Shri Noor Saleem Rana,, Muzaffarnagar v. DCIT, Muzaffarnagar

MA 84/DEL/2011 | 2004-2005
Pronouncement Date: 30-11-2011 | Result: Dismissed

Appeal Details

RSA Number 8420124 RSA 2011
Assessee PAN AGUPS4768H
Bench Delhi
Appeal Number MA 84/DEL/2011
Duration Of Justice 8 month(s) 12 day(s)
Appellant Shri Noor Saleem Rana,, Muzaffarnagar
Respondent DCIT, Muzaffarnagar
Appeal Type Miscellaneous Application
Pronouncement Date 30-11-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted F
Tribunal Order Date 30-11-2011
Assessment Year 2004-2005
Appeal Filed On 18-03-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : FRIDAY : NEW DELHI BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI K.G. BANSAL ACCOUNTANT MEMBER M.A NO. 84/DEL/2011 (ITA NO.2164/DEL/09) ASSESSMENT YEAR : 2004-05 NOOR SALEEM RANA 842 SOUTH CIVIL LINES MUZAFFARNAGAR UP. PAN : AGUPS4768H VS. DCIT CIRCLE-1 MUZAFFARNAGAR. M.A. NO.244/DEL/2011 (ITA NO.2167/D/09) ASSESSMENT YEAR : 2002-03 NOOR SALEEM RANA NEW RANA HOUSE MEERUT ROAD MUZAFFARNAGAR UP. PAN : AGUPS4768H DCIT CIRCLE-1 MUZAFFARNAGAR. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI V.K. TULSIAN CA RESPONDENT BY : SHRI A.K. MONGA DR O R D E R PER I.P. BANSAL JUDICIAL MEMBER: VIDE MISCELLANEOUS APPLICATIONS FILED AS ABOVE IT IS T HE CASE OF THE ASSESSEE THAT ORDER PASSED BY ITAT IN ITA NOS.2167 AN D 2164/DEL/2009 SUFFERS FROM APPARENT MISTAKE WHICH HAS R ESULTED IN VITIATION OF THE CONCLUSION AND THEREFORE THE SAME SHOULD BE RECTIFIED. IT IS THE CASE OF THE ASSESSEE THAT THE DECISION OF THE TR IBUNAL DATED 21 ST MAY 2010 RENDERED ON THE SAME SET OF FACTS HAS WRONGL Y BEEN DISTINGUISHED BY THE TRIBUNAL AS IN THAT CASE ALSO THE O RDER OF THE ASSESSING OFFICER WAS PASSED U/S 144/147 AND THE DETAILS WER E FILED MA NO.84/DEL/2011 MA NO.244/D/2011 2 WHICH WERE ADMITTED BY LEARNED CIT (A) UNDER RULE 4 6A. THE SAME WERE PUT ACROSS BEFORE THE ASSESSING OFFICER AND IN THE A BSENCE OF ANY ADVERSE MATERIAL BROUGHT ON RECORD THE ADDITION IN THOSE CASES WERE DELETED BY COORDINATE BENCH OF THE TRIBUNAL. IT IS ALSO THE CASE OF THE ASSESSEE THAT THE ANOTHER ORDER OF ITAT DATED 4 TH DECEMBER 2009 ON SIMILAR FACTS HAS NOT BEEN PROPERLY APPRECIATED BY THE TRIBUNAL IN WHICH IT WAS HELD THAT IF THERE WAS NO REQUEST FOR ISSUE OF SUMMONS THE DEPARTMENT SHOULD HAVE MADE EFFORTS AND SHOULD HAV E ISSUED SUMMONS TO THE CREDITORS. IT IS ALSO THE CASE OF THE ASSESSE E THAT IN VIEW OF ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 4 6A WHICH WAS CONFRONTED TO THE ASSESSING OFFICER WILL WIPE OUT THE IMPACT OF ORDER PASSED U/S 144 THEREFORE THE MATTER COULD NOT HAVE B EEN RESTORED BACK TO THE FILE OF ASSESSING OFFICER WHICH HAS BEEN REST ORED BY THE TRIBUNAL TO THE FILE OF ASSESSING OFFICER IGNORING THE ABOVE MENTIONED TWO DECISIONS RENDERED BY THE TRIBUNAL ON SAME SET OF F ATS AND THUS THERE IS A MISTAKE IN THE AFOREMENTIONED ORDER DATED 13 TH AUGUST 2010 PASSED BY THE TRIBUNAL. 2. BEFORE PROCEEDING IT WILL BE RELEVANT IF THE FA CTS OF THE CASE ARE MENTIONED. FOR ASSESSMENT YEAR 2002-03 THE RETURN OF I NCOME WAS FILED BY THE ASSESSEE SHOWING INCOME OF ` 1 59 850/- AN D AGRICULTURAL INCOME OF ` 1 18 400/-. AN INFORMATION WAS RECEIVED FROM THE DIRECTOR OF INVESTIGATION DELHI THAT ASSESSEE HAD RECEIVED TWO ACCOMMODATION ENTRIES THROUGH DD OF ` 2 50 625/- FROM SHRI KISHORI LAL AND SHRI SUNIL KUMAR GARG WHO WERE MAINTAINING THE ACCOUNTS IN JAI LAXMI COOPERATIVE BANK DELHI. ASSESSMENTS WERE REOPENED. TH E ASSESSING OFFICER FIXED THE DATE OF HEARING ON 14 TH SEPTEMBER 2007 ON WHICH DATE NONE APPEARED ON BEHALF OF THE ASSESSEE AND NO REP LY WAS FILED. AGAIN A NOTICE U/S 144 ALONG WITH NOTICE U/S 142(1) W AS ISSUED ON 8 TH OCTOBER 2007 WHICH WAS SERVED UPON THE ASSESSEE THROUGH REGISTERED POST AND THE DATE OF HEARING WAS FIXED ON 15 TH OCTOBER 2007 IN MA NO.84/DEL/2011 MA NO.244/D/2011 3 RESPONSE TO WHICH REPLY WAS FILED ON 19 TH OCTOBER 2007 THROUGH REGISTERED POST. IN THE REPLY IT WAS STATED THAT THERE WAS NO SUCH BANK ACCOUNT AS MENTIONED IN THE REASONS AND THEREFORE TH E ENTIRE PROCEEDINGS BECOME INFRUCTUOUS AND RE-ASSESSMENT PROCEEDI NGS WERE UNWARRANTED. THE ASSESSING OFFICER COMPLETED THE ASSESSMEN T U/S 144 OBSERVING THAT THE ASSESSEE DID NOT COMPLY WITH THE NOT ICE U/S 142(1) AND HAS EVADED THE REPLY ON QUERIES EVEN AFTER PROVID ING THE ASSESSEE WITH VARIOUS OPPORTUNITIES. THE ASSESSEE CHALLENGED THE REOPENING OF THE ASSESSMENT AS WELL AS THE ADDITION ON MERITS BY WAY OF AN APPEAL FILED BEFORE THE CIT (A). IT WAS CLAIMED THAT AS THE PERSONS WHO HAVE PROVIDED THE ENTRIES ARE HAVING PAN THROUGH WHICH T HE IDENTITY OF THOSE CREDITORS IS PROVED AND THEY ARE ALSO FILING THE INCOME-TAX RETURNS THEREFORE THE SOURCE OF THE SOURCE CANNOT BE INVESTIGATED BY THE DEPARTMENT. HOWEVER LEARNED CIT (A) OBSERVED T HAT AS PER INVESTIGATION CARRIED ON BY THE DEPARTMENT THE AMOU NT RECEIVED BY THE ASSESSEE WAS FROM ENTRY OPERATORS AND EVEN THOUGH VAR IOUS OPPORTUNITIES WERE PROVIDED TO THE ASSESSEE THE ASSESSEE COU LD NOT PRODUCE ANY OF THE PERSONS TO PROVE THE GENUINENESS OF THE TRANSACTION. ON ADDITIONAL EVIDENCE LEARNED CIT (A ) CALLED FOR THE COMMENTS OF THE ASSESSING OFFICER. THE COUNSEL OF THE ASSE SSEE STATED THAT THE ASSESSEE COULD NOT PRODUCE THE CREDITORS FOR EX AMINATION AND AFTER CONSIDERING ALL THE MATERIAL PLACED ON RECORD LEARNED CIT (A) HAS ARRIVED AT A CONCLUSION THAT THERE WAS INCRIMINATING INFORMATION/EVIDENCE AVAILABLE BASED ON MAMMOTH INQU IRY AND INVESTIGATION CARRIED OUT BY THE DIT (INV.). THE GE NUINENESS OF THE TRANSACTION AS A WHOLE WAS FOUND TO BE SHAM. ON SPECIFI C QUERY BY THE AUTHORITIES TO PRODUCE CREDITORS FOR VERIFICATION AND EXAMINATION THERE WAS CLEAR DENIAL BY THE ASSESSEE TO PRODUCE ANY OF THE A LLEGED CREDITORS. ACCORDINGLY HE HELD THAT RE-ASSESSMENT PROC EEDINGS WERE PROPER AND ADDITION WAS RIGHTLY MADE BY THE ASSESSING OF FICER. DURING THE COURSE OF DISCUSSION BEFORE THE TRIBUNAL LD. AR HAD FILED THE COPIES MA NO.84/DEL/2011 MA NO.244/D/2011 4 OF THE ORDER OF THE TRIBUNAL DATED 21 ST MAY 2010 WHEREIN THE TRIBUNAL HAD DELETED THE ADDITION IN GROUP CASES. IT WAS THE C ONTENTION OF THE LEARNED AR THAT THE FACTS AND CIRCUMSTANCES OF BOTH TH E CASES ARE IN PARI MATERIA AND THEREFORE THE AFOREMENTIONED ORDER OF THE TR IBUNAL DATED 21 ST MAY 2010 SHOULD BE FOLLOWED BY THE COORDINATE BENC H. HOWEVER IT WAS THE CASE OF THE REVENUE THAT EVEN BEF ORE THE CIT (A) THE ASSESSEE COULD NOT ESTABLISH ALL THE THREE INGREDIENT S OF CASH CREDITS AND IT WAS FOUND THAT GENUINENESS OF TRANSACTION AS A WHOLE WAS SHAM. THE ASSESSEE COULD NOT PRODUCE THE CREDITORS EV EN ON SPECIFIC REQUIREMENTS OF THE DEPARTMENT. 3. ON THESE SUBMISSIONS THE TRIBUNAL HAS RECORDED A FIND ING THAT THERE WAS A DEFINITE INFORMATION IN THE CASE OF THE A SSESSEE BY THE DIRECTOR OF INVESTIGATION THAT THE ASSESSEE IS IN RECEIPT OF BOGUS ACCOMMODATION ENTRIES AND UPON RECEIPT OF SUCH INFORM ATION AND AFTER REOPENING THE ASSESSMENT NOTICE U/S 143(2) AND 142 (1) WERE SERVED IN RESPONSE TO WHICH NONE APPEARED ON BEHALF OF THE A SSESSEE. BEFORE CIT (A) SOME OF THE DOCUMENTS WERE FILED AND AFTER VE RIFYING THE SAME LEARNED CIT (A) HAD ARRIVED AT A CONCLUSION THAT THE AMOUNT RECEIVED BY THE ASSESSEE WAS FROM ENTRY OPERATORS AND EVEN AFTER V ARIOUS OPPORTUNITIES THE ASSESSEE COULD NOT PRODUCE ANY PERSON W HO HAD PROVIDED THE ENTRIES TO THE ASSESSEE. IT IS ALSO RECORDED BY THE TRIBUNAL THAT IN THE CASE OF CASH CREDIT THE ADJUDICA TION IS BASED UPON THE FACTS AND CIRCUMSTANCES OF EACH CASE AND IF UPON FA CTS AND CIRCUMSTANCES THE ASSESSEE PRIMA FACIE ESTABLISHES THAT THE ONUS LAID UPON IT IS DISCHARGED BY ESTABLISHING THE THREE INGREDI ENTS OF CASH CREDITS NAMELY; IDENTITY; GENUINENESS AND CREDIT WORT HINESS THEN ONLY NO ADDITION IS REQUIRED TO BE MADE. ABSENCE OF ANY ONE OF THE INGREDIENTS WILL MAKE THE ADDITION LIABLE TO BE UPHE LD. THE TRIBUNAL HAS NOTED THE CONTENTION OF THE LEARNED AR THAT SIMIL AR ADDITION HAS BEEN DELETED BY THE TRIBUNAL VIDE ORDER DATED 21 ST MAY 2010 AND THE MA NO.84/DEL/2011 MA NO.244/D/2011 5 TRIBUNAL SHOULD FOLLOW THE SAID ORDER IN THE PRESENT A PPEALS. AFTER NOTING SUCH CONTENTION THE TRIBUNAL HAS RECORDED THAT SUCH CONTENTION OF THE LEARNED AR HAS BEEN CAREFULLY GONE THROUGH AN D IT IS FOUND THAT THE ADDITION IN THAT ORDER IS BASICALLY UPHELD BY RE LYING ON ANOTHER DECISION OF THE TRIBUNAL DATED 4 TH DECEMBER 2009 IN ITA NOS.2118 2117 AND 2106/DEL/2009 AND THUS IT IS CLEAR THAT IT S ORDER ON WHICH THE RELIANCE HAS TO BE PLACED IS THE ORDER OF THE TRI BUNAL DATED 4 TH DECEMBER 2009 WHICH HAS BEEN FOLLOWED BY THE TRIBUN AL IN ITS ORDER DATED 21 ST MAY 2010. AFTER NOTING SO IT IS OBSERVED BY THE TR IBUNAL THAT SINCE IT IS A CASE OF CASH CREDIT AND THEREFORE IT HAS TO BE EXAMINED THAT WHETHER THE FACTS OF THE INSTANT APPEAL ARE IN PARI MATERIA WITH THE FACTS OF THE ORDER DATED 4 TH DECEMBER 2009. IT IS ALSO OBSERVED BY THE TRIBUNAL THAT IF THE FACTS OF THE INSTANT CASE ARE IN PARI MATERIA WITH THE ORDER DATED 4 TH DECEMBER 2009 THEN AS PER PRINCIPLES OF JUDICIAL PRECEDENT THE ORDER OF THE C OORDINATE BENCH IS TO BE FOLLOWED. IT IS ALSO RECORDED IN THE ORDER OF THE TRIBUNAL THAT ON CAREFULLY PERUSAL OF THE ORDER OF THE TRIBUNAL DATED 4 TH DECEMBER 2009 IT IS FOUND THAT IT IS A CATEGORICAL OBSERVATION OF THE TRIBUNAL IN PARA 4 TO THE EFFECT THAT TO ESTABLISH THE GENUINENESS OF LOAN TRANSACTION THE ASSESSEE HAD REQUESTED TO THE ASSESSING OFFI CER TO ISSUE SUMMONS TO THE LOAN CREDITORS AND THE ASSESSEE ALSO SUBM ITTED THAT HE IS READY TO BEAR THE COST OF ISSUING SUMMONS TO T HE LOAN CREDITORS. THE TRIBUNAL IN THAT CASE ALSO NOTED THE R ELEVANT PARA OF ASSESSING OFFICER WHERE THE ASSESSEE HAD REQUESTED THE ASSESSING OFFICER TO ISSUE SUMMONS TO THE CREDITORS U/S 131 WHICH F ACT WAS RECORDED AT PAGE 5 OF THE ASSESSMENT ORDER. ON THESE FA CTS THE TRIBUNAL HAD OBSERVED THAT IN SPITE OF SEVERAL REQUESTS OF THE ASSESSEE FOR ISSUING SUMMONS THE ASSESSING OFFICER DID NOT ISSUE SUMMO NS TO ALL THOSE PARTIES AND ASKED THE ASSESSEE TO PRODUCE THOSE C REDITORS AND WHEN THE ASSESSEE COULD NOT PRODUCE THEN HE DREW ADVERSE INFERENCE AND HELD THAT THE TRANSACTION IS NOT GENUIN E. MA NO.84/DEL/2011 MA NO.244/D/2011 6 4. ANOTHER FACT FOUND BY THE TRIBUNAL IN THE SAID OR DER WAS THAT ASSESSMENT ORDERS WERE PASSED U/S 143(3)/147 AND NOT U/S 144 OF THE ACT. NOTING DOWN THESE FACTS IN THE SAID ORDER THE TRIBUNAL HAS FOUND THAT THE ASSESSMENT IN THE PRESENT CASES ARE FRAMED U/S 14 4 BECAUSE IN SPITE OF GIVING SO MANY OPPORTUNITIES NEITHER ASSESSEE APPEARED BEFORE THE ASSESSING OFFICER NOR ANY INFORMATION AS CALL ED BY THE ASSESSING OFFICER WAS FURNISHED BEFORE HIM AND THUS IT W AS OBSERVED THAT FACTS OF THE INSTANT CASE ARE DISTINGUISHABLE FROM THE FACTS OF THE DECISION BY THE TRIBUNAL IN ITS ORDER DATED 4 TH DECEMBER 2009. 5. IT WAS FURTHER NOTED BY THE TRIBUNAL THAT IN THE INSTANT CASE THE ASSESSEE WAS SPECIFICALLY ASKED TO FURNISH COMPLETE NAME AN D THE ADDRESS OF THE LOAN CREDITORS COPY OF ACCOUNT APPEARI NG IN THE BOOKS OF THE ASSESSEE IN RESPECT OF LOAN CREDITORS DETAILS OF B ANK ACCOUNT ETC. HOWEVER THE ASSESSEE COULD NOT PRODUCE THEM BEFO RE THE ASSESSING OFFICER. IN THE INSTANT APPEAL THERE WAS NO SU CH REQUEST MADE BY THE ASSESSEE TO THE ASSESSING OFFICER OR CIT (A) TO CALL THE CREDITORS AND AS AGAINST THAT IN THE AFOREMENTIONED CA SE DECIDED BY THE TRIBUNAL IN PARA 5 THE TRIBUNAL HAS NOTED THAT THE ASSESSEE HAD MADE SO MANY REQUESTS TIME AND AGAIN BEFORE THE ASSESSI NG OFFICER TO SUMMON THE LOAN CREDITORS U/S 131 AND THE ASSESSEE WAS R EADY TO BEAR THE EXPENSES ON THOSE ACCOUNT BUT NEITHER THE ASSE SSING OFFICER NOR THE CIT (A) HAVE TOUCHED UPON THIS POINT. 6. IN ADDITION TO ALL THESE FACTS IT WAS OBSERVED BY T HE TRIBUNAL THAT IT IS CRYSTAL CLEAR THAT THE DECISION RELIED UPON BY T HE LEARNED AR ON THE ORDER DATED 4 TH DECEMBER 2009 WAS QUITE DISTINGUISHABLE FROM THE FACTS OF THE INSTANT CASE THEREFORE THE CONCLUSION DR AWN BY THE TRIBUNAL IN ITS ORDER DATED 4 TH DECEMBER 2009 WHICH WAS SUBSEQUENTLY FOLLOWED BY THE TRIBUNAL IN ITS ORDER CANNOT BE APPL IED BLINDLY. HOWEVER KEEPING IN VIEW THE EX PARTE ORDER PASSED BY THE ASSESSING OFFICER U/S 144 THE MATTER WAS RESTORED BACK TO THE F ILE OF THE MA NO.84/DEL/2011 MA NO.244/D/2011 7 ASSESSING OFFICER FOR DECIDING BOTH THE LEGAL ISSUES AND M ERITS OF ADDITION AFRESH. THE ASSESSEE WAS DIRECTED TO FURNISH THE REQUIRED INFORMATION CALLED FOR BY THE ASSESSING OFFICER TO PROV E ALL THE THREE INGREDIENTS OF CASH CREDITS NAMELY IDENTITY GENUIN ENESS AND CREDIT WORTHINESS AND FINDING THAT FACTS IN BOTH THE YEARS INV OLVED IN THE PRESENT APPEALS ARE IN PARI MATERIA THE SAME CONCLUSION WAS FOLLOWED FOR ANOTHER ASSESSMENT YEAR AND THE APPEALS FILED BY THE ASSESSEE WERE CONSIDERED AS ALLOWED FOR STATISTICAL PURPOSES IN TH E TERMS INDICATED IN THE SAID ORDER. 7. REFERRING TO THE AFOREMENTIONED ORDER OF THE TRI BUNAL AND THE CONTENTS OF MISC. APPLICATION IT IS THE CASE OF THE LE ARNED AR THAT A MISTAKE HAS BEEN COMMITTED BY THE TRIBUNAL BY NOT FOL LOWING THE AFOREMENTIONED TWO ORDERS OF THE TRIBUNAL WHEN AS A M ATTER OF JUDICIAL PRECEDENT THE TRIBUNAL WAS BOUND TO FOLLOW THE ORDER S OF THE COORDINATE BENCH. IT WAS SUBMITTED THAT IN THE ORDER DATED 21 ST MAY 2010 THE ASSESSMENTS WERE ALSO FRAMED U/S 144. HE SUBMITTE D THAT BY NOT FOLLOWING THE AFOREMENTIONED ORDERS OF THE TRIBU NAL A MISTAKE HAS CREPT IN THE ORDER OF THE TRIBUNAL WHICH HAS CAUSED P REJUDICE TO THE ASSESSEE AS THE SECOND INNINGS IS PROVIDED TO THE ASSESSING OFF ICER WHEN THE MATTER IS RESTORED BACK TO THE FILE OF ASSESSING OFFICER. IT IS ALSO THE CASE OF THE LEARNED AR THAT IN THE WRITTEN SU BMISSIONS FILED BEFORE THE TRIBUNAL THE ASSESSEE HAD RELIED UPON THE DE CISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. ORISSA COR PORATION PVT. LTD. 159 ITR 78 (SC) AND NO REFERENCE HAVING BEEN M ADE TO THAT DECISION HAS GIVEN RISE TO A MISTAKE WHICH HAS CREPT IN THE ORDER OF THE TRIBUNAL. IT WAS SUBMITTED THAT ACCORDING TO THE DEC ISION OF THE HONBLE SUPREME COURT IN THE CASE OF ACIT VS. SAURASHT RA KUTCH STOCK EXCHANGE LTD. 305 ITR 227 (SC) IF THE DECISION OF T HE JURISDICTIONAL HIGH COURT OR HONBLE SUPREME COURT IS NOT FOLLOWED THAT WILL GIVE RISE MA NO.84/DEL/2011 MA NO.244/D/2011 8 TO A MISTAKE. THUS IT WAS PLEADED BY THE LEARNED AR THAT THE ORDER OF THE TRIBUNAL SHOULD BE MODIFIED ACCORDINGLY. 8. ON THE OTHER HAND IT WAS THE CASE OF THE LEARNED DR THAT THE TRIBUNAL HAS DISTINGUISHED THE EARLIER DECISION AND TH EREFORE THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL. HE SUBMITTE D THAT IT IS NOT A CASE WHERE THE CONTENTION PUT FORTH BY THE LEARNED A R WAS NOT CONSIDERED BY THE TRIBUNAL AS ALL THE CONTENTIONS OF T HE LEARNED AR HAVE BEEN RECORDED IN THE ORDER OF THE TRIBUNAL AND AFTER DISTINGUISHING THE EARLIER DECISIONS THE MATTER HAS BEE N RESTORED BACK TO THE FILE OF ASSESSING OFFICER. IT WAS FURTHER SUBMITT ED BY THE LEARNED DR THAT WHAT HAS BEEN DONE BY THE TRIBUNAL IS THAT TH E MATTER HAS BEEN RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER WHICH DOES NOT MEAN THAT THE TRIBUNAL HAS UPHELD THE ADDITION. 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. THE PRESENT APPLICATI ON HAS BEEN FILED BY THE ASSESSEE UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT. THE JURISDICTION OF THE TRIBUNAL U/S 254 (2) IS LIMITED TO RECTIFICATION OF THE MISTAKE APPARENT FROM RECORD. IF IT IS FOUND FROM TH E RECORD THAT THERE IS SOME MISTAKE IN THE ORDER OF THE TRIBUNAL THE TRIB UNAL REQUIRES TO AMEND THE SAID ORDER. THE SCOPE OF THE PHRASE MISTAKE APPARENT ON THE RECORD HAS BEEN EXPLAINED BY HONBLE SUPREME CO URT IN THE CASE OF T.S. BALARAM ITO VS. VOLKART BROTHERS 82 ITR 50 ( SC) THAT A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. IF THE FACTS OF THE PRESENT CASE ARE CONSIDERED IN THE LIG HT OF THE AFOREMENTIONED INTERPRETATION GIVEN BY HONBLE SUPR EME COURT TO SUCH PHRASE THE CASE OF THE ASSESSEE WILL NOT FALL WITHIN THE PURVIEW OF SECTION 254(2). IN THE APPLICATION FILED BY THE ASSE SSEE BEFORE US IT IS THE CASE OF ASSESSEE THAT THE FACTS OF THE PRESENT APPEALS ARE IDENTICAL MA NO.84/DEL/2011 MA NO.244/D/2011 9 WITH THE FACTS OF APPEALS DECIDED BY THE COORDINATE B ENCH OF THE ITAT VIDE ORDER DATED 21 ST MAY 2010 THEREFORE A MISTAKE HAS BEEN COMMITTED BY THE TRIBUNAL IN NOT FOLLOWING THAT DEC ISION. IN THIS REGARD IT MAY BE MENTIONED THAT THE TRIBUNAL HAS DE LIBERATED ON THIS ISSUE AND IT HAS BEEN HELD BY THE TRIBUNAL IN ITS ORDER DATED 13 TH AUGUST 2010 THAT THE SAID DECISION WAS BASED ON THE EAR LIER DECISION RENDERED BY THE TRIBUNAL WHICH WAS DATED 4 TH DECEMBER 2009 AND IN THE ORDER OF THE TRIBUNAL DATED 4 TH DECEMBER 2009 IT WAS CLEARLY OBSERVED BY THE TRIBUNAL THAT ASSESSMENTS WERE NOT FRAMED U/S 144 BUT THESE WERE FRAMED U/S 143(3) OF THE ACT. IN ANY CASE A CONSCIOUS DECISION HAS BEEN TAKEN BY THE TRIBUNAL THAT THE FACT S OF THE PRESENT CASE ARE NOT PARI-MATERIA WITH EARLIER DECISION. IF A CCORDING TO ASSESSEE THEY ARE IN PARI-MATERIA THEN IT WILL BE A MATTER O F DEBATE. WHAT ASSESSEE IS ASKING TO DO US U/S 254 (2) IS TO REVIEW OUR EA RLIER DECISION WHICH IS NOT PERMISSIBLE U/S 254(2). IN OUR CONSIDERED OPINION ON THE FACTS OF THE CASE THE ISSUE RAISED BY THE ASSESSEE BY WAY OF AN APPLICATION FILED U/S 254(2) IS OUTSIDE THE PURVIEW OF SECTION 254(2). 10. ANOTHER ISSUE RAISED BY THE ASSESSEE IN THE APPLICATIO N FILED IS THAT THE TRIBUNAL HAS ERRED IN RESTORING THE ISSUE TO T HE FILE OF ASSESSING OFFICER AS IT HAS PROVIDED SECOND INNINGS TO THE DEPARTMENT AND AN OPPORTUNITY WAS PROVIDED TO THE ASSESSING OFFICER WHEN THE ADDITIONAL EVIDENCE WAS ADMITTED BY LEARNED CIT (A) UNDER RULE 46A. WE ALSO FIND NO FORE IN SUCH CONTENTION OF THE ASSESSEE A S THIS POINT HAS ALSO BEEN CAREFULLY CONSIDERED AND DECIDED BY THE TRIBUNAL. AS IT WAS NOTICED BY THE TRIBUNAL THAT THE ORDER PASSED BY T HE ASSESSING OFFICER U/S 144 WHERE THE ASSESSEE DID NOT COMPLY WITH T HE DIRECTIONS OF ASSESSING OFFICER THEREFORE THE MATTER IS REMITTED BACK TO THE FILE OF ASSESSING OFFICER. IN OUR OPINION SUCH DIRECTION OF THE TRIBUNAL DO NOT GIVE RISE TO ANY MISTAKE TO FALL WITHIN THE AMBIT OF MISTAKE AS ENVISAGED IN SECTION 254(2). MA NO.84/DEL/2011 MA NO.244/D/2011 10 11. APART FROM THE AFOREMENTIONED TWO ALLEGED MISTA KES THE LEARNED AR OF THE ASSESSEE HAD ALSO ARGUED THAT THE TRIB UNAL DID NOT TAKE INTO CONSIDERATION THE DECISION OF HONBLE SUPR EME COURT IN THE CASE OF ORISSA CORPORATION (SUPRA) WE ALSO DO NOT FIND A NY FORCE IN SUCH CONTENTION AS WHAT HAS BEEN DONE BY THE TRIBUNAL IS TH AT THE MATTER HAS BEEN RESTORED BACK TO THE FILE OF ASSESSING OFFICER A ND THE ASSESSING OFFICER IS NOT DEBARRED FROM TAKING INTO CONSID ERATION THE CASE LAW RELATING TO APPLICABILITY OR OTHERWISE OF SE CTION 68 TO A PARTICULAR CASH CREDIT AS IT WAS DIRECTED BY THE TRIBU NAL TO THE ASSESSING OFFICER TO RE-DECIDE THE MATTER AFRESH AND THE ASSESSEE WAS DIRECTED TO FILE REQUIRED INFORMATION CALLED FOR B Y THE ASSESSING OFFICER TO PROVE ALL THE THREE INGREDIENTS OF CASH CREDITS NA MELY IDENTITY GENUINENESS AND CREDIT WORTHINESS OF THE TRANSACTION. 12. MOREOVER AS PER THE DECISION OF HONBLE DELHI HI GH COURT IN THE CASE OF KARAN & CO. 253 ITR 131 THE SCOPE AND AMBIT OF APPLICATION U/S 254 (2) IS VERY LIMITED. THE SAME IS RESTRICTED TO RECTIFICATION OF MISTAKES APPARENT FROM THE RECORD. POWER TO RECALL O F AN ORDER IS PRESCRIBED IN TERMS OF RULE 24 OF THE INCOME-TAX (APP ELLATE TRIBUNAL) RULES 1963 AND THAT TOO ONLY IN CASES WHERE THE ASSESSEE SHOWS THAT IT HAD A REASONABLE CAUSE FOR BEING ABSENT AT A TIME W HEN THE APPEAL WAS TAKEN UP AND WAS DECIDED EX PARTE AND RELYING UPO N THIS CASE SUBSEQUENTLY HONBLE DELHI HIGH COURT IN THE CASE OF C IT VS. ITAT 293 ITR 118 HAS OBSERVED AS UNDER:- THAT BEING THE LEGAL POSITION THE TRIBUNAL WAS NOT IN OUR OPINION JUSTIFIED IN RECALLING THE ORDER PASSED BY IT IN TOTO AND SETTING THE MATTER DOWN FOR A FRESH HEARING. JUST BECAUS E A PRONOUNCEMENT MADE ON THE SUBJECT EITHER BY THE TRIBUNA L OR BY ANY OTHER COURT WAS NOT NOTICED BY THE TRIBUNAL WHILE TAKING A PARTICULAR VIEW ON THE MERITS OF THE CONTROVERSY MAY CONSTITUTE AN ERROR THAT WOULD CALL FOR CORRECTION IN AN APPROPRIATE APPEAL AGAINST THE ORDER. ANY SUCH ERROR M AY HOWEVER FALL SHORT OF CONSTITUTING A MISTAKE APPARENT FRO M THE RECORD WITHIN THE MEANING OF SECTION 254 (2) OF THE ACT. MA NO.84/DEL/2011 MA NO.244/D/2011 11 13. FROM THE ABOVE OBSERVATIONS OF THEIR LORDSHIPS OF J URISDICTIONAL HIGH COURT IT IS CLEAR THAT JUST BECAUSE A PRONOUNCEM ENT MADE ON THE SUBJECT EITHER BY THE TRIBUNAL OR BY ANY OTHER COURT WAS NOT NOTICED BY THE TRIBUNAL WHILE TAKING A PARTICULAR VIEW ON THE MERITS OF THE CONTROVERSY MAY CONSTITUTE AN ERROR THAT WOULD CALL F OR A CORRECTION IN A PROPER APPEAL AGAINST THE ORDER. ANY SUCH ERROR MAY HOWEVER FALL SHORT OF CONSTITUTING A MISTAKE APPARENT FROM RECORD W ITHIN THE MEANING OF SECTION 254 (2) OF THE ACT. THUS THE OT HER ARGUMENTS OF THE LEARNED AR THAT NON-CONSIDERATION OF A DECISION O F HONBLE SUPREME COURT AND PROVIDING A SECOND INNINGS TO THE A SSESSING OFFICER DO NOT HAVE ANY FORCE AND DO NOT GIVE ANY JURISDICTI ON TO ITAT TO ALLOW THE CONTENTION OF THE ASSESSEE BY WAY OF AN ORDER PASSED U/S 254(2) OF THE ACT. IN VIEW OF THE ABOVE DISCUSSION WE DO NOT F IND ANY MERIT IN THE APPLICATIONS FILED BY THE ASSESSEE IN RESPECT OF BOTH THE YEARS AND THE SAME ARE DISMISSED. 14. IN THE RESULT THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE ARE DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 30.11.20 11. SD/- SD/- [K.G. BANSAL] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 30.11.2011. DK MA NO.84/DEL/2011 MA NO.244/D/2011 12 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT DELHI BENCHES