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TMI Blog2009 (12) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... is clear that when a judgment is pronounced at the conclusion of the hearing, it is an expression of the mind of the Court at the time of delivery - in the present case, the learned JM kept the matter pending with him without either agreeing with the order pronounced in the Court or without passing any dissenting order - Decided in favor of the assessee - - - - - Dated:- 18-12-2009 - Member(s) : PRADEEP PARIKH., U. B. S. BEDI., SHAMIM YAHYA. ORDER-SHAMIM YAHYA, A.M.: February, 2009 These appeals by the Revenue are directed against the respective orders of two assessees being husband and wife for the respective assessment years. 2. At the threshold. the learned counsel of the assessee. Shri S. Sridhar submitted a preliminary objection that, since in these cases on 18th Sept., 2008, the order was pronounced in the open Court, the Bench had no power under the statute to rehear the appeals. He argued that the Bench had become functus officio insofar as the above appeal proceedings were concerned. It was further submitted that Bench had no power of review under the Act including the power of suo motu review of their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as part-heard, for which Registry is directed to serve notice accordingly. 5. The AM was not in agreement with the aforesaid view, that there was a mistake apparent from record. Subsequently, the learned JM submitted to the Hon'ble Vice President of the Chennai Tribunal that the case had been fixed for hearing on a limited point by passing quasi-judicial order dt. 23rd Dec., 2008 in the order sheet and that such action is in accordance with law as well as supported by the decision of the Mumbai 'B' Bench of Tribunal in the case of Mafatlal Securities Ltd. vs. Jt. CIT (2008) 119 TTJ (Mumbai) 501 : (2008) 15 DTR (Mumbai)(Trib) 187. The Hon'ble Vice President found the refixation to be in order. The AM explained his views and position and sought clarification as to whether it was Hon'ble Vice President's direction to refix the case. The Hon'ble Vice President vide note dt. 31st Dec., 2008 reiterated that refixation was in order. Pursuant to such an administrative order by the Hon'ble Vice President, the ease was refixed for hearing. 6. In the background of aforesaid chronology of events and submissions, both the counsel have been heard and relevant records perused. The files were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self. 2.5 Further, we place reliance upon Income-tax Law, Fifth Edition, Vol. 2, p. 3090 by learned authors Pithisaria and Chaturvedi. Here, we find that Cf. P. Selvamony vs. State of Tamil Nadu (1998) Tax LR 672, 674 (Mad) has been referred to for the proposition that there is no presumption in law, whether rebuttable or irrebuttable, that properties owned by the wife must be deemed to be the properties owned by the husband. The wife is as much entitled to own properties as the husband is. In the background of aforesaid discussion and precedent, we uphold the order of learned CIT(A) in this regard and decide the issue in favour of the assessee. 2.6 In the result these appeals by the Revenue are dismissed. 3. ITA Nos. 2554 to 2559/Mad/2007: Asst. yrs. 1999-2000 to 2004-05: 3.1 The common issue raised in these appeals by the Revenue is that the CIT(A) erred in holding that the assessee, Smt. Meenakshi was the real owner of assets and income thereby deleting the addition of Rs. 18,97,125 on account of opening capital and current income of the assessee which was assessed in the hands of the assessee's husband Mr. Vijayan, substantively, who was the real owner. Further, the CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were considered: "1. Whether the statement made during the course of search under s. 132(4) of the IT Act, 1961, voluntarily by a person is admissible in evidence or not? 2. Whether, on the facts and circumstances of the case an admission made voluntarily relating to undisclosed income, not immediately retracted within a reasonable time, and was retracted only after the service of summons during the course of recording statement would itself negate the admission?" The Hon'ble High Court, on the facts of the case, has affirmed the order of the Tribunal and decided the issue in favour of the assessees. 9. It is further noted that, after the order was pronounced in the open Court in this case and the conclusion to that effect was entered in the order-sheet and it was duly signed by both the Members of the Bench, any variation in the detailed written order would be a mistake which would be liable for rectification. This view is fortified by the decision of the Hon'ble Delhi High Court in the case of CIT vs. G. Sagar Suri Sons (1990) 84 CTR (Del) 203 : (1990) 185 ITR 484 (Del). In this case it was held that: "Once an announcement is made in the open Court, then that is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the provisions of s. 152 or s. 114 of CPC or in very exceptional cases under s. 151 of the CPC but where the Court has undoubted power to alter or modify judgment delivered but not signed, such power should be exercised judicially, sparingly and for adequate reasons. When a judgment is pronounced in open Court, parties act on the basis that it is the judgment of the Court and that the signing is a formality to follow. Ordinarily judgment is not delivered till the hearing is complete by listening to submissions of counsel and perusal of records and a definite view is reached by the Court in regard to the conclusion. Once the Court pronounces the judgment, the same should not be reopened unless there be some exceptional circumstances or a review is asked for and is granted. If what is pronounced in Court is not acted upon, certainly litigants would be prejudiced. In the instant matter there is no material at all to show as to what lead the Division Bench which had pronounced the judgment in the open Court not to authenticate the same by signing it. In such situation the judgment delivered has to be taken as final." 12. A reading of the above makes it clear that once the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Madras High Court in the case of H. Shahul Hameed vs. Asstt. CIT (2003) 179 CTR (Mad) 449 : (2002) 258 ITR 266 (Mad), which is direct on the point, has neither been cited by either of the parties, nor found to have been considered in the proposed signed order received by me. Therefore, it would be just and appropriate if such judgment is confronted to both the sides and matters are reheard on this point. With regards, Shri Shamim Yahya, Yours sincerely, AM, Tribunal Chennai Benches, Sd/- Chennai." (U.B.S, Bedi) 14.2 Files were received back on 22nd Dec., 2008 from the learned AM without any response to the above said letter and case was refixed for hearing by passing following order in the order sheet at p. 6: "Dt. 23rd Dec., 2008 Following letter was addressed to the learned AM and sent along with concerned files: "Dt. 8th Dec., 2008 Dear Shamim ji, Ref: ITA Nos. 2554-2559/Mad/2007 and ITA Nos. 2569-2571/Mad/2007 in the cases of Smt. V. Meenakshi and Shri M. Vijayan for various assessment years. The Hon'ble Supreme Court in the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the result in the file and signing the order three months ago, there is no scope for me to change the view. This is for your kind information and necessary action. Hon'ble Vice President" Sd/- (Shamim Yahya) AM 23rd Dec., 2008 14.4 The Hon'ble Vice President sought for comments of the JM by making endorsement on the said note of learned AM on the same day. Following comments were sent on 24th Dec., 2008 to Hon'ble Vice President as under: "Dt. 24th Dec., 2008 Sub: ITA Nos. 2554 to 2559/Mad/2007-V. Meenakshi and ITA Nos. 2569 to 2571/Mad/2007-M. Vijayan-Comments as sought for-reg. Sir, The cases have been refixed for hearing on a limited point by passing quasi-judicial order dt. 23rd Dec., 2008 in the order-sheet and such action is in accordance with law as well as supported by the decision of the Mumbai "B" Bench of the Tribunal in the case of Mafatlal Securities Ltd. vs. Jt. CIT (2008) 119 TTJ (Mumbai) 501 : (2008) 15 DTR (Mumbai)(Trib) 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Shamim Yahya Vice President Hon'ble AM, Tribunal, Chennai." 14.6 The learned AM, on 26th Dec., 2008, on the order sheet entry dt. 23rd Dec., 2008 at p. 6 in place of putting his signature, wrote "no need to fix the case for rehearing. Comments as per note in '7' attached" and sent a separate note to the Hon'ble Vice President which reads as under: "Note Subject: ITA Nos. 2554 to 2559/Mad/2007- V. Meenakshi and ITA Nos. 2569 to 2571-M. Vijayan-reg. I thank your goodself for having kindly considered my note in this regard. Probably, I have not been able to convey my view properly. My view that the decision being referred by the learned JM is not applicable on the facts of the case had already been conveyed to the learned JM on 23rd Dec., 2008. The opinion sought by me was as to whether, after an order has been pronounced in the open Court by a Bench of the Tribunal comprising two Members and having the same being signed as such, when a written order duly signed has been sent to other Member, whether after three months the other Member can refuse to pass an order and ask for the case to be fixed for rehearing. Nevertheless, I have put my ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. Hence, the question of there being a mistake apparent from record on the anvil of Hon'ble apex Court decision in the case of a Asstt. CIT vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 219 CTR (SC) 90 : (2008) 12 DTR (SC) 346 : (2008) 305 ITR 227 (SC) does not arise. Hence, there is no need to fix the case for rehearing and I stand by my order dt. 18th Sept., 2008. JM Sd/- (Shri U.B.S. Bedi)" (Shamim Yahya) AM 26th Dec., 2008 14.9 By making endorsement on the said note, on the same day, Hon'ble Vice President sought for the comments of the JM. Accordingly, on the next working day i.e., 29th Dec., 2008, the JM has sent the note to Hon'ble Vice President which reads as under: "Dt. 29th Dec., 2008 Sub: ITA Nos. 2554 to 2559/Mad/2007-Smt. V. Meenakshi and ITA Nos. 2569 to 2571/Mad/2007-M. Vijayan-Comments on note dt. 26th Dec., 2008 as sought for-reg. Sir, As action for refixing the case for hearing on limited point has been held to be prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned JM did not sign the order or pass another order but wanted the case to be refixed for hearing as in his view, a mistake apparent from record had crept in, in as much as Hon'ble Madras High Court decision in the case of H. Shahul Hameed vs. Asstt. CIT (2003) 179 CTR (Mad) 449 : (2002) 258 ITR 266 (Mad) had not been considered. The learned JM has further directed the cases to be fixed for hearing on 5th ,Jan., 2009 vide his note in order sheet dt. 23rd Dec., 2008. Vide my comments on 26th Dec., 2008 in the order sheet in the concerned file. I had clarified that in my opinion the decision referred to by the learned JM was not at all applicable on the facts of the case in as much as it was concerned with evidentiary value of statement obtained under s. 132(4A) in the case of search and seizure operation. Since the decision of the Hon'ble High Court in the case of CIT vs. S. Khader Khan Son (2008) 214 CTR (Mad) 589 : (2008) 300 ITR 157 (Mad) is directly related to evidentiary value of a statement obtained on survey under s. 133A which was considered in this case and the same was found to be directly applicable, decision in this case was taken. Hence, in my opinion, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dec., 2008 to learned AM on his note dt. 23rd Dec., 2008 received, a separate contrary entry in the order sheet has been passed by the learned AM on 26th Dec., 2008, which appears to be against normal procedure and accepted principles, whereas propriety demands compliance of such order/direction dt. 24th Dec., 2008. Submitted please: Hon'ble Vice President Chennai Benches" Sd/- (U.B.S. Bedi) JM 14.13 The Hon'ble Vice President sent note Dec., 2008, which reads as under: "Note Sub: ITA Nos. 2554 to 2559/Mad/2007 (V. Meenakshi) and ITA Nos. 2569 to 2571/Mad/2007 (M. Vijayan) Please refer to my note dt. 24th Dec., 2008 by which refixation was found Lo be in order. It transpires from the perusal of the files that on 26th Dec., 2008 you have mentioned in the order sheet that there is no need to fix the case for rehearing in defiance to the directions contained in the note, In my opinion this is improper and against the set norms. I reiterate that refixation is in order. Chennai Sd/- 31st Dec., 2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en a judgment is pronounced. Sub-r. (1) provides that the Court, after the case has been heard, shall pronounce judgment in an open Court either at once, or as soon thereafter as may be practicable, and when a judgment is to be pronounced on some future day, the Court shall fix a day for that purpose of which due notice shall be given to the parties or their pleaders. Sub-r. (3) provides that the judgment may be pronounced by dictation in an open Court to a shorthand writer (if the Judge is specially empowered in this behalf). The proviso thereto provides that where the judgment is pronounced by dictation in open Court, the transcript of the judgment so pronounced shall, after making such corrections as may be necessary, be signed by the Judge, bears the date on which it was pronounced and forms a part of the record. Rule 3 provides that the judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and when once signed, shall not afterwards be altered or added to save as provided by s. 152 or on review. Thus where a judgment is reserved, mere dictation does not amount to pronouncement, but where the judgment is dictated in open Court, that itself a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... severe punishment and requested the appointing authority to re-examine whether respondent should be continued in the post. Thereafter the disciplinary authority reconsidered the entire issue again and put up another note dt. 23rd March, 1995/2nd May, 1995 to the appointing authority proposing the punishment of removal from service. After considering the said recommendation, the appointing authority passed the following order on the said note on 3rd May, 1995: 'On a dispassionate and objective evaluation of the facts, circumstances of the case, inquiry proceedings and evidence available, concur with the recommendations of the disciplinary authority mentioned at serial No. 4 of the note and have come to the conclusion that the penalty of 'removal from bank's service' proposed to be inflicted on Sri S.L. Goyal, Officer JMGS-1, is just and appropriate and I, therefore, order imposition of this penalty on the official.' 21. It is thus clear that on 18th Jan., 1995, the appointing authority had only tentatively approved the proposal of the disciplinary authority that a lenient view be taken by imposing a penalty of reducing the pay by four stages in the time scale; and that on 3rd Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng no contrary Tribunal decision direct on this point, it can safely be concluded/held that, the oral pronouncement during the course of hearing, which is tentative, cannot come in the way to rehear the matter under the inherent powers of the Tribunal to prevent miscarriage of justice or to grant substantial justice, when rehearing gives another opportunity to the parties to appeal and same cannot amount to passing of the order. 16. Now adverting to the issue raised in the appeals in ITA Nos. 2554 to 2559/Mad/2007 in the case of Smt. V. Meenakshi and in ITA Nos. 2569 to 2571/Mad/2007 in the case of Shri M. Vijayan. I do not agree with the findings and conclusions as drawn by the learned AM and I write my own order as under: 16.1 Facts. in the case of Smt. V. Meenakshi, as emerging from the assessment order for the asst. yr. 1999-2000, which is the first year, indicate that a survey under s. 133A of the IT Act was conducted at the business premises of Shri M. Vijayan, husband of the assessee on 26th Dec., 2005, during the course of which sworn statements were recorded from the assessee and her husband. It was found that the assessee had made number of investments in business and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3,75,000 on account of repayment of bank loan and Rs. 6,00,000 as unexplained source of income utilized for purchase of property. 16.2 The assessee filed appeal before the learned CIT(A), who, while converting protective assessments into substantive assessments has given relief by passing a consolidated order, while noting that the assessee belongs to the Thevar community of Tamil Nadu State and the family tradition is to be engaged in the business of money-lending and earning income therefrom and it is also customary to invest surplus funds in properties. The assessee had actually made most of the investments before 1st April, 1998, such was the case with her husband Shri Vijayan. During the course of survey. the assessee stated that she does not know anything about her independent business, which is being looked after by her husband and there were some investments in properties in her name. The AO found that the assessee had filed her first ever returns of income for the asst. yr. 1999-2000 and subsequent years on 27th Nov., 2006 showing independent income in her hands. On the same day Shri V. Murugan, son of the assessee also filed his first return of income for the asst. yr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eted another addition of Rs. 50,400 for 2003-04 on account of extra stamp duty paid for the purchase of house property and not recorded in the books by setting it off with additional interest income in money-lending business activities in earlier year. For the asst. yr. 2004-05, addition of Rs. 3,75,000 as repayment of loan to Allahabad Bank out of unexplained sources and similar addition of Rs 6 lakhs as partially unexplained investment in purchase of a house property was deleted by obtaining confirmation letters from the assessee with respect to five parties to whom this property was stated to have been given on lease and who paid Rs. 12 lakhs (from five parties) by holding that money available was sufficient to discharge the liability to the Allahabad Bank and got property cleared from mortgage. So, he deleted the addition of Rs. 3,75,000. Similarly, another addition of Rs 6 lakhs came to be deleted and assessment for all the years from 1999-2000 to 2004-05, which were made protectively were made substantive with modification in the total income as indicated above. 16.4 The Department has filed appeals against the consolidated order passed by learned CIT(A)-I, Madurai dt. 21st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prayed that the orders of the CIT(A) may be reversed and that of the AO be restored." 16.5 It is the contention of the learned Departmental Representative at the time of hearing of the appeals that the learned CIT(A) has just reversed the order of the AO by converting protective assessments into substantial assessments and on all other points major additions have been deleted by accepting lot of documentary evidence at appeal stage without adhering to the provisions of r. 46A of IT Rules in as much as neither AO has been associated with the appeal proceeding, nor any remand report has been obtained from him, when the assessee has filed certain affidavits and fresh documents in appeal proceedings. Therefore, the order of the learned CIT(A) is not only violative of r. 46A, but is against the principles of natural justice also as Department has not been given adequate opportunity by the learned CIT(A) before passing the impugned order. Law is very clear on this point that no party can be condemned unheard. The Hon'ble jurisdictional High Court as well as Hon'ble Supreme Court at more than one occasion, have held that in quasi-judicial matters, reasonable opportunity is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "Smt. V. Meenakshi, w/o Shri M. Vijayan. T-140, Ellis Nagar, Madurai owned several immovable properties in Madurai as found out during the course of survey conducted on 26th Dec., 2005 in the case of Shri M. Vijayan, moneylender, Madurai by the ITO, Ward II(4), Madurai. She was not assessed to tax till the date of survey. No returns of income had also been filed till the date of the survey. The volume of investments made by her suggested that she had earned income chargeable to tax but has not filed the return of income and offered the income. Therefore, proceedings under s. 147 were initiated and a notice under s. 148 dt. 29th March, 2006 was issued with the prior approval of the Jt. CIT, Range II, Madurai. There was no response from the assessee to the said notice within the time offered therein. After a long gap of time, the assessee filed return of income for the asst. yr. 1999-2000 on 27th Nov., 2006 declaring total income of Rs. 1,98,750. The ease was posted for hearing by issue of notice under s. 143(i) dt. 28th Nov., 2006, Shri S. Laxmanaperumal FCA, has appeared on 7th Dec., 2006 and subsequently the case was heard. In the return of income, the assessee declared the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since the assessee has admitted the income in her hands, the same is assessed herein protectively without prejudice to the stand taken by the ITO, Ward 2(5), Madurai in the assessment proceedings in the case of Shri M. Vijayan. The assessee's representative Shri S. Lakshmanaperumal, FCA filed several copies of documents, pronotes etc. during the end period of December, 2006 only. The time-limit for completion of assessment expires by 31st Dec., 2006. The information furnished required lot of verification and cross-verification and since only 5 working days were left for completion of lime-barring assessments involved in this case and it is not possible to carry out such exercise at this juncture. In view of the above, the AO rejected the claim of opening capital and completed the assessment." The AO then at the end of the assessment order made the calculation of income and worked out tax payable and interest thereon and gave credit of the taxes paid and determined the amount to be payable as per demand notice enclosed and also initiated penalty proceedings. 16.8 There is no dispute either with the proposition as propounded in the case of CIT vs. S. Khader Khan Son that the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is relevant to any ground of appeal; or (d) where the AO has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal. (2) No evidence shall be admitted under sub-r. (1) unless the Dy. CIT(A) or, as the case may be, the CIT(A) records in writing the reasons for its admission. (3) The Dy. CIT(A) or, as the case may be, the CIT(A) shall not lake into account any evidence produced under sub-r. (1) unless the AO has been allowed a reasonable opportunity- (a) to examine the evidence or document or to cross-examine the witness produced by the appellant, or (b) to produce any evidence or document or any witness in rebuttal of the additional evidence produced by the appellant. (4) Nothing contained in this rule shall affect the power of the Dy. CIT(A) or, as the case may be, the CIT(A) to direct the production of any document, or the examination of, any witness, to enable him to dispose of the appeal, or for any other substantial cause including the enhancement of the assessment or penalty (whether on his own motion or on the request of the AO under cl. (a) of sub-s. (1) of s. 251 or the impositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement recorded by a public official and that is more particularly so when it is recorded in pursuance of the statutory provisions of law. The provisions of sub-s. (3)(iii) of s. 133A also create rebuttable presumption in favour of the statements recorded thereunder and which may be useful for or relevant to any proceeding under the Act. 16.12 Further, a confessional statement, which is not in the nature 01 declaration under s. 115 of the Evidence Act, continues to have evidentiary value even after its retraction. However, such retracted confession/statement needs corroboration if it has been successfully retracted. The case of the assessee did not fall under that category. It is a well known fact of life as also a settled principle of evidence that while witnesses and documents can be made to lie, the circumstances cannot lie. In order Lo hold a fact as proved, it is, therefore, necessary to consider whether the evidence adduced must inspire confidence and is capable of being believed and treated as proved. And in the case in hand, not to speak of clear retraction, the assessee even did not file any documents to state that the assessee has retracted from the declaratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd vs. Asstt. CIT (1997) 57 TTJ (Ahd) 639 : (1997) 61 ITD 55 (Ahd) and Param Anand Builders (P) Ltd. vs. ITO (1996) 56 TTJ (Mumbai) 21 : (1996) 59 ITO 29 (Mumbai), it has been held that 'for retraction of statement the assessee should prove threat or coercion'. Further. in the case of V. Kunhambu Sons vs. CIT (1996) 131 CTR (Ker) 396 : (1996) 219 ITR 235 (Ker), held that 'assessment on the basis of voluntary statement is valid.' 16.14 So far as the Hon'ble Madras High Court's decision in the case of H. Shahul Hameed vs. Asstt. CIT is concerned, it has held as under: "The Revenue is empowered to add the unexplained investment income of the assessee if the facts warrant the same. This would depend upon the facts of each case and the evidence and the probable course of events that would determine whether the investment made in the name of the assessee's relative could be treated as the unexplained income of the assessee particularly in the case of search. In a case where it is found that the assessee's relative had no source of income and it was also proved that the assessee alone could have utilized his unexplained money for the purchase of the property standing in the name of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven before us no evidence was filed to show that the money was really given by the assessee's father-in-law. The Hon'ble jurisdictional High Court in the case of H. Shahul Hameed vs. Asstt. CIT in similar circumstances observed as under: 'The Revenue is empowered to add the unexplained investment income of the assessee if the facts warrant the same. This would depend upon the facts of each case and the evidence and the probable course of events that would determine whether the investment made in the name of the assessee's relative could be treated as the unexplained income of the assessee particularly in the case of search. In a ease where it is found that the assessee's relative had no source of income and it was also proved that the assessee alone could have utilised his unexplained money for the purchase of the property standing in the name of his close relative, the finding rendered by the Tribunal to treat the amount of investment as the undisclosed income of the assessee would be a finding of fact.' On the above observation it was held that: 'The Tribunal found that the assessee's wife had no source of income to purchase the property and her own statement showed that sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the assessee and her husband has not at all been discussed or considered by the learned CIT(A) before passing the impugned order. As such, it is held that the order of the learned CIT(A) is not sustainable being not a valid and proper order. 17.1 Keeping in view the entirety of facts, circumstances, material on record, ratio of decisions and discussions as held in earlier paras, the order of learned CIT(A) is set aside and the matter is restored back on his file with the direction to redecide the appeals of the assessee after giving due opportunity to the assessee as well as to the AO by considering the material on record, relevant provisions of law including r. 46A, case law cited and discussed above, by passing a speaking order. It is held and directed accordingly. 18. As regards, appeals in the case of Shri M. Vijayan are concerned, it is seen that the Department has challenged the action of the learned CIT(A) by raising following grounds before the Tribunal: "1. The learned CIT(A) has erred in holding that the assessee's wife Smt. Meenakshi was the real owner of assets and income; thereby deleted the addition of Rs. 18,97,125 on account of opening capital and current ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t proved and also date of payment of loans and advances was not supported by evidences. 9. For these and such other grounds that may be adduced at the time of hearing, it is prayed that the orders of the CIT(A) may be reversed and that of the AO restored." 18.1 The learned Departmental Representative, while relying upon the grounds of appeal has strongly pleaded that since clear-cut admission has been made in the sworn statements recorded from the assessee and her husband that the assessee's wife does not know anything about her independent business, which is being looked after by her husband, and however, there were some investment in property in her name and the AO has found that Smt. Meenakshi has filed her first ever return of income from asst. yr. 1999-2000 and subsequent years on 27th Nov., 2006 showing independent income in her hands. On the same day, Shri Murugan also filed his first return of income showing income from commission though it was below taxable amount. The opening capital in the case of Smt. Meenakshi was Rs. 16,98,375 as on 1st April, 1999. In her return of income and subsequent proceeding, Smt. Meenakshi stated that she has received some gifts in 1985 fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is seen that survey was conducted under s. 133A of the IT Act on 26th Dec., 2005 in the business premises of the assessee and during the course of the survey, sworn statements were recorded from the assessee and his wife. It was also found that the assessee had made number of investments in business and property. His wife Smt. V. Meenakshi also had similar investments and money-lending business. As the AO had apparently reason to believe that income chargeable to tax had escaped assessment, he issued notice under s. 148 on 21st March, 2006, in response to which the assessee filed returns as detailed above. After hearing the assessee's representative, the AO finalized the assessment orders under s. 143(3) r/w ss. 147 and 144A of the IT Act on 29th Dec., 2006 for all the three assessment years, the detail of returns, income returned/assessed for all the three years in the above noted table. While making assessment for 1999-2000, the AO added income of Rs. 18,97,125 and Rs. 4,30,000 in assessee's hands, besides Rs. 63,133 being deficiency in drawings and the learned CIT(A), while first two additions by holding that the wife of the assessee to be earning independent income, he restric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , by holding that there is a mistake apparent from record when the AM is not in agreement of the same. (ii) Whether on facts and circumstances of the cases, the Revenue's appeals were liable to be dismissed following jurisdictional High Court decision directly on the point or the matter was to be remitted to the files of CIT(A)?" U.B.S. BEDI, J.M.: July, 2009 Since there is difference of opinion between the Members constituting the Bench in some of the issues involved in these appeals, the following consolidated question in the case of both the assessees is formulated and referred for nominating Third Member: "(i) Whether in view of the facts and circumstances of both the cases, orders of the learned CIT(A) could be confirmed or could these be set aside on the file of learned CIT(A) to decide the appeals of the assessees afresh after considering relevant provisions of law including r. 46A, case law cited/discussed and by passing a speaking order after giving due opportunity to the assessee as well as to the AO?" PRADEEP PARIKH, VICE PRESIDENT (AS THIRD MEMBER): 11th Nov., 2009 There being a diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conclusion of the hearing. The order sheet entry to this effect is also signed by both the Members. Thereafter, what transpired between the two Members by way of exchange of notes is part of the records and is also extracted by the learned JM in his order from pp. 17 to 26. Hence, to avoid repetition, these events are not recorded again. The issue that arises for my consideration is: "Whether an order which is pronounced in the Court but not yet passed in writing can be recalled under s. 254(2) of the Act to rectify a mistake apparent on record?" 4. The contention of the learned Departmental Representative was that unless an order in writing is communicated to the parties, it is no order at all. He placed reliance on the judgment of the Bombay High Court in the case of Khushalchand B. Daga vs. T.K. Surendran, ITO Ors. (1972) 85 ITR 48 (Bom). It was submitted that when there was difference of opinion about the applicability of the High Court decision, the best course was to give opportunity to the parties and which the learned JM has sought to do. It was further submitted that the CIT(A) did not comply with r. 46A and therefore it was proper to send back the matter to the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing barred by limitation. Il was submitted that the AO himself had fixed the dale of hearing on 7th December, and hence the default, if any, cannot be attributed to the assessee. The observation of the learned JM on p. 49 of his order that certain documents were filed before the first authority had no basis. It was pointed out that the discussion by the learned JM from p. 43 onwards indirectly indicates that the judgment of the jurisdictional High Court in the case of S. Khader Khan Son is not correct. 6. In his counter reply, the learned Departmental Representative submitted that the learned JM wanted to refix the matter only in the interest of justice. The Vice President had to act because there was a difference on the point whether the matter should be refixed or not. According to the learned Departmental Representative, the prime issue was whether sworn statement has any evidentiary value or not, irrespective of the provision whether it is s. 132 or 133A. It was contended that it would be like missing the wood for the trees. Referring to the judgment of the Supreme Court cited and elaborately quoted by the learned JM in the case of SBI vs. S.N. Goyal AIR 2008 SC 2594, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court intimated to the parties and to the world at large by formal 'pronouncement' or 'delivery' in the open Court. It is a judicial act which must be performed in a judicial way. Small irregularities in the manner of pronouncement or the mode of delivery do not matter but the substance of the thing must be there; that can neither be blurred nor left to inference and conjecture nor can it be vague. All the rest the manner in which it is to be recorded, the way in which it is to be authenticated, the signing and the scaling, all the rules designed to secure certainty about its content and matter can be cured; but not the hard-core, namely, the formal intimation of the decision and its contents formally declared in a judicial way in open Court. The exact way in which this is done does not matter. In some Courts, the judgment is delivered orally or read out, in some only the operative portion is pronounced, in some the judgment is merely signed after giving notice to the parties and laying the draft on the table for a given number of days for inspection. An important point, therefore, arises. It is evident that the decision which is so pronounced or intimated must be a declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court observed as follows: "But, while the Court has undoubted power to alter or modify a judgment, delivered but not signed, such power should be exercised judicially, sparingly and for adequate reasons. When a judgment is pronounced in open Court, parties act on the basis that it is the judgment of the Court and that the signing is a formality to follow. Ordinarily, judgment is not delivered till the hearing is complete by listening to submissions of counsel and perusal of records and a definite view is reached by the Court in regard to the conclusion. Once that stage is reached and the Court pronounces the judgment, the same should not be reopened unless there be some exceptional circumstance or a review is asked for and is granted. When the judgment is pronounced, parties present in the Court know the conclusion in the matter and often on the basis of such pronouncement, they proceed to conduct their affairs. If what is pronounced in Court is not acted upon, certainly litigants would be prejudiced. Confidence of the litigants in the judicial process would be shaken. A judgment pronounced in open Court shal1 be acted upon unless there be some exceptional feature and if ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Delhi High Court in the case of CIT vs. Sudhir Choudhrie (2005) 196 CTR (Del) 528 : (2005) 278 ITR 490 (Del) and before r. 34 of the ITAT Rules was amended. The judgment of the Supreme Court in the case of ITAT vs. V.K. Agarwal Anr. (1998) 150 CTR (SC) 513 : (1999) 235 ITR 175 (SC) was prior to the above two events. It is worth noting that in the case of SBI, the order was neither pronounced, nor was it communicated to the respondent in any manner and hence it was held to be tentative and not final. Therefore, the reliance on this judgment by the learned JM is quite misplaced. In the earlier part of this para, 1 had framed three issues. In the light of the foregoing discussion, the reply to the first two issues is that in the instant case, the order pronounced by the Bench on 18th Sept., 2008 was an order and that it was final and not tentative. 8. Now, we come to the third issue which is, if it is an order, is it rectifiable under s. 254(2) of the Act. De hors the facts of the present case, the general reply to this question has to be in the affirmative in view of the judgment of the Supreme Court in the case of Saurashtra Kutch Stock Exchange Ltd. If there is mistake appa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original judgment is one of the possible views, the case cannot be said to be covered by an error apparent on the face of the record. The fact that the learned JM had to devote nearly twenty-five pages to point out the error and then to set it aside for reconsideration, itself proves that the conclusion of the learned JM is the result of a long drawn-out process of reasoning on points where there may conceivably be two opinions. At this juncture, I may add a few words about the reference made by the learned counsel to the catch-notes in the judgment of Saurashtra Kutch Stock Exchange Ltd. The particular catchnotes to which he referred to are reproduced below: "Decision of High Court on the point rendered a few months prior having not been brought to the notice of the Tribunal, the Tribunal did not commit any error of law or of jurisdiction......" The learned counsel wanted me to understand the above lines to mean that non-consideration of a decision which is not brought to the notice of the Tribunal, is not a mistake apparent on record. In my opinion, the learned counsel has wrongly interpreted the catchnotes. What the Court wants to convey is that non-consideration of the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the decision is pronounced in the Court in the garb of rectifying a mistake apparent on record where there is none. In the final analysis, the points of difference raised by the two Members are answered as follows: 1. The order of the CIT(A) has to be confirmed as the judgment in the case of H. Shahul Hameed is not directly on the point and to set it aside on the ground that r. 46A is violated would amount to review of the order which was conclusively pronounced on 18th Sept., 2008. 2. In the facts of the case, the matter cannot be refixed for hearing by holding that there is a mistake apparent from record. 3. In the facts of the case, the appeals of the Revenue are liable to be dismissed following the jurisdictional High Court decision in the case of S. Khader Khan Son which is directly on the point. 10. The matter shall now be put before the regular Bench for the disposal of the appeal in accordance with the opinion of the majority. U.B.S. BEDI, J.M.: 18th Dec., 2009 On difference of opinion between Members constituting the Bench, the following questions were formulated and referred to Third Member under s. 255(4): As per learned JM: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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