9911796707
TMI Blog2003 (8) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... s and in law and in the absence of any such, effective show-cause notice indicating what is the case of the Department which the assessee has to meet, the impugned order passed by the Respondent ought to have been set aside and quashed by the first appellate authority and failure to do so has vitiated his orders and hence the action and orders under section 144 by the Respondent and upholding the same by the first appellate authority must be set aside and quashed and declared as unsustainable both on facts and in law. 3. The authorities below have erred both on facts and in law in invoking section 68 of the Income-tax Act which has no application whatsoever in the facts of the present case. 4. The impugned order proceeds on the assumption that every money received by the assessee towards share capital or towards loans or other liabilities repayable, would constitute income and be liable to tax automatically. There is no such provision in law nor any principle to assume every receipt as income and hence the assumption with which the respondent has proceeded is totally illegal and unsustainable apart from being perverse and hence the impugned orders are liable to be set aside and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent had never issued a show-cause notice either to raise any demand or to charge any interest and hence neither demand of tax nor interest under section 234B and/or 234C could have been raised and, therefore, the entire demand sought to be raised against the Appellant is totally illegal and unsustainable both on facts and in law and must be quashed. 10. The impugned action of the Respondent in initiating action for penalty without any application of mind is evident from the impugned order and hence the direction for penalty proceedings being initiated also deserves to be set aside and quashed as there is complete non-application of mind by the Respondent in every respect: 2.1 The appeal was first taken up for hearing on21-5-2001when Mr. R. Santhanam,C.A.and Mrs. Vandana Sharda, Advocate appeared for the appellant-assessee. Mr. Santhanam, instead of arguing thereafter groundwise, proceed to argue the appeal on a consolidated basis and he submitted that all the documents, copies of which have been placed by the appellant in its Paper Book containing 85 pages, are the copies of certified copies procured by the assessee from the Assessing Officer and the CIT(A). To be speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sehgal placed at page 17 of the Paper Book arc the ample evidence to prove his statement with regard to claim that the documents copies of which are placed at pages 1 to 16 of the Paper Book had been filed by the directors of the appellant-company before the Assessing Officer on 15-2-2000 and that the documents copies of which are placed at pages 23 to 79 of the Paper Book were filed before the CIT(A) and pleaded for the permission to proceed with his submissions on the merits of the appeal. 2.3 Mr. Santhanam was allowed to proceed with his submissions on the merits of the appeal subject, however, to the verification of veracity of his statement from the Departmental Representative and the appellant's assessment records, but on this the learned Departmental Representative sought permission to submit his arguments against the statement and claim made by Mr. Santhanam with respect to the alleged fact of certain documents having been filed before the Assessing Officer and also the alleged claim that the documents, copies of which are at pages 18 to 79 of the Paper Book were before the CIT(A). The learned Departmental Representative was allowed to argue his case. 2.4 The learned D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stroyed. The learned Departmental Representative further submitted that only because the CIT(A) has supplied the certified copies of documents, which were not admitted being additional evidence the assessee cannot plead that the same were before the CIT(A). In view of the above submissions, the learned Departmental Representative submitted that since the statement of Mr. Santhanam, cast a serious allegation on the honesty, sincerity and integrity of not only the officers of the rank of Commissioner and Dy. Commissioner of Income-tax, but of the whole of the Income-tax Department as such and if found to be correct may lead to serious consequences for the concerned officers. In view of these facts, the learned Departmental Representative pleaded that the appeal may be decided after first verifying the truthfulness of the statement and claim made by Mr. Santhanam in the open court and also for want of the truthfulness of the certificate given by the appellant's director on the Index Page of the Paper Book as well as the statement made by the director, Shri Ashish Sehgal son of Late Shri B.K. Sehgal in the affidavit placed at page 17 of the Paper Book. 2.5 According to the learned De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, the Bench proceeded to hear Mr. Santhanam on the merits of the appeal. 5. Mr. Santhanam at the outset submitted that the appellant's director Mr. Ashish Sehgal along with other director Mr. Dinesh Sehgal had appeared before the Assessing Officer on 15-2-2000 and had filed the documents/details, copies of which are placed at pages 1 to 16 of the Paper Book and it was the Assessing Officer who adjourned the hearing of his own and without requiring the director to furnish any further reply or detail or document or the books of account. According to Mr. Santhanam he was making the submission that the adjournment was by the Assessing Officer of his own, was based on his personal experience and the knowledge regarding the day to day working of the Income-tax Department the conduct of Assessing Officers, who, according to him, are in the habit of ignoring or misplacing the important documents furnished during the course of hearing and this is being done to harass the innocent and honest tax-payers. According to Mr. Santhanam so far as the appellant's case is concerned, the Assessing Officer seems to have not recorded the fact of furnishing of the documents by the directors on 15-2-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, assumption of jurisdiction by the Assessing Officer to invoke the provisions of section 144 for making ex parte assessment was illegal and bad in law. 5.3 Another plea of Mr. San than am was that under the law, the Assessing Officer before proceeding to make an assessment under section 144 of the Act, should have given opportunity to the appellant and should have issued a show cause as envisaged in the provisions of section 143(2) of the Act and since in the present case, the Assessing Officer has not issued any show-cause notice and also has not allowed an opportunity to the appellant before exercising the power vested under section 144 of the Act, ex parte assessment order is illegal and bad in law, which is liable to be quashed. In support of this submission, Mr. Santhanam relied on the decision of the Tribunal in the case of 41 ITD 273. 5.4 Mr. Santhanam further submitted that under the existing provisions of section 144 itself the assessment cannot be framed u/s 144 of the Act unless and until a proper show-cause notice allowing the assessee an opportunity of being heard is served and in the present case no such showcause notice having been issued and served up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Santhanam the loans were from parties, namely, (1) M/s. Concord Capital Management Co. Ltd., Und Floor, Hauz Khas,New Delhi(2) M/s. Umrao Exports (P.) Ltd., B-4/35, Paschim Vihar, New Delhi - 63, M/s. Pacquik Industries Ltd., C-120, 1st Floor, New Rajinder Nagar, New Delhi - 60 and Mr. Dinesh Sehgal, New Delhi and complete details were filed before the CIT(A) on his requirement and consequently, the assessee had discharged its onus by section 68 of the Act. In view of these facts, Mr. Santhanam submitted that the Assessing Officer was not justified in considering the unsecured loans as assessee's income under section 68 of the Act. (iv) Concluding his submissions Mr. Santhanam stood by his statement that documents, copies of which were placed at pages 1 to 76 of the Paper Book were filed under covering letter copy of which is placed at page 23 of the Paper Book by the assessee Director before the Assessing Officer on 15-2-2000 but have been ignored by the Assessing Officer with the motive to make an ex parte assessment under section 144 of the Act, which has resulted in uncalled for and undue harassment to the honest and innocent tax-payer and that documents, copies of which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the paras (1) to (3) above are true and correct to the best of my knowledge and belief. Place: New Delhi Sd/- Date: 21-05-2001 Deponent" (ii) Paper Book which was returned to Mr. Santhanam on21-5-2001for getting the same signed by the Managing Director or director of appellant's company and to submit the same on22-5-2001was refurnished. The certificate give on Index page and other 85 pages of the Paper Book bear the signature of director of the assessee-company, Mr. Ashish Sehgal. (iii) Copy of acknowledgement for having furnished the return of income for assessment year 1997-98 by the appellant vide receipt No. 0621 dated 30-11-1997, statement of assessable income, notice for second annual general meeting of the shareholders of the appellant-company dated 1-2-1997, Director's Report and Auditor's report of the same, Balance Sheet and Profit and Loss Account for the period ending 31-3-1997 and Schedules 'A' to 'F'. 8. The learned Departmental representative, on the other hand, produced the Income-tax assessment records of the appellant-company for the assessment year 1997-98 in origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing else. The assessment records were also shown by the Bench to Mr. Santhanam for his perusal and to make his comments if he so likes. After perusal of the assessment records, Mr. Santhanam simply stated that since the records were in the custody of the Revenue, he cannot spell out as to under what circumstances or how and why the documents furnished on15-2-2000are not available on record. 10. Since Mr. Santhanam had pleaded that the documents, copies of which are claimed to have been placed at pages 23 to 79 of the Paper Book, were furnished before the CIT(A) on his requisition, he was asked to substantiate this statement. Thereupon, the assessee's counsel Mr. Santhanam was asked to furnish the certified copies claimed by him to have been procured from the Assessing Officer of the documents, copies of which have been claimed to have been placed at pages 1 to 16 of the Paper Book in original and also the copies of applications furnished by the assessee before the Assessing Officer asking for the certified copies of the documents. In response to this requirement of the Bench, Mr. Santhanam expressed his inability to produce any evidence in support of his statement, except the cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the copy of return of income for assessment year 1997 -98 along with enclosures, Statement of assessable income, notice for calling Second Annual General Meeting of the Shareholders, Director's Report, Auditor's report, Balance Sheet and Profit and Loss Account as on 31-3-1997 and Schedules 'A' to 'F', notices under section 143(2) dated 2-7-1998,3-6-1999, 14-7-1999, notices under section 142(1) of the Act dated 13-12-1999 and 6-1-2000. As per notice under section 142(1) of the Act, the appellant was required to furnish the following: (i) Books of account for the financial year 1996-97 relevant to the assessment year 1997-98. (ii) Bank Statements for the above period. (iii) List of persons from whom the advances have been taken. 11.1 Since there was no other document on record, the learned Departmental Representative pleaded that he has not to furnish any other document. 12. Since both the parties i.e. Mr. Santhanam as well as the learned Departmental Representative had stuck to their respective stands regarding truthfulness of the statement and claim made by Mr. Santhanam not only on 21-5-2001, but also on 22-5-2001 and after the Bench having shown the assessment recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 Page Meeting of the shareholders of the assessee-company (iv) Directors report dated 1-9-1997 1 Page (v) Auditor's report dated 1-9-1997 without annexure. 3 Pages (vi) Balance Sheet and Profit and Loss account for 7 Pages the year ending 31-3-1997 along with Schedules A to F. (vii) T.D.S. Certificates 4 Pages (viii) Copy of Intimation under section 143(1)(a) 1 Page of the Act dated 27-2-1998. (ix) Notices under section 143(2) of the Act dated 3 Pages 2-7-1998,3-6-1999 and 14-7-1999. (x) Notices under section 142(1) of the Act 1 Page dated 13-12-1999 and 6-1-2000. (xi) Notice under section 274 read with section 271 3 Pages of the Act dated 13-12-1999. In addition to the above, the assessment records contained the assessment order under section 144 dated31-3-2000, demand notice, penalty notices and acknowledgement receipts etc. (xii) The records also contained order sheet running in two pages, the contents of which are as under: 12.2 The copies of documents, originals of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... let us know. Please acknowledge the receipt." 12.3 The covering letter under which the appellant is claiming to have furnished the details/documents, copies of which are at Pages 23 to 78 of the assessee's Paper Book, before the CIT(A) reads as under: "To The Commissioner of Income-tax (Appeals)-I. Room No. 397,C.R.Building,New Delhi. In the Case of : M/s. Finquik Finance Pvt. Ltd. Assessment year 1997-98 Sub. : Application u/rule 46A(1) of The Income-tax Act, 1961. Respected Sir, With reference to the aforesaid appeal, we wish to pray before your goods elf to admit the additional evidence enclosed along with our submissions. The additional evidence are required to be submitted to explain/clarify the justifications of Receipt of Share Application Money and Unsecured Loans by the assessee-company. We pray before your honour to admit the same." 12.4 From the copies of various documents placed at Pages 23 to 78 of the Paper Book, it is found that copies of documents, whose copies are placed at pages 1 to 16 of the Paper Book and claimed to have been filed before the Assessing Officer, are also included in the evidence which was claimed by the appellant befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant on 15-2-2000, the only and the only conclusion, which a prudent person will arrive at, will be that the appellant had not filed any of the documents - copies of which are placed at pages 1 to 16 of the Paper Book; before the Assessing Officer and once this conclusion is arrived at the consequential conclusion has to be that: (i) The appellant's director had not filed any detail or document as claimed by Mr. Santhanam, before the Assessing Officer on15-2-2000; (ii) Neither there was any question of getting the certified copies of any of these documents from the Assessing Officer nor Mr. Santhanam has been able to prove it by any direct or indirect evidence. He was not in a position to furnish any evidence even for having applied for copies of any of these documents; (iii) The statement of Mr. Santhanam that "the director of the appellant had filed the documents, copies of which are placed at Pages 1 to 16 of the Paper Book, for the Assessing Officer on 15-2-2000" and that "the copies placed at pages 1 to 16 of the Paper Book" were the photo copies of certified copies procured by the appellant from the Assessing Officer is not substantiated by any direct or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is adjourned to24-2-2000" but it is not so, rather the entry reads as-- "....Case adjourned to24-2-2000on their request". This wording of the entry, which had been duly signed by the director who had signed the entry dated 31-1-2000, proves beyond any doubt that the adjournment on 15-2-2000 was allowed by the Assessing Officer on the request of the directors and not of his own and therefore, no documents, detail or information or books of account were furnished/produced before Assessing Officer. Had the directors furnished any documents or details or produced the books of account then the director would not have signed the entry without getting incorporated the fact of furnishing of the documents etc. or, at least there would have been some reference to these documents in the letters submitted for copies, but as is clear from the copies of all the applications furnished by the assessee (contents of which have already been reproduced in the earlier part of this order) that the assessee had never asked for copy of any of these documents. (vi) Similarly and for there as one stated as above, the statement of the director made in the affidavit dated 2-5-2001 and 21-5-2001 are hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A) on his requisition is concerned, when the Bench asked Mr. Santhanam to substantiate his statement, he instead of producing any evidence in this respect simply tried to stock to his statement that the documents were required by the CIT(A) and that it is the habit of Revenue Authorities to retract their stands later on. 12.7 We after considering the statement of Mr. Santhanam and the copy of the appellant's letter written to the CIT(A) on 31-1-2001 placed at page 18 of the Paper Book have no hesitation in holding that the statement of Mr. Santhanam is not corroborated by any evidence - direct or indirect or circumstantial and, therefore, has to be held to be false - having been made knowing the same to be false and with the intention to mislead the Bench so that the Bench may get biased against the Revenue authorities, especially the CIT(A). 12.8 In view of the above, we have found the statement of Mr. Santhanam made during the course of hearing of the appeal on 21st May and 22nd May, 2001 and the statement of the director of the Appellant-company made in the affidavits and also the certificate given by the director on the Index page of the Paper Book as false having been m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments. This also belies the assessee's claim. (iii) Without prejudice to above, the appellant's admission and request in the letter dated31-1-2001at page 18 of the Paper Book, requesting the CIT(A) to admit the additional evidence further belies the claim of both Mr. Santhanam and the director of the assessee-company. 12.10 Before parting with this aspect of the matter, we would like to consider the contents of appellant's written submissions made before the CIT(A) as contained in first and 2nd paragraph, copy at pages 19 to 22 of the Paper Book, which read as under: "With reference to the aforesaid case and subject, we wish to state and submit that the Assessing Company could not respond to the notices of the Assessing Officer as all the notices received by the assessee-company has been sent to the Auditor of the company. The directors of the company were under impression that the auditor is attending the case. On receipt of notice dated6th Jan., 2000, Mr. Ashish Sehgal attended the hearing on31st Jan., 2000and noted the various requirements of the Assessing Officer for finalising the case and the case was adjourned to8th Feb., 2000. On15th Feb., 2000Mr. Ashish Sehgal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e director. Further these applications having been filed during the period between 26-2-2001 to 2-5-2001 i.e., after the order of the CIT(A) which is dated 31-1-2001 go to show that the Assessee rightly/correctly/truly, claimed these documents in its letter dated 31-1-2001 filed before the CIT(A), as 'additional evidence'. 12.14 In view of the above, we are of the opinion that truthfulness of the statement of Mr. Santhanam made during the course of hearing of the appeal and of the director, Sh. Ashish Sehgal made in the affidavits and by way of certificate on the Index page of the Paper Book remained unsubstantiated and the concept of preponderance of probabilities also belies their statements. 12.15 Documents placed at pages 80 - 83 which are, copy of Post Office receipt for dispatch of Registered letter to the appellant, Notice under section 143(2), Power of Attorney and Notice under section 143(2), are, however, definitely the copies of certified copies procured by assessee from Assessing Officer, but this do not proves the truthfulness of their statements. Similarly the documents placed at pages 18 - 79 are the copies of certified copies procured from CIT(A), but, since CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed13-12-1999and6th January, 2000, the assessee was specifically required to produce the evidence in-tiupport of genuineness of the share application money and unsecured loans and also to produce the books of account. 15.1 As admitted by the assessee in its reply dated 31-1-2001 filed before the CIT(A), the appellant did not comply with any of these notices i.e., neither the appellant appeared nor furnished any detail or produced books of account or sought adjournments in response to any of these notices, however, it was only on 31-1-2000 that one of appellant's director, Mr. Ashish Sehgal appeared before the Assessing Officer but still without any detail, document and books of account. Though the Assessing Officer could have framed the assessment ex parte under section 144 for assessee's default for non-complying with the terms and conditions of any of the notices issued under sections 143(2) and 142(1) of the Act, but the Assessing Officer still probably keeping in view of the principles of natural justice adopted an approach which we appreciate, acknowledged the presence of the director on 1st January, 2000 and allowed another opportunity requiring the direction of Sh. Ashish S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in another notice under sections 143(2) dated14-7-1999was sent by registered post fixing the case for3-8-1999. None attended on3-8-1999. Thereafter, notices under section 143(2) and 142(1) dated13-12-1999were issued by registered post fixing the case for22-12-1999asking the assessee to produce books of account, bank statements. No compliance was made in response to these notices. Thereafter on6-1-2000, notice under section 142(1) was issued by registered post fixing the case for18-1-2000. None attended on18-1-2000. On 31-1-2000, Sh. Ashish Sehgal, director appeared and he was asked to file details of expenses, nature of business, and to lead evidence under section 68 in respect of share capital and unsecured loans, interest to unsecured creditors. Proceedings were adjourned to8-2-2000. However, on15-2-2000, Sh. Ashish Sehgal and Sh. Dinesh Sehgal, directors appeared and the case was adjourned to24-2-2000on their request. None attended on24-2-2000. In view of this, I proceed under section 144. From the balance sheet, it is noticed that share application money has increased from Rs. 10,24,000 to Rs. 19,90,000 i.e., by Rs. 8,66,000 and unsecured loans have increased from Rs. 7,555 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon it to explain the entries in its books of account by way of introduction of share capital money and unsecured loans, these additions together with the interest on the unsecured loans is confirmed: 15.5 It was in the light of the aforesaid facts and circumstances that Mr. Santhanam had made his submissions on merits when the appeal was heard on21-5-2001. 16. On22nd May, 2001, Mr. Santhanam was again given an opportunity to argue on merits and in response to that he reiterated the submissions made on22-5-2001, but since the learned Departmental Representative was not heard on21-5-2001, he was allowed an opportunity to argue his case on merits. 17. The first objection raised by the learned Departmental Representative was that the grounds listed by the appellant were argumentative and explanatory and, therefore, required no consideration by the Hon'ble Bench. The learned Departmental Representative then submitted that the decision of the Hon'ble Supreme Court in the case of Stellar Investment Ltd. is of no help to the appellant because after the decision of the Hon'ble Delhi High Court in the case of Stellar Investment Ltd. Full Bench of Hon'ble Delhi High Court itself had, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable to the appellant's case because in that case the credits were in the Bank account of the daughters, whereas, the addition had been made in the hands of father. It was in view of these facts that it was held that since the amounts received by daughters were deposited in their Bank account, the same could not be treated as father's income. He, therefore, submitted that the amounts having been found credited in the appellant's books of account, section 68 of the Act was rightly applied. The learned Departmental Representative further submitted that even if it is presumed that documents, copies of which are placed at pages 1 to 16 of the Paper Book, were filed before the Assessing Officer, then also the details therein were not sufficient to discharge the onus put on the assessee by section 68 of the Act, especially because there were no confirmations from the creditors. With regard to the CIT(A)'s order for not admitting the 'additional evidence', the learned Departmental Representative submitted that keeping in view the appellant's failure to comply with the terms of notices issued under sections 142(1) and 143(2) of the Act, the assessee had lost its right for getting the ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Tribunal reported in 41 ITD 273. (b) We, after having considered the provisions of section 143, decision of the Tribunal and also the facts and circumstances of the present case, are of the opinion that first of all there is no such requirement of law and if at all it was then the Assessing Officer had met with this requirement by exempting the assessee's failure to comply with various notices under sections 143(2) and 142(1) except the absence on 24-2-2000. So far as the decision of the Tribunal is concerned, the same being distinguishable on facts, is not applicable. This plea of the appellant, therefore, also fails. (iii) (a) Another plea taken by Mr. Santhanam was that in view of the 1st 2nd proviso to section 144, the Assessing Officer should have allowed an opportunity to the appellant by issue and service of a show-cause notice which has not been done and, therefore, exercise of power under section 144 was bad in law and illegal. (b) We are unable to accept this argument of Mr. Santhanam because third proviso to section 144 states that there is no necessity of providing any opportunity or serving a showcause notice as required by 1st and second proviso to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that "even if it be assumed that the subscribers to the increased 'share capital' were not genuine, never the less, under no circumstances, can the amount of 'share capital' be regarded as undisclosed income of the assessee" are not correct and the Supreme Court having not said anything on this point, the Decision of Full Bench in case of Sophia Finance Ltd. still holds good.Consequently, the Assessing Officer had valid power to verify the genuineness of the credits found recorded in the assessee's books of account which had been acknowledged by the assessee itself by showing the credits in the Balance Sheet. According to the learned Departmental Representative, the head under which the credits appear is not relevant and, therefore, the decision of Full Bench of Hon'ble Delhi High Court in the case of Sophia Finance Ltd. still holds good and that being the position, the Assessing Officer in the present case was quite justified in considering the credited amount, in absence of any evidence with regard to the genuineness of the same, as appellant's income for the assessment year 1997-98 by exercising power under section 68 of the Act read with section 144 of the Act. 22. We have c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into. It is evident that even if it be assumed that the subscribers to the increased share capital were not genuine, nevertheless, under no circumstances, can the amount of share capital be regarded as undisclosed income of the assessee. It may be that there are some bogus shareholders in whose names shares had been issued and the money may have been provided by some other persons. If the assessment of the persons who are alleged to have really advanced the money is sought to be reopened, that would have made some sense but we fail to understand as to how this amount of increased share capital can be assessed in the hands of the company itself." 22.3 From the decision of the Hon'ble High Court what is evident is that the findings of the Tribunal for setting aside the order under section 263 of the Act were found to be the "findings of facts" and that is why the petition under section 256(2) of the Act was rejected. But so far as the observations that "It is evident that even if it be assumed that the subscribers to the increased share capital were not genuine, nevertheless, under no circumstances, can the amount of share capital be regarded as undisclosed income of the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner's petition under section 256(1) of the Act]. 22.7 On the aforesaid facts, the Hon'ble Full Bench of the High Court of Delhi, at Pages 109 and 110 held as under: "In our opinion, a question of law does arise and we, therefore, direct the Tribunal to state the case and refer the following reframed question to the court: "Was the Tribunal right in setting aside the order of the Commissioner under section 263 of the Income-tax Act and in holding that the assessment order of the assessee could not be said to be erroneous or prejudicial to the Revenue?" 22.8 The Hon'ble High Court before arriving at the findings and after considering the nature of enquiries liable to be conducted for the purpose of section 68 of the Act, at pages 104 and 105, observed as under: "If the amount credited is a capital receipt then it cannot be taxed but it is for the Income-tax Officer to be satisfied that the true nature of the receipt is that of capital. Merely because the company chooses to show the receipt of the money as capital, it does not preclude the Income-tax Officer from going into the question whether this is actually so. Section 68 would clearly empower him to do so. Where, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a sum as income of the assessee which is liable to be taxed in the previous year in which the entry is made in the books of account of the assessee." 22.9 The Hon'ble High Court after having observed as above, went on to consider the decision of Delhi High Court itself in the case of Stellar Investment Ltd. and at page 105 observed as under: "In the case of Stellar Investment Ltd. [1991] 192 ITR 287 (Delhi), the Income-tax Officer had accepted the increased subscribed share capital. Section 68 of the Act was not referred to and the observations in the said judgment cannot mean that the Income-tax Officer cannot or should not go into the question as to whether the alleged shareholders actually existed or not. If the shareholders are identified and it is established that they have invested money in the purchase of shares then the amount received by the company would be regarded as a capital receipt and to that extent the observations in the case of Stellar Investment Ltd. [1991] 192 ITR 287 (Delhi), are correct but if, on the other hand, the assessee offers no explanation at all or the explanation offered is not satisfactory then the provisions of section 68 may be invoked. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the opinion that the 'DR' efforts to distinguish the Decision of Hon'ble Supreme Court in case of Stellar Investment Ltd. on the plea that in that decision he had not referred to section 68 of the Act and therefore, the Decision of Hon'ble Supreme Court was only on the facts of the case and therefore decision of Full Bench of Delhi High Court in case of Sophia Finance Ltd. shall survives, we are unable to accept this interpretation of the three decisions because, in case of Stellar Investment Ltd., the conclusion of the Commissioner that "the Assessing Officer did not carry out a detailed investigation inasmuch as there had been a device of converting black money into white by issuing shares with the help of formation of an investment company. The Commissioner of Income-tax further held that the Assessing Officer did not make enquiries with regard to the genuineness of the subscribers of the share capital", shows that the reason for setting aside the Assessment Order was the failure of the Assessing Officer to carry out detailed investigations with regard to the genuineness of the 'share capital' and the 'subscribers' of the 'share capital', which in other words, was to inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re some bogus shareholders in whose names shares had been issued and the money may have been provided by some other persons. If the assessment of the persons who are alleged to have really advanced the money is sought to be reopened, that would have made some sense but we fail to understand as to how this amount of increased share capital can be assessed in the hands of the company itself' have been revived and consequently we are of the opinion that the decision in the case of Stellar Investment Ltd. still survives, through, in our opinion subject to the fact that it cannot be applied Blindly or without making inquiries, though, of course, to the limited extent (as discussed here under) under section 68 of the Act: (i) In view of the above we are of the opinion that the decision in case of Stellar Investment Ltd. still survives but to the extent that it applies to a case of a Public Limited Company only and still not Blindly because, in our opinion, in that case also the Company has to comply with the requirements of section 68 to the following extent: (a) That the credits found recorded in its books of account, in fact, were on account of 'share capital' or 'share application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te different because a Private Limited Company is a closely held Company. The founders or the functionaries or persons in control of the affairs of such company are bound to be in the knowledge of the existence/genuineness of the persons whom they want to be shareholders of such company and, therefore, they cannot claim exemption as may be available to a Public Limited Company. Consequently, we are of the opinion that in the case of Private Limited Company the decision in the case of Stellar Investment Ltd. can be applied only if it succeeds in establishing: (a) The existence/identity of the applicant paying share application money; (b) Capacity of the person concerned Subscriber; (c) Genuineness of the transaction. In other words, in case of a Private Limited Company, the Company has to discharge the onus put under section 68 of the Act i.e., a Private Limited Company has to prove all the three aforesaid ingredients before pleading that the said share application money cannot be considered as income under section 68 of the Act. (iv) So far as the present case is concerned, we are, therefore, of the opinion that the same being of a Public Ltd. Company is fully covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Company are in the complete knowledge of the persons whom they prefer to make shareholders. In other words it is the only nature of inquiry to be made by the Assessing Officer and not his powers under section 68 of the Act, which defer from case to case. 22.14 In other words, if the Public Limited Company is able to give a satisfactory explanation to establish that the 'share capital' or the 'share application money' had been received through proper Channel i.e., through Application for allotment of Shares or through Call Notice as the case may be then irrespective of the fact that the share capital or share application money might have been contributed by some one else (on behalf of the concerned Subscriber) the amount cannot be considered as assessee's income under section 68 of the Act. 22.15 In view of the above, we are of the opinion that whether the decision in the case of Stellar Investment Ltd., stands overruled by the Full Bench decision of the Hon'ble Delhi H.C. in the case of Sophia Finance Ltd. or survives as a result of decision of the Hon'ble Supreme Court, the law, so far as 'share capital" or 'share application money' in the case of a Public Limited Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is concerned it is now established fact that the evidence available with the Assessing Officer while completing the assessment under section 144 on 31-3-2000 was only in the form of a return of income in Form No. 1, Balance Sheet, Profit and Loss Account along with Schedules 'N to 'F' with four T.D.S. Certificates. Director's report and Auditor's report and if we analyse the contents of these documents, then it is established that the only information available with the Assessing Officer, that was filed by the assessee with respect to the credit appearing in the Balance Sheet, was a credit entry amounting to Rs.19,99,000 appearing in the Balance Sheet under the head 'share application money' and another credit entry amounting to Rs. 39,88,540 was appearing in the Balance Sheet under the head 'Unsecured loans'. Against these credited amounts, the credits under these heads as on 31-3-1996 were also shown Rs. 10,24,000 and Rs. 7,555 respectively also appear in the Balance Sheet. There was not an iota of evidence to establish that (i) the credits under the head 'share application money' were in facts, received for 'allotment of shares' and (ii) were received along with the 'share all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this to avoid the investigation/verification with respect to the genuineness of the credited amounts i.e., 'share application money' and 'unsecured loans'. Since, in the present case, the appellant has not established any of the three ingredients such as identity of the creditors, capacity of the creditors and genuineness of the transactions, required for satisfying the requirements of section 68 of the Act, it stands established that the assessee has failed to discharge its onus put by section 68 of the Act and, therefore, the Assessing Officer was quite justified in treating the credited amount under the head 'unsecured loans' as appellant's income for the financial year 1996-97 i.e., for assessment year 1997 -98 while completing the assessment under section 144 of the Act. Addition of Rs. 39,80,985 is therefore, confirmed. 26. With regard to disallowance of appellant's claim on account of expenditure having been incurred under the head 'interest paid or payable', since the unsecured loans have been held to be un-genuine, there is no question of allowing the expenditure on account of interest thereof. Consequently, the disallowance on this account is upheld. 27.1 Before parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner had made the highest bid which the Respondent-corporation and its functionaries for ulterior motives, accepted the bid for a few items only. It was on this statement of Mr. Ramesh Kumar Agrawal, Advocate that the Hon'ble High Court directed the Corporation and its functionaries to file a counter affidavit explaining the reasons for not giving the petitioner purchase contract for all the rejected items by passing the following order:--"3-12-1999 Learned counsel for the petitioner submits that he had submitted his tender in time quoting the highest rates for all the items sought to be disposed of by the respondent corporation, notwithstanding which he was not awarded the contract for all the items for mala fide reasons entirely attributable to the officials of the respondent-corporation. Mr. P. Tekriwal, learned counsel for the respondent-corporation, is accordingly directed to file an exhaustive counter affidavit with all the details, facts and figures along with the supporting documents, within a period of two weeks, explaining the reason(s) as to why the contract for each item was not given to the highest tenderer. He is directed to keep all the original documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt resulting in the erroneous order dated3-12-1999. This Court treat it to be a case of gross misconduct on the part of Mr. Agrawal personally, condemns his conduct, and administers a severe warning on him with the hope that he shall hereinafter conduct himself with the dignity and the sense of responsibility expected of him as lawyer and office of this Court. Taking into account the overall view of the situation and in view of the remorseful confession of Mr. Agrawal. I accept the unconditional apology of Mr. Agrawal and leave the matter at that. Therefore, there is no need to pursue the matter any further against him. 27.5 If we consider the statement of Mr. R. Santhanam, Advocate having his office at C-3/210, Janak Puri, New Delhi, which we have already found to be false' and have held the same as having been made knowing the same to be false, in the light of the proposition of law, laid down by the Hon'ble High Court of Patna in the aforesaid Judgment, obviously the result will be that Mr. Santhanam had mislead the Tribunal on 21st May, 2000 by making a false statement which led the Tribunal to issue erroneous directions to the learned Departmental Representative to produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the face of record arising from the order passed by the Tribunal. On1-2-2002, ld. AR filed a summary of the main application narrating therein 30 mistakes from the order. The case was partly heard and adjourned to4-2-2002 and again on6-2-2002. 2. Ld. AR arguing on behalf of the assessee submitted that the order requires to be recalled for de novo disposal for ground Nos. 8, 9 and 10 have not been disposed of and that norms of natural justice have been violated and further that reliance placed on a wrong case noted as 41 ITD 273 instead of Shiv Charqn Gupta v. IAC [1991] 38 ITD 567 (Delhi). It was further pleaded that ITAT has failed to comply the decision of the Apex Court in the case of Tin Box Co. v. CIT [2001] 249 ITR 216 which was relied upon during the hearing of the appeal and copy was also placed on record. It was further pleaded that observations of the ITAT in the body of the order and also at the end from para 23.1 onwards which implicate the assessee and the counsel and casting aspersions on them was erroneous and based on misappreciation and misreporting of facts needs to be deleted. In sum, the contention is that the entire order suffering as it did from several in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst proviso to section 144 was given and as such violation was fatal to the very validity of the proceedings warranting an annulment of the same in toto. Relying upon the case of L. Hirday Narain v. ITO [1970] 78 ITR 26 (SC), it was submitted that where a mistake was apparent and pointed out by the assessee, the court had no option but to correct the same. A similar observation in the case of Distributors (Baroda) (P.) Ltd. v.UnionofIndia[1985] 155 ITR 120. (SC) andS. Nagrajv. State ofKarnataka1993 SCC 4 Supp. 575 were relied upon. It was submitted that the Tribunal failed to abide by and follow the decision of the Apex Court in Tin Box Co.'s case which was relied upon and copy placed on record earlier, inasmuch as, the fixation of the quantum of income had to be done by the Assessing Officer and such function could not be taken over by the Tribunal especially in a situation where there was no effective show cause and opportunity of effective hearing. In the end, it was pleaded that the order was not judicious and, therefore, requires to be recalled. Other decisions on which reliance was placed by the ld. Ars were CIT v. Bhaichand H. Gandhi [1983] 141 ITR 62 (Bom.), Jawahar Lal Os ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in the body of the order. To cut the matter short and in the interest of substantive justice and also infirmity with the decision of theApex Courtcited by the ld. ARs, we find it proper to vacate the order and restore the appeal for de novo disposal and hearing in accordance with law. The Miscellaneous Application filed by the assessee is, therefore, allowed and the registry is directed to list the appeal for hearing afresh. We order accordingly. K.C. Singhal, Judicial Member .--After going through the proposed order I have not been able to persuade myself to agree with the conclusion arrived at by my learned brother. Therefore, I proceed to dissent for the reasons given hereafter. 7-8. The operative portion of the proposed order is in paras 5 6 wherein following findings have been recorded by my learned brother: (1) That ground Nos. 9 10 have not been disposed of by the Tribunal at all. (2) That though there is some discussion with regard to the three additions objected to in Ground No. 8 yet it is found that the requirement of section 144 and also the case law on that point cited as Shiv Charan Gupta's case and Tin Box Co.'s case had not been taken note of and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Tribunal) Rules, 1963, and that too only in cases where the assessee shows that it had a reasonable cause for being absent at a time when the appeal was taken up and was decided ex parte. This position was highlighted by one of us (Justice Arijit Pasayat, Chief Justice) in CIT v. Income-tax Appellate Tribunal [1992] 196 ITR 640 (Orissa). Judged, in the above background the order passed by the Tribunal is indefensible." The perusal of the above observations clearly shows that recalling of an order is not permitted because such order necessitate re-hearing and readjudication of the entire subject-matter of the appeal, which is not permitted under section 254(2) except in terms of rule 24 of the Income-tax Appellate Tribunal Rules, 1963 where it is shown that there was reasonable cause for being absent at a time when the appeal was taken up. Mistake, if any, can be rectified only by amending the order under section 254(1) and not by obliterating the same by recalling the order. The word "amend" used by the Legislature in section 254(2) itself suggest the con timed existence of the original order. Much has been argued by the learned counsel for assessee regarding inherent powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the Tribunal in respect of the various additions made under section 68. If there is any mistake, that can be rectified but in the guise of section 254(2), the parties cannot be allowed to re-argue the case by recalling the order. If such course is allowed, it would lead to reviewing the earlier decision, which is not permissible in rectification proceedings. 11. Now let me examine whether the impugned order under section 254(1) suffers from any mistake apparent from the record so that the same may be rectified. As far as the first finding as recorded by my learned brother is concerned, I am in agreement with him that a mistake apparent from record is committed by the Tribunal insofar as ground Nos. 9 10 raised by the assessee remained to be considered. Accordingly, such mistake can be rectified only after hearing of both the parties in respect of those grounds. 12. As far as finding Nos. 2 3 are concerned, which are inter-connected, I am of the view that no mistake apparent from record was committed by the Tribunal while passing the impugned order under section 254(1). The main plank of the argument of the assessee's counsel is that provisions of first proviso to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the impugned order on this aspect. 13. As far as finding No. 4 is concerned, I am in agreement with my learned brother that adverse comments of the Bench with reference to the conduct of assessee's counsel were not required considering the powers of the Tribunal under section 254(1) which provide that the Tribunal shall pass such orders thereon as it thinks fit. The scope of the word "thereon" was considered by the Hon'ble Supreme Court in the case of Hukamchand Mills Ltd. v. CIT [1967] 63 ITR 232 and it was held that it restricts the jurisdiction of the Tribunal to the subject-matter of the appeal. Therefore, in my opinion, it was unnecessary for the Tribunal to comment upon the behaviour and conduct of the counsel for the assessee. It may be noted that the powers of the High Courts and Supreme Court are much wider than the powers of the Tribunal and, therefore, any decision of theHigh Court/Supreme Courtvis-a-vis conduct of the counsel should not be applied while deciding the appeal under section 254(1). However, if the counsel is considered to be guilty of professional misconduct, then the Tribunal may refer the matter to the Bar Counselor Institute of Chartered Accountan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal under section 255(4) of the Income-tax Act, 1961:-- "Whether on the facts of the case and in law the entire impugned order of the Tribunal can be recalled under section 254(2)?" 2. The brief facts of the case are that the assessee's appeal was decided by means of an order dated24th August, 2001and a perusal thereof shows that as many as 10 grounds were raised and the order runs into 70 pages, but the net result being a dismissal of the appeal. 3. The assessee filed a misc. application under section 254(2) against the said order of the Tribunal and this runs into as many as 56 pages. A reference to para 1 of the order passed by the Bench on the misc. application reveals that the Tribunal taking note of the lengthy misc. application asked the assessee to file a summarized resume of the mistakes which it claimed as apparent from the record in the order of the Tribunal and this was done and the hearing of the misc. application being proceeded with. 4. The learned Accountant Member passed the initial order on the misc. application and the stand of the assessee, at the outset, was that the order of the Tribunal was required to be recalled for de novo disposal since ground No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recall would not tantamount to a review. 6. The further submission during the course of the hearing of the misc. application was that there could be a situation where relevant material and irrelevant material had been referred to/relied upon and it could not be predicted as to what extent the irrelevant material had influenced the thought process, then the only available course in law would be to recall the order in toto. The connected plea was that the consideration by the Tribunal of the decision in 41 ITD 273 was irrelevant since the decision cited was the one appearing in Shiv Charan Gupta's case and there was, therefore, a failure to consider relevant material. Reliance was placed on the judgment of the Hon'ble Supreme Court in Dhirajlal Girdharilals case. 7. The next submission in the misc. application was that there had been a violation of the principles of natural justice inasmuch as no effective show-cause notice under the first proviso to section 144 had been given and this violation was fatal to the very validity of the proceedings warranting an annulment of the same in toto. 8. Reliance was placed upon the judgment of the Hon'ble Supreme Court in the case of L. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in not considering the judgment of theApex Courtin Tin Box Co.'s case cited by the assessee's counsel, the order of the Tribunal under section 254(1) was required to be vacated and he ordered accordingly. 12. The learned Judicial Member, however, did not agree with the "conclusion" arrived at by the learned Accountant Member and this would mean the recall of the entire order passed by the Tribunal under section 254(1). According to the learned Judicial Member, the view expressed by the learned Accountant Member was contrary to the binding decision of the Hon'ble Delhi High Court in the case of Karan Co. In extracting the relevant observations of Their Lordships at page 136 of the judgment, the learned Judicial Member observed that recalling of an order was not permitted because this necessitated rehearing and re-adjudication of the entire subject-matter of the appeal, which was not permitted under section 254(2). Further, according to the learned Judicial Member, complete recall of an order was permissible only under Rule 24 of the Income-tax (Appellate Tribunal) Rules, 1963 when it was shown that there was a reasonable cause for being absent at the time when the appeal was tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Judicial Member thereafter proceeded to deal with the various mistakes apparent from the record and sought to be pointed out by the assessee and on which the learned Accountant Member had already given his opinion. He agreed, at the outset, with the view taken by the learned Accountant Member to hold that there was a mistake apparent from the record in the order passed by the Tribunal insofar as ground Nos. 9 and 10 remained to be adjudicated upon. The learned Judicial Member, therefore, observed that this mistake could be rectified, after hearing both the parties on the grounds. 16. Further, according to the learned Judicial Member, there was no mistake apparent from the record in the order passed by the Tribunal whereby it had been held that no opportunity was required to be given to the assessee in terms of the first proviso to section 144 inasmuch as notices under section 142 had been issued and accordingly the second proviso to section 144 was applicable dispensing with the requirement of the first proviso. According to the learned Judicial Member the judgment of the Hon'ble Supreme Court in the case of Tin Box Co. as also the decision of the Tribunal in Shiv Charan Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i High Court in CWT v. Smt. Illa Dalmia [1987] 168 ITR 306 further contending that the judgment of the Hon'ble Supreme Court in Distributors (Baroda) (P.) Ltd.'s case at 124 had not been taken note of by the learned Judicial Member although the learned Accountant Member had considered the same. 20. The learned counsel further referred to the judgments of the Hon'ble Supreme Court in Common Cause, a Registered Society v. Union of India AIR 1999 SC 2979 at page 3025; Srinivasiah v. Balaji Krishna Hardware Stores AIR 1999 SC 462; and Rupa Ashok Hurra v. Ashok HurraAIR 2002 SC 1771 contending that the court should lean in favour of rendering justice rather than proceed on technicalities. A reference was also made to A.R. Antulay v. R.S. Nayak AIR 1988 SC 1531 at page 1570 and the further submission was to the effect that whereas the learned Accountant Member had considered numerous judgments of the Hon'ble Supreme Court to come to the conclusion that he did, the learned Judicial Member had omitted to do so and further where an issue had been decided by the Hon'ble Supreme Court, then the decision so rendered was required to be followed in preference to the judgment of the Jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of an order can be done without recalling the order in entirety or for that matter partly, but in the present reference the dissent between the learned Members vis-a-vis the facts and circumstances of the case is whether the order is to be recalled in toto as held by the learned Accountant Member for a de novo hearing or the view of the learned Judicial Member to rectify the mistakes apparent from the record without recalling the entire order is correct and justified. As already observed earlier, both the learned Members have agreed on partial recall for purposes of disposing of ground Nos. 9 and 10 which remained to be adjudicated upon by the Division Bench and they are also agreed on the expunging of adverse comments against the assessee's counsel. The area of dissent is with reference to the provisions of section 144 and the applicability of the decisions in Tin Box Co.'s case and Shiv Charan Gupta's case. At page 46 of the Tribunal's order passed under section 254(1), the following observations have been made:-- "We are unable to accept this argument of Mr. Santhanam because third proviso to section 144 states that there is no necessity of providing any opportunity or servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usion of the Tribunal, but in case there is a change, then it may only amount to a rectification of the order, and not a review. The learned Judicial Member in his dissenting order has taken the view that the decision of the Hon'ble Supreme Court in the case of Tin Box Co. as also the decision of the Tribunal in Shiv Charan Gupta's case are not applicable to the assessee's case. In other words, the learned Judicial Member has not found this as one of the grounds for recalling the entire order of the Tribunal as has been done by the learned Accountant Member. 29. In my opinion, the view expressed by the learned Judicial Member is the correct one in law and there was no necessity for making this as a ground for recalling the entire order as has been the view expressed by the learned Accountant Member. 30. One of the main submissions made before me by the assessee's counsel was that the decision of the Hon'ble Delhi High Court in the case of Karan Co. should not be followed since-these are decisions of the Hon'ble Supreme Court taking a view to the contrary. Let me examine some of the decisions so referred to:-- Grindlay's Bank Ltd.'s case: 31. This was a case in which an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent abuse of its process or, most importantly to secure the ends of justice. The conclusion, in other words, was that CEGAT had the power to set aside the order passed ex parte against the respondent before it if it was found that the respondent had for sufficient cause been unable to appear. 34. It is apparent that the aforesaid decision is not applicable to the facts of the present case where the matter had not been heard ex parte and further there was an absence of a specific rule for recall in the absence of the respondent unlike the specific power with the ITAT under Rule 24 of the Income-tax (Appellate Tribunal) Rules, 1963 and the wide powers given to the CEGAT as a result of the judgment of the Hon'ble Supreme Court to recall the ex parte order against the respondent in the absence of a specific rule. Rupa Ashok Hurra's case and Birla Textiles v. Union of India :-- 35. The writ petitions in the aforesaid case came up before a Bench of three Learned Judges of the Hon'ble Supreme Court and the matter was referred to the Constitution Bench with the following observations:-- "Whether the judgment of this Court dated March 10, 1997 in Civil Appeal No. 1843 of 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a great decree of agreement between the learned Members of the Division Bench on issues which constitute mistakes apparent from the record and which are liable to be set right. Srinivasiah's case:-- 39. This was the case of a review petition before the Hon'ble Supreme Court bringing on record the fact that the Rent Controller and the Appellate Authority in their judgments had noted as a fact that the accommodation behind the tenant premises was a "godown" and not a "shop", but since these judgments had not been placed before the Hon'ble Supreme Court, Their Lordships had dismissed the eviction suit filed by the landlord holding that the area behind the shop could be used as a shop and there was, therefore, no bona fide need for evicting the tenant. The Hon'ble Supreme Court allowed the review petition setting aside its earlier judgment and directing in the process the tenant to vacate the premises by a stipulated date. 40. The aforesaid decision has been delivered on its own facts, but it is not the case of the assessee in the proceedings before me that the decision of the Division Bench has proceeded on any wrong factual aspects or assumptions. 41. I may mention at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the mistake must exist and the same must be apparent from the record. The power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended. "Mistake" means to take or understand wrongly or inaccurately, to make an error in interpreting, it is an error, a fault, a misunderstanding, a misconception. 'Apparent' means visible, capable of being seen, obvious, plain. It means open to view, visible, evident, appears, appearing as real and true, conspicuous, manifest, obvious, seeming. A mistake, which can be rectified under section 154 is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration." In Master Construction Company (P.) Ltd. v. State ofOrissa[1966] 17 STC 360 (SC), the Supreme Court dilated on the term "an error apparent from record" to be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law. A similar view has been expressed by theApex Courtin a recent decision in CIT v. Hero Cycles (P.) Ltd. [1997] 142 CTR (SC) 122: [1997] 228 ITR 463 (SC), wherein it is again said that for invoking jurisdiction under section 154 of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
