Dr. Harender Kumar Gupta, Agra v. ITO, Ward 4(2), Agra

MA 26/AGR/2009 | 1995-1996
Pronouncement Date: 27-08-2010 | Result: Allowed

Appeal Details

RSA Number 2620324 RSA 2009
Assessee PAN ABPPG0980M
Bench Agra
Appeal Number MA 26/AGR/2009
Duration Of Justice 1 year(s) 2 month(s) 9 day(s)
Appellant Dr. Harender Kumar Gupta, Agra
Respondent ITO, Ward 4(2), Agra
Appeal Type Miscellaneous Application
Pronouncement Date 27-08-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 27-08-2010
Date Of Final Hearing 23-07-2010
Next Hearing Date 23-07-2010
Assessment Year 1995-1996
Appeal Filed On 17-06-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI R.K. GUPTA JUDICIAL MEMBER AND SHRI P.K. BANSAL ACCOUNTANT MEMBER M.A. NOS.26 TO 29/AGR/2009 (IN ITA NOS.125 TO 128/AGR/2003) ASST. YEARS: 1995-1996 TO 1998-99 DR. HARENDRA KUMAR GUPTA VS. THE INCOME-TAX OFF ICER 4(2) E-2 KAMLA NAGAR AGRA. AGRA. (PAN: ABPPG 0980 M). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJENDRA SHARMA ADVOCATE RESPONDENT BY : SHRI VINOD KUMAR JR. D.R. ORDER PER P.K. BANSAL A.M.: THESE MISCELLANEOUS APPLICATIONS (M.A.) HAVE BEEN F ILED BY THE ASSESSEE UNDER SECTION 254(2) OF THE INCOME-TAX ACT 1961 (THE ACT HEREI NAFTER) IN ITA NOS.125 TO 128/AGR/2003 WHICH WERE DECIDED BY THIS TRIBUNAL VIDE CONSOLIDAT ED ORDER DATED 30 TH NOVEMBER 2006. SINCE THE ISSUE INVOLVES IN THESE M.AS IS COMMON THEREFO RE ALL THESE M.AS ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2. THE LD. A.R. VEHEMENTLY CONTENDED THAT THE ASSES SEE HAS COME IN APPEAL AGAINST THE ORDER OF THE CIT(A) SUSTAINING THE PENALTY IMPOSED UNDER SECTION 271(1)(C) OF THE ACT IN ALL THE A.YS. IN THE CASE OF THE ASSESSEE. IT WAS POINTED OUT TH AT IN ALL THESE A.YS. THE A.O. HAS IMPOSED PENALTY BY HOLDING THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF HIS INCOME AND FURNISHED INACCURATE PARTICULARS OF SUCH INCOME AND RENDERED HIMSELF LIABLE FOR PENALTY UNDER SECTION 2 271(1)(C) OF THE ACT. IT WAS POINTED OUT THAT AT T HE TIME OF HEARING OF THESE APPEALS THE ASSESSEE HAS TAKEN THE PLEA BEFORE THE HONBLE TRIBUNAL THA T WHILE ISSUING OF THE SHOW CAUSE NOTICE DATED 28.03.2002 BY THE A.O. UNDER SECTION 274 READ WITH SECTION 271(1)(C) OF THE ACT ARRIVING TO THE JURISDICTION FOR IMPOSITION OF PENALTY UNDER SECTIO N 271(1)(C) THE A.O. HAS NOT MENTIONED IN THE SAID SHOW CAUSE NOTICE THAT FOR WHICH OF THE OFFENC E (WHETHER THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTI CULARS OF SUCH INCOME) THE SHOW CAUSE NOTICE DATED 28.03.2002 FOR IMPOSITION OF PENALTY UNDER SE CTION 271(1)(C) WAS ISSUED 3. IT WAS POINTED OUT THAT THE SHOW CAUSE NOTICE IS SUED UNDER SECTION 274 READ WITH SECTION 271(1)(C) WAS NOT LEGAL/SPECIFIC AND DOES NOT POINT OUT FOR WHICH OFFENCE THE PENALTY HAS TO BE IMPOSED ON THE ASSESSEE. THE A.O. IN THE PENALTY O RDER HAS ALSO HELD THAT THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME FURNISHED INAC CURATE PARTICULARS OF INCOME. THE ASSESSEE HAS ALSO SUBMITTED THE DECISION SUPPORTING HIS PLEA MAINLY THE DECISION OF GUJARAT HIGH COURT IN THE CASE OF CIT VS. MANU ENGINEERING WORKS 122 ITR 306 (GUJ) AND THAT OF GAUHATI HIGH COURT IN THE CASE OF PADMA RAM BHARALI 110 ITR 54 (GAUHATI). THE DECISION OF THE GUJARAT HIGH COURT IN THE CASE OF MANU ENGINEERING WORKS 1 22 ITR 306 WAS DULY APPROVED BY THE GUJARAT HIGH COURT IN THE SUBSEQUENT JUDGEMENT IN T HE CASE OF NEW SORATHIA ENGINEERING CO. VS. CIT 282 ITR 642 (GUJ). EVEN THE DECISION OF GUJA RAT HIGH COURT IN THE CASE OF CIT VS. LAKHDIR LALJI 85 ITR 77 (GUJ.) WAS ALSO NOT CONSID ERED IN WHICH IT WAS HELD THAT IF THE PROCEEDINGS ARE INITIATED ON THE CHARGE OF CONCEALM ENT PENALTY CANNOT BE LEVIED ON THE CHARGE OF FURNISHING OF INACCURATE PARTICULARS OF INCOME AND VISE VERSA. THE A.O. SHOULD HAVE GIVEN CLEAR CUT FINDING ABOUT THE CHARGE OF THE PENALTY. THE AFFIDAVIT TO THAT EXTENT WAS ALSO FILED BEFORE US. REFERRING TO THE DECISION OF THE HONBLE SUPREME CO URT IN THE CASE OF CIT VS. RELIANCE 3 PETROPRODUCTS PVT. LTD. 322 ITR 158 (SC) IT WAS P OINTED OUT THAT BOTH THE OFFENCES I.E. CONCEALMENT OF PARTICULARS OF INCOME AND FURNISHING OF INACCURATE PARTICULARS OF INCOME HAS DIFFERENT MEANING. IN BOTH THE OFFENCES ONE THING I.E. PARTICULARS OF INCOME IS COMMON. IF THE PARTICULARS ARE FOUND TO BE INACCURATE THE LIABILI TY FOR THE PENALTY ARISES. SIMILARLY IF THE ASSESSEE HAS CONCEALED PARTICULARS THERE MAY BE LI ABILITY TOWARDS THE PENALTY. IF THE ASSESSEE HAD MADE EXPLANATION AND IF THE EXPLANATION OF THE ASSE SSEE IS NOT ACCEPTED BY THE A.O. THE EXPLANATION GIVEN BY THE ASSESSEE PER SE DOES NOT B ECOME TO BE A FALSE EXPLANATION. THEREFORE THE A.O. SHOULD HAVE GIVEN A CLEAR CUT FINDING WHET HER THE ASSESSEE HAS CONCEALED THE PARTICULARS OF INCOME OR FURNISHED INACCURATE PARTICULARS OF IN COME. EXPLANATION 1 TO SECTION 271(1)(C) IS APPLICABLE IN THE CASE OF CONCEALMENT OF PARTICULAR S OF THE INCOME NOT IN THE CASE OF FURNISHING OF THE INACCURATE PARTICULARS OF INCOME. THE PLEA TAK EN BY THE ASSESSEE WAS NOT AT ALL CONSIDERED BY THE TRIBUNAL AND NON-CONSIDERATION OF SUCH LEGAL PL EA SUPPORTED BY THE CASE LAW TANTAMOUNTS TO BE A MISTAKE APPARENT ON RECORD. IN THIS REGARD T HE LD. A.R. VEHEMENTLY RELIED ON THE DECISION OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LIMITED 2 62 ITR 146 (GUJ.) WHICH WAS DULY CONFIRMED SUBSEQUENTLY BY THE HONBLE SUPREME COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LIMITED 305 ITR 227 (SC). REFERRIN G TO PAGE 155 OF THE JUDGEMENT IT WAS POINTED OUT THAT THE HONBLE HIGH COURT HAS HELD TH AT THE PROPOSITION THAT THE CONTENTION HAS BEEN RAISED BY THE PARTY BUT NOT DEALT WITH BY THE TRIBUNAL SHOULD BE HELD TO HAVE BEEN NEGATIVE IS CORRECT ONLY UPTO A STAGE. ONCE A PARTY BRINGS TO THE NOTICE OF THE TRIBUNAL THAT AN IMPORTANT POINT OR CONTENTION RAISED BY THE PARTY HAS NOT BEE N DEALT WITH IT WOULD BE WITHIN THE JURISDICTION AND POWER OF TRIBUNAL TO DECIDE WHETHER THE SAME CO NSTITUTE A MISTAKE APPARENT FROM RECORD AND THEREAFTER IF NECESSARY REOPEN THE APPEAL. IT WAS POINTED OUT THAT SUCH POWER IS INHERENT IN THE TRIBUNAL. RELIANCE WAS ALSO PLACED ON THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF 4 ITO VS. ITAT 58 ITR 634 (ALLD.) IN WHICH IT WAS HE LD THAT WHERE IN A JUDGEMENT OR ORDER OF THE APPELLATE TRIBUNAL AN ERROR HAS CREPT IN NOT AS A RESULT OF ANY FAULT OF THE ASSESSEE BUT ATTRIBUTABLE ENTIRELY TO THE TRIBUNAL IN HAVING LOS T SIGHT OF A MATERIAL FACT AT THE TIME OF WRITING I TS ORDER OR JUDGEMENT WHICH FACT WAS DULY BROUGHT TO ITS NOTICE BY THE ASSESSEE THERE WOULD BE AN ERROR APPARENT FROM THE RECORD WHICH COULD BE RECTI FIED UNDER SECTION 35 OF THE INDIAN INCOME- TAX ACT. RELIANCE WAS ALSO PLACED IN THIS REGARD O N THE FOLLOWING JUDGMENTS :- UDHAVDAS KEWALRAM VS. CIT 66 ITR 462 (SC) K. ASHAN KOYA & SONS VS. CIT 172 ITR 677 (KERALA) CIT VS. ITAT 172 ITR 158 (M.P.) 4. IT WAS ALSO POINTED OUT THAT IN THE CASE OF HANU MAN RAM AUDAN RAM VS. CIT 110 ITR 712 IT WAS HELD THAT THE ORDER OF THE TRIBUNAL WA S VITIATED ON ACCOUNT OF NON-CONSIDERATION OF THE EVIDENCE BROUGHT TO THE KNOWLEDGE BY THE ASSESS EE. 5. RELIANCE WAS ALSO PLACED ON THE DECISION OF ITAT DATED 30.09.2008 IN THE CASE OF SHRI DINESH KUMAR JAIN IN ITA NO.314/AGR/2005 WHEREIN AT PARA-D OF PAGE 11 OF THE ORDER THE HONBLE TRIBUNAL HAS OBSERVED AS UNDER :- IN FACT THE HONBLE SUPREME COURT AND VARIOUS HIGH COURTS HAVE BEEN ALL ALONG HOLDING THAT IT IS A TIME OF ITAT TO CONS IDER ALL THE EVIDENCES IN FAVOUR OF AND AGAINST THE ASSESSEE. IN THIS REGARD REFERE NCE CAN BE MADE TO THE FOLLOWING JUDGMENT SHRI UDHAVDAS KEWALRAM 66 ITR 462 SUPREME COURT WHEREIN IT HAS HELD THAT IT IS OBLIGATORY FOR THE ITAT TO CONSIDER ALL RELEVANT FACTS AND GIVE ITS FINDINGS ON ALL PLEAS RAISED IN THE LIGHT OF THE EV IDENCES AND APPLICATION OF LAW. 5 6. THUS IT WAS CONTENDED THAT THE ORDER OF THE TRI BUNAL PASSED ON 30.11.2006 SHOULD BE RECALLED AS THERE HAD BEEN A MISTAKE DUE TO THE NON -CONSIDERATION OF THE ARGUMENT AND PLEA AS WELL AS THE CASE LAWS RELIED ON BY THE ASSESSEE. 7. LD. D.R. ON THE OTHER HAND HAS TAKEN A PLEA TH AT THE TRIBUNAL HAS CONSIDERED ALL THE SUBMISSIONS AND THE ARGUMENTS TAKEN BY THE ASSESSEE . THE NORMAL PRINCIPLE OF LAW IS THAT ONCE A JUDGEMENT/ORDER IS PRONOUNCED BY THE COURT OR TRIBU NAL THE JUDGEMENT/ORDER IS FINAL AND CANNOT BE ALTERED CHANGED VARIED OR MODIFIED. THE ITAT IS A TRIBUNAL CONSTITUTED UNDER THE INCOME- TAX ACT ITSELF IT IS NOT A COURT HAVING PLENARY PO WERS BUT A STATUTORY AUTHORITY FUNCTIONING UNDER THE INCOME-TAX ACT 1961. IT THEREFORE CANNOT GO OUTSIDE OR DE HORS THE INCOME-TAX ACT NOR CAN EXERCISE POWERS NOT EXPRESSLY AND SPECIFICALLY CONF ERRED BY LAW. THE POWER OF REVIEW IS NOT ENTRUSTED WITH THE TRIBUNAL. A RIGHT TO SEEK REVIE W OF AN ORDER IS NEITHER A NATURAL NOR A FUNDAMENTAL RIGHT OF AN AGGRIEVED PARTY. SUCH POWE R MUST BE CONFERRED BY LAW. IF THERE IS NO POWER ENTRUSTED WITH THE TRIBUNAL THE ORDER CANNOT BE REVIEWED BY THE TRIBUNAL. 8. WE HAVE CAREFULLY CONSIDERED THE RIVALS SUBMISSI ONS AND PERUSED THE MATERIAL ON RECORD ALONG WITH THE ORDER OF THE TRIBUNAL AND NOTED THAT THE ASSESSEE HAS CHALLENGED THE IMPOSITION OF THE PENALTY BEFORE THE TRIBUNAL UNDER SECTION 271(1 )(C). THE TRIBUNAL VIDE ITS ORDER DATED 30.11.2006 HAS UPHELD THE IMPOSITION OF THE PENALTY UNDER SECTION 271(1)(C) OF THE ACT. SECTION 252 OF THE ACT PROVIDES FOR CONSTITUTION OF THE ITA T BY THE CENTRAL GOVERNMENT CONSISTING OF AS MANY JUDICIAL AND ACCOUNTANT MEMBER AS IT THINKS FI T TO EXERCISE THE POWER AND DISCHARGE THE FUNCTIONS CONFERRED ON SUCH TRIBUNAL UNDER THE ACT. IT ALSO PROVIDES FOR QUALIFICATION OF MEMBERS. IT ENACTS THAT THE CENTRAL GOVERNMENT SHA LL ORDINARILY APPOINT A JUDICIAL MEMBER OF 6 THE TRIBUNAL TO BE THE PRESIDENT THEREOF. SECTION 253 ENABLES AN ASSESSEE AGGRIEVED BY ANY OF THE ORDERS MENTIONED IN THE SAID SECTION TO APPEAL TO T HE TRIBUNAL. SECTION 254 DEALS WITH ORDERS PASSED BY THE TRIBUNAL AND IS RELEVANT FOR THE PURP OSE OF CONTROVERSY RAISED IN THE M.A. BEFORE US. THIS SECTION READS AS UNDER :- 254. ORDERS OF APPELLATE TRIBUNAL. (1) THE APPE LLATE TRIBUNAL MAY AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNIT Y OF BEING HEARD PASS SUCH ORDERS THEREON AS IT THINKS FIT. (2) THE APPELLATE TRIBUNAL MAY AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER WITH A VIEW TO RECTIFYING AN Y MISTAKE APPARENT FROM THE RECORD AMEND ANY ORDER PASSED BY IT UNDER SUB-SECT ION (1) AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE B Y THE ASSESSEE OR THE ASSESSING OFFICER : .. (4) SAVE AS PROVIDED IN SECTION 256 ORDERS PASSED BY THE APPELLATE TRIBUNAL ON APPEAL SHALL BE FINAL 9. SECTION 254(2) LAYS DOWN THAT THE TRIBUNAL MAY AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER WITH A VIEW TO RECTIFYING ANY MI STAKE APPARENT FROM THE RECORD SUO MOTU CAN RECTIFY SUCH MISTAKE. THE TRIBUNAL CAN ALSO RECTIF Y SUCH MISTAKE IF IT IS BROUGHT TO THE NOTICE OF THE TRIBUNAL BY THE ASSESSEE OR THE A.O. THUS THE RE ARE TWO SITUATIONS UNDER WHICH AN ORDER UNDER SECTION 254(2) CAN BE PASSED. THE TRIBUNAL C AN ITS OWN AT ANY TIME WITHIN 4 YEARS RECTIFY ANY MISTAKE APPARENT FROM RECORD. IN CASE SUCH A MI STAKE IS BROUGHT TO THE NOTICE OF THE TRIBUNAL EITHER BY THE ASSESSEE OR BY THE A.O. THE TRIBUNAL IS BOUND TO RECTIFY SUCH MISTAKE. THUS THE TRIBUNAL HAS THE POWER TO RECTIFY THE MISTAKE IF TH ERE IS A MISTAKE APPARENT ON RECORD WITHIN THE FOUR CORNERS OF THE SAID PROVISION. THE MAIN QUEST ION THEREFORE IS : WHAT IS A MISTAKE APPARENT FROM THE RECORD. SIMILAR EXPRESSION ERROR APPARE NT ON THE FACE OF THE RECORD CAME UP FOR CONSIDERATION BEFORE THE COURTS WHILE EXERCISING CE RTIORARI JURISDICTION UNDER ARTICLES 32 AND 226 OF THE CONSTITUTION. IN T.S. BALARAM ITO VS. VOLK ART BROTHERS 2 SCC 526 IT WAS HELD THAT ANY 7 MISTAKE APPARENT FROM THE RECORD IS UNDOUBTEDLY N OT MORE THAN THAT OF THE HIGH COURT TO ENTERTAIN A WRIT PETITION ON THE BASIS OF AN ERROR APPARENT ON THE FACE OF THE RECORD. IT WAS HOWEVER CONCEDED IN ALL LEADING CASES THAT IT IS V ERY DIFFICULT TO DEFINE AN ERROR APPARENT ON THE FACE OF THE RECORD PRECISELY SCIENTIFICALLY AND W ITH CERTAINTY. IN THE CASE OF HARI VISHNU KAMATH VS. SYED AHMAD ISHAQUE 1 SCR 1104 THE CONS TITUTION BENCH OF THE SUPREME COURT QUOTED THE OBSERVATIONS OF CHAGLA C.J. IN BATUK K. VYAS VS. SURAT BOROUGH MUNICIPALITY ILR 1953 BOM 191; AIR 1953 BOM 133 THAT NO ERROR CAN B E SAID TO BE APPARENT ON THE FACE OF THE RECORD IF IT IS NOT MANIFEST OR SELF-EVIDENT AND RE QUIRES AN EXAMINATION OR ARGUMENT TO ESTABLISH IT. THE COURT IN THE SAID JUDGEMENT ADMITTED THAT THOUG H THE SAID TEST MIGHT APPLY IN A MAJORITY OF CASES SATISFACTORILY IT PROCEEDED TO COMMENT THAT THERE MIGHT BE CASE IN WHICH IT MIGHT NOT WORK IN AS MUCH AS AN ERROR OF LAW MIGHT BE CONSIDERED B Y ONE JUDGE AS APPARENT PATENT AND SELF- EVIDENT BUT NIGHT NOT BE SO CONSIDERED BY ANOTHER JUDGE. THE COURT THEREFORE CONCLUDED THAT AN ERROR APPARENT ON THE FACE OF THE RECORD CANNOT BE DEFINED EXHAUSTIVELY THERE BEING AN ELEMENT OF INDEFINITENESS INHERENT IN ITS VERY NATURE AND MUST BE LEFT TO BE DETERMINED JUDICIALLY ON THE FACTS OF EACH CASE. THE COURT STATED :- IT MAY THEREFORE BE TAKEN AS SETTLED THAT A WRIT O F CERTIORARI COULD BE ISSUED TO CORRECT AN ERROR OF LAW. BUT IT IS ESSEN TIAL THAT IT SHOULD BE SOMETHING MORE THAN A MERE ERROR; IT MUST BE ONE WHICH MUST B E MANIFEST ON THE FACE OF THE RECORD. THE REAL DIFFICULTY WITH REFERENCE TO THIS MATTER HOWEVER IS NOT SO MUCH IN THE STATEMENT OF THE PRINCIPLE AS IN ITS APPLICA TION TO THE FACTS OF A PARTICULAR CASE. WHEN DOES AN ERROR CEASE TO BE MERE ERROR A ND BECOME AN ERROR APPARENT ON THE FACE OF THE RECORD ? LEARNED COUNSEL ON EIT HER SIDE WERE UNABLE TO SUGGEST ANY CLEAR-CUT RULE BY WHICH THE BOUNDARY BETWEEN TH E TWO CLASSES OF ERRORS COULD BE DEMARCATED. 8 10. IN SATYANARAYAN LAXMINARAYAN HEGDE VS. MALLIKAR JUN BHAVANAPPA TIRUMALE [1960] 1 SCR 890 THIS COURT REFERRING TO BATUK K. VYAS AND HARI VISHNU KAMATH STATED AS TO WHAT CANNOT BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD. THE COURT OBSERVED : AN ERROR WHICH HAS TO BE ESTABLISHED BY A LONG DRA WN PROCESS OF REASONING ON POINTS WHERE THERE MAY CONCEIVABLY BE TWO OPINIONS CAN HARDLY BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE REC ORD. AS THE ABOVE DISCUSSION OF THE RIVAL CONTENTIONS SHOW THE ALLEGED ERROR IN THE PRESENT CASE IS FAR FROM SELF EVIDENT AND IF IT CAN BE ESTABLISHED IT HAS TO BE ESTABLISHED BY LENGTHY AND COMPLICATED ARGUMENTS. WE DO NOT THINK SUCH AN ERR OR CAN BE CURED BY WRIT OF CERTIORARI ACCORDING TO THE RULE GOVERNING THE POWE RS OF THE SUPERIOR COURT TO ISSUE SUCH A WRIT. 11. THUS FOR AN ACTION UNDER SECTION 254(2) THERE HAD TO BE A MISTAKE APPARENT FROM RECORD. A LOOK AT THE RECORD MUST SHOW THAT THERE HAS BEEN AN ERROR AND THAT ERROR MAY BE RECTIFIED AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF CI T VS. KESHRI METAL PVT. LTD. 237 ITR 165 (SC) ONLY AN APPARENT ERROR OR FACT OF LAW CAN BE R ECTIFIED. NON-CONSIDERATION OF MATERIAL FACT WHICH GOES TO THE ROOT OF THE GROUND ITSELF IS THE MISTAKE APPARENT ON RECORD. THE DECISION OF THE HONBLE SUPREME COURT RELIED BY THE LD. A.R. IN THE CASE OF UDHAVDAS KEWALRAM VS. CIT 66 ITR 462 HELD THAT THE TRIBUNAL MUST IN DECIDING AN APPEAL CONSIDER WITH DUE CARE ALL THE MATERIAL FACTS AND RECORD ITS FINDINGS AND ALL THE CONTENTIONS RAISED BY THE ASSESSEE AND REVENUE IN THE LIGHT OF EVIDENCE AND RELEVANT LAW. A DECIS ION HAS TO BE MADE ONLY ON THE BASIS OF THE FACTS INVOLVED THEREIN. IF THE FACTS ON THE BASIS OF WHICH A DECISION IS RENDERED ITSELF ARE FOUND TO BE DIFFERENT IN OUR OPINION THERE IS BOUND TO BE A MISTAKE APPARENT ON RECORD AND THE PROVISIONS OF SECTION 254(2) ARE CLEARLY APPLICABLE. THE RECO RD IN OPINION MEANS THE ENTIRE RECORD CONSISTS OF NOT ONLY GROUNDS OF THE APPEAL AND THE CASE LAWS RELIED ON AND REFERRED TO BEFORE THE TRIBUNAL BUT ALSO THE CONTENTIONS PLEAS AND THE ARGUMENTS R AISED BY THE PARTIES BEFORE THE TRIBUNAL. THE 9 WORD RECORD HAS NOT BEEN DEFINED UNDER SECTION 25 4(2) OR UNDER SECTION 2 OF THE INCOME TAX ACT SO AS TO RESTRICT ITS MEANING ONLY TO THE GROUN DS OF APPEAL DECIDED IN THE ORDER OF THE TRIBUNAL. THE PROVISIONS OF SECTION 254(2) COULD NOT BE CONST ITUTED IN A MANNER WHICH PRODUCE AN ANOMALY OR OTHERWISE PRODUCE IRRATIONAL OR ILLOGICAL RESULT . IT IS ONE OF THE BASIC PRINCIPLE AND LEGAL POLIC Y THAT WHEN THERE IS A POWER FOR RECTIFICATION OF A M ISTAKE APPARENT FROM RECORD THAT POWER SHOULD BE ALLOWED TO BE EXERCISED RECTIFYING A MISTAKE AND / OR ERROR FROM THE RECORD AND IF THE TRIBUNAL FEELS THAT THE TRIBUNAL HAS COMMITTED AN ERROR IT WOULD BE AGAINST THE CONCEPT OF JUSTICE AND FAIR PLAY AND ALSO AGAINST THE PRINCIPLE OF LEGAL POLICY NOT TO ALLOW TRIBUNAL TO EXERCISE SUCH POWER. SIMILAR VIEW HAS BEEN TAKEN BY THE JURISDICTIONAL H IGH COURT IN THE CASE OF ITO VS. ITAT 58 ITR 634 (ALLD.) ON WHICH LD. A.R. VEHEMENTLY RELIE D WHEREIN THE HIGH COURT HAS HELD THAT IF AN ERROR CREEPS IN AN ORDER SOLELY DUE TO TRIBUNALS O MISSION TO CONSIDER MATERIAL FACTS ON RECORD IT IS AN ERROR APPARENT FROM THE RECORD AND CAN BE REC TIFIED UNDER SECTION 35 OF THE INCOME-TAX ACT 1922 (SIMILAR TO SECTION 254(2)). SIMILAR VIEW HAS BEEN TAKEN BY THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS. ITAT 172 ITR 158 IN WHICH IT WAS HELD THAT MATERIAL FOR DETERMINING THE AMOUNT OF TAX IS PRESSED AND NOT CO NSIDERED WOULD CERTAINLY CONSTITUTE A MISTAKE APPARENT FROM THE RECORD WITHIN THE MEANING OF SECTION 254 (2) OF THE ACT AND IF THE SAID MISTAKE BEING POINTED OUT BY THE ASSESSEE THE TRIB UNAL IN THE CIRCUMSTANCES REFERRED TO ABOVE HAS TO AMEND ITS ORDER. HONBLE GUJARAT HIGH COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LIMITED 262 ITR 146 AT PAGE 155 HAS HELD AS UNDER :- THE PROPOSITION THAT A CONTENTION RAISED BUT NOT D EALT WITH BY THE TRIBUNAL SHOULD BE HELD TO HAVE BEEN NEGATIVE IS CO RRECT ONLY UP TO A STAGE. ONCE A PARTY BRINGS TO THE NOTICE OF THE TRIBUNAL THAT A N IMPORTANT POINT OR CONTENTION RAISED BY THE PARTY HAS NOT BEEN DEALT WITH IT WOUL D BE WITHIN THE JURISDICTION AND POWERS OF THE TRIBUNAL TO DECIDE WHETHER THE SAME C ONSTITUTES A MISTAKE APPARENT FROM THE RECORD AND THEREAFTER IT NECESSARY REOPEN THE APPEAL. SUCH A POWER IS 10 INHERENT IN THE TRIBUNAL AS A PARTY HAS SUFFERED P REJUDICE DUE TO A LAPSE ON THE PART OF THE TRIBUNAL AND NOT ON ACCOUNT OF ANY FAUL T OF SUCH A PARTY. AN ACT OF THE TRIBUNAL SHOULD NOT PREJUDICE A PARTY SO AS TO FORC E THE PARTY INTO UNWARRANTED LITIGATION. 12. WE ALSO NOTED THAT THE HONBLE SUPREME COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LIMITED VS. CIT 295 ITR 466 HAS OBSERVED THE SCOPE OF POWER OF RECTIFICATION THAT ONE OF THE REASON FOR GIVING THE POWER OF RECTIFICATION THE TR IBUNAL IS TO SEE THAT NO PREJUDICE IS CAUSED TO EITHER OF THE PARTIES APPEARING BEFORE THE TRIBUNAL BY A DECISION BASED ON MISTAKE APPARENT FROM RECORD. WHEN PREJUDICE RESULTS FROM AN ORDER ATTRI BUTABLE TO THE TRIBUNALS MISTAKE ERROR OR OMISSION THEN IT IS THE DUTY OF THE TRIBUNAL TO SE T IT RIGHT. ATONEMENT TO THE WRONGED PARTY BY THE COURT OR THE TRIBUNAL FOR THE WRONG COMMITTED BY IT HAS NOTHING TO DO WITH THE CONCEPT OF INHERENT POWER OF REVIEW. THE LD. A.R. BEFORE US NO DOUBT VEHEMENTLY CONTENDED THAT RECALLING OF THE ORDER WILL TANTAMOUNT TO REVIEW OF THE ORDER BUT DID NOT CONTEND THAT THE ASSESSEE IS NOT RAISED THE CONTENTION BEFORE THE TRIBUNAL AT THE TI ME OF HEARING REGARDING THE SPECIFIC CHARGE BEING LEVIED BY THE A.O. FOR THE PURPOSE OF LEVY OF PENALTY UNDER SECTION 271(1)(C). THE AFFIDAVIT FILED BY THE ASSESSEE ALSO CONFIRMS THE S AME. WE HAVE GONE THROUGH THE DECISION OF THE GUJARAT HIGH COURT IN THE CASE OF MANU ENGINEERING WORKS 122 ITR 306 (GUJ) NEW SORATHIA ENGINEERING CO. VS. CIT 282 ITR 642 (GUJ.) AND THA T OF GAUHATI HIGH COURT IN THE CASE OF PADMA RAM BHARALI 110 ITR 54 (GAUHATI) AND IN THES E DECISIONS IT WAS HELD THAT IT IS INCUMBENT UPON THE A.O. TO STATE WHETHER PENALTY WA S BEING LEVIED FOR CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. EV EN OTHERWISE ALSO CONCEALMENT OF INCOME IS A DIFFERENT CHARGE IF COMPARED WITH FURNISHING OF INA CCURATE PARTICULAR OF INCOME. EXPLANATION 1 TO SECTION 271(1)(C) WHICH CREATES A LEGAL FICTION RAI SES PRESUMPTION AGAINST THE ASSESSEE RELATE TO THE CONCEALMENT OF THE PARTICULARS OF THE INCOME IS NOT APPLICABLE IN RESPECT OF FURNISHING OF THE 11 INACCURATE PARTICULARS OF INCOME. HONBLE SUPREME COURT HAS ALSO NOTED THIS FACT IN THE VERY RECENT DECISION OF RELIANCE PETROPRODUCT 322 ITR 1 58 (SC) IN WHICH IT WAS HELD MERE MAKING OF THE CLAIM (WHICH IS NOT SUSTAINABLE IN LAW) WILL NO T AMOUNT TO INACCURATE CLAIM OR FURNISHING OF INACCURATE PARTICULARS REGARDING THE INCOME OF THE ASSESSEE. EXPLANATION 1 TO SECTION 271(1)(C) CANNOT BE APPLIED WHERE CHARGE AGAINST THE ASSESSEE FOR FURNISHING OF INACCURATE PARTICULARS OF INCOME SINCE IT PROVIDES A DEEMING FICTION QUA CONC EALMENT OF PARTICULARS OF INCOME ONLY AND CONSEQUENTLY CANNOT BE EXTENDED TO A CASE WHERE CHA RGE AGAINST THE ASSESSEE IS OF FURNISHING INACCURATE PARTICULARS OF INCOME. WHERE CHARGE AGA INST THE ASSESSEE IS CONCEALMENT OF PARTICULARS OF INCOME THE A.O. HAS TO ESTABLISH TH AT THE ASSESSEE HAS NOT DISCLOSED THE PARTICULARS OF INCOME UNDER THE MAIN PROVISION FOR THE CASE OF THE ASSESSEE FALLS WITHIN THE DEEMING FICTION CREATED UNDER EXPLANATION TO SECTION 271(1)(C). WE HAVE ALSO GONE THROUGH THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ACIT VS. SAURA SHTRA KUTCH STOCK EXCHANGE LTD. 305 ITR 227 (SC) IN WHICH IT WAS HELD:- RECTIFICATION OF AN ORDER STEMS FROM THE FUNDAMENT AL PRINCIPLE THAT JUSTICE IS ABOVE ALL. IT IS EXERCISED TO REMOVE THE ERROR AND TO DISTURB THE FINALITY. A PATENT MANIFEST AND SELF EVIDENT ERROR WHICH DO ES NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENTS TO ESTABLISH IT CAN BE SAID TO BE AN ERROR APPARENT ON THE FACT OF THE RECORD AND CAN BE CORRE CTED WHILE EXERCISING CERTIORARI JURISDICTION. AN ERROR CANNOT BE SAID T O BE APPARENT ON THE FACE OF THE RECORD IF ONE HAS TO TRAVEL BEYOND THE RECORD TO SE E WHETHER THE JUDGMENT IS CORRECT OR NOT. AN ERROR APPARENT ON THE RECORD ME ANS AN ERROR WHICH STRIKES ONE ON MERE LOOKING AND DOES NOT NEED A LONG DRAWN OUT PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIO NS. SUCH ERROR SHOULD NOT REQUIRE ANY EXTRANEOUS MATTER TO SHOW ITS INCORRECT NESS. TO PUT IT DIFFERENTLY IT SHOULD BE SO MANIFEST AND CLEAR THAT NO COURT WOULD PERMIT IT TO REMAIN ON RECORD. IF THE VIEW ACCEPTED BY THE COURT IN THE ORIGINAL J UDGMENT IS ONE OF POSSIBLE VIEWS THE CASE CANNOT BE SAID TO BE COVERED BY AN ERROR A PPARENT ON THE FACE OF THE RECORD. FURTHER AT PAGE 240 IT WAS OBSERVED:- 12 THE CORE ISSUE THEREFORE IS WHETHER NON CONSIDE RATION OF A DECISION OF JURISDICTIONAL COURT (IN THIS CASE A DECISION OF TH E HIGH COURT OF GUJARAT) OR OF THE SUPREME COURT CAN BE SAID TO BE A MISTAKE APPARENT FROM THE RECORD? IN OUR OPINION BOTH THE TRIBUNAL AND THE HIGH COURT WERE RIGHT IN HOLDING THAT SUCH A MISTAKE CAN BE SAID TO BE MISTAKE APPARENT FROM THE RECORD WHICH COULD BE RECTIFIED UNDER SECTION 254(2). 13. THUS THE ISSUE RAISED BY THE ASSESSEE IN THESE M.AS. IN OUR OPINION IS WITHIN THE PURVIEW OF SECTION 252(4) OF THE ACT HAVING REGARD TO THE DECISION OF HONBLE SUPREME COURT AND THAT OF THE JURISDICTIONAL HIGH COURT AS REPROD UCED HEREIN ABOVE. WE ACCORDINGLY RECALL THE ORDER OF THE TRIBUNAL. 14. IN THE RESULT ALL THE MISCELLANEOUS APPLICATIO NS FILED BY THE ASSESSEE ARE ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 27.08.2010) SD/- SD/- (R.K. GUPTA) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: AGRA DATE: 27 TH AUGUST 2010. PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR ITAT AGRA BENCH AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TR IBUNAL AGRA TRUE COPY