9911796707
TMI Blog2023 (9) TMI 1215X X X X Extracts X X X X X X X X Extracts X X X X ..... , the issue before the Tribunal was addition made by the AO towards cash receipts as per scribbling pad u/s. 68 of the Act. Just because cash found and seized, it cannot be concluded that the assessee has received unaccounted cash from various authorities. Since, there is specific directions from the Tribunal on the issue of addition made towards cash receipts and consequent cash seized during the course of search, in our considered view, there is no other option to the AO but to follow the directions or findings of the Tribunal while passing order u/s. 254 r.w.s. 143(3) of the Act. In the present case, the AO trying indirectly to do what he cannot do directly. In our considered view, once the main gate is closed, then the AO cannot take back door entry and further he cannot do indirectly what he cannot do directly. In our considered view, there is other provisions provided to deal with the situation where the AO can take other remedies available in the Act and consider the issue appropriately in accordance with law, but he cannot overlook the directions or findings of the appellate authorities and take a different view. AO has completely erred in making additions towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 4.11.2020 has clearly observed in para 12.8 page 42 of its order that the aforesaid amounts tallied with the regular books of accounts maintained by the assessee along with group companies. Therefore, the said addition would tantamount to rectification order passed by the AO against the orders of the final fact finding authority which would tantamount to judicial indiscipline. 6. The learned CIT(A) while sustaining the addition made by the LD AO under section 69A erred in observing that the appellant has not raised any grounds either before the first appellate authority or tribunal with regard to addition of Rs.3,68,74,080/- in its original proceedings. While making the aforesaid observation the learned CIT(A) failed to see that no addition was made by the AO originally for Rs.3,68,74,080/warranting the appellant to prefer a ground. For these and other grounds that may be adduced at the time of hearing , it is most humbly prayed that the Hon'ble ITAT may be pleased delete the addition of Rs.3,68,74,080/- under section 69A of the Act is an giving effect to proceedings and thus render justice. 3. The brief facts of the case are that, a search and seizure a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be rectified u/s. 154 of the Act and thus, rejected petition filed by the assessee u/s. 154 of the Act. 4. The assessee carried the matter in appeal before the first appellate authority. Before the CIT(A), the assessee has filed detailed written submission on the issue which has been extracted at Para 6 of Page 4 to 7 of ld. CIT(A) order. The ld. CIT(A), called the report from the AO vide letter dated 09.09.2022. The AO, submitted the report vide letter dated 21.11.2022, which has been reproduced at Para 7 of page 8 to 15 of ld. CIT(A) order. The above report of the AO was sent to the assessee for rejoinder and the assessee replied vide letter dated 13.12.2022 and relevant contents of rejoinder filed by the assessee was extracted at Para 8 of page 15 to 18 of ld. CIT(A) order. The sum and substance of arguments of the assessee are that, not following the directions of the appellate Tribunal in assessee s own case while giving effect order passed u/s. 254 r.w.s. 143(3) of the Act, is a mistake apparent on record and needs to be rectified u/s. 154 of the Act. The ld. CIT(A), after considering relevant submissions of the assessee and also taken note of remand report and rejoinder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO has taken a view, it is not a subject matter of section 154 of the Act and thus, the AO and CIT(A), has rightly rejected arguments of the assessee and their order should be upheld. 7. We have heard both the parties, perused materials available on record and gone through orders of the authorities below. The sole dispute arising for our consideration is, whether is there any mistake apparent on record from the order passed by the AO u/s. 254 r.w.s. 143(3) dated 12.01.2021, which can be rectified u/s. 154 of the Act or not. The provisions of section 154 deals with rectification and as per said provisions, mistake which can be rectified is one which is patent, which is obvious and is not debatable. Therefore, in order to invoke provisions of section 154 of the Act, there must be some mistake which is patent or obvious, for which there is no discussion or deliberation. In the present case, the assessee has filed petition u/s. 154 of the Act, to rectify order passed by the Assessing Officer u/s. 254 r.w.s 143(3) of the Act dated 12.01.2021. The Assessing Officer, in the order giving effect dated 12.01.2021 has made additions of Rs. 3,68,74,080/- towards unexplained seized cash, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived unaccounted cash from various authorities. Since, there is specific directions from the Tribunal on the issue of addition made towards cash receipts and consequent cash seized during the course of search, in our considered view, there is no other option to the AO but to follow the directions or findings of the Tribunal while passing order u/s. 254 r.w.s. 143(3) of the Act. In the present case, the AO trying indirectly to do what he cannot do directly. In our considered view, once the main gate is closed, then the AO cannot take back door entry and further he cannot do indirectly what he cannot do directly. In our considered view, there is other provisions provided to deal with the situation where the AO can take other remedies available in the Act and consider the issue appropriately in accordance with law, but he cannot overlook the directions or findings of the appellate authorities and take a different view. Since, the Assessing Officer has not followed the directions or findings of the Tribunal in assesse s own case on a issue, in our consider view the reasons given by the AO is a mistake apparent on record which needs to be rectified u/s. 154 of the Act, because said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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