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TMI Blog2020 (8) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... a single error in the impugned order has been pointed out by the Ld. counsel for the applicant. What the applicant wants is a review of the order passed by the Tribunal. The Tribunal is a creature of the statute. The Tribunal cannot review its own decision unless it is permitted to do so by the statute. Hon ble Supreme Court has held in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji [ 1970 (3) TMI 163 - SUPREME COURT] that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. It is a settled law that the Tribunal has no power to review its order in the garb of section 254(2) of the Act as held in CIT v. Globe Transport Corpn. [ 1991 (1) TMI 23 - RAJASTHAN HIGH COURT] - Rectification application dismissed. - M.A. No. 493/Mum/2019 (ITA No. 2100/MUM/2016) And M.A. No. 494/Mum/2019 (ITA No. 1645/MUM/2017) - - - Dated:- 31-7-2020 - Shri Amarjit Singh (Judicial Member) And Shri N.K. Pradhan (Accountant Member) For the Assessee : Mr. Sanjiv M. Shah, AR For the Revenue : Ms. Samatha Mullamudi, DR ORDER PER N.K. PRADHAN, A.M. By means of these Miscellaneous Applications (MAs) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Paper Book already offered and assessed to tax and consequently what can be brought to tax by the AO is balance sum of ₹ 1,09,69,435/- (i.e. ₹ 1,60,76,909/- less ₹ 51,07,474/- ), that remains after deducting from ₹ 1,60,76,909/- being 5% of bogus purchases sustained by the Tribunal, the aforesaid gross profit already reflected and assessed as aforementioned which in instant case is 1.59% i.e. ₹ 51,07,474/- in conformity with the chart filed. It is stated that appropriate direction be given to the AO on aforesaid lines so that ground No. 4 of appeal memo is not only determined and disposed of, but the appellant is saved from double taxation. Thus it is stated that the last sentence of paragraph 19, page 12 of the impugned order be rectified in conformity with what is stated above so to remedy the grievance complained of in ground No. 4. The Ld. counsel further submits that if the impugned order is not amended as narrated above, it would cause great prejudice, financial hardship and irreparable damage, harm and loss to the applicant-assessee. It is stated that the financial stakes involved in this application for rectification in terms of taxes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 13 the contentions of the Ld. counsel stating that : 13. The Ld A.R further submitted that the Gross profit rate and net profit rate declared by the assessee over the years is consistent, i.e., the average rate of G.P declared by the assessee was 1.97% and the average rate of N.P declared by the assessee was 0.76%. Accordingly the Ld A.R submitted the G.P rate and N.P rate would have gone down, had the assessee accounted for bogus purchases, as alleged by the AO. Accordingly, the Ld A.R submitted that the entire addition should be deleted. Then after considering the contentions of the Ld. counsel and Ld. DR, the Tribunal in the impugned order held that : 15. We have heard rival contentions and perused the record. We notice that the assessing officer has made the impugned addition in both the years, mainly for the reason that the assessee has failed to produce the suppliers before him and further the notices issued to the suppliers have been returned back unserved. Further these parties were also identified as hawala dealers by the Sales tax department of Government of Maharashtra. Though the assessee could furnish the copies of invoices, delivery challans and payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO. We have noticed that the assessing officer has assessed peak amount of purchases. We have earlier noticed that the assessing officer has accepted the sales and the assessee could not have sold the goods without purchasing them. Hence the Hon ble Gujarat High Court has held that the profit element embedded in such purchases alone should be brought to tax. Hence the approach of the assessing officer to assess the peak credit of purchases cannot be sustained for the above said reason and also for the reason that the AO himself has accepted that the assessee has reconciled the quantity of purchases with quantity of sales. 18. Further, we have noticed that the AO has also invoked the provisions of sec.69C of the Act. A perusal of provisions of sec.69C would show that the said section shall apply only in the cases, where the assessee could not explain the source of expenditure incurred by him to the satisfaction of the AO. There should not be any dispute that, when the purchases have been accounted in the books of accounts, the sources of expenses would stand explained by the entries recorded in the books of accounts. Hence, in our view, the AO was not right in law in invoking the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. A decision on a debatable point of law is not a mistake apparent from the record. This view is supported by the decision of the Hon ble Supreme Court in T.S. Balaram, ITO v. Volkart Bros ., (1971) 82 ITR 50 (SC), Master Construction Co. P. Ltd. v. State of Orissa , AIR 1966 SC 1047, Karam Chand Thapar Bros. (Coal Sales) Ltd. v. State of U.P. (1976) Tax LR 1921, 1927 (SC) and CCE v. ASCU Ltd ., (2003) 9 SCC 230, 232. We may refer here to the decision in ACIT v. Saurastra Kutch Stock Exchange Ltd . (2008) 305 ITR 227 (SC), wherein the Hon ble Supreme Court relying on its decision in Patel Narshi Thakershi Ors. vs. Pradyumansinghji Arjunsinghji (1971) 3 SCC 844, Hari Vishnu Kamath vs. Syed Ahmad Ishaque (1955) 1 SCR 1104, Satyanarayan Laxminarayan Hegde Ors. vs. Mallikarjun Bhavanappa Tirumale (1960) 1 SCR 890 and Syed Yakoob vs. K.S. Radhakrishnan Ors. (1964) 5 SCR 64A held that : 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 while exercising certiorari jurisdiction. An error cannot be said to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a single error in the impugned order has been pointed out by the Ld. counsel for the applicant. What the applicant wants is a review of the order passed by the Tribunal. The Tribunal is a creature of the statute. The Tribunal cannot review its own decision unless it is permitted to do so by the statute. The Hon ble Supreme Court has held in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji [AIR 1970 SC 1273] that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. It is a settled law that the Tribunal has no power to review its order in the garb of section 254(2) of the Act as held in CIT v. Globe Transport Corpn. [1992] 195 ITR 311 (Raj) (HC), CIT v. Roop Narain Sardar Mal [2004] 267 ITR 601 (Raj) (HC), CIT v. Devilal Soni [2004] 271 ITR 566 (Raj) (HC), Jainarain Jeevraj v. CIT [1980] 121 ITR 358 (Raj.) (HC), Prajatantra Prachar Samiti v. CIT [2003] 264 ITR 160 (Orissa) (HC), CIT v. Jagabandhu Roul [1984] 145 ITR 153 (Orissa) (HC), CIT Anr. v. ITAT Anr. [1992] 196 ITR 640 (Orissa) (HC), Shaw Wallace Co. Ltd. v. ITAT Others [1999] 240 ITR 579 (Cal) (HC), CIT v. Suman Tea Plyw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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