TaxTMI 
TaxTMI 
2017 (11) TMI 1866
X X X X Extracts X X X X
X X X X Extracts X X X X
.... a mistake in the order of the Tribunal which needs rectification. 3. At the outset, the Ld. DR submitted that the Assessing Officer had made an addition u/s 40A(3) for violation of provisions of u/s 40A(3) which the Hon'ble Tribunal had deleted by following the judgment of Gurdas Garg Vs. CIT Vs. Bathinda pronounced as Punjab & Haryana High Court. In this respect it was submitted that the said judgment of Gurdas Garg Vs. CIT Vs. Bathinda is pending before Hon'ble High Court as the department had filed a review petition which has been admitted and therefore the order passed by Hon'ble Tribunal by following the above said judgment needs to be withdrawn. The Ld. DR further stated that the Hon'ble ITAT has not appreciated the Assessing Officers finding in para 3.3 at page 9 of assessment order wherein the Assessing Officer has held that the land was never intended to be held as investment as it was not transferred in the name of assessee at all and therefore the transactions of the assessee has to be treated as business transaction. 4. The Ld. AR on the other hand submitted that the Hon'ble Tribunal has passed a detailed and reasoned order and in this respect o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is also an undisputed fact that assessee had surrendered an amount of Rs. 25,00,000/- which was paid by assessee to the sellers of land as a advance. The said sum of Rs. 25,00,000/- was paid on 26.05.2009 as per this agreement. It is also an undisputed fact that the transaction for purchase of this land could not be carried out between the assessee and sellers of land as is evident from the copies of registration deeds executed directly by the sellers of land in favour of various persons. The copies of such sale deeds which the sellers of land had executed in favour of various persons was filed with the Assessing officer vide letter dated 30.11.2012 and this fact is also mentioned by Assessing Officer in his assessment order at page 2 of his order. The photo copies of such sale deeds is also placed at paper book page 11 to 39. The examination of sale deeds shows that on various dates the following sale deeds were executed. Date of Sell Name of Buyer Name of Seller 3.08.2009 Smt. Geeta Verma Sh. Parsotam Lal as power of attorney holder of Smt. Rani Mahajan. 28.10.2009 Sh. Yogesh Kumar Sh. Ram Murti 28.10.2009 Sh. Vishal Gupta Sh. Ram Murti 28.10.2009 Narend....
X X X X Extracts X X X X
X X X X Extracts X X X X
....T(A) in confirming the disallowance made by Assessing Officer u/s 40A(3) of the Act, can be upheld as there is no evidence of purchase of land by assessee and also there is no evidence that assessee had made payments to the owners of land as has already been established by the fact that owners had received payments form actual buyers only and therefore, there can not be any question of disallowance u/s 40A(3). Therefore, we hold that on merits and facts of the case no disallowance was warranted u/s 40A(3). Therefore, there is no mistake in the order of Hon'ble Tribunal as regards the disallowance u/s 40A(3) is concerned. As regards the argument of Ld. DR that Assessing Officer had clearly held the transaction to be a business transaction, we find that even Hon'ble Tribunal vide para 15 has held that the transaction was a business transaction and therefore also there is no mistake in the order of the Tribunal. The revenue in the guise of Miscellaneous Application wants the Hon'ble Tribunal to review its order which is not permissible as the Tribunal is empowered to rectify any mistakes apparent from record. "A bare look at section 254(2) of the Act, which deals with....
X X X X Extracts X X X X
X X X X Extracts X X X X
....It comprehends errors which, after a judicious probe into the record from which it is supposed to emanate, are discerned. The word 'mistake' is inherently indefinite in scope, as what may be a mistake for one may not be one for another. It is mostly subjective and the dividing line in border areas is thin and indiscernible. It is something which a duly and judiciously instructed mind can find out from the record. In order to attract the power to rectify under section 254(2) it is not sufficient if there is merely a mistake in the orders sought to be rectified. The mistake to be rectified must be one apparent from the record. A decision on the debatable point of law or undisputed question of fact is not a mistake apparent from the record. The plain meaning of the word 'apparent' is that it must be something which appears to be so ex facie and it is in capable of argument or debate. It is therefore, follows that a decision on a debatable point of law or fact or failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectification." The Hon'ble Supreme Court in the case of CIT Vs. Karan Chand Thapar & Br. P. Ltd., 176 ITR ....