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TMI Blog2001 (7) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Bench vide its order in M.A. No. 87/Asr/1999, dt. 24th April, 2000, thereby rejecting the application filed by the appellant. 4. That the appellant in his application filed earlier on 12th Oct., 1999, mentioned supra, had brought to the notice of the Bench that material points raised at the time of hearing by his counsel, though heard and accepted by the Bench after confronting the same to the Departmental Representative were nowhere discussed and dealt with in the order passed on 16th July, 1999. All these points have been discussed in detail in the application, dt. 12th Oct., 1999. 5. That the learned Bench, while rejecting the application, vide its order dt. 24th Feb., 2000, has nowhere observed that the points mentioned in the application were not raised or discussed, thereby conceding the fact that the said points were raised and argued by the counsel of the appellant. Still instead of allowing the application, dt. 12th Oct., 1999, it has been rejected by the Bench by making observations in the last para No. 7: "In these facts and circumstances, to our mind, this application has no merit because the averments contained in the application are beyond the scope o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basement, the digging was got done against the cost of earth to be excavated from this digging. In Noida, the earth (soil) is used for filling and it attracted a cognizable price. But without appreciating the factual position, the ITO below both the above issues out of proportions and unfortunately, even the learned CIT(A) as also the learned Tribunal Amritsar were also swayed by the whims and fancies of the ITO. 6.4. Without realising the hard fact the assessee had not been allowed any time to file his objections to the revised report of the DVO, the learned CIT(A) dismissed the assessee's appeal on the issue of cost of construction and so much so the learned Tribunal also upheld the findings of the CIT(A) ignoring all the material points raised and vehemently argued at the time of hearing. So much so, the assessee had filed a detailed report of Government approved valuers namely, M/s Shelter Consulting Engineers, Noida, based on item-wise cost analysis before the CIT(A) as also before the Tribunal. This report based on the Delhi Schedule Rates of 1989, reflected the cost at Rs. 18,03,653, which was even little less than the cost shown by assessee. But this report has nowhere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difference would have remained much below the tolerance limit of 10 per cent. 6.7. The learned Bench in its order, dt. 16th July, 1999, has observed that no defects in the report of the DVO were pointed out. The defects pointed out have been specifically discussed in the application, dt. 12th Oct., 1999, on p. 2, which are requested to be read as reiterated here. These defects resulted into overestimation of cost by Rs. 2,07,060. 6.8. It was also argued before the Bench that when in the other cases of Shri La HUF vs. ITO, Jalandhar, the Bench had allowed the difference even upto 13.78 per cent as within the tolerance limit, how in the case in hand, difference as such at 11.43 per cent could be held to be not within the said limit. But this point also remained untouched in the order of the Bench. 7. That all the above points which have a direct bearing on the outcome of the issues under dispute, ought to have been considered and disposed of by the Bench, which have not so been disposed of. In the application earlier filed dt. 12th Oct., 1999, all these points were vividly raised and the learned Tribunal still erred in law as also on facts in rejecting the application so fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussed and accepted by the Bench, do not find mention in the order: (i) At the very threshold, it was brought to the kind notice of the Bench that the construction of the factory building having been made in a span of three years, the entire difference could not be legally made in one year. The yearwise break-up of investment as per appellant and as estimated by the DVO is as under: Asst. yr. As per appellant As per DVO Rs. Rs. 1988-89 5,120 5,705 1989-90 12,96,190.30 14,65,330 1990-91 6,19,250.74 6,97,571 The above figures stand incorporated in the report of the DVO on the backside of p. 16 of the appellant's paper book. It was categorically accepted by the Bench that addition on account of difference of the year under appeal i.e., asst. yr. 1990-91 could only be made or sustained which worked out to Rs. 78,320.26 only and the addition pertaining to earlier two years had to be deleted. But in the order passed, this issue has nowhere been discussed. (ii) On p. 6 of the order, it has been observed that no defect was pointed out by the appellant in the DVO's report and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Bench and even the same find mention in the order), the difference in the case in hand was only 11.43 per cent which is 2.35 per cent less than what has already been allowed in the cases mentioned supra. Thus, even if no further rebate was to be allowed, the difference of 11.43 per cent was still allowable in view of the above orders of the Hon'ble Tribunal Amritsar Bench. (iv) On p. 4 of the order, it has been observed based on the order of the ITO, that the assessee had engaged a contractor named Shri Krishan Sharma, whom payments of Rs. 1,29,000 (from 29th June, 1988 to 23rd Jan., 1989) were made as per ledger folio No. 55 and thus, the assessee was not entitled to the rebate of 10 per cent for self-supervision. It has been further observed in the order that neither these findings of the CIT(A) were challenged nor anything contrary was brought to the notice of the Bench. It is submitted, in this context that the attention of the Bench was invited to p. 18 of the assessee's paper book, wherein it was categorically explained to the AO that no contractor whatsoever was engaged. It was for the sake of convenience that the payment of labour was made to one of their headman, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the contrary, the averments of the assessee, in our opinion, points to only one fact that without rehearing the case and unless the assessee is allowed to establish these points raised by him, this case cannot be decided. Hence we are of the opinion that in case the fresh conclusions as to be drawn and fresh reasoning is to be given by this Bench in support of these conclusions after hearing long arguments/it can well be said that then it becomes a matter which on the face of it can have two opinions. 7. In these facts and the circumstances, to our mind, this application has no merits because the averments contained in the application are beyond the scope of relevant provisions of rectification and consequent upon the same, we have come to the conclusion that this is not a fit case where we shall recall our previous order and fix the same for rehearing for considering this rectification application moved by the assessee. 8. In the result, the application filed by the applicant-assessee is rejected." 5. Before us, Shri J.S. Bhasin, advocate, the learned counsel for the assessee, reiterated submissions stated in the above application. In view of all these submissions, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat vide para 6.5 of the instant application, the assessee has stated that "the construction having been completed in three years, the difference in cost, if any, could be considered only of the year in hand and not of all the earlier years as well." 7.1 On a perusal of para 2.1 of M.A. No. 87(ASR).1999. It would be clear that the assessee had raised the same points stating that "the construction of the fact any building having been made in a span of three years, the entire difference could not be legally made in one year. The yearwise break-up of investment—as per appellant—and as estimated by the DVO for the asst. yrs. 1988-89, 1989-90 and 1990-91 are as under :" 7.2 Similarly, the submissions made by the assessee vide para. 6.6 of the instant application, are similar to the submissions made in para. 3 of the earlier application. It is also relevant to note that the contentions raised vide paras. 6 to 8 of the instant application are also similar to the contentions raised by the assessee vide para 3 of the first application. In fact, in the instant case, the assessee has not taken any new fact. Considering all these facts, we are of the view that the assessee has moved the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justified in purporting to act under s. 254(2) and passing the impugned order." 8. In the case of CIT vs. Smt. Gunwanti Bai (1996) 134 CTR (MP) 526 : (1996) 219 ITR 632 (MP), the Hon'ble Madhya Pradesh High Court has held that second application for rectification is not maintainable. In the said case, an application under s. 254(2) of the Act or rectification was moved before the Tribunal which was rejected on 16th Aug., 1982, on the ground that there was no error and all the material was taken into consideration and, therefore, there was no occasion to recall the earlier order, dt. 12th Feb., 1982. Thereafter, the second application for rectification was moved on 2nd Feb., 1983, before the Tribunal and this application was allowed by the Tribunal vide its order, dt. 23rd Dec., 1983. On reference, the Hon'ble High Court has held as under: "Normally, rectification only means to correct an error which is apparent on the face of the record and not to decide the matter over again on the merits. In the present case, in the second application which has been allowed by the Tribunal, the Tribunal has acted on merit part which was considered by all the three authorities, i.e., the ITO ..... X X X X Extracts X X X X X X X X Extracts X X X X
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