2019 (4) TMI 499 - AT - Income Tax

Rectification of mistake u/s 254 - mistake apparent on record - contrary statement in affidavit & u/s 131 - AO has failed to provide statement of Mr. Neelamegan and opportunity to cross examine - use of credit cards by third party - HELD THAT - Everybody is known to the fact that no credit card can be used by a third party as signature of the card holder is mandatory while using credit card in the swiping machine. Since the assessee was very much aware of the above facts, which was elaborately narrated in the grounds of appeal as well as written submissions filed before this Tribunal on 04.06.2018, we do not find any merits that the above statement warranting any cross examination. By no stretch of imagination, it could be accepted that with the permission of the assessee, Shri Neelamegan has used the credit card, because, while using the credit card, the signature of card holder is essential and no evidence was placed on record to establish by way of producing copies of swiping machine receipts duly putting signature forgery of the assessee by Shri Neelamegan either before the Assessing Officer or before the CIT(A) or even before the Tribunal and moreover, no supporting evidence was placed on record along with the Declaration cum Affidavit filed before the Tribunal on 20.07.2018 to affirm the statements made in the affidavit. Thus, the assessee has not established with evidence that Shri Neelamegan has used the credit card of the assessee. Shri Neelamegan has deposed wrong statement in the affidavit, which was contrary to the statement recorded under section 131 of the Act and therefore, the Tribunal has not taken into account of the same in its order dated 16.08.2018. Thus, we find no mistake apparent on the face of the order passed by the Tribunal - Decided against assessee.

Summary

Issues:
Review of assessment order based on failure to provide statement and cross-examination opportunity.

Analysis:
The appellant sought a review of the Tribunal's order for the assessment year 2009-2010, alleging that the Assessing Officer did not provide the statement of Mr. Neelamegan and an opportunity for cross-examination. The appellant argued that this failure amounted to a denial of natural justice principles, urging the assessment order to be set aside. The appellant also contended that Mr. Neelamegan's declaration contradicted the Assessing Officer's findings and requested a re-adjudication with the opportunity for the appellant to be heard.

Upon careful consideration of the facts and materials, the Tribunal found no apparent mistake in its order. The Deputy Registrar affirmed that a review under section 254(2) of the Act was not permissible. The Tribunal had already adjudicated the issue in the appeal, emphasizing that the impugned assessment order under section 143(3) of the Act mentioned Mr. Neelamegan's statement, which was recorded under section 131 of the Act. The Tribunal highlighted Mr. Neelamegan's assertion that no credit card could be used by a third party without the cardholder's signature, discrediting the appellant's claims.

The Tribunal rejected the appellant's argument that Mr. Neelamegan had used the credit card with the appellant's permission, noting the absence of evidence such as swiping machine receipts with the appellant's signature. The Tribunal emphasized that the appellant failed to provide supporting evidence to establish Mr. Neelamegan's use of the credit card. It was concluded that Mr. Neelamegan's contradictory statements and lack of evidence led to the dismissal of the appellant's petition. The Tribunal found no error in its order and dismissed the miscellaneous petition filed by the appellant.

In conclusion, the Tribunal upheld its decision, emphasizing the lack of evidence supporting the appellant's claims regarding the unauthorized use of the credit card. The dismissal of the petition was based on the failure to establish Mr. Neelamegan's involvement and the inconsistencies in his statements. The Tribunal's decision was final, and the appellant's request for a review was rejected.