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TMI Blog2012 (7) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... I MUKUL KR. SHRAWAT, SHRI A. MOHAN ALANKAMONY, JJ. Applicant by Shri P. F. Jain, AR Respondent by Shri Dineshchandra Sharma, Sr. DR ORDER PER A. MOHAN ALANKAMONY: This Misc. Application is filed by the assessee against the order of the Tribunal dated 16-04- 2010 in IT(SS)A No.238/Ahd/2002 for the block period 01-04-1989 to 18-04-1999 seeking recalling of the order of the Tribunal for rectification. 2. The learned AR pointed out before the Bench that the Tribunal had not considered certain facts and in its written submission it was pleaded that - (1) During the course of hearing of appeal on 7-4-2010, for appreciating the material factual aspects of matter, attention of Hon'ble Bench was drawn to the affidavit executed by appellant on 26-7-2008 as required by the I.T.A.T during the previous hearing for the facts of case, but in the order this affidavit detailing the material facts which inter alia included that Octroi receipts were not seized from the premises of the assessee company has not been considered. (2) During the hearing on 7-4-2010 for the purpose of recording arguments / submissions of the appellant by the Bench the attention was drawn to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the godown on 17/07/1999 no goods were purchased by the respondent. On the octroi receipt the words "checking squad", spot inspection have also been clearly mentioned. The date-20/07/1999 and the time mentioned in the octroi receipts is with regard to the payment date of octroi and not purchase of goods. (I) The show cause letter dated 17/07/1999 in Gujarati for verification of octroi payment issued by the Octroi Department alongwith the inventory taken from the godown has been placed on paper-book page no. 29 to 34. (II) Octroi receipts on paper-book page no. 36 to 38 and the English version of the letter and stock appear on page no. 97 to 102. (III) English version of letter and stock inventory appear on page no. 97 to 102. 3. By relying upon newspaper cutting placed in paper book page no. 113, seized from the residence of J. M. Kothari, Assessing Officer has recorded his finding on page 4 of assessment order at sr. no. (iv) that the alleged goods were in matador GJ-1-T-4698 and linking the octroi payment of Rs.1 lacs to the said goods. This finding is contradictory to the facts because (i) The said matador was detained by the Octroi Department and information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hampaklal Shah GLR Vol. XXXVII (1) page 634] and therefore, the word 'penalty' is not written in the octroi receipt but for the octroi recovered which is always more than the value of goods involved corresponding value of goods on estimation is mentioned to match the octroi recovered which can be seen from the fact that as mentioned in the assessment order the value of goods belonging to the respondent inventorised by the Octroi Department at the time of spot inspection on 17/07/1999 at the business premises was Rs.415728/- only as mentioned on page 3 of the order and which is not in dispute. 6. The matador has no capacity to load goods worth Rs.45.75 Lacs. 7. Physical inventory of goods was taken during spot inspection on 17/07/1999 at the business premises by the Octroi Department which was prior to search and the said goods were duly reconciled with the book stock and the Octroi Department has not made any adverse comment or observation that unaccounted goods were purchased by the company. Similarly, Income Tax Department has also taken inventory of goods at the time of search on 18/11/1999 and at that time also they have not come across any unaccounted purchase or sales, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the octroi receipts issued by the checking squad which is not linked with the goods imported. (iv) That no discrepancy was found in the stock as per books and as per the inventory taken by the checking squad (v) That in the matador seized goods were of Rs.1,92,960/- but it has been valued at Rs.8,75,0007- and octroi of Rs.35,0007- was recovered evident from octroi receipt placed at Page no. 117 of Paper Book - II. vi) That as per Decision of Supreme Court in the case of SREE LEKHA BANERJEE OTHERS - 49 I.T.R., 112, The department can not by merely rejecting un reasonably a good explanation convert good proof into no proof as mentioned in the synopsis furnished to the Bench. 4. "In para 20 the I.T.A.T has mentioned regarding alternative submission that all the purchases could not have been made on one day. Assessee is also making sales outside the books. There would be a turnover and recycling of the purchases and sales, therefore entire investment of Rs.45.75,000 can not be said to have been done on a single day. There is also no material to infer that they were done in a single day ". But no such alternative submissions were made by appellant. 5. Further, in para 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A - 333 ITR, 488. 3. RAJESH BABUBHAIDAMANIA - 251 ITR, 541. 4. MERCURY METALS (P) LTD. 257 ITR, 297. 5. SHAKTI CARGO MOTORS PVT. LTD. TAX APPEAL NO. 2324 OF 2009. dated 19/01/2010. The non consideration of above facts being affidavit, synopsis, contentions, decisions are apparent mistakes and in this connection reliance is placed on and kind attention is drawn to the following decisions : 1. Laxmi Electronic Corporation Ltd. 188 ITR 398 (All. High Court) The court has held that where the Tribunal fails or omits to deal with an important contention affecting the maintainability/merits of an appeal, it must be deemed to be mistake apparent from the record which empower the Tribunal to reopen the appeal and rectify the same if it is so satisfied. 2. Saurashtra Kutch Stock Exchange Ltd. 262 ITR 146 (Guj.High Court) The court has held (Page 155) " It has to be borne in mind that the Act is a statute providing for levy and collecting of tax. In case a party before the Tribunal invites the attention of the Tribunal that a point or a contention which is material for determining the amount of tax payable (which may be nil in a given case) has not been considered by the Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r like nature which could be detected without reargument of the matter or reappraisal of the facts as appearing from the records. The Tribunal is empowered to rectify only such mistake and cannot review its earlier order. We also are reminded of the decision in the case of CIT Vs Karam Chand Thappar and Bros. Pvt. Ltd., 176 ITR 535 rendered by the Hon ble Apex Court wherein it is held as under: It is well settled that the Tribunal is the final fact finding body. The questions whether a particular loss is a trading loss or a capital loss and whether the loss is genuine or bogus are primarily questions which have to be determined on appreciation of facts. The findings of the Tribunal on these questions are not liable to be interfered with unless the Tribunal has taken into consideration any irrelevant material or has failed to take into consideration any relevant material or the conclusion arrived at by the Tribunal is perverse in the sense that no reasonable person, on the basis of facts before the Tribunal, could have come to the conclusion to which it has come. It is equally settled that the decision of the Tribunal has not to be scrutinised sentence by sentence merely to find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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