2017 (11) TMI 1866 - AT - Income Tax

Rectification of mistake - violation of provisions of section 40A(3) of the Act - in the opinion of revenue, the Hon'ble Tribunal had followed the judgment of Hon'ble Punjab Haryana High Court in the case of GURDAS GARG VERSUS THE COMMISSIONER OF INCOME TAX (APPEALS) , BATHINDA AND ANOTHER 2015 (8) TMI 569 - PUNJAB HARYANA HIGH COURT for allowing relief to the assessee for violation of provisions of section 40A(3) of the Act - the revenue without prejudice to the earlier ground for recalling the order has stated that the findings of the Assessing Officer in the assessment order has not been rightly appreciated and therefore there was a mistake in the order of the Tribunal which needs rectification. HELD THAT - The detailed findings has been recorded by Hon'ble Tribunal in para 12 wherein it has held that no cash payments were made and the addition was based only on presumptions and surmises. It has further held that payments were made by buyers directly in the present of Sub-Registrar as has been mentioned in the deeds and therefore in view of these circumstances, the Hon'ble Tribunal had rightly held that question of disallowance u/s 40A(3) does not arise. In para 13, the Hon'ble Tribunal has held that even if it is assumed that assessee must have purchased the land and had made payments in cash even then the disallowance cannot be made in view of the judgment of Hon'ble Punjab Haryana High Court in the case of Sh. Gurdas Garg. From the combined reading of the order of the Tribunal from para 12 and 13 it is observed that Hon'ble Tribunal has primarily deleted the addition by holding that the addition was made only on presumptions as no cash payments were made. The Miscellaneous Application filed by Revenue is dismissed.

Summary

Issues Involved:
1. Rectification of Mistake in Tribunal's Order
2. Violation of Provisions of Section 40A(3) of the Income Tax Act
3. Assessment of Transactions as Business Transactions
4. Review Petition Pending Before High Court

Issue-wise Detailed Analysis:

1. Rectification of Mistake in Tribunal's Order:
The revenue filed a Miscellaneous Application for rectification of an alleged mistake in the Tribunal's order dated 27.05.2016. The revenue argued that the Tribunal's reliance on the judgment in the case of Gurdas Garg Vs. CIT Vs. Bathinda was misplaced as a review petition against this judgment was pending in the High Court. The Tribunal clarified that the power to rectify a mistake under Section 254(2) of the Income Tax Act is limited to obvious errors apparent from the record. It emphasized that rectification does not cover revision or review of the order. The Tribunal found no apparent mistake in its original order and dismissed the revenue's application, stating that the revenue's request was essentially an attempt to review the order, which is not permissible under Section 254(2).

2. Violation of Provisions of Section 40A(3) of the Income Tax Act:
The Assessing Officer had made an addition under Section 40A(3) for alleged cash payments made by the assessee in violation of the Act's provisions. The Tribunal had deleted this addition, stating that no cash payments were made by the assessee, and the addition was based on presumptions and surmises. The Tribunal reiterated that payments were made directly by buyers in the presence of the Sub-Registrar, as evidenced by the sale deeds. Therefore, the question of disallowance under Section 40A(3) did not arise. Even if it were assumed that the assessee had made cash payments, the Tribunal held that the addition was not sustainable in light of the judgment in Gurdas Garg Vs. CIT Vs. Bathinda.

3. Assessment of Transactions as Business Transactions:
The revenue argued that the Assessing Officer had correctly treated the transactions as business transactions, not as investments, because the land was never transferred in the name of the assessee. The Tribunal, however, found no mistake in its order regarding this aspect. It noted that the Tribunal had already acknowledged the transactions as business transactions in para 15 of its original order. Hence, there was no error in the Tribunal's assessment of the nature of the transactions.

4. Review Petition Pending Before High Court:
The revenue contended that the judgment in Gurdas Garg Vs. CIT Vs. Bathinda, which the Tribunal relied upon, was under review in the High Court. The Tribunal dismissed this argument, clarifying that the pending review petition did not constitute a mistake apparent from the record. The Tribunal emphasized that its decision was based on the facts and circumstances of the case and the existing legal precedent at the time of the original order.

Conclusion:
The Tribunal dismissed the Miscellaneous Application filed by the revenue, finding no apparent mistake in its original order. The Tribunal reiterated that its decision was based on the absence of cash payments and the improper presumptions made by the authorities below. The Tribunal also emphasized that it does not have the power to review its own order under the guise of rectification, and the revenue's application was an impermissible attempt to reargue the case. The order was pronounced in open court on 23.11.2017.