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TMI Blog2018 (8) TMI 1640X X X X Extracts X X X X X X X X Extracts X X X X ..... ) that there was no acceptance of loans in cash or repayment of loans in cash in the case of the Assessee violating the provisions of Sec.269SS & 269T of the Act holds good. No evidence to show as to who was responsible for tampering of the records. In this scenario, it is difficult to proceed on the assumption that the findings of the CIT(A) that there was no acceptance of loans in cash or repayment of loans in cash in the case of the Assessee violating the provisions of Sec.269SS & 269T of the Act emanating from the impounded documents is incorrect. We also agree with the submission of the learned counsel for the Assessee that in the garb of a miscellaneous application u/s.254(2) of the Act, one cannot seek review of the order of the Tribunal. The Tribunal does not have powers to review its own orders u/s.254(2) of the Act and the power u/s.254(2) of the Act is only to rectify mistakes apparent on the face of the record. MA dismissed. - M. P. Nos. 271 to 277/Bang/2017 [ in ITA Nos. 196 to 202/Bang/2014 ] - - - Dated:- 24-8-2018 - Shri N. V. Vasudevan, Judicial Member And Shri A. K. Garodia, Accountant Member Applicant by : Shri K.V. Aravind, Standing Counsel Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceptance and repayment of loans by the Assessee in cash beyond the prescribed limit u/s.269SS and 269T of the Act and in violation of those provisions which calls for imposition of penalty u/s.271D and 271E of the Act, respectively. According to the revenue, in the penalty proceedings u/s.271D and 271E of the Act before the Officer imposing penalty, the Assessee did not take any stand that as per the impounded documents there was no acceptance or repayment of loans in cash. Even in the original grounds of appeal filed before the CIT(A) such a stand was not taken by the Assessee. However, a stand was taken for the first time in the course of hearing before the first appellate authority by filing revised consolidated receipts and payment account based on the impounded documents that there was no acceptance of loan and its repayment in cash so as to attract the provisions of Sec.269SS and 269T of the Act. Since the revised consolidated receipts and payments filed by the Assessee based on the impounded documents constituted additional evidence filed before the first appellate authority, the first appellate authority called for a remand report from the Officer imposing penalty on the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the figures given in the original financial statements filed by the assessee. Not even a single instance has been shown by the AO from the records that any amount was accepted by the assessee as loan or repaid by the assessee in cash, in excess of the limits laid down u/s. 269SS/269T of the Act. In such circumstances, we are of the opinion that the ld. CIT(Appeals) was justified in deleting the penalties levied on the assessee. We, therefore, do not find any reason to interfere with the order of CIT(Appeals). 6. In this miscellaneous application, the revenue has alleged that in the period between the filing of the appeals by the Assessee before the first appellate authority and the filing of additional evidence before the said authority, the Assessee has tampered with the documents that were impounded in the course of Survey u/s.133A of the Act by substituting documents impounded with documents that would support its claim that there was no acceptance of loan in cash in violation of the provisions of Sec.269SS and 269T of the Act. The date on which the revenue came to know about such tampering is not spelt out in the miscellaneous application. The stand taken by the reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt who had audited the accounts. The final books of accounts are being maintained every year from A.Y. 2005-06 onwards. The claim of the assessee about not maintaining regular books of account has been made just to justify its need for filing fresh accounts. The fact of the replacement/tampering of the primary basic books, suggests that the evidences that support the audited accounts has been purposely destroyed to fraudulently claim the revised accounts as correct and thereby change the very facts of the case. This fact was not known when the appeal was filed. The matter needs to be remanded back so that a detailed examination can be made. In the light of the above lapses, I am submitting Miscellaneous Application on the following grounds:- (1) In the facts and circumstances of the case wherein, it has been found that the evidence gathered in this case has been destroyed fraudulently by replacing/tampering of some primary books of account which were impounded during the course of survey under section 133A of the I.T. Act, 1961. (2) In the facts and circumstances of the case, the replacement/tampering of primary books of account clearly indicates that the eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of the allegation of tampering with the impounded documents. 9. The learned counsel for the Assessee on the other hand made the following submissions:- (i) He pointed out that that tax effect in all these appeals is less than ₹ 20 lacs and the light of the recent CBDT Circular No.3/2018 dated 11.07.2018, appeals before the Tribunal should not be filed by the revenue where the tax effect in the appeal is less than ₹ 20 lacs. The tax effect in each of the appeals is admittedly below the monetary limit of ₹ 20 lacs prescribed in the Circular of the CBDT. The Circular says that it applies to all pending appeals also. Therefore, even assuming that the order of the Tribunal is recalled, the appeals of the revenue will not be maintainable on the ground of low tax effect and therefore the prayer for recalling of the order of the Tribunal, even if accepted, will ultimately result the appeals of the revenue being dismissed for low tax effect as not maintainable. In the circumstances, the MA should be dismissed as infructuous. (ii) It was submitted that the allegation of the revenue about tampering of impounded documents was never put forth when the appeals o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as heard by the Tribunal on 4.12.2014, there was already correspondence regarding tampering of records but still nothing was brought to the notice of the Tribunal when the appeal was heard. As rightly pointed out by the learned counsel for the Assessee, the MA does not disclose as to when the tampering was discovered and as to why the allegations regarding tampering were not brought to the notice of the Tribunal when the appeals were heard by the Tribunal. Besides the above, the position as on today is that there is no material to show that there was in fact tampering of impounded material and therefore the conclusion of the CIT(A) that there was no acceptance of loans in cash or repayment of loans in cash in the case of the Assessee violating the provisions of Sec.269SS 269T of the Act holds good. Further there is also no evidence to show as to who was responsible for tampering of the records. In this scenario, it is difficult to proceed on the assumption that the findings of the CIT(A) that there was no acceptance of loans in cash or repayment of loans in cash in the case of the Assessee violating the provisions of Sec.269SS 269T of the Act emanating from the impounded docume ..... X X X X Extracts X X X X X X X X Extracts X X X X
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