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TMI Blog2015 (2) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner from one Kishan Punjabi (donor) were not genuine. On 3rd December, 2007 the petitioner filed an application for rectification under Section 254 (2) of the Act seeking to rectify the order dated 10th July, 2007 confirming the orders of the lower authorities for A.Y.1995-96. The basis of the Misc. Application was that the Tribunal in its order dated 10th July 2010 relied upon an order of the Supreme Court in Commissioner of Income Tax vs P.Mohan Kala (2007) 291 ITR 278 (SC) in the order without having giving the petitioner any notice of the same and also on the ground that the statement of the donor gifting Rs. 13.25 lacs was not considered. 4. On 11th July, 2008, the Tribunal dismissed the petitioner's Misc. Application on the ground that there was no mistake apparent on record warranting exercise of jurisdiction under section 254 (2) of the Act. Being aggrieved by the order dated 11th July, 2008 rejecting petitioner's rectification Application, the petitioner filed writ petition No.2515 of 2008 in this Court. On 19th January, 2009 this Court by order allowed the petition and restored the application of the Tribunal by inter alia holding : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spite the order of remand the tribunal has not complied with the directions contained in paragraphs 5 and 6 of the judgment of this Court dated 19th January 2009. In this view of the matter and particularly having regard to the limitations on the jurisdiction of this Court to inquire into questions of fact, we deem it appropriate to remand the proceedings back to the tribunal by setting aside the impugned order dated 9.11.2009. The tribunal shall upon remand, reconsider the application under section 254 (2) afresh having due regard to the observations contained in paragraphs 5 and 6 of the judgment of this court dated 19th January 2009 in writ petition No.2515 of 2008." 7. On the Misc.Application for rectification being restored, the Tribunal by the impugned order dated 20th August, 2010 after placing reliance upon paragraph 5 and 6 of the order dated 19th January, 2009 of this Court and paragraph 6 of the order dated 22nd February, 2010 held that the scope of examination in Rectification Application was confined only to consider the donor's statement and allowing an opportunity to the petitioner to meet/confront the reliance by the Tribunal on decision of the Supreme Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared before the Assessing Officer on the day fixed for hearing but, was to leave India on that very day and hence adjourned. It is also submitted that during the course of hearing before the Tribunal the donor was present and the petitioner's Advocate had brought the same to the notice of the Tribunal. So far as reliance upon the decision of the Apex Court in P.Mohan Kala (supra) is concerned it is submitted that it would not have any application in the present facts as that decision was rendered in the context of facts completely different from that existing in the present case. It was submitted that the impugned order be set aside and the appeal itself be restored before the Tribunal for final disposal. 9. None appears for the revenue. 10. The petitioner in their first petition being Writ petition No.2515 of 2008 had made a grievance with regard to reliance by the Tribunal upon the decision of P. Mohan Kala (supra) without giving notice of the same to the petitioner and also that the statement of the donor dated 9th August, 1999 being not considered by the Tribunal in its order dated 20th August, 2010. The Court was prima facie impressed by the grievance of the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mistake and errors apparent on the face of the record and it does not contemplate giving a fresh decision on merits by substituting the earlier view. The aforesaid decision in EARNEST EXPORTS (supra) was rendered in the context of the Tribunal allowing application under section 254 (2) of the Act seeking to rectify its earlier order and in fact substituted the findings of the earlier order by reversing the same. In the present case, the impugned order does not substitute the view taken by the Tribunal in the first instance as recorded in its order dated 19th July, 2007. It is while considering the petitioner's application for rectification that the submissions of the petitioner were considered to reach a conclusion that there was no error apparent on record. The Tribunal while considering the application for rectification would necessarily have to consider the submissions of a party to the effect that there is an error apparent on record. It is in that context that the tribunal has made observations to reach a conclusion that there is no error apparent on record. It is only in cases where the Tribunal reaches a conclusion that there is an error apparent on record on the facts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Income Tax (Appeals) keeping in view that mere receipt of gifts from a foreign party through banking channel would not make it genuine. In fact, it was one of the submissions of the petitioner before the Tribunal that the gift received from the donor who was a foreign national through established banking channel makes it a genuine gift. The petitioner attempted to point out that there are distinguishing features in the decision of P.Mohan Kala (supra) and in present case. However to our mind, facts of the case would not be material for the present purpose as the conclusions of the Supreme Court being relied upon is that in law mere routing of a gift through a banking channel would not by itself establish that the gift is genuine. This finding of the Supreme Court is applicable irrespective of the facts. The genuineness or nongenuineness of the gift would have to be established by other evidence. The Tribunal was thus justified in coming to the conclusion that there has been no error apparent on record in order dated 20th July, 2007.
14. For all the aforesaid reasons, we do not find merit in the petition and the same is accordingly dismissed. X X X X Extracts X X X X X X X X Extracts X X X X
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