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2019 (11) TMI 1229
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....eing heard. It is suffice to say that the Appellant shall co-operate with the appellant proceedings and shall appear as and when required by the Ld. CIT(A) and in case of default the Ld. CIT(A) at liberty to dispose of the appeal on merit ex-parte. As the Ld. CIT(A) has passed the order ex-parte therefore, we are not adverting to the other grounds/issues raised in the appeal and the Ld. CIT(A) shall decide the appeal without being influenced by any of the observations made above. 3. That in para 6.1 of the order the ITAT has given the following findings appearing at Page No. 9 of the order "From the replies, it clearly reflects that the appellant categorically taken the stand that amount of Rs. 36 lacs for the Asst. Year 2011-12 does not belong to the appellant's wife but belongs to the appellant himself. From the categorical acceptance on the part of the appellant, the argument to the effect that as the amount of Rs. 36 lacs was found in the accounts of the appellant's wife by the revenue department therefore could have been subjected to addition in the appellant's wife assessment only, is devoid of merits and hence rejected. 4. That both the finding of ITAT are contradictory ....
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....lant, there was no credit appearing in the books of account of the assessee as the credit of Rs. 36 lacs appeared only in the Bank Account of Ms. Heather Chethley, wife of the assessee, therefore, the addition could be made only in her hands. The assessee in support of his contention also relied upon the judgment of Hon'ble Apex Court in the case of CIT vs. Chinnathamban (2007) 292 ITR 681(SC), however, in the order neither the submission nor the judgment of the Hon'ble Supreme Court has been considered while passing the order. 3. On the contrary, the Ld. DR submitted that the order under challenge does not suffer from any perversity, illegality and/or impropriety and even no mistake is apparent from record which can be rectified. 4. Having heard the parties and perused the material available on record. Let us to reproduce the relevant provision of law as applicable for rectification of the order on the ground of any mistake apparent from the record. "Orders of Appellate Tribunal 254.(1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (1A) [***] (2) The Appellate Tribunal may....
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....verse. It is not necessary for the Tribunal to state in its judgment 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 judgment of the tribunal shows that it has, in fact, done so, there is no reason to interfere with the decision of the Tribunal." 4.4 The Hon'ble Delhi High Court in the case of Ras Bihari Bansal Vs. CIT 293 ITR 365, on the scope of rectification u/s 254(2) of the Act, has held as under: "Section 254 of the Income Tax Act, 1961, enables the concerned authority to rectify any "mistake apparent from the record". It is well settled that an oversight of a fact cannot constitute an apparent mistake rectifiable under this section. Similarly, 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 mere fact that the Tribunal had not allowed a deduction, even if the conclusion is wrong, will be no ground for moving an application under section 254(2) of the Act. Further, in the garb of an applic....
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....ng the instant appeal and submitted that Appellant had entered into an agreement dated 26.12.2010 for the sale of immovable property situated at Mittal Road, Moga for Rs. 1,05,00,000/- with Sh. Harjit Singh through his attorney Mr. Manjit Singh Chahal and received Rs. 50 lacs as earnest money in cash, out of which amount of Rs. 36 lacs was deposited in the bank account of his wife Smt. Heather Chethley and rest amount of Rs. 14,00000/- was deposited in his account therefore the deposits stands explained. The Ld. A.R. specifically emphasized that revenue department detected the amount of 36 lacs in the account of Appellant's wife and therefore the Revenue Department could have made the addition in her assessment only but at any stretch of imagination, the amount of Rs. 36,00,000/- cannot be added in the income of the Appellant." 7. From para No.5 it clearly reflects that the Co-ordinate Bench has specifically mentioned the argument raised by the Ld. AR to the effect " that revenue department detected the amount of 36 lacs in the account of Appellant's wife and therefore the Revenue Department could have made the addition in her assessment only but at any stretch of imaginat....
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.... is attached herewith for your perusal. 3. That as per the agreement as referred in para 2 above Mr. Raghu Chatley entered into an agreement to sell his property and received Rs. 5000000/- from Mr. Manjit Singh Chahal S/o Ishar Singh, VPO Kokri Kalan, Tehsil & Distt Moga. Mr. Manjit Singh entered into such agreement on behalf of Haijit Singh S/o Kartar Singh resident of VPO Kokri Kalan, Distt Moga, presently residing at 79 Middleton Avenue, Greenford Middlesex UB6 8BG United Kingdom. Mr. Manjit Singh Chahal, given such amount of Rs. 50.00 Lacs to Mr. Raghu Chatley out of the proceeds of sale of agricultural land which belongs to Mr. Haijit Singh, Indeijit Singh and Mr. Chahal as their Attorney. The copies of agreement to sale, GPA, Jamabandi and Sale deed of land and an affidavit of Mr. Manjit Singh Chahal are enclosed herewith for your perusal. 4. That a copy of a certificate from Notary Public Adv. Kewal Krishan Gupta, with whom the agreement to sale is registered is also enclosed herewith. 5. That keeping in view of the above it is evident that the deposit of Rs. 3600000/- in the Ay 2011-12 does not belong to the Appellant but of her husband. The source of such deposit....
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....is duly explained along with all evidences relevant for you for the assessment purpose. In this regard you are requested to do the needful and oblige. From the replies, it clearly reflects that the appellant categorically taken the stand that amount of Rs. 36 lacs for the Asst. Year: 2011-12, does not belong to the Appellant's wife but belongs to the Appellant himself. From the categorical acceptance on the part of the Appellant, the argument to the effect that as the amount of Rs. 36 Lakhs was found in the accounts of the Appellant's wife by the revenue department therefore could have been subjected to addition in the Appellant's wife assessment only, is devoid of merits and hence rejected. 6.2 The order passed by the Ld. CIT(A) is ex-parte on nonappearance of the Appellant and in impugned order it was observed by the Ld. CIT(A) that from the above sequence of events it can be seen that neither the appellant nor his counsel attended the hearing on each occasion although he has been issued notices for hearing on various dates, which have been duly served also. It was further observed that appellant had also failed to file any written submissions in support of various grounds of....
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....er in the assessment order dated 24.10.2018, therefore, the contention of the Ld. AR to the effect that even otherwise while commenting upon the merits, the ITAT only considered the submissions of the assessee made before the ITO and reproduced the same in para No.6-7 of the order without confronting the same to the undersigned counsel, does not seems to be logical and hence untenable because it is a matter of record already scribed in the assessment order, therefore, need for confrontation not necessitated and the tribunal is empowered to take the judicial note of the same, which is the instant case has been taken. 10. With regard to the contention of the Ld. AR to the effect that no addition can be made u/s 68 of the Act unless there is a credit in the books of accounts of the assessee. 11. In our considered view one person can not travel on two boats at a same time, however in the instant case the Asseeee tried to take two inconsistent stands therefore the tribunal on the basis of material available on record realised that since the assessee has taken the clear-cut stands in his wife's assessment proceedings that the amount deposited in his wife's account belongs to th....
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....n this case considering the peculiar facts, impugned order has been quashed and case is remanded back to the Ld. CIT(A) for decision afresh with specific direction that Ld. CIT(A) shall decide the appeal without being influenced by any of the observations made above, therefore as per our considered view, no error seems to be apparent on record which requires any rectification as sought for by the Assessee. 13.1 Even we have failed to understand as to what prejudice has been caused to the assessee and what error is apparent from the record which requires rectification because at the time of passing order under rectification, no order survives against the assessee and the tribunal in view of contrary material available on record and which is not denied by the assessee but in fact admitted by the assessee, has dealt with inconsistent stand only but not otherwise and left it open to the Ld. CIT(A) to decide afresh without being influenced by any observation made in its order. Even liberty was given to the Asseeee to agitate the original ground of appeal as raised before the Ld. CIT(A). 13.2 The Apex Court in the case of CIT vs. Karam Chand Thapar & Br. P. Ltd (supra) clearly held tha....