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TMI Blog2009 (12) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... g the power of suo motu review of their order. In such circumstances, it was claimed that the hearing fixed for 21st Jan., 2009 adjourned from 20th Jan., 2009 is not legally valid. The learned counsel further submitted that participation in an invalid proceedings by the respondents should not be construed as a concession of their jurisdiction and the participation in the present proceedings is only to highlight the illegality of the proceedings and to protect the interest of the respondents. 3. These appeals were earlier heard by the Tribunal, 'B' Bench, Chennai comprising Shri U.B.S. Bedi, JM and Shri Shamim Yahya, AM (me, the author in this case) on 18th Sept., 2008. On the same day, upon conclusion of hearing, order was pronounced in the open Court and seal was affixed on the order sheet to the effect that, "order is pronounced in the open Court. Appeal stands dismissed." This entry was duly signed by both the Members. The files were allotted to the AM for dictating the detailed order. The detailed order dt. 18th Sept., 2008 was dictated by the AM in which in the conclusion it was mentioned that, "All these appeals by the Revenue are dismissed. Pronouncement to this effect was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt records perused. The files were again allotted to the AM for dictation. Upon careful consideration, it is the considered opinion that in merits of the case there is no need to change the view taken on 18th Sept., 2008 that the Revenue's appeals are liable to be dismissed in this case. The adjudication remains the same which is as under: "These appeals by the Revenue are directed against the respective orders of the two assessees being husband and wife for the respective assessment years. Since the issue is connected, these are being consolidated and disposed of together for the sake of convenience. "2. ITA Nos. 2569 to 2571/Mad/2007: Asst. yrs. 1999-2000 to 2001-02: 2. 1 The issue raised is that the CIT(A) erred in holding that the investment and income belonged to the wife of the assessee, Smt. B. Meenakshi. 2.2 In this case, a survey under s. 133A of the IT Act was conducted at the business premises of the assessee. During the course of survey, certain documents pertaining to income and investment were found. During this period, sworn statements were recorded from the assessee and his wife. On the basis of sworn statements supplied during the course of survey, the AO infer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l owner. Further, the CIT(A) failed to note that the assessee's husband himself admitted in the sworn statement recorded on the date of survey and thereafter that none other than he himself had got any independent source of income and he is the only earning member of his family who is assessed to tax and which was confirmed by the assessee and no books of accounts were maintained. 3.2 We find that in the earlier appeals by the husband, Shri Vijayan we have already deleted the addition made by the AO on substantive basis and these protective assessments in the hands of the wife are liable to be dismissed. We had followed the Hon'ble jurisdictional High Court decision in the case of S. Khader Khan Son, cited for the proposition that sworn statement under s. 133A cannot be the sole basis for addition. Accordingly, these appeals by the Revenue are dismissed. 4. In the result, all these appeals by the Revenue are dismissed. Pronouncement to this effect was made in the open Court on 18th Sept., 2008." 7. Now, as regards the proposition that there is a mistake apparent from record in this order, it is found that the decision in this case was taken by the Bench on the basis of latest de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then that is the order of the Tribunal and the order which is written subsequently merely contains the reason for it to come to the conclusion which it did. If the written order is at variance with the announcement, there is a mistake in the written order which can be rectified." 10. As regards the decision of Tribunal in the case of Mafatlal Securities Ltd. vs. Jt. CIT, the same is, not applicable on the facts of this case. The said decision of the Tribunal was rendered in a context that, upon pronouncement the Bench was of the opinion that the case needed fresh hearing. In this decision, the case law from Hon'ble apex Court in ITAT vs. V.K. Agarwal & Anr. (1998) 150 CTR (SC) 513 was also considered, wherein the Hon'ble apex Court was of the opinion that, unless the order of a Bench is signed by all Members constituting it and is dated, it is not an order of the Tribunal. In the present case before us, it was only one Member of the Bench who was of the view that, after pronouncement in open Court, the case needs to be reopened as there is mistake apparent from record. The other Member constituting the Bench was not in agreement with this view, that there was a mistake apparent fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court pronounces a judgment, the same should not. be reopened unless there are some exceptional circumstances or a review is asked for and is granted. In this case, order was not only pronounced in the open Court but order to that effect was entered in the order sheet, which was also signed by both the Members. None of the parties has asked for a review. Moreover, in this case, only one Member of the Bench was of the opinion that the case needed to be reopened, for hearing the limited point of applicability of Hon'ble jurisdictional High Court decision in the case of H. Shahul Hameed vs. Asstt. CIT, on the facts of this case. As already dealt with in para 7 above, this decision of Hon'ble jurisdictional High Court is not found applicable on the facts of the case. Hence, on the anvil of this case law from the apex Court, when in the present case, the order has not only been pronounced in the open Court, but order to that effect, and the conclusion, was entered in order sheet, which was also signed by the Members comprising the Bench and no exceptional circumstances warranting any variation is found, the facts and circumstances do not warrant any change in the view that the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; (U.B.S, Bedi) 14.2 Files were received back on 22nd Dec., 2008 from the learned AM without any response to the above said letter and case was refixed for hearing by passing following order in the order sheet at p. 6: "Dt. 23rd Dec., 2008 Following letter was addressed to the learned AM and sent along with concerned files: "Dt. 8th Dec., 2008 Dear Shamim ji, Ref: ITA Nos. 2554-2559/Mad/2007 and ITA Nos. 2569-2571/Mad/2007 in the cases of Smt. V. Meenakshi and Shri M. Vijayan for various assessment years. The Hon'ble Supreme Court in the ease of Asstt. CIT vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 219 CTR (SC) 90 : (2008) 12 DTR (SC) 346 : (2008) 305 ITR 227 (SC) has held that failure to apply judgment of jurisdictional High Court is a mistake apparent from record which is rectifiable under s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; JM 14.3 Note de 23rd Dec., 2008 sent to the Hon'ble Vice President by the learned AM reads as under: "Note Subject: ITA Nos. 2554 to 2559/2007-V. Meenakshi and ITA Nos. 2569 to 2571-M. Vijayan-reg. The aforesaid cases were heard on 18th Sept., 2008. Upon hearing both the cases on 18th Sept., 2008, the order was pronounced in the open Court. The results of the cases were also endorsed in the concerned file by the Bench. Orders after my signature were duly sent to the learned JM. Now, after three months, the learned JM is sending the file to me without signing the said order. He has also made entries in the note sheet/order sheet after the pronouncement seal which was signed by the Bench. After having pronounced the order in open Court and endorsing the result in the file and signing the order three months ago, there is no scope for me to change the view. This is for your kind information and necessary action. Hon'ble Vice President" &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y condition which is required to be satisfied is that the aggrieved party must be given an opportunity of hearing" and the conclusion reads as under: "Oral pronouncement during the course of hearing is not an order at all; even otherwise, Tribunal has inherent power to refix the cases to prevent miscarriage of justice or to grant substantial justice, and the only condition which is required to be satisfied is that the aggrieved party must be given an opportunity of hearing" Refixation is thus, in order. Submitted please. Hon'ble Vice President Sd/- Tribunal Chennai" (U.B.S. Bedi) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o convey my view properly. My view that the decision being referred by the learned JM is not applicable on the facts of the case had already been conveyed to the learned JM on 23rd Dec., 2008. The opinion sought by me was as to whether, after an order has been pronounced in the open Court by a Bench of the Tribunal comprising two Members and having the same being signed as such, when a written order duly signed has been sent to other Member, whether after three months the other Member can refuse to pass an order and ask for the case to be fixed for rehearing. Nevertheless, I have put my views in the note sheet/order sheet in these cases and the same are being sent to the learned JM. This is for your kind information. Hon'ble Vice President" Sd/- & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33A. The decision being referred to by the learned JM is on the subject of evidentiary value of the statements obtained under s. 132(4A) in the case of search and seizure operation. Hence, the decision referred by the learned JM is not at all applicable on the facts of this case. Hence, the question of there being a mistake apparent from record on the anvil of Hon'ble apex Court decision in the case of a Asstt. CIT vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 219 CTR (SC) 90 : (2008) 12 DTR (SC) 346 : (2008) 305 ITR 227 (SC) does not arise. Hence, there is no need to fix the case for rehearing and I stand by my order dt. 18th Sept., 2008. JM Sd/- (Shri U.B.S. Bedi)" (Shamim Yahya) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; JM Submitted please: Hon'ble Vice President, Chennai Benches. 14.10 On the bottom of the above said comments of the JM, the Hon'ble Vice President made endorsement as "approved" on 29th Dec., 2008 and sent the same to the learned AM. 14.11 The learned AM again sent a note dt. 30th Dec., 2008 to the Hon'ble Vice President, which reads as under: "Subject: ITA Nos. 2554 to 2559/2007-V. Meenakshi and ITA Nos. 2569 to 2571-M. Vijayan-reg. I have duly given my views in the order sheet in these cases dt. 26th Dec., 2008 and had conveyed to your goodself the same in my note dt. 26th Dec., 2008. The said note was for your kind information. Your goodself had marked my aforesaid note to learned JM to seek his comments. Learned JM, in his note dt. 29th Dec., 2008, did not address the point mentioned by me in the note I order sheet. He indicated that your goodself has held that the cases should be refixed for hearing and has asked me to loyally and faithfully accept it and abide by the same. The said note was submitted to your goodself. Your ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... htra Kutch Stock Exchange Ltd. (2008) 219 CTR (SC) 90 : (20081 12 DTR (SC) 346 : (2008) 305 ITR 227 (SC). Hence, there is no question of my agreeing to the proposal that the case be refixed for hearing for considering the case of Hon'ble Madras High Court which is not at all applicable to this case after the matter has been decided by pronouncement in open Court and duly signed and date order has been given by me. In the aforesaid background, it may kindly be clarified if it is your direction on the facts of this case, particularly in view of my note in order sheet dt. 26th Dec., 2008 in these cases, to refix the ease for hearing. I have already dated, signed and given the order to learned JM. If the learned JM is not agreeable to my view, he should take appropriate action as per rules in this regard. In this connection, Hon'ble Delhi High Court decision in the case of Delhi Press Samachar Patra (P) Ltd. vs. C1T (2004) 188 CTR (Del) 478 : (2004) 267 ITR 458 (Del) also prevents me from changing my view as already indicated in order signed and dated by me. Although at expense of being repetitive, I state that I am not in agreement with the learned JM's view and I do not want to cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; Sd/- (U.B.S. Bedi) JM 14.13 The Hon'ble Vice President sent note Dec., 2008, which reads as under: "Note Sub: ITA Nos. 2554 to 2559/Mad/2007 (V. Meenakshi) and ITA Nos. 2569 to 2571/Mad/2007 (M. Vijayan) Please refer to my note dt. 24th Dec., 2008 by which refixation was found Lo be in order. It transpires from the perusal of the files that on 26th Dec., 2008 you have mentioned in the order sheet that there is no need to fix the case for rehearing in defiance to the directions contained in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discuss unnecessary details from para 2 at p. 2 to para 6 at p. 5, which were not related to the issues in appeals and then to repeat from paras 7 to 12 after incorporating earlier adjudication from the end of para 6 at p. 5 to para 7 at p. 9. Since, the learned AM has discussed various events, it has become imperative to write my comments on the points raised other than the issues for adjudication in the proposed signed order of the learned AM. 15.3 So far as pronouncement of order tentatively at the conclusion of hearing is concerned, the Hon'ble Supreme Court in the case of SBI vs. S.N. Goyal AIR 2008 SC 2594 has opined as under: "19. We may first refer to the position with reference to civil Courts. Order XX of CPC deals with judgment and decree. Rule 1 explains when a judgment is pronounced. Sub-r. (1) provides that the Court, after the case has been heard, shall pronounce judgment in an open Court either at once, or as soon thereafter as may be practicable, and when a judgment is to be pronounced on some future day, the Court shall fix a day for that purpose of which due notice shall be given to the parties or their pleaders. Sub-r. (3) provides that the judgment may be pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was not communicated to the respondent, nor was any letter or order issued to the respondent imposing the penalty mentioned in the order dt. 18th Jan., 1995. Secondly, the appointing authority by letter de 2nd Feb., 1995 (Ex. P23) informed the Chief Vigilance Officer of the bank about the enquiry against respondent, his decision accepting the findings of the enquiry officer, and the proposal to show leniency by imposing only a punishment of reduction of pay by four stages. The Chief Vigilance Officer sent a reply dt. 7th Feb., 1995 (Ex. D2) wherein he observed that 'by pocketing the money of the customers Sri Goyal has exposed the bank's faith reposed in him' and there was no ground for showing leniency. He also expressed the view that the respondent deserved a more severe punishment and requested the appointing authority to re-examine whether respondent should be continued in the post. Thereafter the disciplinary authority reconsidered the entire issue again and put up another note dt. 23rd March, 1995/2nd May, 1995 to the appointing authority proposing the punishment of removal from service. After considering the said recommendation, the appointing authority passed the follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /Mad/2002 which is direct on the point, which has neither been cited nor been considered and recent decision of Hon'ble Supreme Court as reported in the (2008) 219 CTR (SC) 90 : (2008) 12 DTR (SC) 346 : (2008) 305 ITR 227 (SC) had come, so, the whole process of giving opportunity to both the sides to hear on the limited point had become essential in order to avoid multiplicity of litigation, miscarriage of justice or to grant substantial justice, therefore, in view of the facts and circumstances, the discussion made and latest authoritative pronouncement of Hon'ble Supreme Court in the case of SBI vs. S.N. Goyal and various case law discussed by the Mumbai Bench decision and differentiating various other decisions including CIT vs. G. Sagar Suri & Sons and there being no contrary Tribunal decision direct on this point, it can safely be concluded/held that, the oral pronouncement during the course of hearing, which is tentative, cannot come in the way to rehear the matter under the inherent powers of the Tribunal to prevent miscarriage of justice or to grant substantial justice, when rehearing gives another opportunity to the parties to appeal and same cannot amount to passing of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-2006 90,000/11,43,000 ----------------------------------------------------- Each year's assessed income on protective basis comprises of following items: (a) For asst. yr. 2000-01, income from interest declared at Rs. 1,57,500 was determined at Rs. 1,95,750 and income from house property assessed al Rs. 30,000 against nil declared income. (b) For the asst. yr. 2001-02, interest income declared at Rs. 1,35,000 was determined at Rs. 1,62,000, house property assessed at Rs. 45,000 against nil declared income. And an addition on account of unexplained investment in purchase of one house property at Rs. 5,65,000. (c) For the asst. yr. 2002-03, against declared interest income at Rs. 1,06,875 was determined at Rs. 1,41,875 and house property income at Rs. 66,000 against nil declared income. (d) For the asst. yr. 2003-04, declared interest income was determined at Rs. 1,08,750 and house property income at Rs. 66,000 against nil declared and Rs. 50,400 was added on account of extra/additional stamp duty paid. (e) For the asst. yr. 2004-05, declared interest income was determined at Rs. 90,000 and house property income at Rs. 78 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO in view of the cash gift of Rs. 4 lakhs received by the assessee in 1985 has been held to be duly supported by confirmation letters and affidavits filed by the donors, which are invested in money-lending business earning interest at 15 per cent per annum from year to year and thereby assessee got accumulated balance of Rs. 16,98,375 and while giving certain details held that accumulated balance of Rs. 16,98,375 was available with the assessee at her disposal as on 1st April, 1998, which is supported by documents like mortgages and pro-notes. So he deleted such addition by allowing the ground of appeal in this regard. Similarly, deduction under s. 24(1) from house property income determined at Rs. 30,000 was held to be allowable statutory deduction, so in the absence of any discussion in the assessment order, the AO was directed to allow the same as per law for the asst. yr. 2000-01. In view of pronotes, etc. addition of Rs. 5,65,000 as unexplained investment in purchase of house property also came to be deleted. Similar treatment for deduction under s. 24(1) as given for asst. yr. 2000-01 was given for the asst. yrs. 2001-02, 2002-03, 2003-04 and 2004-05 so far as income from h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 46A of the IT Rules. However, no books of account, even the Katcha books did not exist on the day of survey. 4. The CIT(A) failed td note that the assessee had never retracted the statement made at the time of survey that he is the only earning member of his family and none others at any point of time. 5. The CIT(A) has failed to appreciate the fact that only evidence in repayment/discharge of loan on or after 1997 was supported by evidence and moneylending business carried out since 1985 was not proved and also date of payment of loans and advances was supported by any evidences. 6. The CIT(A) has erred in deleting the addition on account of money available to discharge the Allahabad Bank liability and her share of money invested in Chitrai Street Property. No original case deed which the assessee relied upon as source was not available at the time of survey; only Xerox copy filed by the assessee before CIT(A). 7. The CIT(A) ought to have confirmed the substantive assessments made in the hands of the assessee's husband Shri M. Vijayan and ought to have annulled or cancelled the protective assessments made in the hands of the assessee. 8. For these, and such other grounds tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll reasoned and detailed order has been passed after considering all relevant materials partly filed before the AO and partly before learned CIT(A), therefore the impugned order needs confirmation. It was urged for confirmation of the impugned order. 16.7 After hearing the rival sides and considering the materials on record, it was found that assessee owned several immovable properties in Madurai when she was never assessed to tax till the date of survey nor returns of income had been filed earlier to surveyor within the time allowed in the notice under s. 148 having been issued in this regard. It is not in dispute that statements of the assessee and her husband were recorded on oath at the time of survey in which the assessee has admitted that she did not carry out any business activity including moneylending business and that she was not aware of any assets owned by her and same were known to her husband Shri M. Vijayan only. So process was initiated by issuing notice under s. 148 and assessment orders for 6 years were passed and in order to bring relevant facts in light, it is found imperative to reproduce the operative portion of the assessment order for the asst. yr. 1999-200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for moneylending and these activities were being looked after by her husband Sri M. Vijayan. It was also further claimed that the moneys were accumulated to the extent of Rs. 16,98,375 as on 1st April, 1998 and claimed to have utilized for the purchase of properties during and after the previous year relevant to the asst. yr. 1999-2000 onwards. However, at no stage, the cash flow statement was given to show any year-wise progress from Rs. 4 lakhs in 1980 to Rs. 16.98 lakhs as on 1st April, 1998. Further she claimed to have lent money prior to 1st April, 1998 amounting to Rs. 16,98,375 to several persons and this was the opening capital as on 1st April, 1998. However, no nexus was established that these amounts were utilized for the investment purpose and these were not supported by banking transactions. As the properties were found in the name of Smt. V. Meenakshi, a sworn statement was recorded from her on oath at the time of the said survey. In her statement she admitted that she had not carried out any business activities including moneylending business and that she was not aware of any assets owned by her and the same were known to her husband Shri M. Vijayan only. The deta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und that before the CIT(A) assessee filed some confirmation letters and affidavits purported to have been given by the brothers of the assessee to support the claim of having given cash gifts of Rs. 4 lakhs in 1985 and mortgage deed and pronotes etc. stated to have been executed in favour of the assessee by the recipients of the loans found to have also been filed for the first time before the learned CIT(A), who is found to have not complied with the relevant provisions of law before admitting and considering such documents to give relief to the assessee. When specific rule puts fetters on the right of the assessee to produce before the CIT(A) any evidence whether oral or documentary other than the evidence produced by him during the course of the proceedings before the AO, except in the circumstances set out in r. 46A, which provides as under: "46A. Production of additional evidence before the Dy. CIT(A) and CIT(A)-(1) The appellant shall not be entitled to produce before the Dy. CIT(A) or, as the case may be, the CIT(A), any evidence, whether oral or documentary, other, than the evidence produced by him during the course of proceedings before the AO, except in the following cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng it and though not conclusive shifts the onus on to the maker on the principle that what a party himself admits to be true may reasonably be presumed to be so and until the presumption is rebutted the fact admitted must be taken to be established." 16.11 And it is not the case of the assessee that there was any coercion or undue influence exerted by the Department while recording the statement of the assessee and her husband and otherwise, statements in the nature of declarations covered by provisions of s. 115, are binding on the declarant. They can neither be retracted nor do they require any corroboration. Such declarations can form the sole basis of assessment. The declaration made by the assessee and her husband through their statements recorded fell squarely within the ambit of s. 115 of the Evidence Act and, hence, the same was neither open to retraction nor required any further corroboration. The AO could, therefore, base the impugned addition on the said declaration. Statements, which are not in the nature of declarations under s. 115, are also binding and can form the sole basis for assessment if they are not effectively retracted. Effective retraction is possible in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence contained in the Evidence Act is not applicable but that does not mean that when the taxing authorities are desirous of invoking the principles of the Evidence Act in proceedings before them, they are prevented from doing so. Besides, s. 115 of the Evidence Act incorporates a salutary principle of common law based on the maxim allegans contraria non est audiendus (a person alleging contradictory facts should not be heard) and hence the said principle is fully applicable to the proceedings under the IT Act. The provisions of s. 115 of the Evidence Act provide statutory recognition to the said principle which is otherwise also applicable to all the judicial and quasi-judicial proceedings. The underlying philosophy behind the said principle being to ensure. in the words of Sir Wade in his Administrative Law, that justice prevails over truth. 16.13 Since, admission made has also not been specifically retracted at any stage and otherwise, as far as retraction is concerned, in the case of Narayan Bhagwantrao Gosavi Balajiwale vs. Gopal Vinayak Gosavi AIR 1960 SC 100, it has been held that 'admission is the best evidence though not conclusive. decisive unless proved erroneous'. Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as real and since the property is in the name of the wife the assessee should not be fastened with the liability. In any case no material has been found and, therefore, this addition is not justified. In this regard he relied on the judgment in the case of S. Khader Khan Son and in the case of Murarji Gokuldas Spinning & Weaving Mills Co. Ltd. vs. Dy. CIT. 13. On the other hand, the learned Departmental Representative submitted that the documents regarding the property were found during the search and detection of documents of the property itself during the search should be construed as material. He argued that the assessee had merely tried to explain the source by making a statement that money was given by his father-in-law but no evidence was produced before the lower authorities or even before this Tribunal to prove the source of money. He then relied on the decision of the Hon'ble jurisdictional High Court in the case of H. Shahul Hameed vs. Asstt. CIT (2003) 179 CTR (Mad) 449 : (2002) 258 ITR 266 (Mad). 14. We have considered the rival submissions carefully in the light of the material on record. We find that the property was detected during the course of search and, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the wife, if the wife has no source of income then addition has to be confirmed. In the case before us, no source of income of the wife was proved and, therefore, we are of the view that CIT(A) has rightly confirmed the addition regarding investment in the property in the name of the wife. In these circumstances, we find nothing wrong with the order of the C1T(A) and the same is confirmed." 17. Carefully considering the materials on record, the arguments of rival sides, in the light of precedents relied upon and relevant provisions of law, it is seen that the assessee despite service of notice under s. 148 dt. 29th March, 2006, returns for all the years came to be filed on 27th Nov., 2006 and the assessee filed certain documents and materials when 5 days were left for expiry of period of limitation for completion of assessments and the AO has shown his inability to verify and cross-verify these documents within such short time and this fact stands recorded in the assessment order for the asst. yr. 1999-2000, which has not been rebutted/denied by the assessee at any stage. It is also found that the assessee filed certain affidavits and several other documents before first appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to note that the assessee had not detracted the statement made at the time of survey that he is the only earning member of family and none others at any point time. 5. The CIT(A) has wrongly relied on the Katcha books produced before him and also the xerox copies of mortgage deed, lease deed release deed which were fabricated and concocted one and not produced before the AO in time for completion of assessment. 6. The CIT(A) failed to note that the revised returns of income in consequence to notice under s. 148 were filed after a lapse of nearly one year from the date of survey. 7. The CIT(A) has erred in deleting the addition on account of unexplained investment in immovable properties and house property when the CIT(A) himself held vide para 11.1 that there was considerable variation in the figures of income and other relevant matters in the return originally filed on 17th Feb., 2000 and the one filed on 27th Nov., 2006 in response to notice under s. 148 after survey and thereby held that the assessee cannot be said to have disclosed fully and truly all the material facts which are necessary for completion of assessment; thus dismissed the additional ground raised befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O and affidavits having been produced before the learned CIT(A) have also not been sent to the AO for verification nor any remand report has been obtained, therefore, the entire procedure laid down under r. 46A has been violated just to give relief to the assessee with respect to the huge, valid and proper additions made by the AO. Therefore, the order of the learned CIT(A) needs reversal. It was thus, urged for reversal of the order of the learned CIT(A) and restoring that of the AO. 18.2 The learned counsel for the assessee, relied upon the order of the learned CIT(A) and has pleaded for confirmation of the impugned order. It was further submitted that each and every aspect of the matter has been looked into appropriately before arriving at the conclusion as done by the learned CIT(A) and since statement made in the survey cannot be made basis for addition/enhancement of the income declared and the Department has not brought any cogent material to support the order of the AO and the Hon'ble Madras High Court's decision in the case of CIT vs. S. Khader Khan Son, it was on the subject of evidentiary value of statement made under s. 133A and so far as in the case of H. Shahul Hamee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities below in relation to the appeals of Shri M. Vijayan in ITA Nos. 2569 to 2571/Mad/2007 for the asst. yrs. 1999-2000, 2000-01 and 2001-02 are similar, interlinked and interconnected with the facts, issues and decision taken in the case of Smt. V. Meenakshi, the wife of the assessee and in that case, order of the learned CIT(A) has been set aside, to be made afresh, in view of the directions issued and as contained in earlier part of the order, therefore, applying the same basis and reasons, the order in relation to these appeals passed by the learned CIT(A) is also set aside to be made afresh as per directions given in that case on the same terms after giving due opportunity to the assessee as well as the AO considering the material on record, relevant provisions of law including r. 46A, ease law cited and discussed above, by passing a speaking order. It is held and directed accordingly. REFERENCE UNDER S. 255(4) OF IT ACT, 1961 SHAMIM YAHYA, A.M.: 29th July, 2009 As I do not agree with the question framed by my learned Brother, followi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whether in view of the facts and circumstances of both the cases, orders of the learned CIT(A) could be confirmed or could these be set aside on the file of the learned CIT(A) to decide the appeals of the assessees afresh after considering relevant provisions of law including r. 46A, case law cited/discussed and by passing a speaking order after giving due opportunity to the assessee as well as to the AO?" The learned AM has proposed the following points of difference: "1. When upon conclusion of the hearing of the cases, the order was pronounced in the open Court, the results of the cases were also endorsed in t1w concerned file by the Bench, detailed written order after Signature of the AM was sent to the learned JM, all on the same day, can after three months, the cases be refixed for hearing by the learned JM, by holding that there is a mistake apparent from record when the AM is not in agreement of the same? 2. Whether on facts and circumstances of the cases, the Revenue's appeals were liable to be dismissed following jurisdictional High Court decisions directly on the point or the matter was to be remitted to the files of CIT(A)?" 2. From the above, it is evident that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sstt. CIT (2003) 179 CTR (Mad) 449 : (2002) 258 ITR 266 (Mad) relied upon by the learned JM was not cited by either party during the course of hearing. It was argued that if a judgment which was not cited during the course of hearing, though applicable, and hence not applied, was not a mistake apparent on record. In support of this argument, the learned counsel referred to the catchnotes given in the case of Asstt. CIT vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 219 CTR (SC) 90 : (2008) 12 DTR (SC) 346. Relying on these catchnotes, it was contended that decision of High Court which has not been brought to the notice of the Tribunal and hence not considered, cannot be treated as any error of law or of jurisdiction in exercising power under s. 254(2) of the Act. Thus, it was contended that the very foundation to fix the mailer for rehearing was wrong. The second aspect of the learned counsel's submission was that the Vice President as an administrative authority could not have directed for the refixation of the mailer for hearing. On this score also, the recalling of the order was wrong and hence bad in law. The third aspect of the argument was that the judgment in the case of H. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing gives another opportunity to the parties to appeal and same cannot amount to passing of the order. In this connection, three issues arise for consideration: (a) Whether oral pronouncement made in the Court is tentative or final? (b) Whether order pronounced in the Court amounts to passing of the order? (c) If the reply to question (b) is yes, whether can it be recalled to rectify any mistake apparent on record? The learned JM has relied on the decision of the Mumbai Bench of the Tribunal in the case of Mafatlal Securities Ltd. vs. Jt. CIT (2008) 119 TTJ (Mumbai) 501 : (2008) 15 DTR (Mumbai)(Trib) 187 and on the judgment of the Supreme Court in the case of SBI vs. S.N. Goyal. Before we look into these decisions, it would be relevant to refer to the judgment (if the jurisdictional High Court in the case of CIT vs. Amalgamations Ltd. (1996) 130 CTR (Mad) 438 : (1995) 214 ITR 399 (Mad) in which reliance has been placed on the judgment of the Supreme Court in the case of Surendra Singh vs. State of Uttar Pradesh AIR 1954 SC 194. In the latter case, a Division Bench of the Allahabad High Court sitting at Lucknow heard a criminal appeal and on 11th Dec., 1952, reserved Judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing else up till then is done out of Court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion. Judges may, and often do, discuss the matter among themselves and reach a tentative conclusion. That is not their judgment. They may write and exchange drafts. Those are not the judgments either, however heavily and often they may have been signed. The final operative act is that which is formally declared in open Court with the intention of making it the operative decision of the Court. That is what constitutes the 'judgment'..... As soon as the judgment is delivered, that becomes the operative pronouncement or the Court. The law then provides for the manner in which it is to be authenticated and made certain. The rules regarding this differ but they do not form the essence of the matter and if there is irregularity in carrying them out it is curable. Thus, if a judgment happens not to be signed and is inadvertently acted on and executed, the proceedings consequent on it would be valid because the judgment, if it can be shown to have been validly delivered, would stand good despite defects in the mode of its subsequent au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t petition was not available to be made once it is held that the writ petition stood disposed of by the judgment of the Division Bench on 28th July, 1986." From the above two judgments it is clear that when a judgment is pronounced at the conclusion of the hearing, it is an expression of the mind of the Court at the time of delivery. Also, if what is pronounced in Court is not acted upon, litigants would be prejudiced. In the case of Courts, the parties often proceed to conduct their affairs on the basis of the pronouncement. Of course, in the case of our Tribunal, the situation is slightly different insofar as that the aggrieved party may prefer an appeal before the High Court, but will proceed to do so only when the written and signed order is communicated to the parties. Nonetheless, the order pronounced at the conclusion of the hearing is an order of the Tribunal. In the light of this judgment, we fail to understand as to how it can be called a tentative order or a prima facie view. My view is further strengthened by the judgment of the Supreme Court in the case of SBI vs. S.N. Goyal. The Court has observed that some quasi-judicial Tribunals fix a day for pronouncement and pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l High Court is a mistake apparent on record and hence the order is rectifiable. We, therefore, need to examine whether the judgment in the case of H. Shahul Hameed relied upon by the learned JM is directly applicable or not. In this case there was a search under s. 132 of the Act and the statements of the assessee and his wife were recorded under s. 132(4) of the Act. On the other hand, in the present case, there was no search but only survey under s. 133A of the Act in the course of which statements of the asses sees were recorded and on the basis of which additions were made. On the same set of facts, the jurisdictional High Court in the case of s. Khader Khan Son held that material collected and statement recorded during the survey under s. 133A are not conclusive piece of evidence. It also held that such evidence cannot be the basis for making any addition. The Court has distinguished the provisions of s. 132(4) with those of s. 133A and thereafter it reached the above conclusion. Therefore, the judgment in the case of s. Khader Khan Son applies to the facts in the present ease in all force as against half-hearted force in the case of H. Shahul Hameed. As a matter of fact, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied by the Supreme Court. Therefore, though per se, the order pronounced in the Court is rectifiable under s. 254(2), in the facts of the present case it cannot be said to be so rectifiable. Another reason given by the learned JM to recall the order and set it aside is that the CIT(A) has violated the provisions of r. 46A. This aspect is deemed to have been considered when the order was pronounced on 18th Sept., 2008. Thus, to set aside the matter for this reason would amount to review of the order pronounced and hence beyond the scope of s. 254(2) of the Act. 9. There is one more reason to agree with the order of the learned AM. The appeal was heard on 18th Sept., 2008 and the decision was pronounced at the conclusion of the hearing by the Bench presided over by the learned JM. The matter was allotted to the learned AM for dictation. The learned AM sent the order duly signed by him on the same day to the learned JM. However, instead of acting upon what had been conclusively pronounced in the Court, the learned JM kept the matter pending with him for three months and in late December expressed his opinion to reopen the case. It is a long standing convention in the Tribunal that if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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