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2013 (12) TMI 600 - AT - Income TaxValidity of proceedings u/s 147/148 - Held that - Dispensation of justice should not suffer on account of a fault which is not attributable to an assessee-subject - The bonafides of the averment made by the appellant petitioner are not assailed before the Court - The Tribunal committed an error in dismissing the wrong plea made on behalf of the assessee - Decided in favour of assessee. Estimation of income - Held that - the books of account were not reliable and therefore the income was required to be estimated. Further, the estimation as made by the CIT(A) was affirmed by the Tribunal - Plea does appear in the Ground of Appeal raised by the assessee and the non-consideration of the same, constitutes a mistake apparent from record within the meaning of section 254(2) of the Act - Following CIT vs. K. M. Sugar Mills (P.) Ltd. 2004 (8) TMI 59 - ALLAHABAD High Court - An omission to consider the Ground, which appears in the Memorandum of Appeal filed by the assessee, is a mistake apparent from record within the meaning of section 254(2) of the Act - It is justified to recall the order of the Tribunal - Decided in favour of assessee.
Issues:
1. Dismissal of appeals by Tribunal based on misconception and non-consideration of certain grounds and facts. 2. Challenging the initiation of proceedings under section 147/148 of the Income Tax Act, 1961. 3. Estimation of addition at 7.5% of gross receipts by CIT(A) instead of 50%. Issue 1: Dismissal of Appeals The appellant filed a Miscellaneous Application challenging the consolidated order passed by the Tribunal, claiming that certain mistakes apparent within the meaning of section 254(2) of the Income Tax Act had crept into the order. The Tribunal had dismissed the Ground of Appeal No.1 related to the initiation of proceedings under section 147/148 for assessment years 1997-98 to 2002-03, stating that it was not pressed during the hearing. However, the appellant contended that the Ground was not withdrawn, and he had not given permission to his Counsel to withdraw it. The appellant argued that the dismissal was based on a misconception and constituted an error under section 254(2) of the Act. The Tribunal, after considering the facts, recalled the order and reinstated the appeals for fresh adjudication. Issue 2: Initiation of Proceedings under Section 147/148 The appellant challenged the initiation of proceedings under section 147/148 of the Act, stating that the proceedings were based on a retracted statement obtained during a survey and were therefore invalid. The Tribunal, after reviewing the affidavit filed by the appellant, concluded that the dismissal of the Ground of Appeal No.1 was based on a wrong plea made on behalf of the assessee. The Tribunal held that the dismissal constituted an error under section 254(2) of the Act, and thus, recalled the order for fresh adjudication of the issue. Issue 3: Estimation of Addition Regarding the estimation of addition at 7.5% of gross receipts by the CIT(A) instead of 50%, the appellant argued that the Tribunal had not considered certain points raised by the Revenue, which were similar to those adjudicated in favor of the assessee in previous cases. The appellant pointed out factual errors in the estimation made by the CIT(A) and affirmed by the Tribunal. The Tribunal found that the non-consideration of the points raised by the appellant constituted a mistake apparent from the record under section 254(2) of the Act. Therefore, the Tribunal recalled the order and directed fresh adjudication of the appeals on merits. In conclusion, the Appellate Tribunal ITAT Pune, after thorough consideration of the issues raised by the appellant, recalled the order dated 30.03.2011 and reinstated the appeals for fresh adjudication on all grounds. The Tribunal emphasized the importance of ensuring justice and rectifying errors apparent from the record to uphold the principles of fairness and legality in tax proceedings.
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