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2018 (10) TMI 1348 - ITAT MUMBAIRectification of mistake apparent from the record u/s. 254(2) - ITAT has been guided by Explanation 5A to section 271(1)(c) - Held that:- Nowhere in the order of the ITAT there is a mention that ITAT is following Explanation 5A to section 271(1)(c). In our considered opinion, this assertion of the ld. Counsel of the assessee is not apparent from the order of the ITAT. Consideration of this limb of the argument of the ld. Counsel of the assessee would fall under review and reconsideration of a co-ordinate bench order, not permissible u/s. 254(2). Another mistake apparent from the record as submitted that during the course of hearing, it was submitted before the ITAT that the A.O. has not specified the limb of concealment of income or furnishing of inaccurate particulars of income under which he is intending to initialise penalty proceedings and, hence, the levy of penalty ought to be deleted. For this the assessee submits that the ITAT has recorded the submissions of the assessee that the A.O. has not recorded any satisfaction regarding the concealment of income for furnishing of inaccurate particulars of income. We find that the assessee is totally incorrect in his assertion that there was any issue before the ITAT that the order passed u/s. 271(1)(c) is bad inasmuch as a specific limb has not been specified. This is clearly an afterthought. ITAT has erred in observing that the assessee’s explanation that they have voluntarily filed revised computation of income cannot be accepted. We find that it is submitted by the assessee that the assessee has inadvertently missed out in including the sum of ₹ 18,05,000/- as in the return of income. In this regard, we note that this issue was duly noted by the ITAT and has not been accepted. If the ITAT does not accept any submission of the assessee, by no stretch of imagination can be considered as mistake apparent from the record in the order of the ITAT liable for rectification u/s. 254(2). Another plank of the assessee’s argument is that the loose sheet found cannot be considered as “any money, bullion, jewellery or other valuable article or thins” as contemplated in the concerned section. Hence, it is claimed that no penalty is leviable on such unsustainable addition. We find that on this issue the assessee is clearly seeking review of the order of the ITAT not permissible u/s. 254(2). Thus from the above discussion, we find that the issues pointed out by assessee do not fall under the realm of mistake apparent from the record liable to be rectified u/s. 254(2)
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