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2019 (11) TMI 1229 - AT - Income TaxRectification of mistake - no addition can be made u/s 68 of the Act unless there is a credit in the books of accounts of the assessee - HELD THAT:- One person can not travel on two boats at a same time, however in the instant case the Asseeee tried to take two inconsistent stands therefore the tribunal on the basis of material available on record realised that since the assessee has taken the clear-cut stands in his wife's assessment proceedings that the amount deposited in his wife's account belongs to the assessee, which the assessee has received as advance against his property from the buyer and in reply in response to notice u/s 142(1) of the Act in his assessee’s wife case, specifically admitted that the deposit of ₹ 36 lacs in the Asst. Year: 2011-12 does not belongs to assessee’s wife but belongs to the assessee only therefore, the co-ordinate bench was constrained to deal with the contrary contention raised and new stand taken by the assessee which was inconsistent to record and admission made in his wife assessment proceedings and held the same as devoid of merit and unsustainable. While considering the peculiar facts and circumstances to the effect that the assessee though filed its reply but did not appear regularly before the Ld. CIT(A), therefore, on the basis of reply the Ld. CIT(A) decided the appeal of the assessee as ex-parte, hence, in that eventuality and in peculiar facts and circumstances of the case and for the ends of justice without going into further controversy and deciding the case on merit and other grounds/issues raised by the assessee, the Co-ordinate Bench remanded the case to the file of the Ld. CIT(A) for decision afresh and in the order it was specifically mentioned by the Co-ordinate Bench in the last Para No.6.2 of the order that as the Ld. CIT(A) has passed the order exparte therefore, we are not adverting to the other grounds/ issues raised in the appeal and the Ld. CIT(A) shall decide the appeal without being influenced by any of the observations made above. Claim of the assessee is that the Co-ordinate Bench did not consider the judgment of Supreme Court - We have already mentioned the facts and given thoughtful consideration to issue raised by the assessee. In our considered view, the courts including tribunal are bound to follow the judgments of the higher courts in case the it decides the case on merits. As in this case considering the peculiar facts, impugned order has been quashed and case is remanded back to the Ld. CIT(A) for decision afresh with specific direction that Ld. CIT(A) shall decide the appeal without being influenced by any of the observations made above, therefore as per our considered view, no error seems to be apparent on record which requires any rectification as sought for by the Assessee. Even we have failed to understand as to what prejudice has been caused to the assessee and what error is apparent from the record which requires rectification because at the time of passing order under rectification, no order survives against the assessee and the tribunal in view of contrary material available on record and which is not denied by the assessee but in fact admitted by the assessee, has dealt with inconsistent stand only but not otherwise and left it open to the Ld. CIT(A) to decide afresh without being influenced by any observation made in its order. Even liberty was given to the Asseeee to agitate the original ground of appeal as raised before the Ld. CIT(A). The inference can be drawn that in this case, no mistake is apparent from record which could warrant rectification. Miscellaneous Applications filed by the assessee stands dismissed.
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