TaxTMI 
TaxTMI 
2018 (7) TMI 2013
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....rovert the aforesaid submissions of Ld AR. In view of the aforesaid submissions of Ld AR, we proceed to dispose off both the M.As together. For the sake of convenience the facts have been taken from M.A. for A.Y 2002-03. 3. Before us, Ld AR took us through the contentions made in the 17 pages of miscellaneous application that are filed and reiterated the submissions made therein. He submitted that while deciding the appeal, the Hon'ble Members have failed/overlooked to consider the relevant evidences in the form of report of the AO about the explanation of the loan entries appearing in the diaries seized from Chhoriya group. He submitted that the explanation has been accepted by the Department while assessing the undisclosed income of Chorriya Group and therefore conforming the same addition in the hands of the assessee is mistake apparent from record. He therefore submitted that the order confirming the addition should be recalled. He also took us through various decisions cited in the application. He further submitted that while deciding the appeal against the assessee, the Tribunal has not considered and has not dealt with the submissions made by the assessee, the Tribunal ha....
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....us Application. Before us, Assessee has filed Miscellaneous application which is running into 17 pages. Before us, Ld AR extensively argued the M.As for 3 days during which he has taken us through the contentions raised in the Miscellaneous Applications including various case laws referred in the MAs. In sum and substance the alleged grievance of the Assessee for which he is seeking recalling of the order of the Tribunal dated 31.03.2015 inter-alia are that while deciding the appeal, the Tribunal has not considered and dealt with the submissions of the assessee, the Bench has allegedly recorded incorrect facts and has not considered the case laws relied upon by Assessee. To have insight to the grievance of the Assessee, it would be relevant to refer to the Miscellaneous Application filed by the Assessee which is reproduced as under : " This Miscellaneous application is filed by the appellant u/s 254(2) of the I.T. Act, 1961 for rectification of mistakes in the impugned order which are apparent from records as mentioned hereinafter in this application : 1. The Hon. Bench was pleased to dismiss the appeal filed by the appellant assessee for A.Y. 2008-09 vide order p....
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....lant assessee are reproduced below: b) Comments on Para 2: During the post search enquiry Shri Devichand Motilal Chhoriya deposed before the department that the entries appearing in the seized material perceived to be loans were actually his own income recorded as loans from fictitious entries. A.Y. 2002-03 was beyond the purview of proceedings u/s 153A/C of the Act. No assessment orders have been passed for this year in any of the entities of the Chhoriya Group. c) Comments on Para 3 : During the assessment proceedings the Assessing Officer accepted the contention put forth by Shri Devichand Motilal Chhoriya, as mentioned in the preceding para and the assessed income in the hands of the various entities of the Chhoriya Group. The last three lines on penultimate page of the said report read as under : All entries in the various diaries and other documents seized have been critically analyzed and it is seen that all issues arising out of the seized documents as well as the appraisal report have been satisfactorily explained. Therefore during the course of hearing of the appeal it was submitted by the appellant that as per the report submitted by t....
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....r relevant evidence without giving any reasons amounts to mistake apparent from records which deserves to be corrected. With due respect to the Hon. Members it is most respectfully submitted that since the Hon. Members have failed / overlooked to consider the relevant evidence in the form of report of the learned Assessing Officer dt. 22/05/2013 about the explanation of the loan entries as appearing the diaries seized from Chhoriya Group which explanation has been accepted as true and correct by the department while assessing the undisclosed income of Chhoriya Group, the same amounts to mistake apparent from records which deserves to be corrected by recalling the impugned order and deciding the issue afresh as per the provisions of law and admitted facts. Without prejudice to above and by way of an alternate submission it is submitted that during the course of arguments it was brought to the notice of the Hon. Members that in the Statement of Mr.Kanhaiyalal Chhoriya recorded on oath on 16/10/2008 vide Page Nos.3 to 7 he has given a list of 79 fictitious persons in whose names the unrecorded income earned by Chhoriya Group was recorded as loans. The learned Assessi....
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....of the impugned order are contrary to the evidence on records which constitutes mistake apparent from records and needs to be corrected. It is therefore humbly prayed that the Para No.40.6 on Page Nos.37 and 38 of the impugned order be recalled and the speaking order may please be passed on application dt.18/03/2013 filed u/s 255[6] of the I.T. Act 1961 by the appellant and thereafter the matter may please be decided on merits after considering the evidence produced by the department and well settled principles of law. 4. Regarding failure to consider the Supreme Court decision in the cases of Kishor Samrite v/s State of U.P. and others in Criminal Appeal No.1406 of 2012 decided on 18/10/2012 The Hon. Bench vide Page 21 of the impugned order in the list of case laws relied on by the appellant assessee has mentioned the above referred case. The appellant most respectfully submits that during the course of arguments it was submitted that in spite of the fact that department was in possession of diary maintained by Chhorriya for the period 1/1/2001 to 31/3/2001 an addition of Rs. 2.80 crores was made in the hands of the appellant assessee though the said amo....
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....ilal Chhoriya was recorded u/s 131 of the I.T. Act 1961 on 01/03/2009 [Copy of the said statement is enclosed at Page Nos. 36 to 39 of Paper Book filed by the appellant assessee for A.Y.2002-03 on 20/12/2011] In the said statement the said witness had in an unequivocal manner admitted that he did not borrow any amount from the persons named in the seized diaries and the undisclosed income earned by various family members was shown by him in the fictitious names of various persons as loans. He had further stated that his various family concerns have paid the taxes on the said amount and he had not borrowed any amount from the appellant assessee. It was further pointed out that when a statement of any witness is recorded u/s 131 of the I.T. Act 1961, the learned Assessing Officer has all the powers which are vested in the Court under the Code of Civil Procedure 1908 when trying a suit while examining a person on oath and as a consequence of this the provisions / principles of the Evidence Act are set in motion. The learned Assessing Officer did not give any suggestion to the said witness that he was telling lie and did not give a suggestion that he h....
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....o how the aforesaid two decisions cited were distinguishable on facts. Since the Hon.Members have failed to consider and apply the binding decision of the Hon. Bombay Court in the case of Lata Mangeshkar referred above, the same amounts to mistake apparent from records and needs to be corrected. Furthermore since the Hon. Bench has neither dealt with nor considered the decision of the Hon. Allahabad High Court reported in 300 I.T.R. Page 426 referred above the same amounts to mistake apparent from records and needs to be corrected. It is therefore humbly prayed that the impugned order may please be decided as per provisions of law and evidence on records of the Hon. Bench. 7. Regarding failure to consider the decision of Hon. Supreme Court in the case of State of Kerala u/s Respondent K.T. Shaduli Yusuff etc reported in 1977 A.I.R. Page 1627 [SC]. The Hon. Bench vide Page 21 of the impugned order in the list of case laws relied on by the appellant assessee has mentioned the above referred case. During the course of arguments it was most respectfully submitted that the finding of the learned CIT(A) that when the statement ....
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.... same by 15/12/2009 In reply to this letter the Joint Director of Income Tax [Investigation] Nashik vide his letter dt. 14/12/2009 forwarded report dt.14/ 12/2009 of Dy. Director of Income Tax [Inv] Jalgaon addressed to the J.C.LT. Range 1 Jalgaon [who is the Assessing Officer] In the letter of Joint Director of Income Tax [Investigation] Nashik there is a reference of personal discussion between him and the learned Assessirig Officer. It is not known as to what has transpired in that discussion. However the last para of report of Dy.Director of Income Tax [investigation] Nashik dt.14/12/2009 addressed'to the learned Assessing Officer has suggested to the learned Assessing Officer that it can be inferred that an entry of Rs. 2.80 crore as appearing in summary sheet on 1/5/2001 is an advance given by Shri Ratanlal C Bafna during F.Y.2001-02. It is pertinent to note that this direction ~as given in spite of the fact that the Investigation Wing was in possession of rough Cash Book for the period 01/01/2001 to 31/03/2001 which exhibited that the said advance was given on 01/01/2001, and the same was never disclosed to the learned Assessing Officer ....
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....n of peak credit of Rs. 9,30,OOO.OO made by the learned C.I. T.[A] In this regard the appellant assessee would like to place reliance on the observation of the Hon. Bench vide Para No.40.7 on Page No.38 of the impugned order that Now coming to the quantum of addition, we find there are serious calculation mistakes and error of judgment. In spite of the aforesaid observation, the Hon. Members in Para 40.9 on Page No.40 of the impugned order have observed that Neither the Ld. Departmental Representative nor the Ld. Authorised Representative could point out any mistake in the computation of such peak. The appellant therefore humbly submits that the observation of the Hon. Bench in Para No.40.9 on Page No.40 of the impugned order is factually incorrect and hence the same is requested to be withdrawn for following reasons: i. As observed by the Hon. Bench in Para No.40.7 on Page No.38 of the impugned order the appellant assessee has filed copy of Cash Book for the period 01/01/2001 to 31/03/2001 seized from Chhoriya which was obtained by the appellant assessee from the department by making an application under RTI Act. It was explained that on ....
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.... suffered from serious factual mistakes and errors and in the circumstances, the Ground of appeal Nos. 5 & 6 deserved to be allowed with consequential reliefs as claimed during the hearing. However the Hon. Members have failed to consider the relevant evidence and have failed to adjudicate the aforesaid grounds of appeal. It is a well settled law that failure to adjudicate the Grounds of appeal constitutes mistake apparent from records which deserves to be corrected by recalling the order and adjudicating the relevant Grounds of appeal. It is therefore humbly prayed that the impugned order be recalled and the Ground of appeal No.5 and 6 may please be decided on merits. About maintainability of the Petition The impugned order has been received by the appellant on 22/05/2015 and hence the present petition is filed well within the period of limitation. The appellant has paid the prescribed fees of Rs. 50.00 and the challan is enclosed. In the present Petition, the appellant has pointed out senous mistakes of facts and law which are apparent from records which have caused serious prejudice and injustice to the appellant and hence th....
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....r reducing a refund or increasing the liability of the assessee, the Tribunal has to give prior notice to the assessee and also allow the assessee a reasonable opportunity of hearing. 8. A bare look at section 254(2) of the Act makes it clear that a "mistake apparent from the record" is rectifiable. In order to attract the application of section 254(2), a mistake must exist and the same must be apparent from the record. The plain meaning of the word "apparent" is that it must be something which appears to be so ex facie, obvious and evident for which no argument or debate is required. The mistake has to be such for which no elaborate reasons or inquiry is necessary. Where an error is far from self-evident, it ceases to be an apparent error. The expression "mistake apparent on the record" means a mistake either clerical or grammatical or arithmetical or of like nature, which can be detected without there being any necessity to reargue the matter or to reappraise the facts as appearing from the records. In catena of judgments rendered by various Hon'ble High Courts, it has been held that a mistake which can be rectified under section 254(2) of the Act is one which is pate....
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.... the mistake which is sought to be rectified is an obvious and patent mistake which is apparent from the record, and not a mistake which requires to be established by arguments and a long drawn process of reasoning on points on which there may conceivably be two opinions. Failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on the record, although it may be an error of judgment. The Tribunal cannot, in the exercise of its power of rectification, look into some other circumstances which would support or not support its conclusion (emphasis supplied by us). 11. On the alleged grievance of the Assessee that the submissions and case laws relied upon by the Assessee during the course of hearing have not been considered by the Tribunal while deciding the appeal, it would be appropriate to refer to the decision of Hon'ble AP High Court in the case of Pothina Venkateshwara Swamy Vs ACIT [2014] 369 ITR 639 (T&AP) wherein the Hon'ble High Court has held that the court or a tribunal is deemed to have taken every aspect that is placed before it into account and granted the appropriate relief in a manner which i....
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....in the MA cannot be considered to be "mistake apparent from record" as contemplated u/s 254(2) of the Act. 16. In the present case, we also find that while deciding the appeal of the Assessee, the coordinate Bench of tribunal has considered the submissions made by the Assessee. The Hon'ble Bombay High Court in the case of CIT Vs Earnest Exports Ltd. [2010] 323 ITR 577 (Bom) has held that "the power under section 254(2) is confined to a rectification of a mistake apparent on record. The Tribunal must confine itself within those parameters. Section 254(2) is not a carte blanche for the Tribunal to change its own view by substituting a view which it believes should have been taken in the first instance. Section 254(2) is not a mandate to unsettle decisions taken after due reflection. The provision empowers the Tribunal to correct mistakes, errors and omissions apparent on the face. The section is not an avenue to revive a proceeding by recourse to a disingenuous argument nor does it contemplate a fresh look at a decision recorded on the merits, however appealing an alternate view may seem. Unless a sense of restraint is observed, judicial discipline would be the casualty. Tha....