TMI Blog2011 (11) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal's order - It is not even a case where a particular argument or fact has been omitted to be considered by the tribunal, even as the higher courts of law have held the same, unless it goes to the root of the matter, as not entitling for a rectification and/or a recall A substantial part of the assessee's case was that he being only an employee of PGPL, whose goods he was carrying, no addition in its respect, i.e., even assuming the same as not suitably explained, could be made in his hands, so that the assessment, if at all, could be made only in the hands of his employer, PGPL - The tribunal, in applying the law, is in fact duty bound to do so and, accordingly, rightly and rightfully did so - Decided against the assessee - M.P. No. 21 (Coch.) of 2011 - - - Dated:- 25-11-2011 - N.R.S. Ganesan, Sanjay Arora, JJ. T.N. Seetharaman for the Applicant. Ms. S. Vijayaprabha for the Respondent. ORDER Sanjay Arora, Accountant Member This is an Application for a recall of its Order dated 9.2.2011 (for the assessment year (A.Y.) 2007-08) by the Tribunal, moved by the Assessee-Respondent u/s. 254(2) of the Income-tax Act, 1961 ('the Act' hereinafter). 2.1 Open ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by either party before it. Further, it raised a lot of queries, drawing inference both for and against the assessee; being mostly against the assessee. The same, if posed there-to, could be answered by it. In fact, some of them stand listed by the assessee itself vide its ground/s assumed before the ld. CIT(A), viz. Ground Nos. 7 to 11. The Revenue's appeal, in contradistinction, raised only one effective ground, Ground No. 2. As an example, the tribunal vide para 4.10 of its order observes that the assessee had paid tax of Rs. 24 lakhs on 2.2.2008 and, therefore, cannot be considered as a man of no means. The same had, in fact, been paid by PGPL (stating the payment particulars) on the directions by the hon'ble high court for getting the requisitioned gold ornaments released. The same, if posed to the assessee, could have been answered, as also each of the other queries. The impugned order is clearly an incorrect order, passed in violation of the rules of law and procedure, inconsistent with the maxim audi alteram partem . The same may therefore be recalled and heard afresh, and for which the tribunal has ample powers. Towards this, he cited and read out the decision in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjourned, the appellant does not appear in person or through an authorised representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent: Provided that where an appeal has been disposed of as provided above and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance, when the appeal was called on for hearing, the Tribunal shall make an order setting aside the ex parte order and restoring the appeal." The said Rule is clearly inapplicable, with the tribunal having passed an order after hearing both the sides. There is no other provision in law, as was sought to be emphasised by the ld. DR during hearing, whereby the tribunal could recall its order. An exercise of power cannot be in vaccum but has to be on some legal basis. The recall of its order would mean passing a fresh order by re-hearing and re-adjudication of the entire subject matter of the appeal. The dispute no longer remains restricted to any mistake sought to be rectified but leads to an effacement of the earlier order u/s. 254(1). The same, thus, is clearly impermissible under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent manner, stop any party from advancing any argument or raising any claim, i.e., qua the appeal being heard. Further, in view of the time elapsed, it only deemed fit, i.e., to maintain the fairness of procedure, to afford opportunity to the parties to, if so desired, (re)state their respective cases before it. This by itself clearly indicates that the tribunal views the delay, which occasionally may attend its order (for a variety of reasons), not always within its control, as not desirable, so that, where caused, the parties may be allowed an opportunity of hearing. As such, to turn around and say that it was not afforded an adequate opportunity of hearing is neither proper nor a correct statement of fact. Further, it is not a case where any lengthy arguments were made; the ld. AR, by his own admission, having relied on the order of the first appellate authority and the assessee's paper-book (PB), and which stands faithfully recorded at para 3 of the tribunal's order. It is not even a case where a particular argument or fact has been omitted to be considered by the tribunal, even as the higher courts of law have held the same, unless it goes to the root of the matter, as not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rade of his (assessee-possessor's) employer, or the employer admits of the same as representing his unaccounted stock, so that its ownership is established, no further obligation in the matter lay on him (assessee); the said goods having been satisfactorily explained by him as to their nature and source (also refer para 4.7). The reference to the case law was thus only for alluding to the principles of law governing the issue under reference. The tribunal, in applying the law, is in fact duty bound to do so and, accordingly, rightly and rightfully did so. Would it, on the contrary, it may be asked, be proper on its part to allude to the same without drawing on the settled case law in the matter; the case law being by the apex court and the hon'ble jurisdictional high court, both of which are rather mandatory in their application, so that reference to the same, apart from being apposite, was incumbent on it. The assessee's charge fails. 3.4 The assessee's next plea is that the different queries, if posed to him, could be suitably answered or met, so that he stands prejudiced thereby, i.e., non-poser of the queries deemed relevant by the tribunal in deciding the issue under app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, i.e., as before the assessing authority, to no rebuttal by him. Even as sought to be explained during the hearing itself, the Revenue's lone ground effectively captures the controversy under reference, and the queries raised are only a manner of writing the order; the same pointing out to the various gaps and/or deficiencies in the assessee's explanation, the reasonability or otherwise of which is in issue. The issue before the tribunal is the validity in law of the non-satisfaction of the assessing authority (with the said explanation), which the first appellate authority found as not so, so that this is what it (the tribunal) as an appellate and final fact finding authority was called upon to consider and adjudicate on, and which would also include the reasons cited by the first appellate authority, either in support or against. 3.5 At this stage, we consider it proper to, so as to exhibit the import and purport of what is being said, advert to one such query (say), as raised in Ground No. 7 (before the ld. CIT(A)), which reads as:- '7. The appellant denies the assessing officer's statement that while carrying the jewellery he had no documents or proper explanation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man without means is contested on the basis of the factum of payment being not by him but only by his employer, PGPL. The charge is untenable. Firstly, the issue, a matter of fact, as would be apparent from a mere browse of the order, has not been decided in the least on that basis. The tribunal after examining the assessee's contention of being an employee of PGPL, which it considers as the first limb of his explanation, admits to the same, and proceeds on the basis of his status as being of an employee of PGPL (refer para 4.5). As such, the implication of the assessee's contention, i.e., of the tribunal having decided on the basis of a wrong fact is incorrect. Further, the cited observation has been made by it (tribunal) only in the context of its consideration for applicability, if so, of the decision in the case of CIT v. Smt. P.K. Noorjahan [1999] 237 ITR 570/103 Taxman 382 (SC), not cited by the assessee, and was considered suo motu by it. If, going by the assessee's contention that no reference to non cited case law could be made in applying the law by the tribunal, i.e., on its own, he is precluded from raising this plea. Secondly, the captioned observation by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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