The Income Tax Officer, Nawanshahr v. Sh. Raj Kamal singh Atwal, Nawanshahr

MA 37/ASR/2017 | 2009-2010
Pronouncement Date: 30-11-2017 | Result: Dismissed

Appeal Details

RSA Number 3720924 RSA 2017
Assessee PAN AMGPS6980D
Bench Amritsar
Appeal Number MA 37/ASR/2017
Duration Of Justice 10 month(s) 3 day(s)
Appellant The Income Tax Officer, Nawanshahr
Respondent Sh. Raj Kamal singh Atwal, Nawanshahr
Appeal Type Miscellaneous Application
Pronouncement Date 30-11-2017
Appeal Filed By Department
Tags No record found
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 30-11-2017
Assessment Year 2009-2010
Appeal Filed On 27-01-2017
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. T. S. KAPOOR ACCOUNTANT MEM BER AND SH.N. K. CHOUDHRY JUDICIAL MEMBER M. A. NO. 37/(ASR)/2017 (ARISING OUT OF I.T.A. NO. 577/(ASR)/2015) ASSESSMENT YEAR: 2009-10 PAN: AMGPS6980D INCOME TAX OFFICER NAWANSHAHAR. VS. SH. RAJ KAMAL SINGH ATWAL VPO RAHON NAWANSHAHAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. RAHUL DHAWAN (D.R. ) RESPONDENT BY: SH. RAKESH JOSHI (ADV .) DATE OF HEARING: 01.09.2017 DATE OF PRONOU NCEMENT: 30.11.2017 ORDER PER T. S. KAPOOR (AM): THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY RE VENUE AGAINST THE ORDER OF THE HON'BLE TRIBUNAL DATED 11.07.2016. 2. AT THE OUTSET THE LD. DR SUBMITTED THAT THE HO N'BLE ITAT WAS NOT RIGHT IN ALLOWING THE APPEAL OF THE ASSESSEE BY HOL DING THAT MISTAKE WAS VERY MUCH THERE AND THEREFORE HAD REVERSED THE ORDE R OF LD. CIT(A) WHICH HAD BEEN DISMISSED BY LD. CIT(A) BY HOLDING THAT TH ERE WAS NO MISTAKE APPARENT FROM RECORD. IT WAS SUBMITTED THAT PROVISI ONS OF SECTION 154 OF THE ACT HAS BEEN WRONGLY APPLIED. 3. THE LD. DR SUBMITTED THAT WHILE MAKING ASSESSMEN T ASSESSING OFFICER SPECIFICALLY OBSERVED THAT OUT OF TOTAL DEP OSIT OF RS.29 60 000/- DURING THE ASSESSMENT YEAR 2009-10 THE ASSESSEE HA D FURNISHED MA NO. 37 (ASR)/2017 (ARISING OUT OF I.T.A. NO.577/(ASR)/2015) ASST. YEAR:2009-10 2 NECESSARY EVIDENCES TO THE TUNE OF RS.14 10 000/- A ND FOR THE BALANCE AMOUNT THOUGH THE ASSESSEE HAD CLAIMED TO HAVE RECE IVED THESE AMOUNTS FROM FATHER BUT HAD FAILED TO PROVE HIS CLAIM. IT W AS SUBMITTED THAT ASSESSEE HAD MENTIONED AGAINST THESE ENTRIES AS RE CEIVED FROM FATHER BUT EXCEPT THIS NARRATION NO OTHER EXPLANATION/ DO CUMENTARY EVIDENCE WAS FURNISHED BY THE ASSESSEE AND THEREFORE IT CANN OT BE TERMED AS MISTAKE APPARENT FROM RECORD AND THEREFORE THE LD. CIT(A) HAD RIGHTLY DISMISSED THE APPEAL OF ASSESSEE BY HOLDING THAT ME RELY FILING A BANK STATEMENT OF FATHERS BANK ACCOUNT WITHOUT ANY NARR ATION THEREON CANNOT BE CONSIDERED FOR EXPLANATION OF CASH DEPOSITS BY A SSESSEE AND THEREFORE LD. CIT(A) HAD RIGHTLY HELD THAT MISTAKE WAS NOT AP PARENT FROM RECORD. 4. THE LD. AR ON THE OTHER HAND HEAVILY PLACED HIS RELIANCE ON THE ORDER OF HON'BLE ITAT SPECIFICALLY RELIANCE WAS PLA CED ON PARA 4 5 AND 6 AND IT WAS SUBMITTED THAT ASSESSEE HAD FILED COMPLE TE DETAILS REGARDING DEPOSITS OF RS.29 60 000/- AND THE AUTHORITIES BELO W HAD ACCEPTED THE CLAIM REGARDING RS. 15 50 000/- AND AS REGARDS THE BALANCE DEPOSIT OF RS.14 10 000/- THE AMOUNT WAS ADDED BACK FOR WANT OF NECESSARY DOCUMENTARY EVIDENCE. IT WAS SUBMITTED THAT BEFORE THE AUTHORITIES BELOW BANK STATEMENT AND CASH FLOW STATEMENTS WERE FILED AND WHERE THERE WERE SUFFICIENT BALANCES. THE AUTHORITIES BEL OW WRONGLY DID NOT TAKE INTO CONSIDERATION THIS ASPECT OF THE MATTER A ND THAT IS WHY THE ASSESSEE HAD FILED AN APPEAL FOR RECTIFICATION U/S 154 OF THE ACT. THE LD. AR SUBMITTED THAT THERE WAS A MISTAKE APPARENT FROM RECORD WHICH THE MA NO. 37 (ASR)/2017 (ARISING OUT OF I.T.A. NO.577/(ASR)/2015) ASST. YEAR:2009-10 3 HON'BLE TRIBUNAL HAD TAKEN INTO ACCOUNT AND HAD ALL OWED APPEAL OF THE ASSESSEE AND THERE IS NO MISTAKE IN THE ORDER OF HO N'BLE TRIBUNAL AND THEREFORE THE APPLICATION OF THE REVENUE NEEDS TO B E DISMISSED. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. DURING PROCEEDINGS BEFOR E THIS TRIBUNAL THE LD. AR HAD ARGUED THAT ASSESSEE HAD FILED A COPY OF CASH FLOW STATEMENTS WHEREIN THERE WERE SUFFICIENT BALANCES AND AUTHORIT IES BELOW HAD NOT TAKEN THIS ASPECT WHILE DECIDING THE ADDITION AND T HEREFORE ASSESSEE HAD MOVED AN APPLICATION FOR RECTIFICATION OF MISTAKE. THE AUTHORITIES BELOW DID NOT ACCEPT THE CONTENTION OF ASSESSEE THAT THER E WAS A MISTAKE APPARENT FROM RECORD. THE HON'BLE DELHI ITAT IN THE CASE OF SUNIL SAHNI VS. ITO 70 ITD 481 HAD HELD THAT EVEN DOCUMENTS PER TAINING TO THE EARLIER YEAR CONSTITUTES RECORD AND IF THE SAME IS OVERLOOKED IT AMOUNTS TO A MISTAKE APPARENT FROM RECORD. THE HON'BLE ITAT IN PARA 4 HAS CLEARLY NOTED THE FACTS THAT CASH FLOW STATEMENTS A ND BANK STATEMENTS WERE FURNISHED BEFORE THE ASSESSING OFFICER AND ASS ESSEE HAD EXPLAINED THE NATURE OF ENTRIES AS AMOUNT RECEIVED FROM HIS F ATHER. THE BANK STATEMENT OF SAVING BANK ACCOUNT NO. 13142 WHICH W AS A JOINT ACCOUNT HELD BY THE ASSESSEE WITH HIS FATHER WAS FILED AND FROM THIS ACCOUNT THE ASSESSEE HAD RECEIVED MONEY. THE HON'BLE TRIBUNAL H AS ALSO MADE A FINDING OF FACT THAT THERE WAS SUFFICIENT FUNDS IN THE SAID BANK ACCOUNT. WE FIND THAT THE HON'BLE TRIBUNAL HAS PASSED A SPEA KING AND REASONED MA NO. 37 (ASR)/2017 (ARISING OUT OF I.T.A. NO.577/(ASR)/2015) ASST. YEAR:2009-10 4 ORDER AND THERE IS NO MISTAKE WHICH CAN BE RECTIFIE D UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT. A BARE LOOK AT SECTION 254(2) OF THE ACT WHICH DE ALS WITH RECTIFICATION MAKES IT AMPLY CLEAR THAT A MISTAKE APPARENT FROM THE RECORD IS RECTIFIABLE. IN ORDER TO ATTRACT THE APP LICATION OF SECTION 254(2) A MISTAKE MUST EXIST AND THE SAME MUST BE APPARENT FROM THE RECORD. THE POWER TO RECTIFY THE MISTAKE HOWEVER DOES NOT COVER CASES WHERE A REVISION OR REVIEW OF THE ORDER IS INTENDED. MISTA KE MEANS TO TAKE OR UNDERSTAND WRONGLY OR INACCURATELY; TO MAKE AN ERRO R IN INTERPRETING IT IS AN ERROR; A FAULT A MISUNDERSTANDING A MISCONC EPTION. APPARENT MEANS VISIBLE; CAPABLE OF BEING SEEN; EASILY SEEN; OBVIOUS; PLAIN A MISTAKE WHICH CAN BE RECTIFIED UNDER SECTION 254(2) IS ONE WHICH IS PATENT WHICH IS OBVIOUS AND WHOSE DISCOVERY IS NOT DEPENDENT ON ARGUMENT OR ELABORATION. THE LANGUAGE USED IN SECTI ON 254(2) IS PERMISSIBLE WHERE IT IS BROUGHT TO THE NOTICE OF TH E TRIBUNAL THAT THERE IS ANY MISTAKE APPARENT FROM THE RECORD. ACCORDINGLY THE AMENDMENT OF AN ORDER DOES NOT MEAN OBLITERATION OF THE ORDER ORIGI NALLY PASSED AND ITS SUBSTITUTION BY A NEW ORDER WHICH IS NOT PERMISSIBL E UNDER THE PROVISIONS OF SECTION 254(2). FURTHER WHERE AN ERR OR IS FAR FROM SELF EVIDENT IT CEASES TO BE AN APPARENT ERROR. IT IS N O DOUBT TRUE THAT A MISTAKE CAPABLE OF BEING RECTIFIED UNDER SECTION 25 4(2) IS NOT CONFINED TO CLERICAL OR ARITHMETICAL MISTAKES. ON THE OTHER HAN D IT DOES NOT COVER ANY MISTAKE WHICH MAY BE DISCOVERED BY A COMPLICATE D PROCESS OF MA NO. 37 (ASR)/2017 (ARISING OUT OF I.T.A. NO.577/(ASR)/2015) ASST. YEAR:2009-10 5 INVESTIGATION ARGUMENT OR PROOF. AS OBSERVED BY TH E SUPREME COURT IN MASTER CONSTRUCTION CO. (P) LTD. V. STATE OF ORISSA [1966] 17 STC 360 AN ERROR WHICH IS APPARENT ON THE FACE OF THE RECORD S HOULD BE ONE WHICH IS NOT AN ERROR WHICH DEPENDS FOR ITS DISCOVERY ON ELA BORATE ARGUMENTS ON QUESTIONS OF FACT OR LAW. A SIMILAR VIEW WAS ALSO E XPRESSED IN SATYANARAYAN LAXMINARAYAN HEDGE V. MALLIKARJUN BHAV ANAPPA TIRUMALE AIR 1960 SC 137. IT IS TO BE NOTED THAT THE LANGUAG E USED IN ORDER 47 RULE 1 OF THE CODE OF CIVIL PROCEDURE 1908 IS DIFF ERENT FROM THE LANGUAGE USED IN SECTION 254(2) OF THE ACT. POWER IS GIVEN T O VARIOUS AUTHORITIES TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD IS U NDOUBTEDLY NOT MORE THAN THAT OF THE HIGH COURT TO ENTERTAIN A WRIT PET ITION ON THE BASIS OF AN ERROR APPARENT ON THE FACE OF THE RECORD. MISTAKE IS AN ORDINARY WORD BUT IN TAXATION LAWS IT HAS A SPECIAL SIGNIFICANCE . IT IS NOT AN ARITHMETICAL OR CLERICAL ERROR ALONE THAT COMES WIT HIN ITS PURVIEW. IT COMPREHENDS ERRORS WHICH AFTER A JUDICIOUS PROBE I NTO THE RECORD FROM WHICH IT IS SUPPOSED TO EMANATE ARE DISCERNED. THE WORD MISTAKE IS INHERENTLY INDEFINITE IN SCOPE AS WHAT MAY BE A MI STAKE FOR ONE MAY NOT BE ONE FOR ANOTHER. IT IS MOSTLY SUBJECTIVE AND THE DIVIDING LINE IN BORDER AREAS IS THIN AND INDISCERNIBLE. IT IS SOMETHING WH ICH A DULY AND JUDICIOUSLY INSTRUCTED MIND CAN FIND OUT FROM THE R ECORD. IN ORDER TO ATTRACT THE POWER TO RECTIFY UNDER SECTION 254(2) I T IS NOT SUFFICIENT IF THERE IS MERELY A MISTAKE IN THE ORDERS SOUGHT TO B E RECTIFIED. THE MISTAKE TO BE RECTIFIED MUST BE ONE APPARENT FROM T HE RECORD. A DECISION MA NO. 37 (ASR)/2017 (ARISING OUT OF I.T.A. NO.577/(ASR)/2015) ASST. YEAR:2009-10 6 ON THE DEBATABLE POINT OF LAW OR UNDISPUTED QUESTIO N OF FACT IS NOT A MISTAKE APPARENT FROM THE RECORD. THE PLAIN MEANING OF THE WORD APPARENT IS THAT IT MUST BE SOMETHING WHICH APPEA RS TO BE SO EX FACIE AND IT IS IN CAPABLE OF ARGUMENT OR DEBATE. IT IS T HEREFORE FOLLOWS THAT A DECISION ON A DEBATABLE POINT OF LAW OR FACT OR FAI LURE TO APPLY THE LAW TO A SET OF FACTS WHICH REMAINS TO BE INVESTIGATED CANNO T BE CORRECTED BY WAY OF RECTIFICATION. THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. KA RAN CHAND THAPAR & BR. P. LTD. 176 ITR 535 HAS HELD AS UNDER : IT IS EQUALLY WELL SETTLED THAT THE DECISION OF TH E TRIBUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENTENCE MERELY TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL BY THE TRIBUNAL OR WHETHER S OME INCIDENTAL FACT WHICH APPEARS ON THE RECORD HAS NOT BEEN NOTICED BY THE TRIBUNAL IN ITS JUDGMENT. IF THE COURT ON A FAIR READING OF THE JU DGMENT OF THE TRIBUNAL FINDS THAT IT HAS TAKEN INTO ACCOUNT ALL RELEVANT M ATERIAL AND HAS NOT TAKEN INTO ACCOUNT ANY IRRELEVANT MATERIAL IN BASING ITS CONCLUSIONS THE DECISION OF THE TRIBUNAL IS NOT LIABLE TO BE INTERFERED WITH UNLESS OF COURSE THE CONCLUSIONS ARRIVED AT BY THE TRIBUNAL ARE PERVERSE . IT IS NOT NECESSARY FOR THE TRIBUNAL TO STATE IN IT S JUDGMENT SPECIFICALLY OR IN EXPRESS WORDS THAT IT HAS TAKEN INTO ACCOUNT THE CU MULATIVE EFFECT OF THE CIRCUMSTANCES OR HAS CONSIDERED THE TOTALITY OF THE FACTS AS IF THAT WERE A MAGIC FORMULA; IF THE JUDGMENT OF THE TRIBUNAL SHOW S THAT IT HAS IN FACT DONE SO THERE IS NO REASON TO INTERFERE WITH THE D ECISION OF THE TRIBUNAL. SIMILARLY THE HON'BLE MADRAS HIGH COURT DECISIONS IN T.C.(A) NO. 156 OF 2006 DATED 21.08.2007 IN THE CASE OF CIT VS. TAMIL NADU SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD. WHEREIN THE HON'BLE HIGH COURT HELD AS UNDER: THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER. WHE N THE TRIBUNAL HAS ALREADY DECIDED AN ISSUE BY APPLYING ITS MIND AGAIN ST THE ASSESSEE THE SAME CANNOT BE RECTIFIED UNDER SECTION 254 (2) OF T HE ACT. THERE WAS NO NECESSITY WHATSOEVER ON THE PART OF THE TRIBUNAL TO REVIEW ITS OWN ORDER. EVEN AFTER THE EXAMINATION OF THE JUDGMENTS OF THE TRIBUNAL WE COULD NOT FIND A SINGLE REASON IN THE WHOLE ORDER AS TO HOW T HE TRIBUNAL IS JUSTIFIED MA NO. 37 (ASR)/2017 (ARISING OUT OF I.T.A. NO.577/(ASR)/2015) ASST. YEAR:2009-10 7 AND FOR WHAT REASONS. THERE IS NO APPARENT ERROR ON THE FACE OF THE RECORD AND THEREBY THE TRIBUNAL SAT AS AN APPELLATE AUTHOR ITY OVER ITS OWN ORDER. IT IS COMPLETELY IMPERMISSIBLE AND THE TRIBUNAL HAS TRAVELED OUT OF ITS JURISDICTION TO ALLOW A MISCELLANEOUS PETITION IN T HE NAKE OF REVIEWING ITS OWN ORDER. IN THE PRESENT CASE IN THE GUISE OF RECTIFICATION THE TRIBUNAL REVIEWED ITS EARLIER ORDER AND ALLOWED THE MISCELLANEOUS PETITIO N WHICH IS NOT IN ACCORDANCE WITH LAW. SECTION 254(2) OF THE ACT DOES NOT CONTEMPLATE REHEARING OF THE APPEAL FOR A FRESH DISPOSAL AND DO ING SO WOULD OBLITERATE THE DISTINCTION BETWEEN THE POWER TO RECTIFY MISTAK ES AND POWER TO REVIEW THE ORDER MADE BY THE TRIBUNAL. THE SCOPE AND AMBIT OF THE APPLICATION OF SECTION 254(2) IS LIMITED AND NARROW. IT IS RESTRIC TED TO RECTIFICATION OF MISTAKES APPARENT FROM THE RECORD. RECALLING THE OR DER OBVIOUSLY WOULD MEAN PASSING OF A FRESH ORDER. RECALLING OF THE ORDER IS SNOT PERMISSIBLE UNDER SE C. 254(2) OF THE ACT. ONLY GLARING AND ANY MISTAKE APPARENT ON THE FACE OF THE RECORD ALONE CAN BE RECTIFIED AND HENCE ANYTHING DEBATABLE CANNOT BE A SUBJECT MATTER OF RECTIFICATION. FURTHER THE HON'BLE DELHI HIGH COURT JUDGMENT ON T HE SCOPE OF RECTIFICATION U/S 254(2) AS REPORTED IN THE CASE OF RAS BIHARI BANSAL VS. CIT 293 ITR 365 HAS HELD AS UNDER: SECTION 254 OF THE INCOME TAX ACT 1961 ENABLES T HE CONCERNED AUTHORITY TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. IT IS WELL SETTLED THAT AN OVERSIGHT OF A FACT CANNOT CONSTITUTE AN APPARENT M ISTAKE RECTIFIABLE UNDER THIS SECTION. SIMILARLY FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSI ON IS NOT AN ERROR APPARENT ON THE RECORD ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE MERE FACT THAT THE TRIBUNAL HAD NOT ALLOWED A DEDUCTION EVEN IF THE CONCLUSION IS WRONG WILL BE NO GROUND FOR MOVING AN APPLICATI ON UNDER SECTION 254(2) OF THE ACT. FURTHER IN THE GARB OF AN APPLICATION FOR RECTIFICATION THE ASSESSEE CANNOT BE PERMITTED TO REOPEN AND RE-ARGUE THE WHOLE MATTER WHICH IS BEYOND THE SCOPE OF THE SECTION. THEREFORE IN VIEW OF THE FACTS AND CIRCUMSTANCES O F THE CASE AND IN THE LIGHT OF RATIO OF THE DECISIONS CITED AND DI SCUSSION AS ABOVE WE DO NOT FIND ANY SUBSTANCE IN THE APPLICATION OF REVENU E AND DISMISS THE SAME BEING DEVOID OF ANY MERITS. MA NO. 37 (ASR)/2017 (ARISING OUT OF I.T.A. NO.577/(ASR)/2015) ASST. YEAR:2009-10 8 6. IN VIEW OF THE ABOVE THE MISCELLANEOUS APPLICAT ION FILED BY REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.11. 2017. SD/- SD/- (N. K. CHOUDHRY) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 30/11/2017 GP/SR./PS COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A) (4) THE CIT (5) THE SR DR I.T.A.T. TRUE COPY BY ORDER