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TMI Blog2018 (7) TMI 2013X X X X Extracts X X X X X X X X Extracts X X X X ..... l of the Assessee, the coordinate Bench of tribunal has considered the submissions made by the Assessee. The Hon ble Bombay High Court in the case of CIT Vs Earnest Exports Ltd [ 2010 (2) TMI 261 - BOMBAY HIGH COURT] has held that the power under section 254(2) is confined to a rectification of a mistake apparent on record. The Tribunal must confine itself within those parameters. Section 254(2) is not a carte blanche for the Tribunal to change its own view by substituting a view which it believes should have been taken in the first instance. Section 254(2) is not a mandate to unsettle decisions taken after due reflection. The provision empowers the Tribunal to correct mistakes, errors and omissions apparent on the face. The section is not an avenue to revive a proceeding by recourse to a disingenuous argument nor does it contemplate a fresh look at a decision recorded on the merits, however appealing an alternate view may seem. Unless a sense of restraint is observed, judicial discipline would be the casualty. That is not what Parliament envisaged. (emphasis supplied by us). What the assessee intends to seek in the present case is the review of the order, which according to us is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has further failed to apply the principles of Evidence Act while deciding the appeals, the Bench has had simply concurred with the views of lower authorities without giving its own reasoning in the matter, the Bench has noted incorrect facts. In view of the aforesaid facts, it is alleged that there are apparent mistakes in the order of Tribunal and therefore the order of the Tribunal needs to be recalled. 4. The Ld DR on the other hand objected to the lengthy submissions made by Ld AR and submitted that that the Hon'ble Bench while deciding the appeal of the Assessee had considered the submissions of the assessee and also the case laws relied upon by Assessee and has thereafter decided the issues. He submitted that in such a situation there was no apparent mistake in the order of tribunal. He further submitted that through this M.A., the Assessee is seeking a review of the order passed by the Tribunal which is not permissible under the Act. He also relied on the decision of Hon'ble Bombay High Court in the case of CIT Vs. Ramesh Electric And Trading Co. reported in [1993] 203 ITR 497 for the proposition that the Appellate Tribunal does not have any power to review its own orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s represented by following persons : i. Shri Sunil Ganoo ii. Shri Ratanlal C Bafna and iii. Shri S.K. Rumale It is respectfully submitted that Shri Ratnalal C Bafna the appellant assessee never attended before the Hon. Bench due to his old age. In fact one Mr. Abhayraj Fattehraj Chordia Chartered Accountant attended along with Mr. Sunil Ganoo and Mr. S.K. Rumale. Since the name of the appellant is mistakenly mentioned in the impugned order, the same is a mistake apparent from records and hence the same is requested to be corrected by substituting the name of Mr. Abhayraj Fattehraj Chordia in place of Shri Ratanalal C Bafna. 3. Reading application u/s 255[6] of the I.T. Act 1961 filed by the appellant assessee on 18/03/2013 : The appellant assessee for the reasons as fully set out in the said application [vide Para 9 of the application] had requested the Hon. Bench to please direct the department to furnish a report from the learned Assessing Officer clarifying as to how the alleged fictitious loan entries and interest thereon is treated in the assessment proceedings of Chhoriya Group of cases for the A.Y.2003-04 to A.Y.2008-09 and also the reasons if any for takin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding the appellant assessee in the diaries seized and the same has been taxed accordingly in the hands of respective persons of Chhoriya Group. In the circumstances, the aforesaid stand of the department in Chhoriya Group cases acts as estoppel in the case of the appellant and in the circumstances the fictitious loan entries appearing in the seized diaries in the name of the appellant assessee cannot be construed and taxed in the hands of the appellant assessee as unexplained investment of the appellant assessee. It was also further submitted on the basis of the impugned report submitted by the learned Assessing Officer that the department failed to initiate the reassessment proceedings u/s 148 of the I.T Act 1961 in the various cases of Chhoriya Group on the basis of the entries in the seized diaries, without any plausible explanation, the action initiated u/s 148 of the I.T. Act 1961 in the case of the appellant for the year under consideration was bad in law as it was proved beyond doubts that the appellant never gave any unexplained loans to the Chhoriya Group as alleged. With due respect to the Hon. Members it is respectfully submitted that while writing the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sworn statement referred above. Even the information furnished in the said report vide Comments on Para 8 & 9 about the order sheet entries was not full and true and was confusing. Therefore it was requested to the Hon. Bench that the learned D.R. be directed to file the necessary clarifications on the above confusing points and also the information as per the application of the appellant assessee referred above as well as the order sheet noting dt. 30/07/2012 so as to enable the appellant assessee to make effective arguments on his part, particularly when the learned Assessing Officer of Chhoriya Group has accepted the contentions of the appellant assessee. However the Hon. J.M. orally observed that if the department in spite of the specific directions of the Bench was not furnishing the information even after a lapse of considerable time, the appellant assessee should not bother as the adverse inference would be drawn against the department. It was further observed that the appellant assessee and his counsel should have faith in the Members and since the matters were old, the appellant assessee was directed to open up his arguments in the matter. The appellant assessee mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: i. Failure to comply with directions of the Hon.Bench vide order sheet entry dt.30/07/2012 ii. Avoiding to furnish relevant information vide appellant assessee's application u/s 255[6] of the I. T. Act 1961 referred above. iii. Failure to produce the diary of Chhoriya Group for the alleged unrecorded transactions for the period 1/ 1/2001 to 31/3/2001 in spite of application filed by the appellant assessee on 22/12/2011 before the Hon. Bench. In the circumstances it was argued that in view of the decision of Hon. Supreme Court in Criminal Appeal No.1406 of 2012, in the case of Kishor Samrite v/s State of U.P. and Others, the appeal of the appellant deserved to be allowed. A copy of the said decision was filed on records during the course of hearing of the appeal.[Please refer Page 21 of the impugned order] However there is no discussion about the said decision in the impugned order and the Hon. Bench in Para 40 on Page 32 of the impugned order has simply observed that we have considered the various decisions cited before us. It appears that the Hon. Members have lost sight of the said decision while framing the impugned order which with due respect to the Hon. Mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efer Page No.21 of the impugned order] It was submitted that failure to give suggestion to the witness is fatal and his testimony goes unchallenged. It appears that the Hon. Members have lost sight of the said decision while framing the impugned order which with due respect to the Hon. Members amounts to non application of mind. Since the Hon. Members have failed to consider and apply the binding decision of the Hon. Supreme Court to the case of the appellant, the same amounts to mistake apparent from records and needs to be corrected. It is therefore humbly prayed that the impugned order be recalled and by following the principle and ratio laid down by the Hon. Supreme Court in the aforesaid decision the appeal of the appellant for the A.Y. 2008-09 be allowed on this short ground. 6. Regarding failure to consider and discuss the following decisions cited before the Hon. Bench : Addl. C.I.T. V/s. Miss Lata Mangeshkar reported in 97 I.T.R. Page 696 [Bom]. CIT V/s. Salekchand Agarwal reported in 300 I.T.R. Page 426 [All]. During the course of arguments the appellant filed copies of the above two decisions [Refer Page 21 of the impugned order] and submitted that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with nor considered the above referred decision of the Hon. Supreme Court the same amounts to mistake apparent from records and needs to be corrected. It is therefore humbly prayed that the impugned order may please be recalled and the issue involved may please be decided as per provisions of law as explained in the above referred decision and evidence on records of the Hon. Bench. 8. Regarding failure to properly appreciate the facts and ratio of the decisions of the Hon. Bombay High Court in the various cases of Kumar and Company. The Hon'ble Bench vide Para No.27 of Page No.23 of the impugned order was pleased to allow the following additional ground of appeal raised by the appellant assessee : Since the learned Assessing Officer has passed the impugned reassessment order at the behest and directions of the officers of the Investigation Wing Nashik, the learned CIT(A) ought to have annulled the said order. Consequently, the reassessment order passed by the learned Assessing Officer be annulled. In support of this contention the appellant assessee has placed reliance on the letter dt.l0/ 12/2009 addressed by the learned Assessing Officer [J.C.LT.Range 1 Jalgaon] t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said amounts represented repayment of loans given in earlier years as appearing in the rough Cash book of Chhoriya for the period 01/01/2001 to 31/03/2001 which was in possession of the department and the same was never disclosed to the learned Assessing Officer to form an independent opinion. However the Hon. Members have lost sight of this relevant evidence and have erroneously and mistakenly held in Para No.30 Page No.25 of the impugned order that However in the instant case, if we accept the contention of the Ld. Counsel for the assessee that the Assessing Officer has acted at the behest of the Investigation Wing, then in that case he would have made addition of ₹ 9,83,5O,OOO.OO which is as per reasons for issue of notice It is respectfully submitted that it is a well settled law that the reasons recorded before issuance of notice are based on prima facie satisfaction and need not be accurate. The reliance placed by the Hon. Members on the reasons recorded for rejecting the contention of the appellant is misplaced and mistaken. With due respect to the Hon. Members the appellant assessee most respectfully submits that the aforesaid conclusion is based on surmise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst.of profit 5 lacs 23/02/2001 42 as second inst. of profit 5 lacs 19/03/2001 57 as third inst. of profit 5 lacs 04/04/2001 3 as April profit 5 lacs 28/05/2001 41 as fifth inst.of profit 5 lacs Total 20 lacs It was explained during the course of hearing that the learned C.I.T.[A] while calculating the Revised Peak Statement attached to his appellate order has mistakenly not considered the receipts of ₹ 5 lacs each on 04/04/2001 and 28/05/2001 allegedly received by the appellant assessee. If these receipts are considered then the revised peal credit would work out to Nil In the circumstances it was submitted that the addition sustained by the learned C.I.T.[A] on account of Revised peak credit was erroneous and devoid of merits. However the Hon. Members while writing the order appear to have lost sight of this factual position explained from the evidence available on records which constitutes mistake apparent from records which deserves to be corrected as the same has caused serious prejudiced and injustice to the appellant. It is therefore most restfully submitted that the decision to confirm the peal credit of ₹ 9,30,000.00 being f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal) reads as under: Orders of Appellate Tribunal (1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub- section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the 2 Assessing] Officer: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this. sub- section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard. (3) The Appellate Tribunal shall send a copy of any orders passed under this section to the assessee and to the Commissioner. (4)Save as provided in section 256, orders passed by the Appellate Tribunal on appeal shall be final. 7. A plain reading of the above provisions indicates that in order to exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be corrected by way of rectification. The uniform opinion of the courts of superior jurisdiction is that a patent, manifest and self-evident error which does not require elaborate discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected under section 254(2). 9. At this juncture, it will also be relevant to refer to the decision of Hon'ble Apex Court in the case of T. S. Balaram, ITO Vs. Volkart Brothers [1971] 82 ITR 50 (SC), wherein the Hon'ble Court has explained the meaning of "mistake apparent on record". The Hon'ble Apex Court held that "a mistake apparent on the record" must be an obvious and patent mistake and not something which can be established by a long-drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record. 10. We find that Hon'ble Bombay High Court in the case of CIT Vs. Ramesh Electric and Trading Company (supra) has held that under section 254(2) of the Income-tax Act, 1961, the Appellate Tribunal may, "with a view to rectifying any mistake apparent from the record&quo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal to state in its judgment specifically or in express words that it has taken into account the cumulative effect of the circumstances or has considered the totality of the facts, as if that were a magic formula; if the judgment of the Tribunal shows that it has, in fact, done so, there is no reason to interfere with the decision of the Tribunal. 13. In the case of Popular Engineering Co. Vs., ITAT & Anr [2001] 248 ITR 577 (P&H) the Hon'ble High Court has held that the possibility of forming a different opinion than the one expressed in the order passed under section 254(1) of the Act cannot be treated as a ground for entertaining an application under section 254(2) of the Act. 14. In the case of CIT Vs. Ram Bahadur Thakur Ltd. [1999] 237 ITR 217 (Ker) it has been held that Sec. 254(2) of the Act could not be resorted to rectify every mistake, but could be taken recourse only to rectify a mistake apparent from the record. 15. In the present case, as we have noted above the fact that the Assessee has filed miscellaneous application running into 17 pages. Apart from the long and detailed miscellaneous application, Ld.A.R. has also argued the Miscellaneous Application for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case are considered in the light of the decisions cited hereinabove, we are of the view that what the assessee intends to seek in the present case is the review of the order, which according to us is not permissible under the provisions of section 254(2) of the Act. If we accept the present petition of the Assessee, then it will tantamount to review of the order of the Tribunal and the law is well settled that power to review is beyond the scope of Section 254(2) of the Act. 19. In view of the aforesaid facts and following the decisions cited hereinabove, we are of the view that since the assessee has failed to point out any mistake apparent from record in the order, we are not inclined to recall the order of the co-ordinate Bench dated 31.03.2015, hence, the Miscellaneous Application No.32/PUN/2015 is hereby dismissed. 20. Now we take up M.A.No.33/PUN/2015 for A.Y. 2008-09. 20.1. In this case also, assessee has filed Miscellaneous Application of 17 Pages, which is similar in contents to the Miscellaneous Application No.32/PUN/2015 for A.Y. 2002-03. For the sake of brevity, the same is not reproduced. 21. Before us, both the parties have submitted that the facts and circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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