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TMI Blog2021 (3) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... It is well settled that a mistake apparent on record must be an obvious and blatant mistake and not something which could be arrived by a long drawn process of reasoning on accounts on which there may be conceivably two opinions. In the present case, the CIT(A) have categorically decided the issue against the assessee in first round that also confirmed by the Tribunal after considering the materials available on record and applying the mind such finding of the CIT(A) cannot be challenged by way of proceedings u/s 154. Entertaining the application filed by assessee u/s 154 would only amounting to review of the earlier order of the CIT(A) for which the CIT(A) has no power as discussed earlier. In case the assessee is aggrieved against the decision of the CIT(A), the remedy de-facto does not allow by way of proceedings u/s 154 of the Act before CIT(A) to readdress the grievance of the assessee but elsewhere. In view of the above discussion, we are of the opinion that there is no mistake apparent on record in the order of the CIT(A) which can be legally rectified by way of proceedings u/s 154 of the Act by the assessee. Therefore, we are unable to agree with the finding of the CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the table at Page No.3 of the order and thereafter the ACIT was directed to serve the notice on the assessee. Thus the conduct of the assessee was clearly exhibited from the fact that the assessee refused to take notice on various pretexts. He has further contended that the assessee did not co- operate either in the assessment proceedings or before the CIT (Appeals). 6. Having considered the rival submissions as well as the relevant material on record, at the outset, we note that the CIT (Appeals) has given the details of the various notices on five occasions issued to the assessee which were received back with the postal remark that it was not claimed or not received by the assessee. Finally the notice of hearing was served to the assessee through Income Tax Inspector whose report was also reproduced by the CIT (Appeals). All these details and records as well as the observations of the CIT (Appeals) are given on page Nos.3 4 of the impugned order as under: Before proceeding with the case, it is important to bring out the conduct of the appellant during the course of appellate proceedings. He has refused to take the notice on various pretexts which are part of recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed to accept the notice of hearing of Mr. Amit Caddy and Mr.Peter Caddy also, as the case was handled by the same auditor. Hence the notices were served in the office wherein Mr.Chandru, received the notices and gave the acknowledgement. The original notice with acknowledgment on it is submitted. Dated: 10/03/2016 (HASSEN TAJ) ITI Thus it is apparent that the notices issued by the CIT(Appeals) for the dates of hearing were received unserved with the reason that the assessee did not claim on four occasions and it was received on the fifth occasion. Thereafter, the notice was served through the Inspector whose report also reveals that the assessee was avoiding the notice after filing the appeals before the CIT(Appeals). Even otherwise, subsequently the learned Authorised Representative of the assessee appeared before the CIT (Appeals) on 14.6.2016 and filed written submissions which were duly reproduced by the CIT (Appeals) and after considering the submissions of the assessee the impugned orders were passed. Hence it is manifest from the record that sufficient opportunities were given by the CIT (Appeals) to the assessee but the conduct of the assessee clearly s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accept the contention of the assessee and rejected the said ground of validity of proceedings under Section 153A of the Act. 9. Before us, the learned Authorised Representative of the assessee has submitted that there was no incriminating document found during the search under Section 132, therefore the proceedings under Section 153A cannot be initiated. Further the learned Authorised Representative of the assessee has submitted that the search was conducted in the case of one Sri M M Prasanna Kumar and there is no satisfaction recorded by the Assessing Officer before issuing the Notice under Section 153C / 153A of the Act. Therefore she has contended that the proceedings initiated under section 153A are misconceived as the assessee s case does not fall under the purview of Section 153A of the Act. She has further pointed out that the Assessing. Officer has stated in the assessment order that search and seizure operation under Section 132 of the Act was conducted in the case of Shri M M Prasanna Kumar and therefore in the absence of search in the case of the assessee the proceedings under Section 153A are not valid. Further the proceedings under Section 153C are also not valid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 153A on two grounds. Firstly, the search and seizure action was not conducted in the case of the assessee and therefore in the absence of satisfaction recorded by the Assessing Officer in the proceedings under Section 153A/153C are not valid. Secondly, the assessee challenged the validity of the proceedings on the ground that no incriminating material belonging to the assessee was found during the search and seizure action. 12. As regards the first contention of the assessee that the search was not conducted in the case of the assessee, we find that the CIT (Appeals) has verified this fact from the Assessing Officer and after considering the reply of the Assessing Officer vide letter dt.20.06.2016 found that as per the order sheet dt.22.8.2012 a search under Section 132 was initiated in the case of the assessee at the premises No.859,4th A Cross, 11th Main, Koramangala, Bangalore-560 034. The learned Authorised Representative of the assessee has not disputed this fact recorded by the CIT (Appeals) that the search was conducted at the premises of the assessee at the given address. Thus, it is clear the search was conducted in the case of the assessee as well as other pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... framed under Section 153 A in respect of those assessment years which were already completed on the date of search. As far as the assessment under Section 153A in respect of the year(supra)) the assessment got abated due to the search and seizure action under Section 132, the proceedings under Section 153A would be in the nature of regular assessment and therefore the existence of incriminating material is not at all relevant. 14. In the case before us, the Assessing Officer has clearly recorded in the assessment order that an MOU dt.18.01.2008 was found and seized which reveals that the assessee along with one Mr. Cherian Abraham purchased the property from Mr. Shanta Kumar for a consideration of ₹ 8,75,00,000. Out of which a sum of ₹ 2,75,00,000 was paid at the time of MOU. Therefore, the Assessing Officer has considered the said amount of ₹ 2,75,00,000 as unexplained investment of the assessee for the assessment year 2008- 09. The assessee has not disputed the signing of the said MOU and the payment of ₹ 2.75 Crores at the time of MOU. However the assessee claimed before the Assessing Officer that the entire payment was made by another partner Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Authorised Representative as well as learned Departmental Representative and considered the relevant material on record. The only submission made before us on behalf of the assessee is that the assessee was not given a proper opportunity by the CIT (Appeals) to present the case and made the submission on the merits of the issue. The CIT (Appeals) has considered only the submissions made by the assessee on the legal objection. It was also contended that the assessee sought another opportunity of presenting the case on merits which was not granted by the CIT (Appeals). Therefore, the assessee filed a petition under Section 154 of the Act which is pending adjudication before the CIT (Appeals). 18. On the other hand, the learned Departmental Representative has relied upon the orders of the authorities below and submitted that the assessee s conduct was non-co-operative during the assessment proceedings as well as the proceedings before the CIT(A). It is apparent from the record that despite the sufficient opportunities the assessee did not respond to the notices issued by the CIT (Appeals). The Assessing Officer has also recorded in the assessment order that the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unds and there is only change in figures in respect of each assessment year: 1. In the facts and circumstances of the case, order passed by the CIT(A) u/s 154 of the IT Act is beyond jurisdiction as the CIT(A) has resorted to review of the earlier appellate order in the garb of rectification. 2. In the facts and circumstances of the case, the CIT(A) exceeded his jurisdiction by deciding the issues relating to additions made in assessment order despite the fact that the appeal filed by the assessee against the earlier appellate order upholding the additions had been already dismissed by the ITAT vide order dated 14/07/2017. 3. In the facts and circumstances of the case, the CIT(A) erred in admitting the Misc. Petition filed u/s 154 by the assessee ignoring the fact that there is no mistake apparent from the record as the earlier CIT(A) had fully applied his mind and had passed speaking order considering all the facts and circumstances of the case which remained unchanged even at the time of disposing of 154 petition. 4. In the facts and circumstances of the case, the CIT(A) erred in ignoring the fact that the contents of MOU were also examined by the earlier CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 14.7.2017 decided the issue both on legally and on merit of the additions against the assessee. At that point of time, the assessee s petition filed u/s 154 of the Act was pending before CIT(A). The ld. CIT(A) ought not to have entertained such application under the provision of section 154 of the Act as there was no error in his earlier order so as to rectify the same. According to the Ld D.R., the CIT(A) on earlier occasion rightly dealt all the issues and decided the same against the assessee. Now considering the same issue by CIT(A) in the proceedings u/s 154 of the Act which amount to review of earlier order of his own, which is not permitted under provisions of section 154 of the Act. He submitted that there is no error, which prima facie on the record so as to rectify the same. 7. On the other hand, Ld. A.R. submitted that there was a pending petition filed u/s 154 of the Act before CIT(A) at the time of adjudication of the appeals by Tribunal vide order dated 14.7.2017. This was clearly brought to the notice of the Tribunal at the time of hearing of the appeals by the Tribunal and the Tribunal rightly observed in its order in para 19 at page 21 as follows: Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal, the assessee made a point that the assessee s petition filed u/s 154 of the Act in these assessment years were pending before the CIT(A). The Tribunal observed that observations of the Tribunal shall not have any bearing in deciding the pending petitions filed by assessee u/s 154 of the Act. In the meanwhile, the CIT(A) in all these assessment years decided the petition filed u/s 154 of the Act in favour of the assessee deleting addition made towards unexplained investment in all the assessment years i.e. 2008-09, 200910, 2010-11 2012-13. However, the CIT(A) once again recalled his own order for assessment year 2012-13 vide order dated 29.6.2018 stating that there was inadvertent error in considering the finding of the Tribunal in passing the earlier order dated 29.12.2017 for A.Y. 2012-13. Now the contention of the Ld. D.R. is that the CIT(A) has no power u/s 154 of the Act so as to recall the his own order for all these assessment years u/s 154 of the Act and he relied on the judgement of Hon ble Supreme Court in the case of CIT Vs. Hero Cycles Pvt. Ltd. 228 ITR 463 and also Mepco Industries Ltd. Vs. CIT 319 ITR 409 (SC) and in the case of T.S. Balaram, ITO Vs. Volkart Br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectly achieved by recourse to rectification proceedings contains in section 154 of the Act. When error was far from self-evident it ceases to be apparent error. The so called inaccuracies or wrong recording of the facts as alleged were not blatant mistakes which constitute sina-qua- non for exercise of power u/s 154 of the Act by CIT(A). Further, it is seen that the powers conferred by the statute u/s 154 of the Act on the CIT(A) are very limited and are circumscribed by the restrictions mentioned therein. In the case on hand, on earlier occasion, the CIT(A) has passed his order purely based on facts and material produced before us which alone forms basis for the CIT(A) to decide the issue, where the decision of the CIT(A) is right or wrong is a different issue which cannot be adjudicated by way of proceedings u/s 154 of the Act. However, the facts remain that the CIT(A) after duly considering all aspects and applying his mind, has taken conclusive and conscious view though in the opinion of the assessee is wrong, cannot be said to be mistake apparent from record since the said view has been arrived at after due application of mind to the facts and circumstances of the case and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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