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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 ..... l 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 10th July, 2007. - Decided against assessee. - WRIT PETITION NO. 2526 OF 2010 - - - Dated:- 7-1-2015 - M.S.SANKLECHA G.S.KULKARNI, JJ. Mr. Ajay R. Singh a/w Ms. Neelam C. Jadhav for the Appellant JUDGEMENT 1. By this petition under Article 226 of the Constitution of India the challenge is to the order dated 20th August, 2010 passed by the Income Tax Appellate Tribunal (for short the ' Tribunal' ) under Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it was relying on those judgments. The petitioner is particularly aggrieved by the reliance placed on the Supreme Court's judgment in CIT vs P.Mohankala (2007) 291 ITR 278 (SC). According to the petitioner, no opportunity was given to him to explain how the said judgment is not applicable to the facts of the case. The petitioner is also aggrieved by the fact that the statement of the donor Mr.Punjabi dated 9.8.1999 was not considered by the tribunal. 6. Learned counsel for the petitioner reiterated the same grievance We find substance in his submission. In view of the fact that the impugned judgment is delivered without taking into consideration the donor's statement, we deem it proper to set aside the order and remand the application to the tribunal with direction to decide it afresh after hearing the parties in accordance with law. Order accordingly. 5. On 9th November, 2009 the Tribunal by an order dismissed the petitioner's application for rectification of the order dated 10th July, 2007 as restored by this Court. This on the ground that there was no mistake apparent on record in order dated 10th July, 2007 warranting its rectification. 6. Bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s statement and allowing the petitioners an opportunity to meet reliance of the Tribunal on the decision of the Apex Court in P.Mohan Kala (supra) on which reliance is placed in its order dated 20thAugust, 2010. According to him, once the matter was restored to the Tribunal the entire Misc.Application was to be a subject matter of consideration by the Tribunal. (B) While dealing with the application under Section 254 (2) of the Act, the Tribunal has to only decide whether or not there is a mistake apparent on record and if in the view of the Tribunal, it is so, then the appeal should be placed for hearing to consider the merits. In this case, the Tribunal has while disposing the Misc.Application for rectification has disposed of the petitioner's contentions on merits. This according to the petitioner causes prejudice to them as the petitioner's submissions would have to be considered in the context of other facts which are ignored when the application is disposed of on merits at the stage of Section 254 (2) of the Act; (C) Without prejudice to the above, on merits it is submitted that the impugned order incorrectly records that the statement of the don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 10th July, 2007. However, this Court did not give any conclusive finding with regard to there being any error apparent on record in the order dated 10th July, 2007 and restored Misc.Application for consideration by the Tribunal on the two issues of which grievance was made by the petitioner before the Court. Therefore, the Tribunal has correctly understood and interpreted orders of this Court that Misc. Application for rectification is restored to the Tribunal only in respect of two issues namely donor's statement and opportunity to meet the decision of the Apex Court in P.Mohan Kala (supra) Therefore, the Tribunal correctly limited the scope of adjudication of the rectification application only on the aforesaid two issues. 11. The next contention urged on behalf of the petitioner was that under Section 254 (2) of the Act, the Tribunal ought not to have decided the issue on merits but, ought to have merely recalled its order dated 10th July, 2007 and thereafter considered the issues raised by the petitioner on merits. In support reliance was placed on the decision of this Court in COMMISSIONER OF INCOME TAX VS. EARNEST EXPORTS LTD (2010) 323 ITR 577, wherein it has been h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 22nd February, 2010. Thus the above two statement even if accepted to be incorrectly recorded, were not the basis of disposing of the application. 13. This Court in the above order has directed the Tribunal only to consider statement of the donor dated 9th August, 1999 as according to the petitioner the same had not been considered in order dated 10th July 2007 passed by the Tribunal and the petitioner's submissions on the reliance on the decision of the Apex Court in P.Mohan Kala (supra) by the Tribunal in the impugned order considered the donor's statement and on appreciation of facts came to the conclusion that there is no mistake apparent on record in the order dated 10th July, 2007. The consideration of the statement of the donor in the rectification application was in accordance with directions of this Court. The Court itself had not reached a final conclusion that there was an error apparent on record in view of the statement of the donor not being considered. It has not been shown to us that the findings reached by the Tribunal on examination of the statement of the donor is in any manner perverse and/or arbitrary. So far as reliance in the order dated 10th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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