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TMI Blog2010 (11) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... he first appellate authority, on which a decision was given against the assessee or the department, Order of the Appellate Tribunal cannot be said to be illegal or irregular. - Accordingly held that the miscellaneous application filled by the revenue are rejected - ITA. No. 2278/Mum/2009 & M.A. NO. 413/010 - - - Dated:- 4-11-2010 - SHRI D. MANMOHAN, HON BLE VICE PRESIDENT J, AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER J, For appellant : MS. Vandana Sagar, Sr. D.R. For respondent : Mr. Vijay P. Joshi ORDER Per D. Manmohan, Vice President : 1. This miscellaneous application arises out of ITA. No. 2278/M/2008 dated27-1-2010. Deletion of addition of Rs. 76,33,179, referable to additional income offered during the course of survey action, and deletion of disallowance of amount claimed towards bad debts (Rs. 20,87,450) by the learned CIT (A) was challenged before the ITAT by the Revenue. 2. The facts in short are that the assessee-firm was engaged in the business of civil contracts in the name and style of M/s. Safe Enterprise. During the course of survey action carried out on11-2-05 a declaration was obtained from the assessee wherein an amount of Rs. 76 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action or manner in which such additional income was earned and the documents on the basis of which such income was offered for tax was never established at the time of survey or thereafter in any proceedings under the Act. Survey is essentially an evidence gathering exercise. A statement of facts found during survey can be recorded. A surveyed party can make voluntary confession based on reliable evidences of the facts found during the survey. In the present case the declaration is devoid of any credible/reliable evidence or material. It is an established position of Law that if a disclosure is made by the assessee either under mistaken belief of facts and law due to mental pressure from the survey party or under coercion he can retract the statement and the admission so made. In the present case when the appellant has produced all the supporting documents later in respect of job work receipts which were alleged to be not disclosed on the date of survey, the case of mistaken belief of facts is also made out There appears no reason for any normal, adult male person to make such disclosure if his transactions are genuine as is the circumstances in the present case. The very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through credible evidence that its labour receipts were properly accounted and so the statement loses its bottom. To sum up, there was a survey in the appellant's case on 11-02-2005 . Surveying authority noticed that three bills/invoices amounting to Rs.76,33,179 were not entered into the books of account. As such the then A.O. came to the conclusion that labour receipts to the extent of Rs. 76,33,179 were suppressed. In the statement recorded of partner Vikram Singh Rao he admitted that work contract of the above amount was not entered into the accounts as such he is offering Rs.76 lakhs as additional income on that account. However in the immediate post survey proceedings it was able to produce all the related documents before the assessing authority. At the assessment stage too it has demonstrated that the said receipts were offered and accounted. As such on the facts and circumstances as well as established position of law as highlighted aforesaid the addition of Rs. 76,33,179 made on uncorroborated statement, which was later retracted, is deleted." 5. Similarly with regard to amount written-off as bad debts the learned CIT (A) considered the issue in paras 3.1 to 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asons in the body of the order, the impugned order can be termed as an order passed without application of mind and therefore, deserves to be set aside. Para 7 of the miscellaneous application states that in the light of reasons given in the application, the Appellate Tribunal should be gracious enough to allow the miscellaneous application and to recall the impugned order for adjudicating the matter afresh. 9. On the other hand, learned Counsel, appearing on behalf of the assessee, submitted that miscellaneous application filed by the Revenue is misconceived. Elaborating further it was contended that in order to sustain an application under section 255(2) of the Act there should be a mistake which can be rectified and such mistake should be apparent from record i.e. , either mistake of law or facts or both, and such mistake should be obvious and patent. Placing strong reliance upon the decision of the Apex Court in the case of CIT v. K.Y. Pillaiah 63 ITR 411 (SC) learned Counsel submitted that though normally the Appellate Tribunal should Record its conclusions on every disputed question raised before it by setting out its reasons in support of its conclusion, merely beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be better to give detailed reasons... ; prodding the Members to avoid passing short orders wherever detailed reasons are required to be given to support their conclusions. It cannot, therefore, be treated as an authority to hold that even in a case where each and every reason given by the learned CIT (A) is accepted in toto and no arguments were advanced by the D.R. to contradict the findings of the learned CIT (A), the Tribunal should necessarily incorporate or repeat the facts and reasons given in the order of the CIT (A) which runs into 20 pages. 10. We have heard the rival submissions and carefully perused the record. It is well settled that the Tribunal has no power to review its order in the guise of rectifying a mistake apparent from record. In the case of CIT v. Ramesh Electric and Trading Company 203 ITR 497 (Bom.) the Hon ble Court observed that only an obvious and patent mistake which is apparent from the record and not a mistake which requires to be established by arguments and a long term process of reasoning, can be rectified and failure to consider arguments advanced by either party for arriving at a conclusion is not an error apparent on the record, alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered as an irregular order. At any rate the issues urged by the applicant do not fall within the purview of section 254(2) of the Income Tax Act, 1961. In any event the only legal issue in the appeal i.e. , regarding bad debts, is now covered in favour of the assessee by the Hon ble Supreme Court Judgment in the case of T.R.F Limited v. CIT 323 ITR 397 which holds, as was held by the CIT(A), that a mere write-off of bad debt is sufficient u/s 36(1)( vii ) and that it is not necessary for the assessee to establish that the debt has actually become bad. The Law so settled by the Hon ble Supreme Court is binding on all of us, including the Assessing Officer, under Article 141 of the Constitution of India. 13. Before parting, we would like to place on record that the decisions cited by the applicant turns on it's facts and the principles laid down therein cannot be read in isolation; The attitude of the applicant, in sermonising the Bench with regard to graceful approach to be adopted in Judicial proceedings, despite non-production of any material, even at this stage, to contradict the findings of the CIT (A) which, in turn, were approved by the Tribunal, highlights the obst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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