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TMI Blog2019 (10) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... d there been any objection from the side of the revenue on day of hearing of the case, the learned DR was to move an application for the same. But we find that there was no such application moved by the revenue. Appeal filed by the assessee was adjudicated on technical ground raised by the assessee holding that there was no satisfaction recorded by the AO before initiating the proceedings u/s 153C - such issue was raised by the assessee in ground No. 3 as well as additional ground of appeal filed in the letter dated 4 June 2019. Thus, it is clear that the grievance of the revenue that there was not provided sufficient opportunity to the revenue does not appear to be correct in the given facts and circumstances. We hold that there is no mistake apparent from the record in the order of the ITAT on account of non-granting of the opportunity to the revenue. Initiating the proceedings u/s 153C - ITAT in his order [ 2019 (7) TMI 1525 - ITAT AHMEDABAD ] after considering the materials available on record including the information obtained under RTI decided the appeal of the assessee. Moreover, we note that there was the circular No. 24/2015 issued by the CBDT dated 31 December ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any opportunity to the concerned Assessing Officer/Department to make any comment on the same. 2.1 It may here be noted that as laid down under Rule 11 of the Income Tax (Appellate Tribunal) Rules, 1963, in case any additional ground is preferred, it is to be put up before the Bench for order and will be kept on the file subject to all just exceptions which may be taken at the time of hearing regarding its admissibility etc., and a copy thereof is to be sent to the respondent for information. While deciding the appeal, the tribunal shall also not rest its decision on any other grounds unless the party which may be affected thereby has had a sufficient opportunity of being heard on that additional ground. As apparent from the facts of the case, the additional ground/s of the assessee was accepted on 04.06.2019, and the last date of hearing was held on 11.06.2019. This indicates there were only seven days between admission of additional ground and last date of hearing, and by no means can be construed as sufficient opportunity for the respondent revenue. Also, it is crystal clear that no documents, if any, submitted by the assessee alongwith additional ground of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llion 479.50 kgs belongs to him and cash amounting of ₹ 27,80,110/- pertains to his family . Furthermore, in the office note it has also been mentioned that in this case as discussed above, silver bullion 479.50 kgs and cash amounting of ₹ 27,80,110/- belongs to Shri Rupam R. Gorecha and the assessee Shri Nayan Kothari is salaried person only and he was messenger/ carrier only. Therefore, no any discrepancy was found during the course of assessment proceedings in the case of Shri Nayan Kothari , 5. The legislative intent behind recording of satisfaction note by the AO doing 153A was simply to come to the conclusion that materials belongs not to the person in whose case 153A is being done but to some other person. In the present case the assessee himself during the course of post search proceedings has accepted in his statement dated 13.03.2014 that the seized materials belong to him. Hence there is a satisfaction enough in form of statement itself by which proceedings u/s. 153C can be initiated. Moreover, the AO of both case is one and same. In the satisfaction note of the AO for issuing notice u/s. 153C of the IT Act 1961 did. 31/07/2015, it has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not have been passed. Thus, from the above, it is also very clear that the issue before the Hon'ble Supreme Court was not related to the assessment proceeding but was regarding the proceedings u/s 132A of the Act. Therefore, it is clear that the order of Hon'ble MP High Court is related to release of assets and not about the assessment proceedings and have given a go ahead to complete the assessment proceedings. 8. The appeal to Hon'ble ITAT by way of Miscellaneous Application is being filed considering the above facts. Relief claimed in MA It is therefore prayed that the Hon'ble ITAT C Bench Ahmedabad may recall its order dated 24/07/2019 in IT(SS)A No.151/AHD/2018, in the above referred case for the AY 2014-15 on the following grounds: 1. Hon ble ITAT C Bench Ahmedabad has not adjudicated the issue regarding assessment u s 153C' of the Act on merits. 2. There is no technical lapse on the part of revenue in finalising the assessment u/s 153C of the Act. 3. The assessee has never challenged or otherwise the notice issued u/s 153C o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 Before we embark upon an enquiry on the facts of present case in order to find out whether there is any apparent error committed by Tribunal or not while adjudicating the appeal, we think it appropriate to bear in mind certain basic principles for exercising the powers contemplated in Section 254(2) of the Income Tax Act, 1961 in the light of various judgments of Hon ble Supreme Court as well as Hon ble High Court expounding the scope of exercising powers under section 254(2) of the Act. We do not deem it necessary to recite and recapitulate all of them, but suffice to say that core of all these authoritative pronouncements is that power for rectification under section 254(2) of the Act can be exercised only when mistake, which is sought to be rectified, is an obvious and patent mistake, which is apparent from the record and not a mistake, which is required to be established by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date convenient to both the parties. As such, the matter was listed for hearing on 11.06.2019 after intimating to the learned DR for the Revenue. 5. On perusal of the application filed by the assessee for filing the additional ground of appeal dated 04.06.2019, we note that the copy of the additional ground was also forwarded to the departmental representative. 6. It is also interesting to note that Shri O. P. Sharma, the learned departmental representative was present on the date of filing the additional ground of appeal as well as on the date of hearing i.e. 06.06.2019 and 11.06.2019 respectively. Moreover, there was no objection raised by the learned departmental representative on the date of hearing seeking time for the preparation of the case on the additional ground of appeal. Therefore, it is inferred that there was consent of the learned departmental representative at the time of hearing of the appeal and no objection of whatsoever was raised for seeking the adjournment. 7. It is also important to note that the impugned case was the stay granted matter and the assessee in the stay order was directed not to seek an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue of recording of satisfaction note should also be decided in the light of the above judgement. Accordingly, the Board hereby directs that pending litigation with regard to recording of satisfaction note under section 158BD /153C should be withdrawn/not pressed if it does not meet the guidelines laid down by the Apex Court. Moreover, we note that the revenue has not pointed out any specific defect in the order passed by the ITAT. As we have already held that, the scope of the rectification under section 254(2) of the Act is very limited to the extent of mistake apparent from record for which 2 views are not possible. Thus we hold that the ITAT has taken a conscious decision after due application of mind. Thus the order of the tribunal does not suffer from any infirmity which is apparent from record. In view of the above discussions and finding, we are of the view of that there is no merit in the Misc. Application filed by the Revenue, which is accordingly dismissed. As the issue was decided in favour of the assessee on technical reasons, therefore the issue raised on merit was not decided. However, in our considered view nonadjudication of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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