2021 (5) TMI 815 - AT - Income Tax

Rectification petition u/s 254(2) - certain vital submissions advanced on behalf of the Revenue were ignored / not considered by the ITAT - HELD THAT -The said allegation has no basis since all the relevant findings given by the A.O. for present case, findings given by the Ld. CIT(A), the argument advanced by the Ld. Special Counsel for the Revenue and his reliance placed on various judgments, the submission of the Ld. Counsel for the Assessee alongwith various case laws relied upon by him and the rejoinder of the Ld. Special Counsel for the Revenue have been discussed in detail in the impugned order dt. 07/02/2020 and that after considering all the aforesaid facts as well as the argument alongwith various judicial pronouncement, a just decision has been taken by the ITAT. The contention of the Ld. Counsel for the Assessee that the facts of the assessees cases were different from case of Shri Brij Bhushan Singal and Ors had already been considered and thereafter it has been held that the facts of the present case were similar to the fact of the case of Shri Brij Bhushan Singal and Ors, therefore this contention of the Ld. Special Counsel for the Assessee that the ITAT omitted to take note of the submission advanced on behalf of the revenue in the impugned order was factually incorrect. In this Misc. Application the Revenue wrongly alleged that the non cognizance of the live nexus existing between the incriminating material found during the search action at various places / premises and non adjudication of the question as to what constitutes the incriminating material, the said allegation is factually incorrect. The another contention of the Department is that there was omission to take into consideration the reliance placed by the Revenue on the various decision and return a finding with regard to vital submission of the Revenue is concerned, we have already pointed out that all the submissions and the case laws relied by the Ld. Special Counsel for the revenue find place of the impugned order and after considering those submissions as well as case laws, the conclusion has been drawn by the ITAT. As already pointed out that there is no mistake apparent from the record therefore, we are of the view that the Misc. Application moved by the Department is not maintainable. In the present case, it appears that the Department wants to get the order passed by the Tribunal reviewed which is not permissible as the ITAT has no power to review its order and the right platform / forum for redressal of this grievance on any special question of law arising from the order of the ITAT would be the Hon'ble High Court under section 260A. In the present case the ITAT passed the order in consonance with judicial principle laid down by the Hon'ble Apex Court in the aforesaid referred to case of Shukla Brothers and all the four preposition of judgment stands fulfilled in the impugned order 2020 (2) TMI 786 - ITAT CHANDIGARH for the A.Y. 2008-09 viz there is adequate clarity on thought, decision has been well reasoned,the reason for decision have been well communicated and the order is well reasoned. In the present case since all the arguments alongwith the various judicial pronouncements relied upon by both the parties, were duly considered, there exists no manifest error in the decision of the ITAT. Therefore, in view of the totality of the fact as discussed herein above, we do not see any merit in this Misc. Application moved by the Department.

Summary

Issues Involved:
1. Omission to consider the submissions of Revenue regarding the applicability of the Coordinate Bench's decision in the case of Sh. Brij Bhushan Singal & others.
2. No cognizance taken by the Hon'ble Tribunal to the live nexus existing between the incriminating material found during search actions at various places/premises.
3. Non-adjudication of the question as to what constitutes incriminating material.
4. Omission to consider the reliance of the Revenue on the binding decision of the jurisdictional High Court.
5. General allegations of non-consideration of Revenue's submissions and the need for a reasoned order.

Detailed Analysis:

I. Omission to Consider Revenue's Submissions on Applicability of Coordinate Bench's Decision:
The Revenue argued that the ITAT extensively relied on the decision in the case of Sh. Brij Bhushan Singal & others without considering the distinguishing features presented by the Revenue. These distinctions included the voluntary surrender of income by the assessee, the direct link between seized documents and the assessee, and the lack of retraction by involved parties. The Revenue contended that these points were crucial and should have been explicitly addressed by the ITAT, arguing that the omission constituted a mistake apparent on the face of the record.

II. No Cognizance of Live Nexus Between Incriminating Material:
The Revenue highlighted that the ITAT failed to acknowledge the incriminating material found during various searches, which correlated with each other and substantiated the existence of cash transactions involving undisclosed income. Specific documents and statements from various entities were cited, showing a pattern of accommodation entries and bogus LTCG claims. The Revenue argued that the ITAT's order did not consider these materials adequately, leading to an apparent mistake on record.

III. Non-Adjudication of What Constitutes Incriminating Material:
The Revenue contended that the ITAT did not adjudicate on what constitutes incriminating material, despite detailed submissions on the matter. The Revenue emphasized that material found from accomplices or co-conspirators should be considered incriminating if it is relevant to the determination of income. The Revenue cited various case laws to support this argument and asserted that the ITAT's omission to address this issue constituted a mistake apparent from the record.

IV. Omission to Consider Binding Decision of Jurisdictional High Court:
The Revenue argued that the ITAT did not consider the binding decision of the jurisdictional High Court in the case of Kusum Lata Thakral, which held that the denial of cross-examination depends on the facts of each case. The Revenue also cited other cases where the opportunity for cross-examination was not deemed necessary if the statements were corroborated by other material. The omission to consider these decisions was presented as a mistake apparent from the record.

V. General Allegations of Non-Consideration and Need for Reasoned Order:
The Revenue reiterated that the ITAT's order lacked consideration of vital submissions and did not provide explicit findings on the arguments presented. The Revenue referenced the Supreme Court's observations on the necessity of reasoned judgments, arguing that the ITAT's order did not meet these standards. The Revenue sought rectification of these alleged mistakes, asserting that the ITAT has the power to rectify errors apparent on the face of the record.

Conclusion:
The ITAT, after considering the submissions of both parties, concluded that there was no mistake apparent from the record. The ITAT noted that all relevant findings, arguments, and case laws were discussed in detail in the impugned order. The ITAT emphasized that the correctness of the decision could not be challenged under the guise of rectification, as it is confined to correcting obvious and patent mistakes. The ITAT dismissed the Miscellaneous Applications, affirming that the order was well-reasoned and in accordance with judicial principles.