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2022 (8) TMI 1458 - AT - Income TaxRectification u/s 254 - Validity of reopening of assessment - ITAT has erred in holding that the reason to believe for escapement of income was recorded without application of mind and without specifying failure on the part of the assessee to disclose all the material facts before AO in the regular assessment - HELD THAT:- ITAT after elaborate discussion on the issue of reason to believe has taken a view that reason recorded by the AO was nothing but borrowed satisfaction. In holding so the ITAT analyzed the facts available on record, given various reasoning and also referred several judicial precedent. As Such the Revenue in M.A. has not pointed out any specific mistake in the order which is apparent from the record. The issue raised by the Revenue in M.A. requires long drawn argument which is not allowed under section 254(2) of the Act. If the Revenue feels the order passed by the Revenue is erroneous on account of law or on fact then the only remedy available is to challenge the order at higher forum. In holding so we draw support and guidance from the judgment of Hon’ble Supreme Court in case of CIT vs. Reliance Telecom Ltd. [2021 (12) TMI 211 - SUPREME COURT] ITAT erred in holding that no addition was made based on reasons to believe recorded - Again it is noted that the ITAT has considered all the materials available on record and also made comparable reference to the income identified by the AO in reasons recorded and final addition made by the AO in the assessment order passed under section 143(3) read with 147 of the Act. Thus, in our considered view, there is no mistake apparent in the order of the ITAT. At the this juncture we again feel pertinent to refer the judgment of Hon’ble Supreme Court in case of CIT vs. Reliance Telecom Ltd [2021 (12) TMI 211 - SUPREME COURT] where it was held that even if the order passed by the ITAT is erroneous on merit the only remedy available to the aggrieved party to prefer appeal before Hon’ble High Court. It is also not out of place to mention that the Revenue against the order of the ITAT has already preferred an appeal before the Hon’ble High Court which has been admitted. This argument of the ld. AR was not controverted by the ld. DR appearing on behalf of the Revenue. We hold that there is no apparent mistake in the order of ITAT as alleged by the Revenue in its miscellaneous application as discussed above. Therefore, we do not find any merit in the argument of Ld. Counsel for the Revenue. Rectification u/s 254 - Validity of assessment u/s 153A - ITAT has erred in holding that in the proceeding u/s 153A of Act addition or disallowance can only be made on the basis of incriminating material found in the course of search and in holding so ITAT misinterpreted the judgment of Saumya Construction (P) Ltd. [2016 (7) TMI 911 - GUJARAT HIGH COURT] and Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] - HELD THAT:- ITAT has considered all the materials available on record and the ITAT also analyses the decision of Hon’ble SC in case of VLS Finance Ltd [2016 (4) TMI 1133 - SUPREME COURT] and after making reference to other judgment of Hon’ble High Court held that principles laid down by the Hon’ble SC are not applicable to the facts on the hand. Thus, in our considered view, there is no mistake apparent in the order of the ITAT. At the this juncture we again feel pertinent to refer the judgment of Hon’ble Supreme Court in case of CIT vs. Reliance Telecom Ltd [2021 (12) TMI 211 - SUPREME COURT] where it was held that even if the order passed by the ITAT is erroneous on merit, the only remedy available to the aggrieved party is to prefer an appeal before Hon’ble High Court. We hold that there is no apparent mistake in the order of ITAT as alleged by the Revenue in its miscellaneous application as discussed above. Therefore we do not find any merit in the argument of Ld. Counsel for the Revenue. Hence, the MA filed by the Revenue is dismissed. Whether materials found during the search on the basis of which proceedings under section 153C of the Act were initiated, were not belonging to the assessee? - ITAT after elaborate discussion on the issue whether search materials belong to assessee or not, has taken a view that such materials do not belong to the assessee. In holding so the ITAT analyses the fact available on record, gives various reasoning and also refer the several judicial precedent. As Such the Revenue in M.A. has not pointed out any specific mistake in the order which is apparent from the record. The issue raised by the Revenue in M.A. requires long drawn argument which is not allowed under section 254(2) of the Act. If the Revenue feels the order passed by the Revenue is erroneous on account of law or on fact then the only remedy available is to challenge the order at higher forum. M.A’s in this segment filed by the Revenue are hereby dismissed.
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