2014 (6) TMI 670 - AT - Income Tax

Rectification of mistake u/s 254(2) - Undisclosed income from interest and sale of dumpers - investment in the name of partnership firm - assessee got 85% share of land of M/s. Ekta Corporation. - tribunal had confirmed the additions - Held that - Once the Tribunal has taken a conscious decision after considering the evidences on record as also the facts of the case, therefore, it is not a situation when a mistake at all; what to say an apparent mistake, was committed. If that order of the Tribunal is going to be disturbed then the tinkering shall amount to review of the order of the Tribunal which is out of the purview of Section 254(2) of IT Act. - present Misc. Petition has no force thus deserves to be quashed. - Decided against the assessee.

Issues involved:
1. Consideration of evidence under section 133(6) of the Act during assessment proceedings.
2. Recalling Tribunal's order based on evidence presented after assessment.
3. Rejection of appeal based on undisclosed income from interest and sale of dumpers.
4. Claim of investment in M/s. Ekta Corporation.
5. Argument for recalling Tribunal's order based on lack of opportunity for cross-examination.
6. Dismissal of Misc. Application by the Tribunal.

Analysis:

1. The applicant raised a grievance regarding the non-supply of evidence gathered by the Assessing Officer under section 133(6) of the Act during assessment proceedings. The applicant argued that the evidence, including replies from retiring partners, supported their claim that the full amount was not paid on the date of joining the partnership firm. However, these replies were provided to the assessee only after the assessment order was framed, and were not considered by the Assessing Officer or the Commissioner of Income Tax (Appeals).

2. The High Court directed the Tribunal to reconsider the matter, stating that the Tribunal used material not supplied to the assessee before passing the assessment orders. The applicant then filed a Misc. Application requesting the Tribunal to recall its order based on the direction from the High Court. The applicant contended that the Tribunal's rejection of their contention was based on presumption and requested a fresh adjudication considering the evidences on record.

3. The main issue revolved around the addition of undisclosed income from interest and sale of dumpers. The Assessing Officer rejected the claim of the assessee based on the partnership deed execution date and the receipt of payments after a specific date. The Tribunal and CIT(A) found no evidence to support the claim that the investment in the firm was made from the sale proceeds of dumpers. The Tribunal extensively discussed the evidences and upheld the addition of undisclosed income, concluding that the assessee failed to establish the investment timeline.

4. The Tribunal highlighted that the assessee's plea regarding payment to retiring partners was not supported by the evidence provided. The Tribunal found the replies from retiring partners to be similar and lacking details, indicating a lack of due payments. The Tribunal confirmed the findings of the Revenue Authorities, stating that the assessee did not provide sufficient evidence to establish the investment timeline, leading to the dismissal of the appeal.

5. The Tribunal rejected the argument for recalling its order based on the lack of opportunity for cross-examination, emphasizing that the decision was conscious and not a result of any apparent mistake. The Tribunal held that disturbing the order would amount to a review, which falls outside the purview of the IT Act. Consequently, the Misc. Application was dismissed by the Tribunal.

6. In conclusion, the Tribunal dismissed the Misc. Application, upholding its previous decision and emphasizing the conscious consideration of evidences and facts in the case. The Tribunal found no grounds for recalling its order and maintained the rejection of the appeal regarding the undisclosed income, investment claim, and lack of supporting evidence.

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