9911796707
TMI Blog1989 (2) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... icating pages and paras of the order of the Tribunal with copious reproductions of such paras with comments from the petitioner with assertions that the material on record was either not considered by the Tribunal or facts were incorrectly stated. Before we examine these assertions made in the petitions we consider it necessary to bring to focus the background in which the Tribunal came to make the order against which the present petition has been filed. 3. The assessee, M/s Orient Enterprises, is a registered firm engaged in the business of trading in coils and wire rods. For the assessment year under appeal, original assessment was made by the ITO under s. 144 on 31st Oct., 1981 on a total income of Rs. 44,37,290 as against 'nil' income declared in the return filed on 29th Aug., 1979. However, the best judgement assessment so made was cancelled by the ITO on16th Feb., 1981by invoking the provisions of s. 146 of Act. The ITO in the de nova assessment proceedings, again raised a best judgement assessment under s. 144 of the Act on22nd March, 1983determining the total income of the assessee at Rs. 54,25,937. When the assessment so made on22nd March, 1983was challenged in appeal be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined the miscellaneous application. We find that the Revenue asserts in item No. (1) that observations made by the Tribunal at page 14 para 10 in lines 11to 13 of its order are prima facie incorrect and need to be deleted. In item (2) it is contended that the observation made at pages 14, 15 and 16 in para 10 pages 23-24 in para 17, which have been reproduced in the petition and run into 2.1/2 closely typed pages of the petition, that the conclusions arrived at by the Tribunal in so far as addition on account of squared up accounts is concerned, "may kindly be recalled and decided afresh on proper appreciation of the material filed before your honours at the time or original hearing". There is also a prayer in item(3) that at pages 8 and 9, para 8 of the order of the Tribunal dealing with the submissions made by the departmental representative, the observations made are prima facie incorrect and, "are not borne out by the submissions made at the hearing by the departmental representative as well as the paper books filed either by the assessee or by the departmental representative and need to be deleted". In support of this contention in items (a), (b), (c), (d) and (f) certain pape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 10 at pages 14, 15, 16 and 17 at pages 23 and 24, are contrary to the evidence on pages 97,103,109 and 115 in Vol. I of the paper book filed by the assessee. The said papers, it is pointed out were supplied by the ITO on specific request made by the assessee and that evidence has been considered by the Tribunal. With regard to what is stated at item (3) relating to para 8 at pages 8 and 9 of the order of the Tribunal the assessee relies upon the findings of the Tribunal to the effect that the very order sheet relied upon by the departmental representative did not show that the so-called summons said to have been served upon the assessee, was ever served. With regard to the contentions at item(4) at pages 12 and 13 in para 9 of the order of the Tribunal the learned counsel for the assessee has submitted that the Department's file was produced before the Tribunal by the Departmental representative and as such, the remarks made by the Revenue in the petition are not correct. Similarly, contentions in other items have been strongly opposed with the submissions that the Revenue is challenging the adverse findings of fact and indirectly seeks a review of the order of the Tribunal. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, but closed the issues in such a manner that it could not be said that justice had been rendered. The Tribunal, therefore, spoke as it did. That was its duty We do not find, on the entirety of the facts of the case, anything left and anything not considered or considered in a manner that would strike at the root of the order of the Tribunal so as to make it an order, which needs recalling. There are no mistakes apparent from record, falling within the ambit of s. 254 of the Act, pointed out in the petition. On the other hand, the miscellaneous petition requires conclusions drawn by the Tribunal to be altered by fresh appreciation of the same evidence. This is clearly beyond the purview of s. 254 of the Act, as it tantamount to a review for which the Tribunal has no power. 13. The order of the Tribunal shows that every material fact, for and against the assessee, has been considered fairly and with due care. The Tribunal has given good reasons in support of its conclusions. Therefore, the primary facts found by the Tribunal and factual inferences drawn therefrom are not open to review. If the Revenue wants to challenge the correctness of the findings given by the Tribunal eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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