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TMI Blog2017 (11) TMI 1866X X X X Extracts X X X X X X X X Extracts X X X X ..... stances, the Hon'ble Tribunal had rightly held that question of disallowance u/s 40A(3) does not arise. In para 13, the Hon'ble Tribunal has held that even if it is assumed that assessee must have purchased the land and had made payments in cash even then the disallowance cannot be made in view of the judgment of Hon'ble Punjab Haryana High Court in the case of Sh. Gurdas Garg. From the combined reading of the order of the Tribunal from para 12 and 13 it is observed that Hon'ble Tribunal has primarily deleted the addition by holding that the addition was made only on presumptions as no cash payments were made. The Miscellaneous Application filed by Revenue is dismissed. - M. A. No. 53/(Asr)/2016 (Arising out of I.T.A. No. 475/(Asr)/2014) - - - Dated:- 23-11-2017 - Sh. T. S. Kapoor, Accountant Member And Sh.N. K. Choudhry, Judicial Member Appellant by: Sh. Rahul Dhawan (D.R.) Respondent by: Sh. Ashwani Kalia (C.A.) ORDER T. S. Kapoor, This Miscellaneous Application has been filed by revenue against the order of the Hon'ble Tribunal dated 27.05.2016. 2. The revenue has filed this ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore there was no question of violation of provisions of section 40A(3) of the Act. It was submitted that it had further held that even if it is assumed that assessee had first purchased the land and had made payments in cash in hand and even then the following the case law of Gurdas Garg Vs. CIT Vs. Bathinda the addition was not sustainable. 5. We have heard the rival parties and have gone through the material placed on record. We find that the detailed findings has been recorded by Hon'ble Tribunal in para 12 wherein it has held that no cash payments were made and the addition was based only on presumptions and surmises. It has further held that payments were made by buyers directly in the present of Sub-Registrar as has been mentioned in the deeds and therefore in view of these circumstances, the Hon'ble Tribunal had rightly held that question of disallowance u/s 40A(3) does not arise. In para 13, the Hon'ble Tribunal has held that even if it is assumed that assessee must have purchased the land and had made payments in cash even then the disallowance cannot be made in view of the judgment of Hon'ble Punjab Haryana High Court in the case of Sh. Gurda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27.01.2010 Sh. T Mohan Lal Sh. Ram Murti 02.03.2010 Sh. Atam Prasad as power of attorney holder of Rani Mahajan Sh. Tarun Thakur Further we find that the above sale deeds were executed in the presence of Sub-Registrar, Pathankot and Photographs of sellers and buyers is also affixed on the sale deeds and below the photographs of sellers and buyers, there is no mention of the name of the assessee. Therefore, one fact is clear that assessee was not a party to the sale deeds and, therefore, the presumption made by the authorities below that land was sold by assessee is not based upon the facts and material on record. The authorities below has wrongly made a presumption that assessee must have first purchased the land and must have paid the payment to sellers of land after obtaining the same from the ultimate buyers and further has wrongly presumed that such payments were made in cash and therefore wrongly held that assessee must have violated the provisions of section 40A(3) of the Act. This presumption is based upon surmises and are not base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, which deals with rectification, makes it amply clear that a mistake apparent from the record is rectifiable. In order to attract the application of section 254(2), a mistake must exist and the same must be apparent from the record. The power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended. Mistake means to take or understand wrongly or inaccurately; to make an error in interpreting, it is an error; a fault, a misunderstanding, a misconception. Apparent means visible; capable of being seen; easily seen; obvious; plain, A mistake which can be rectified under section 254(2) is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. The language used in section 254(2) is permissible where it is brought to the notice of the Tribunal that there is any mistake apparent from the record. Accordingly, the amendment of an order does not mean obliteration of the order originally passed and its substitution by a new order which is not permissible under the provisions of section 254(2). Further, where an error is far from self evident, it ceases to be an apparent error. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thapar Br. P. Ltd., 176 ITR 535 has held as under: It is equally well settled that the decision of the Tribunal has not to be scrutinized sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the Tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal, finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal are perverse. It is not necessary for the 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. Similarly, the Hon'ble Madras High Court decisions in T.C.(A) No. 156 of 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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