68 of the Act consists two parts - first part concerns to 12 parties amounting to Rs. 17.10 lakhs wherein the assessee had not furnished confirmation letters; the second part is concerned to 11 parties amounting to Rs. 21.30 lakhs in respect of which affidavits were filed. Being so, both the above cannot be concluded as same and to be considered different. However, we find that though the assessee filed affidavits for 11 parties, there was no supporting evidence to show the agricultural holdings of the above parties, the capacity to land the money by these 11 parties is not ....
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.... s. 254(2). Recalling of an order automatically necessitates rehearing and re-adjudication of the entire subject-matter of appeal. The dispute no longer remains restricted to any mistake sought to be rectified. Power to recall an order is prescribed in terms of Rule 24 of the ITAT Rules, 1963, and that too only in case where the assessee shows that it had a reasonable cause for being absent at a time when the appeal was taken up and was decided ex-parte. Judged in the above background the order passed by the Tribunal is indefensible. 13. The words used in s. 254(2) are 'shall make such amendment, if the mistake is brought to its notice'. Clearly, if there is a mistake, then an amendment is required to be carried out in the original order to correct that particular mistake. The provision does not indicate that the Tribunal can recall the entire order and pass a fresh decision. That would amount to a review of the entire order and that is not permissible under the IT Act. The power to rectify a mistake under s. 254(2) cannot be used for recalling the entire order. No power of review has been given to the Tribunal under the IT Act. Thus, what it could not do directly could not be a....
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....open and reargue the whole matter as the same is beyond the scope of s. 254(2) of the IT Act. 16. Further, in the case of CIT vs. Karam Chand Thapar & Bros. Pvt. Ltd. (176 ITR 535) (SC) wherein held that the decision of the Tribunal has not to be scrutinised sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the Tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal, finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal are perverse. It is not necessary for the Tribunal to state in its judgement specifically or in express words that it has taken into account the cumulative effect of the circumstances or has considered the totality of the facts, as if that were a magic formula; if the judgement of the Tribunal shows that it has, in fact, done so, there is no reason to interfere with the decision of the....