TaxTMI 
TaxTMI 
2023 (9) TMI 1538
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....ecord occurred in the order of the ITAT inadvertently within the meaning of provisions of section 254(2) of the Act. 2.1 In the present case, the addition was made in the hand of the assessee on protective basis for Rs. 29,01,486/- on account of gold seized by the Revenue. However, the ld. CIT(A) deleted the addition made by the Assessing Officer on the reasoning that the substantive addition has been made in the hands of the sender of the gold Shri Brij Mohan, a Jeweler based in Hyderabad. 2.2 Against the finding of ld. CIT(A), the assessee preferred an appeal to the ITAT contending that the gold belongs to him which was allowed by the ITAT in his favour (the assessee). However, the Revenue in its MA contended that there cannot be tw....
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....ands of the appellant in the appeal order. Ld. ITAT has however held that the appellant is the owner of gold without addressing as to what will be the status of additions made in 'assessment order' passed in the case of Sandeep Gupta, Prop. Brijmohan Jewellers dated 09/04/2021 u/s 153C. (iii) Ld. ITAT has not addressed the facts, anomalies and possibilities of presence of 'two' different parcels of 'gold', one couriered on 25/10/2017 and another sold to appellant on 26/10/2017, despite acknowledging and reproducing entire arguments of CIT(DR), especially, contention at Sr. No. 2(5)/(8)/(9) and (11) mentioned on pages 4, 5 and 6 of impugned order of Ld. ITAT including prayer at para 3. By ignoring th....
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....d that there is an apparent mistake in the order of the ITAT which needs to be rectified within the meaning of the provisions of section 254(2) of the Act. 4. On the contrary, the ld. counsel submitted that the ITAT has decided the issue in favour of the assessee after referring/ considering the relevant facts which have been alleged as an apparent mistake by the Revenue in the Miscellaneous Application. To this effect, the ld. Authorized Representative for the assessee before us drawn our attention to para 14.2 of the ITAT order where the mistake pointed out by the Revenue was duly observed and considered by the ITAT before passing the order. Thus, it was pleaded by the ld. Authorized Representative that there is no mistake apparent fro....
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....e described as a mistake apparent from record. In such a situation, the aggrieved party should approach the higher forum for the redressal of the issue involved in the dispute. 5.1 Coming to the facts of the present case, we note that the mistake pointed out by the Revenue in the Miscellaneous Application has been duly considered by the ITAT in its order vide order paragraph No. 14.2 of the order. The relevant extracts of the order is reproduced as under:- "14.2 The above details furnished by the assessee were not doubted by the authorities below. As such the doubt of the revenue is this that the proprietor of M/s Brij Mohan Jewellers namely Shri Sandeep Gupta in the statement has stated that the fine gold weighing 949.18 grams ....
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.... Act. If we reconsider the arguments of the Revenue, the same shall amount to a review of our own order which is not permissible. 5.3 Regarding the reliance placed by the ld. Departmental Representative in the case cited above, we note that the principles laid down by the Hon'ble Gujarat High Court in humble understanding are distinguishable from the present set of facts. In the case before the Hon'ble Gujarat High Court, the assessee has cited certain case laws which were not considered by the ITAT while delivering its order. Thus, the Hon'ble Gujarat High Court held that the order of ITAT as erroneous within the meaning of the provisions of section 254(2) of the Act. However, in the present case before us, there was no judgement as ref....