TaxTMI 
TaxTMI 
TaxTMI 
2014 (4) TMI 624
X X X X Extracts X X X X
X X X X Extracts X X X X
....emises of Shri Shivcharan Agarwal, substantial addition of Rs.17,00,000/- and Rs.39,20,000/- were made in the hands of the assessee in an assessment made vide assessment order dated 28.03.2001, under section 143(3) r.w.s. 147 of the Income Tax Act (hereinafter referred to as 'the Act'). Protective additions were made in the hands of Shri Shivcharan Agarwal. Both i.e. the assessee as well Shri Shivcharan Agarwal, challenged the assessment order in appeal before the CIT(A). The Id. CIT(A) confirmed the protective addition in A.Y.1990-91 in the hands of Shri Shivcharan Agarwal vide his order dated 30.03.04 whereas, deleted the addition from hands of the assessee vide his order dated 3.2.03. Shri Shivcharan Agarwal challenged the order of ld. CIT(A) vide ITA No.3276/M/04. Similarly the Revenue challenged the order of the ld. CIT(A) in the case of assessee vide ITA No.4373 & 4374/M/03 in assessment year 1989-90 & 90-91. The Tribunal decided all those appeals by a common order dated 10.03.06, whereby it allowed the appeal of Shri Shivcharan Agarwal, deleted the addition from his hand and confirmed the addition in the hands of the assessee. 3. Dissatisfied with the order of the T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....non-issue of notice under section 143(2) of the Act. He further contended that the notice under section 148 of the Act was issued without availing prior approval from the higher authorities. The A.O cannot issue such notice in view of the limitation provided under section 151 of the Act. 5. The ld. D.R., on the other hand, pointed out that all these issues have been considered by the Tribunal and there is no apparent mistake in the order of the Tribunal. 6. We have duly considered the rival contentions. The Hon'ble Jurisdictional High Court in the case of CIT Vs. Ramesh Electric & Trading Co. 203 ITR 497 has propounded the following principle required to be kept in mind while appreciating the issue, regarding finding out an apparent mistake if any, committed by the Tribunal while exercising the powers under section 254(2) of the Act. The Tribunal cannot, in exercise of its power of rectification look into some other circumstances which would support or not support its conclusion so arrived at. The mistake which the Tribunal is entitled to correct is not an error of judgment but a mistake which is apparent from the record itself. No such mistake was apparent from the record. I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re, at least on one count, is attributed by the assessee to the income-tax Officer and not the Tribunal. In our view, the Tribunal had no jurisdiction under section 254(2) to pass the second order. In the light of the above ratio of law we have gone through the record carefully. The assessee in para No.2 of the miscellaneous application has propounded the submissions raised by its counsel at the time of hearing. We find that all these submissions have been considered by the Tribunal. The only grievance of the assessee is that issues tried to be raised enumerated in para No.3 & 4 of the miscellaneous application were not permitted to be raised and time was not granted for filing additional grounds of appeal. The assessment in this case was made on 28/3/01. Appeals were filed on 30/4/01. These appeals were decided on 3/2/03. The assessee has never taken up these pleas before the ld. Revenue Authorities below. We have specifically perused the grounds of appeal filed before the ld. CIT(A). We have specifically taken congnizance of the ground raised before the Tribunal in para No.1 of the Tribunal order. The submissions in the miscellaneous application, is only a desperate attempt on t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s and emphatically held that it is the assessee's money which has been routed through bogus paper entities to give a colour of genuine transaction exhibiting the advancement of loan and its re- payment, where is the ratio applicable in the present case. The decisions of the co-ordinate bench or of the higher authorities are not required to be referred in routine way. They are to be applied if identical sets of facts are available. In the next mistake it has been pointed out that the Tribunal has violated the principle of natural justice. We find that it is again reiteration of the arguments raised at the time of original hearing of appeals. There is no apparent mistake pointed by the assessee. A number of arguments not connected with issue have been raised in the miscellaneous application moreover assessee has filed one miscellaneous application whereas the Tribunal has decided two appeals of the Revenue and disposed of two miscellaneous applications. Any way even if we ignore this technicality, there is no merit in the contentions of the assessee, therefore, it is dismissed." 5. In the meantime when the matter was pending before the AO for giving effect to the order of the Tr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to decide the pending petition moved by the assessee under section 154 of the Act. He thereafter submitted the detailed explanation as to how the re-opening of the assessment was bad in law and that no notice under section 143(2) of the Act was issued. To stress the point that if the issues raised by the assessee vide its miscellaneous application moved under section 154 of the Act before the AO would have been adjudicated by the AO, then the entire reopening would have been set aside and as such the order giving effect to the order of the Tribunal was bad in law. 8. On the other hand the ld. D.R. has contended that the issues raised by the assessee vide application under section 154 before the AO had already been considered and decided against the assessee by the Tribunal while dismissing its applications moved under section 254(2) of the Act and further that the application moved by the assessee under section 154 of the Act was beyond the period of limitation of four years. He has further contended that the scope of section 154 which pertains to the rectification of orders apparent on the record is very limited and the debatable issues involving examination of evidence etc. can....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he order of the Tribunal. Even though an application under section 154 moved by the assessee was pending before the AO, still it cannot be said that the AO was not justified in giving effect to the order of the Tribunal. The assessee has got a separate remedy against the decision or non-decision on its application moved under section 154 of the Act. There is nothing provided in the section 154 of the Act that pending such application moved under this section, the AO is prevented from giving effect to the order of the appellate authority. It is to be noticed that under section 154(1A) where any matter has been considered and decided in any proceeding by way of appeal or revision, the AO cannot decide the said matter under section 154 but any matter other than the matter which has been so considered and decided by the appellate authority. So far the question of limitation for moving an application under section 154is concerned, admittedly, the application was moved by the assessee under section 154 to the AO on 01.03.06 whereas, the assessment order was passed by the AO on 28.03.01. The said application was beyond the limitation period of four years as is provided under section 154....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is hereby dismissed. Ground No.3 12. Vide ground No.3 the assessee has raised the issue of validity of the reopening on the merits of the case. The AO while giving effect to the order of the Tribunal was not supposed to give any finding on the merits of the case but only course before him was to give effect to the order of the Tribunal as such. Hence this issue raised by the assessee is accordingly dismissed. Ground No.4 13. Vide ground No.4 the assessee has again raised the issue relating to the validity of the reopening of the assessment on merits. The said issue has already been raised by the assessee in his rectification applications as observed above before the Tribunal and the said rectification applications have already been dismissed by the Tribunal vide order dated 29.10.07 and 06.05.08 respectively. Since the matter has already been adjudicated by the Tribunal and the assessee has not filed any appeal before the Hon'ble High Court, the findings of the Tribunal have become final and there was no jurisdiction either to the AO or to the CIT(A) to re-adjudicate these issues on merits either on any application moved under section 154 or otherwise. Moreover, the above i....