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2019 (4) TMI 613 - ITAT AHMEDABADRectification petitions u/s 254(2) - penalty imposed on the basis of total cash deposit in account - Tribunal considering business of assessee consider 90% deposit as explained and sustain penalty on 10% - Dept. appeal before High Court interpreting that penalty of 100% of tax reduced to 10% which is not permissible - High court suggest for rectification before Tribunal - HELD THAT:- The issue on merits on what Their Lordships have held and any further analysis of legal position will inevitably take us there, and we humbly accept our mistake. We may, however, add that the school of thought that “It is settled that the findings given in the assessment proceedings would be relevant and admissible materials in penalty proceedings, but those findings cannot operate as res judicata because the considerations that arise in penalty proceedings are different from those in the assessment proceedings” has consistently found favour with several non jurisdictional High Courts, including in the case of CIT Vs Ishitiaq Hussain [1997 (11) TMI 78 - ALLAHABAD HIGH COURT]. The findings in the assessment proceedings have not thus be treated as final adjudication binding in the penalty proceedings. An approach adopted by the basis of the views expressed by Hon’ble High Court, even if non jurisdictional, cannot be said to be a glaring error incapable of two views being taken. Even if the rectification petition was to be treated as a petition filed well within the time limit, the rectification petition was to be dismissed on merits anyway- in the light of the nature of the mistake and the limited scope of powers under section 254(2). There would not have been any difference to the outcome of the exercise. Dismissal of this rectification petition is on account of delay in filing of rectification petition as also on account of inherently limited powers vested in the Tribunal under section 254(2). That does not affect the fact that, in the light of the observations of Hon’ble jurisdictional High Court, this Tribunal was in error in granting the relief in the impugned order and we must gracefully acknowledge the same. There are, however, limitation to what we can do in the course of exercise of our powers under section 254(2) and as much as we must acknowledge our mistake, we must also acknowledge our limitations of rectifying the same. Just as Their Lordships, having noticed the mistake in the impugned order, declined to tinker with the same, for the larger causes of justice, and allow it to thus reach finality nevertheless, we must also refrain from revisiting the conclusions arrived at in the impugned order, in the garb of rectifying the mistake apparent on record, as, howsoever desirable be the ultimate objective, ends cannot justify the means; the legal remedies can only be provided within the framework of law.
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