TMI Blog2007 (3) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... t credit in SBI Account raised in this MA is dismissed accordingly. 5. Issue of mistake as raised by the Revenue contending it to be apparent from record and rectifiable under section 254(2) of the I.T. Act, arising out of the Third Member s order is, as under : "3. Unaccounted investment in La-Mer property of Rs. 50 lakhs : An addition of Rs. 50 lakhs was made on account of cash payment for purchase of flat in La-Mer building by the assessee. The assessee along with her father, mother and brother purchased a flat on 12th Floor in La-Mer building at Bandra. The flat was purchased for an agreement value of Rs. 90 lakhs from Jay Construction Co. and the date of agreement was 25-5-1999. During the course of search, a loose paper marked as Annexure A3 was seized, in which page Nos. 5, 44 45 were relevant to the purchase of the flat. Shri Krishnaraj Rai, father of the assessee, in his statement recorded under section 132(4) of the Act admitted that they have paid additional amount of cash of Rs. 50 lakhs for purchase of flat in La-Mer building. This statement was recorded on 26-9-2000. Thereafter, vide letter dated 29-11-2000, the father of the assessee retracted the said ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coming to the decision of the Hon ble Judicial Member vide his original order undated October 2004, on this issue, while deleting the addition, it is seen that he also considered the total payment on this page as being 84 lakhs out of which Rs. 34 lakhs was paid by cheque. The Ld. J.M. in para 36 of his original order, on page 42 held that the sum represented on this page was promise to pay 84 lakhs by May 1999 but in fact, only Rs. 34 lakhs was paid. The following excerpt from p. No. 42 illuminates the issue. But we find force in the argument of the ld. AR that the figures mentioned on this page after the first line were the amounts promised to be paid as the word promise is written on this page. According to him the promise was made for payment of Rs. 84 lakhs by May 99 but in fact Rs. 34 lakhs were paid. Payment of Rs. 34 lakhs is reflected in the accounts and is also accepted by the Assessing Officer. Accordingly he held that the balance of Rs. 50 lakhs was only a promise and the addition was only a suspicion of the Assessing Officer that the amount might have been paid in cash. In the very same order the Ld. Accountant Member in his dissenting judgment in para 7 (page 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing the issue has travelled beyond the terms of reference and reinterpreted the seized material which was already interpreted by the Judicial Member and the Accountant Member in their order. The Ld. Third Member in para 36 page 21 has given a fresh finding that the page 44 represents cash payment of Rs. 84 lakhs, if the contention of the revenue are accepted and not Rs. 50 lakhs. On this basis he has held that the loose paper does not support the case of the revenue. The relevant finding is as under : 36. Coming to loose paper, the same was written in coded manner. One interpretation of the revenue is that extreme right column of figure totalling "78" represents cheque payments and the middle column represents cash payments and cheque payments. Apropos that, assessee s contentions is, the word "promise" is clearly written on the side of inscription, therefore, these were promises made, actual payments are duly recorded in the books of account, which have been verified. Oral agreement for the property was executed in March, 1998 and till December, 1998 an amount of Rs. 59 lakhs was promised to be paid. The assessee s contention is, words written had to be given proper effect, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be discharged. Similarly, P.K. Palwankar v. CGT [1979] 117 ITR 768 (MP) and CIT v. Mrs. Doris S. Luiz [1974] 96 ITR 646 (Ker.) on which also learned counsel for the assessee placed reliance are of no help to the assessee. The Tribunal s order is concluded by findings of fact and in our view no question of law arises. The applications are, accordingly, rejected. Similarly, in the case of Dy. CIT v. Bhogilal Mulchand , the ITAT Ahmedabad Bench B in the IT Appeal Nos. 4780 (Ahd.) of 1996, 51, 960 (Ahd.) of 1977 and 2455 (Ahd.) of 1999 [2005-TIOL-173-ITAT-AHM] held that statement given under section 132(4) is an important piece of evidence against assessee in search seizure assessment. The ITAT, Ahmedabad Bench held that 9. Thus the above sub-section empowers the Authorised Officer to examine an oath any person during the course of search provided such person is found in possession of any books of account, documents or any valuable article or thing. The above statement can be used against the assessee in the proceedings under the Income-tax Act. It is a settled law that admission by a person is good piece of evidence though not conclusive and the same can be use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment as per the due procedure in respect of MA. 7. I have heard rival submissions and perused record. I find that notice was issued to Department by the registry as per due procedure on 19-1-2007. Copy of notice is on record. Notice has been issued as per the procedure regularly followed by the registry with income-tax department in respect of MA matters, in view thereof. I see, no stance in the technical objections raised by the learned DR, which is rejected. 8. Coming to the merits of the case, learned DR reiterated the arguments raised in the petition which has been reproduced in details above and contends that : ( i )Third Member has misinterpreted entries made in the loose papers. ( ii )Third Member has travelled beyond terms of reference and re-interpreted entries in manner which was not interpreted by JM and AM in the original order. ( iii )Third Member has given a fresh finding about cash payment of Rs. 84 lakhs. Thus by giving new dimension to the interpretation of the loose paper, Third Member has travelled beyond his jurisdiction. ( iv )Third Member should not have accepted retraction of the statement by the father of the assessee. The same is binding i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either with ld. JM or ld. AM. While doing so, Third Member has unfettered power to examine material and has to agree with one of the views. In the instant case, Third Member went through each and every entry from all possible angles and ultimately held his view in favour of the order of JM on the issue. Therefore, it cannot be held that Third Member travelled beyond the subject-matter and interpretation made by him of the loose paper amounts to mistakes apparent from record. In any case, department, though, has referred to the loose papers, in the course of assessment as well as before Third Member in original arguments as well now, ultimately, the loose paper has not been relied on by the Department, addition finally has been made on the basis of comparison between flat purchased by Shri Sachin Tendulkar. Therefore, interpretation of loose paper by Third Member is one of the possibilities and it cannot be called a mistake apparent from record only because the Department holds a different interpretation of the paper. In any case, issue does not make any impact on the addition, inasmuch as, addition ultimately has not been made on the basis of loose paper, but on the above comparis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reliance on the comparable case cited by the Revenue i.e., flats purchased by Shri Sachin Tendulkar to make the same as a basis of addition. ( iv )Coming to Shri Sachin Tendulkar s case also, it was contended that Third Member has dealt with these aspects and has held that Shri Sachin Tendulkar purchased flats after a time gap of 15 months, whereas the assessee booked flats as original buyer at the stage of construction, therefore, the case of Shri Sachin Tendulkar cannot be held to be comparable. It was contended that all the averments made in MA and contentions raised during hearing clearly amount to review of the order, there is no mistake which is glaring and apparent from record. Pleadings of the Department, therefore, amount to review/reconsideration of the order of Third Member, which is not permissible under section 254(2). Coming to case laws cited by ld. DR it was contended that reliance placed on CIT v. P.R. Metrani (HUF) [2001] 251 ITR 244 (Kar.) is of no avail as this judgment has been reversed by Hon ble Supreme Court in P.R. Metrani v. CIT [2006] 287 ITR 209 . Other case are of no avail as they all refer to various interpretations and raise pleas whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Shri Sachin Tendulkar s case has been taken by the Assessing Officer to support its case also does not raise any mistake which is apparent from record. The distinction in purchases by assessee and Shri Sachin Tendulkar has been duly dealt with and examined. Time gap and fact that the assessee was original purchaser, besides, ignoring inquiry made by the Department from builders of the flats, consequently, plea in this behalf by the Department also cannot be called to be a mistake apparent from record, as the same clearly amounts to review of the order. Ld. DR s reliance on Karnataka High Court s case i.e. P.R. Metrani (HUF) ( supra ) is of no avail as the same has been reversed by the Hon ble Supreme Court in P.R. Metrani v. CIT [2006] 287 ITR 209 . Other case laws cited by the learned DR may be good in the original appellate pleadings as they are based on peculiar facts of those cases. As far as scope of power under section 254(2) is concerned, the same is limited only to the mistakes and not reviewing the observations, findings arrived at in the original order, after due consideration of facts, material and judicial precedents cited. In the entire facts and circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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