2012 (9) TMI 287 - AT - Income Tax

Application u/s 254 to rectify order of Tribunal on ground of mistake apparent from record - Revenue contended that there are factual errors, errors on account of non-consideration of the arguments and evidence led by the Department - Held that - It is observed that Tribunal has considered all facts in totality and has come to the conclusion and therefore, we find no mistake apparent from record. The mistake u/s 254(2) has to be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record. It is an application u/s 254(2) which has got limited application, it should be a glaring and patent mistake, the mistake should not require any long drawn process of reasoning. It does not cover the review of the order, as was the intention of the Revenue, in the present application, who had been pointing out the fault in understanding the facts of the case by the ITAT and wanted the order to be re-written. Each and every mistake pointed out by the Revenue was capable of full debate and in long drawn process which is not permitted in law. Hence, Miscellaneous Application filed by the Revenue is clearly outside the scope and ambit of the provisions of section 254(2) and are thus dismissed - Decided against Revenue

Issues Involved:
1. Factual errors in the Tribunal's order.
2. Non-consideration of arguments and evidence led by the Department.
3. Non-consideration of the Department's written arguments on 33 points.
4. Revised mistake regarding the identity of the jewelry declared under VDIS and sold in the transaction in question.

Detailed Analysis:

1. Factual Errors in the Tribunal's Order:
Issue A:
- Contention: The Tribunal wrongly attributed the Department's premise as a factual conclusion regarding the appellant's engagement in the jewelry business up to the assessment year 1997-98.
- Tribunal's Response: The Tribunal considered cumulative circumstances, including reasons recorded by the AO for reopening assessments for 1996-97 and 1997-98, which were subsequently dropped, leading to the conclusion that the appellant was engaged in the jewelry business up to 1997-98. No mistake found.

Issue B:
- Contention: The Tribunal ignored the statement of Sh. Jatinder Kumar recorded on 06.01.2003.
- Tribunal's Response: The statement dated 06.01.2003 was considered in para 54 and 88(b) of the Tribunal's order. No mistake found.

Issue C:
- Contention: The Tribunal did not consider the dispatch register produced by the Department.
- Tribunal's Response: The Tribunal considered the totality of facts, including the dispatch register, and concluded that the appellant had taken the shop on rent. No mistake found.

Issue D:
- Contention: The Tribunal ignored the argument that the appellant created a facade of being a jewelry dealer.
- Tribunal's Response: The Tribunal considered the totality of facts, including the statement of the landlord and registration with Sales Tax Authorities, and rejected the Department's argument. No mistake found.

Issue E:
- Contention: The Tribunal did not consider para 7 of the application u/s 144A of the Act.
- Tribunal's Response: The Tribunal considered the application u/s 144A in paras 62 and 63. Para 7 was an alternative submission and did not support the Department's case. No mistake found.

Issue F:
- Contention: The Tribunal wrongly accepted Sh. Vinod Kumar's statement.
- Tribunal's Response: The Tribunal considered the assessment order in the case of M/s. Vinod Jewellers in detail. No mistake found.

Issue G:
- Contention: The Tribunal did not consider the argument that no seller would deny selling jewelry to the appellant.
- Tribunal's Response: The Tribunal considered the totality of facts and decided the issue accordingly. No mistake found.

Issue H:
- Contention: The Tribunal failed to ascertain the truth from the appellant's statements.
- Tribunal's Response: The Tribunal considered all statements and concluded based on totality of facts. No mistake found.

Issue I:
- Contention: The Tribunal did not consider the argument that the appellant's confessional statements were not under pressure.
- Tribunal's Response: The Tribunal considered the circumstances and the presence of the appellant's counsel during the recording of statements. No mistake found.

Issue J:
- Contention: The Tribunal allowed the appellant to retract statements without proper basis.
- Tribunal's Response: The Tribunal considered legal precedents and the totality of circumstances. No mistake found.

Issue K:
- Contention: The Tribunal wrongly held that statements recorded by the DDIT (Investigation) were invalid.
- Tribunal's Response: The Tribunal followed co-ordinate Bench decisions and considered the legal position. No mistake found.

Issue L:
- Contention: The Tribunal did not consider certain statements in totality.
- Tribunal's Response: The Tribunal considered all statements and circumstances. No mistake found.

Issue M:
- Contention: The Tribunal did not consider the argument about identical facts between the appellant and Sh. Raj Kumar.
- Tribunal's Response: The Tribunal rejected the contention that facts relating to different assessees cannot be considered. No mistake found.

Issue N:
- Contention: The Tribunal did not deal with the argument about planted letters.
- Tribunal's Response: The Tribunal considered the letters and concluded accordingly. No mistake found.

Issue O:
- Contention: The Tribunal wrongly applied the Special Bench decision in the case of Sh. Manoj Aggarwal.
- Tribunal's Response: The Tribunal relied on the ratio from the Special Bench decision after considering the facts. No mistake found.

2. Non-Consideration of Arguments and Evidence Led by the Department:
Issues P to S:
- Contention: The Tribunal did not consider certain arguments and evidence, including the PAN application form, a letter from Sh. Kapil Kumar, market rates for gold and silver, and the proper course for additional grounds.
- Tribunal's Response: The Tribunal considered all arguments and evidence in the respective paras of its order. No mistake found.

3. Non-Consideration of the Department's Written Arguments on 33 Points:
- Contention: The Tribunal did not consider the Department's written submissions.
- Tribunal's Response: The Tribunal considered all submissions and evidence. The detailed analysis of each point showed no mistake apparent from the record. No mistake found.

4. Revised Mistake Regarding Identity of Jewelry Declared Under VDIS:
- Contention: The Tribunal did not examine the identity of the jewelry declared under VDIS and sold in the transaction in question.
- Tribunal's Response: The Tribunal found that the case of CIT vs. Tejinder Singh HUF was not applicable as the appellant was engaged in the jewelry business. No mistake found.

Conclusion:
The Tribunal found no mistakes apparent from the record in its order dated 26.06.2009. The miscellaneous applications of the Revenue were rejected as they sought a review of the order, which is beyond the scope of section 254(2) of the Income Tax Act.

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