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TMI Blog2005 (3) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said jewellery. At that time, the assessee failed to adduce any documentary evidence, explaining the source of acquisition and could not account for jewellery found in the said suitcase. Therefore, the Police intimated the income-tax authorities at Cochin about this case. The competent authority issued warrant of authorization in respect of the search which was carried out and statement of assessee was recorded on oath on 16-7-1999. As the assessee remained unable to adduce any documentary evidence in respect of source of acquisition and accountability of jewellery, the said jewellery was seized by the Income-tax Department. 2.1 During the course of block assessment proceedings, the assessee vide its letter dated 3-8-2000 contended that he was working as salesman for M/s. Pravin Jewellers at Mumbai. The seized jewellery belongs to said M/s. Pravin Jewellers which is a proprietary concern of his brother. Following documents were also furnished along with the said letter : ( i )Photocopy of stock register (New gold ornaments) ( ii )Letter dated 13-8-1999 written by the Intelligence Officer of the Department of Commercial Taxes to the Deputy Director of Income-tax (Inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewellery. Therefore, he concludes that jewellery belongs to assessee and a later date contention of the assessee is merely a make believe version. Thus, the Assessing Officer added the said sum to the returned income as total undisclosed income. 2.5 The assessee, being aggrieved, filed an appeal before the CIT(A). On the basis of evidence furnished before the Assessing Officer, it was claimed that the letter written by Sales Tax Authorities to Income-tax Department clearly indicates that the issue vouchers were taken into possession by Police Authorities and these were examined by Sales Tax Authorities. It was also contended that the assessee does not know why the police did not mention about the documents, which were found in the possession of assessee, in the "Mahasar" prepared by them and it is evident from answer to question No. 12 in the statement of the assessee that these documents were handed over to the police. After considering the submissions made by the assessee, the CIT(A) had deleted the addition with the following observations : "After going through the facts of the case from the assessment order and after going through the submissions made by the AR of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer go to prove that the jewellery, weighing 9711.720 gms. Valued at Rs. 36,90,453 belong to M/s. Pravin Jewellers Prop. Mr. Pravinkumar Ramani, who is the employer of the appellant Shri Rakesh Ramani and it is duly reflected in the books of account of M/s. Pravin Jewellers and that the appellant Shri Rakesh Ramani was carrying the said jewellery, in the course of his employment. These facts were known to the police authorities, the sales tax authorities as well as DDI (Inv.) who had seized the jewellery, but unfortunately, they did not clearly mention the same and erroneously seized the jewellery, the learned Assessing Officer also did not bother to verify all these documents and came to the fair conclusion. Accordingly, the addition of Rs. 36,90,453 made by the Assessing Officer as investment in unexplained jewellery under section 69A of IT Act, 1961 is hereby deleted." 3. Aggrieved by the above order, the revenue came in appeal before the ITAT and the ITAT decided the appeal on February 26, 2003 and reversed the order of the CIT(A) with the following observations : "20. We have also perused the Xerox copy of stock register of M/s. Pravin Jewellers which is placed at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cellaneous application is against the above findings of the Tribunal. 4. In the miscellaneous application the assessee contends that the Tribunal while passing the order confirming the addition made under section 69A of Rs. 36,90,453 has not taken into consideration the following documents : a. Third party evidences, order of sales tax authorities; b. Evidences produced by the employer; c. Affidavits of employees. In addition to the above, the assessee brings to the notice of the Tribunal that case laws referred to in the order were neither cited by the learned departmental representative nor reference was to them in the course of hearing. 4.1 The assessee, then draws our attention to the evidence which was not taken into consideration while passing the order, which are described below : a. The assessee was sent by Jet Airways, tickets purchased by the employer M/s. Praveen Jewellers through Nakoda Travels Tours dated 14-7-1999 (placed at paper book page 36), which proved that the assessee has gone on behalf of the employer. b. The place at Ernakulam where the assessee was residing was taken on rent by his employer, M/s. Praveen Jewellers and rent is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about 140 sq. ft on 2nd floor, Bhuleshwar Road, Mumbai-2 and further, that most of the sales are made to south India places and there is hardly any sale in Bombay. Hence, the observation that there is no jewellery left for shop is prima facie incorrect and has no bearing on the issue, when M/s. Pravin Jewellers, confirmed that jewellery belong to them. h. The assessee had also filed copy of acknowledgement of returns for assessment years 1996-97 to 1998-99 showing salary income from M/s. Pravin Jewellers placed at pages 66 to 77 of the paper book. i. The employees as stated in the statement at question No. 14, i.e., Shri Bharat and Shri Bhawar Singh were employees of M/s. Pravin Jewellers and that the affidavits of the said employees were also placed on record at pages 22 and 23 of the paper book. j. Copy of tax audit report, balance sheet, profit and loss account, etc., of M/s. Pravin Jewellers were also filed showing the closing stock inclusive of the stock of jewellery seized by department from the applicant who is employee of M/s. Pravin Jewellers (placed at pages 163, 191 and 214 of paper book). k. The finding of the Tribunal regarding the assessee carrying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Khatri v. Dy. CIT IT (SS) Appeal No. 12/M/1998, block period 13-11-1985 to 6-12-1996, Bench B order dated 3-1-2001 (paragraphs 15, 16 and 17 finding) 91-112 (1056-111). Finally, in support of the claim that mistakes have crept in the order, the learned counsel has placed reliance on the following decisions : 1. Frinquick Finance (P.) Ltd. v. Dy. CIT [2003] 87 ITD 323 (Delhi) (TM) 2. Rahulkumar Bajaj v. ITO [1999] 69 ITD 1 (Nag.) (SB); 3. Lakhmini Mewal Das v. ITO [1972] 84 ITR 649 (Cal.); 4. Distributors (Baroda) (P.) Ltd. v. Union of India [1985] 155 ITR 120; (SC) 1 5. Laxmi Electronic Corpn. Ltd. v. CIT [1991] 188 ITR 398 (All.) 6. CIT v. Ramesh Chand Modi [2001] 249 ITR 323 (Raj.). 5. On the other hand, the learned departmental representative submitted that there is no mistake in the order of ITAT. All the issues raised by the assessee have been considered by ITAT. Regarding the case laws on which reliance was placed by the learned counsel, the learned departmental representative referred to the order of ITAT and submitted that the ITAT has clearly mentioned that all these cases have been considered. Therefore, the assessee s petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us facts and materials brought on record as referred to by the learned counsel for the assessee as mentioned in para 4.1 of miscellaneous application have not been considered by the Tribunal while deciding the appeal. It has been missed to be considered various principles of law enunciated by various decisions on which reliance was placed by the learned counsel for the assessee. The Hon ble Madhya Pradesh High Court in the case of CIT v. ITAT [1988] 172 ITR 158 has held that "if a point which is material for determining the amount of tax so pressed; but not considered by the Tribunal, it would certainly constitute a mistake apparent from record within the meaning of section 254(2) of the Act". As such, considering all the facts and circumstances of the case as also the legal position, we are of the considered view that in the instant case, there has inadvertently been non-consideration of vital facts, brought on record and judicial decisions, cited during arguments of appeal, which all go to the root of the matter and are so crucial as may even till the balance of decision. Accordingly, in passing the Tribunal s impugned appellate order, mistake apparent from record has occurre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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