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2015 (10) TMI 796 - ITAT AHMEDABADRectification of mistake - mistake of facts in the order of the Hon'ble ITAT as that addition on the issue involved has been confirmed on substantive basis in the case of Shri Sendhabhai M Desai (individual). The same is however not so as the addition has been deleted by Ld. CIT(A) - Held that:- We have noted that the alleged mistake, if any, had not emanated from the order of the Tribunal. In fact, learned CIT(A) in his order in the case of the AOP has made an observation that the concerned CIT(A) in the case of Sendhabhai M. Desai, Individual, has confirmed the addition. In fact that was the source of the mistake. The impugned mistake, if at all, did not attribute to Tribunal. Moreover, the matter was decided not only because of that reason but it was decided on the merits of the case. It is clear that a finding was given in the case of the Individual that the impugned addition was merely on surmises and conjecture. While computing the brokerage income, the AO had estimated the same and that too found to be on presumption. Therefore, a question was raised during the course of hearing that in a situation when a substantive addition could not be upheld in the hands of the individual then how it is possible to uphold a “protective addition” pertaining to the same income. The impugned income was once deleted on merits from the hands of the Individual, therefore on those very reasoning that very addition was deleted by the Appellate Authority from the hands of the AOP. Even, the Respect Co-ordinate Bench has examined all those aspects on merits and thereupon after analyzing few case laws have came to the conclusion that the AOP was not in existence and therefore, the addition was wrongly made. Even, if we consider the grievance of the Revenue Department that the Tribunal has committed a mistake by wrongly recording a fact about the confirmation of addition in Individual capacity by learned CIT(A), but then simultaneously other fact shall also remain intact that the Tribunal has given a finding that the AOP was not in existences and hence the addition was improper. Moreover, the alleged wrong fact had emanated from the order of learned CIT(A), therefore, the mistake, if any, was a mistake of learned CIT(A) and not the Tribunal. The impugned order of the Tribunal has been passed after due consideration of the facts and circumstances of the case, therefore, need not to be disturbed; because any tinkering may tantamount to review of the order which is not permissible u/s.254(2) of IT Act. The Misc. Application of the Revenue Department is hereby dismissed.
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