TMI Blog2012 (9) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... the ITAT and wanted the order to be re-written. Each and every mistake pointed out by the Revenue was capable of full debate and in long drawn process which is not permitted in law. Hence, Miscellaneous Application filed by the Revenue is clearly outside the scope and ambit of the provisions of section 254(2) and are thus dismissed - Decided against Revenue - M.A. Nos. 55 to 59(Asr)/2010 & I.T.A. Nos. 198 to 202 (Asr)/2006 - - - Dated:- 26-6-2012 - SH. H.S. SIDHU, AND SH. B.P.JAIN, JJ. Appellant by:Sh. Tarsem Lal, DR Respondent by:Sh. Rohit Jain Sh. P.N. Arora, Advocates ORDER PER BENCH ; These five Miscellaneous Applications filed by the Revenue under section 254(2) arise from the consolidated order of Tribunal, dated 26th June, 2009 passed in ITA Nos. 198 to 202(Asr)/2006 for the assessment years 1998-99 to 2002-03. 2. The Revenue has filed Miscellaneous Applications, which for the sake of clarity is reproduced as under: It is submitted that the Hon ble ITAT s combined order dated 26.06.2009 passed in respect of ITA Nos. 198 to 202(Asr)/2006 dated 26.06.2009 for the assessment years 1998-99 to 2002-2003 in the aforementioned appeal contains. (i) fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not brought on record this fact of the DRs showing the dispatch register and as such it amounts to committing a mistake rectifiable u/s 254(2) of the Act. (D) At paras 56, 57 58, the Hon ble Bench has gone by the fact that the Sales-tax Authorities have accepted the claim of the assessee that he is engaged in the sale and purchase of jeellery. The Hon ble Bench has not considered the argument of the DR that the assessee had only created a fa ade of genuineness of being a purchaser and seller of jewellery. The Hon ble Bench has largely gone by the statement of Sh. Rishi Grover recorded by the Sales-tax Inspector on 09.01.1998. In the statement, it has been stated that on the right hand side shop No.27 and on the left hand side Shop No.25 was situated. The Hon ble Bench did not contrast it with the statement of Sh. Jatinder Anand dated 06.01.2003 therein it had been stated by him that there were only three shops at Ground Floor and three shops at First Floor and how could shop No.26 be in the occupation of Sh. Rishi Grover. This mistake has also crept in the order of the Tribunal due to non-consideration of statement of Sh. Jatinder Anand dated 06.01.2003 and various other fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wellers was done by taking the said concern as the concern of M/s. Hukam Chand Sushil Kumar. The Tribunal has largely gone by this false statement of Sh. Vinod Kumar and has not taken cognizance of the fact that the AO had held him to be only a conduit for getting accommodation entries from M/s. Vishnu Jewelers through the agency of M/s. Hukan Chand Sushil Kumar, Amritsar. This fact has become final and it is no wonder that M/s. Hukan Chand Sushil Kumar and M/s. Kapoor Jewellery House, Amritsar had also demanded similar treatment like that given to Sh. Vinod Kumar by the AO. This had left no room with the Hon ble Tribunal to hold that Sh. Vinod Kumar s statement was true and that the assessee was engaged in the jewellery business. (G) At para 66, the Hon ble Bench has observed that no seller has denied having sold jewellery to the assessee. The Hon ble Bench did not consider DR s argument that no seller would deny sale of jewellery to the assessee because he is the beneficiary of the accommodation entries provided by the assessee. Thus, it again amounts to a mistake. Further, it was pointed out to the Hon ble Bench that the Hon ble Mumbai Bench of the Tribunal s order is not a go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have lodged a complaint with the Police of the such misbehaviour or to the higher authorities and instead he was busy in managing his affairs to come clean out of the ruckus he had created. No where this argument and copy of the FIT filed by the department in the PB at page 238 have been considered by the Bench which renders its order rectifiable u/s 254(2) of the Act. The Hon ble Bench further failure to take cognizance of the fact that the confessional statements could not be under any pressure as the same were recorded in the presence of Sh. Rajan Kumar CA counsel for the assessee. This fact was brought to the notice of the Bench, but it has not been considered and thus it renders the order rectifiable u/s 254(2) of the Act. (J) At paras 76 to 80, the Hon ble Bench after quoting three judgments of the Hon ble Supreme Court has recorded a finding: Thus, on a careful reading of the three decisions of the Hon ble Supreme Court referred before us, we are of the considered view that the legal position that emrges is that a retracted statement, though binds the assessee, once retracted cannot be sole basis for making the assessment. The mistake which the Tribunal has committed is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sh. Jatinder Kumar in its totality and not appreciated that how could Sh. Jatinder Kumar reconcile his statement dated 22.1.2004 to his statement dated 6.1.2003? (c) The Tribunal has committed an error by not elaborating as to how it has reached the conclusion that statements do not read to the conclusion that the assessee was not at all engaged in jewellery business . A non-speaking order is an order which falls within the corners of section 254(2) of the Income-tax Act, 1961. (d) The Tribunal has committed an error in this para also as it has passed a non-speaking order. (e) The Tribunal has committed an error in not appreciating that the filing of deposit vouchers in the bank premises for Sh. Rishi Grover was for helping him do the business of accommodation entries. (f) The Tribunal committed a mistake by allowing Sh. Rakesh Kumar go with his retraction statement without binding him with his previous statement dated 22.1.2003. (g) The Tribunal has committed a monumental mistake in recording that both the persons namely Sh. Yudhvir and Sh. Sushil Kumar Sareen have taken contrary stands in their statements. This is at variance with their observation at other places where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement regarding jewellery business and it was only in respect of share business. The Hon ble Tribunal has committed a mistake in not considering this argument of the department before applying the ratio of the Special Bench s case. The arguments/evidence which has not been considered at all by the Hon ble Bench in its order are enumerated at para P to S below: (P) The Tribunal has not considered at all the irrefutable evidence in the form of form No.49A,(PAN Application form) dated 15.03.2001 wherein he has ticked Salaries as he source of his income. This is a verified application. It was filed before the Hon ble at pages 53 to 56 of the paper book. In this application, Sh. Rishi Grover states that for the accounting year ending 31.3.2001 his income was below the taxable limit and it was from salary. It was argued that this PAN application form clearly proves that the assessee was ot egaged in any jewellery business. It also wholly undermines the statement of the assessee taken as sacrosanct by the Hon ble at pages 50 of the order, where in an answer to Question No.2, the assessee had stated that his business was started in 1996 April and was discontinued in the beginnin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 to 57 of the Miscellaneous Application of the Revenue. From the reading of the said written submissions at pages 9 to 57, the department s contentions with regard to the said 33 points were as under: Point Department s Contention 1. In this para, the Revenue s arguments are that the appellant merely created records in the form of Return of income, tax payments etc. In this regard, reference has been made to PAN application form filed by the appellant, returns of income and the financial statements filed alongwith the return of income. 2. In this para, it is argued that the rent agreement filed by the appellant was also creation of record. 3. In this para, the Revenue has doubted the existence of the shop of the appellant on the basis of the shop number mentioned in the Sales Tax Registration Certificate. 4. The Department has referred to certain bills of the State Bank of India as having not been signed by the appellant to doubt that the appellant was not actual dealer in gold. 5. The Department has relied upon the description of jewellery contained in bills issued by M/s. Vinod Jewellers, assessment order of M/s. Vinod Jewellers, M/s. Hukam Chand Sushil Kumar a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment years. 30. Reference is made to inadvertent error in recording name of mother of the appellant in the affidavit filed before the Income tax authorities. 31. Reference is again made to delivery of correspondences at the address of the appellant. 32. In this point, the reply to the submissions filed on behalf of the appellant before the Hon ble Tribunal has been reproduced. 33. The decision of the Special Bench in the case of Sh. Vinod Agarwal is sought to be distinguished. 4. The Ld. DCIT(DR), Sh. Tarsem Lal, however, prayed on the date of hearing to add one more mistake in the form of revised miscellaneous application, which reads as under: It is submitted that the undersigned had filed the aforementioned Miscellaneous Application. It is submitted the aforesaid MA may kindly be treated as revised with the inclusion of the following mistake committed by the Hon ble Tribunal: It is necessary for the Tribunal to examine the identity of the jewellery declared under the VDIS and the jewellery sold in the transaction in question. In the absence of such a finding, the Hon ble Punjab Haryana High Court has in the case of CIT vs. Tejinder Singh HUF reported at 239 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment for the assessment years 1996-97 and 1997-98 and also the fact that the proceedings for the said assessment years were subsequently dropped to come to a conclusion that even as per the Department the appellant was engaged in jwellery business upto assessment year 1997-98. This was based on the fact that returns of the appellant for the assessment years 1996-97 and 1997-98 stood finally accepted by the revenue. There is, thus, no error in the order of the Tribunal. The Hon ble Tribunal has not attributed anything to the Revenue, rather had come to a conclusion on the basis of the appreciation of facts narrated in the reasons recorded by the AO and also after taking into consideration the subsequent events. B. The contention of the Revenue that the Tribunal has ignored statement of Sh. Jatinder Kumar recorded on 6th January, 2003 is factually incorrect. In para 54, the Tribunal has reproduced replies given in response to question Nos. 3 4. In question No.4, Sh. Anand was specifically confronted on his statement dated 6.1.2003. Further, statement dated 6.1.2003 has been specifically been considered by the Tribunal in para 88(b). This fact has not been pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order of the Tribunal, which is clearly not permissible in law. The Department has also clearly failed to appreciate the scope and ambit of the proceedings u/s 254(2) of the Act. E The allegations of the Revenue are factually incorrect and a grossly misconceived. In paras 58 to 64 of the order, the Tribunal has elaborately considered not only findings given by the AO in respective assessment orders of the three jewelers, but also taken into consideration their respective statements and also the applications filed u/s 144A of the Act. In paras 62 63, the Tribunal has elaborately considered the application filed u/s 144A of the Act. The mere fact that para 7 has not been reproduced in the order does not mean that the said para has not been considered by the Hon ble Tribunal, as alleged by the Revenue. Kind attention is particulary invited to the finding in paras 62-63 wherein after considering paras 1 to 4 of the application filed u/s 144A of the Act, the Hon ble Tribunal concluded that three firms had, in fact, admitted having sold diamond jewellery to the appellant. Para 7 referred by the Revenue, in fact, nowhere supports their case, since the said contention w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, it is submitted, nothing but a clear attempt on the part of the department to challenge the conclusion of the Tribunal in guise of the present miscellaneous application u/s 254(2) of the Act. This is clearly evident from the use of the following expressions in the miscellaneous application: Had the Tribunal analysed the said statements of the assessee, it would have easily come to the conclusion that the assessee has only been lying. The Tribunal s failure to ascertain the truth from these statements again amount to mistake. There is clearly no error in the order of the Hon ble Tribunal, as alleged by the Revenue. I All the aspects mentioned by the Revenue have been elaborately considered by the Tribunal in para 71 to 75 of the order, as explained hereunder: (a) Issue regarding non-reporting of the matter to the higher authority has been considered by the Tribunal in para 80 of the order wherein reference has been made to a letter written by Amritsar Jewellery Association to CBDT complaining against the harassment by the investigation wing of Amritsar. (b) The fact that statements of the appellate dated 16.1.2003 and 17.1.2003 were recorded in the presence of Sh. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecifically dealt with and considered in para 85 of the order of the Tribunal. In view of the aforesaid, there is clearly no mistake in the order of the Tribunal. L. On perusal of the contentions of the Revenue, it is clearly evident that it has been alleged that the order passed by the Tribunal is a non-speaking order wherein the Tribunal has not, according to the Revenue elaborately dealt with the conclusion arrived at on the basis of statements of various persons. The contentions of the Revenue are, it is reiterated, nothing but a clear attempt on the part of the Revenue to show gross disrespect to the order of the Tribunal. In fact, there is a clear attempt on the part of the Revenue in trying to dictate/direct not only the manner in which the Tribunal ought to have passed the order but also to direct and dictated the conclusion that the Tribunal should have arrived at. Reference, at this stage may be made to the decision of the Hon ble Supreme Court in the case of Gopal Sugar vs. ITO: 40 ITR 618, which has been elaborately discussed in the main submissions. At the cost of duplicity, it may however, be noted that in that case the Court observed that the contention of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iance on the decision of the Special Bench of the Tribunal. P. The contentions of the Revenue, the submission of the appellant and the findings of the Tribunal on this issue are contained in paras 19,33, and 90. Therefore, the allegation of the Revenue that the argument of the Department relying upon the contents of PAN Application Form filed by the assessee has not been considered at all is factually incorrect. Q The Hon ble Tribunal, as discussed in Annexure A and in this Annexure, has elaborately dealt with not only all the statements of the appellant, but also the then prevailing circumstances and has also taken into consideration various other facts like complaint being filed before the CBDT against the pressure being exerted by the investigating agency. Reference now being made to a letter sent by Sh. Kapil Kumar, counsel for the assessee, nowhere supports the case of the Revenue. In the said letter, the counsel merely informed about the appellant having been hospitalized and, therefore, requested for time to appear. In view of the aforesaid, the contention of the Revenue that an important argument has not been considered is, it is respectfully submitted, totally mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly considered in paras 67 to 75 of the order. 7 9 Both the statement shave been considered in para 28 and 88(h) of the order. 8. The statement has been considered in paras 27, 31, 36 and 58 to 65 of the order. 10. These statements have been considered in paras 11, 23 and 69 to 70 of the order. 11. These statements have been considered in paras 20,54, 88(a), 88(b) and 88(c) of the order. 12. This aspect has been specifically considered in paras 29,35 and 90 of the order. 13. All these aspects have been considered in paras 32(a), 36, 58, 60, 61, 80 and 105 of the order. 14. This aspect has been considered in paras 16, 44, 57 and 71 of the order. 15 16. Transactions with State Bank of India have been elaborately considered in the order, as discussed in reply to point no. 4 supra. Statement of various persons have been considered in various paras of the Hon ble Tribunal, particularly para 88 of the order. Issue of duplicate bill books, being found has been discussed in paras 39, 93 and 94 of the order. 17. This aspect has been specifically considered in para 98 to 101 of the order. 18.19 20 Various statements of the appellant have been elaborately considered i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Tribunal, which have not been considered at all in the final order. In the rebuttal to the aforesaid, it is respectfully submitted as under: It is, at the outset, respectfully submitted that the Department has referred to written submissions filed by the Departmental Representative on 10th June, 2009. In response to the said submissions, the appellant had also filed a para-wise rebuttal/reply on 17th June, 2009. The contention of the Revenue that the aforesaid 33 points raised by the Revenue in the form of written submissions have not been considered at all, it is respectfully submitted, is factually incorrect and grossly misplaced. All the arguments/submissions made in the above written submissions were, it is respectfully submitted, very much considered by the Tribunal, as elaborated infra. The Tribunal has, in fact, specifically noticed the fact that the ld. Departmental Representative had filed written submissions in para 32(a) of the order. Therefore, the contention of the Revenue that the written submissions filed before the Bench were not considered, it is respectfully submitted, is factually incorrect. The grievance of the Revenue, it appears, is based on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 202 ITR 14 (Cal.) xv) CIT vs. Ramesh Electric Trading Co. 203 ITR 497 (Bom.) xvi) Corrosion Roadlines vs. DCIT 92 TTJ 631 (TM) xvii) Express Newspapers Limited vs. DCIT 320 ITR 12 (Mad) xviii) Biswanath Prasad Sons vs CIT 277 ITR 265 10. As regards the revised mistake, it was argued during the course of hearing by the ld. counsel for the assessee that the decision of the Hon ble Punjab Haryana High Court in the case of CIT vs. Tejinder Singh, HUF reported in 239 CTR 342 cannot be made applicable in the present case, since in that case the appellant was the person who declared jewellery under VDIS and also made sale of the jewellery. The said appellant was not a jeweler as the appellant in the present case was engaged in the business of sale and purchase of jewellery The appellant s case at the most can be compared with three jewellers i.e. Mr. Manoj Aggarwal etc. The Ld. counsel for the assessee prayed that the decision of the Tribunal has been given on the basis of facts of the assessee that the assessee is engaged in the business of sale and purchase of jewllery and therefore, the said decision of Hon ble Punjab Haryana High Court, cannot be the basis of mistak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s mistake pointed out by the Ld. DR is dismissed. b) As regards para 54, the Ld. DR pointed out with regard to the statement of Sh. Jatinder Kumar on 22.01.2004 and the Tibunal has totally ignored the statement recorded on 06.01.2003. This mistake pointed out by the ld. DR cannot be accepted for the reason that in para 54, the Tribunal has reproduced the replies given in response to questions No. 3 4 and at pages 39 40 of ITAT s order, the said statement dated 06.01.2003 has also been considered . At page 67 in para 88(b) which reads that the statement of Sh. Jatinder Kumar Anand recorded on 06.01.2003 by the DDIT has been relied upon by the AO. A perusal of the statement dated 06.01.2003 which is evident from the said order at para 88(b) at pages 67 68 of ITAT s order. Therefore, in this para also, the Ld. DCIT(DR), Mr. Tarsem Lal, has tried to get the order reviewed from this Bench, which is outside the scope of section 254(2) of the Act. c) In para 55, the Ld. DCIT(DR). Mr. Tarsem Lal, has pointed out that the department had produced the dispatch register before the ITAT to show that no notice or intimations were sent by post as claimed by the assessee. The ITAT has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal, it was pointed out in paras 58 to 64 of Tribunal s order that application u/s 144A in the case of M/s. Kapoor Jewellers has not been considered. In this regard in paras 62 63, the ITAT has considered the explanation filed u/s 144A of the Act. Mere interpretation of para-7 does not mean that the said issue has not been considered by the ITAT. It has duly been considered in paras 62 63. After considering paras 1 to 4 of application, the ITAT has come to the conclusion that the said three firms had in fact admitted having sold diamond jewellery to the assessee. Though para 7 referred by the ld. DR was an alternative submission. As regards the orders in the case of M/s. Vinod Jewellers, the same has also been considered in paras 66 to 68 of ITAT order. From the application of the Revenue and the arguments of the Ld. DR, the Ld. DCIT(DR), Sh. Tarsem Lal is trying to get the order reviewed from this Bench, which is outside the scope of section 254(2) of the Act, which is not permitted. Therefore, the said mistake pointed out by the Ld. DR in the application of the Revenue in paras 58 to 64 of the order of the Tribunal is rejected. (f) In point F of the Miscellaneo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not permitted by the Ld. DR. In the facts and circumstances of the case, we find no mistake as pointed out by the Revenue and argued by the ld. DR in para 66 of the order of the Tribunal and the same is rejected. (h) As regards to point H of the Miscellaneous Application with regard to paras 67 to 70 of ITAT s order, it was argued by the Ld. DCIT(DR), Mr. Tarsem Lal, appearing for the Revenue that the Bench in the said paras 67 to 70 has quoted several statements of the assessee and the ITAT has failed to ascertain the truth from these statements and it is a perverse order of the ITAT and there is an erroneous view formed by the ITAT since the ITAT has not considered the relevant contents of the statements, this amounts to mistake apparent from record under section 254(2) of the Act. The Ld. DR tried to point out version in the statement and the interpretations which should have been taken by the ITAT and again pointed out that this is a mistake apparent from record and the order should be recalled. In this regard, it is not the case of the Revenue that no statement of the assessee has been considered. The statements dated 13.02.2002 and 11.11.2003 referred to in the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have also been considered in para 36 of ITAT s order. The ITAT after considering in totality of the facts and circumstances before it, at the time of passing of the order, did not find any mistake in the said paras 71 to 75 as pointed out by the Revenue and argued by the Ld. DR. The wording again used by the Ld. DCIT(DR), Mr. Tarsem Lal in his arguments that the ITAT has failed to take cognizance of the fact that confessional statements could not be given under any pressure is not permitted. (j) As regards point J of the miscellaneous application with regard to paras 76 to 80, the Ld. DCIT(DR), Mr.Tarsem Lal appearing for the Revenue has argued that the ITAT in the said paras has referred to three decisions of Hon ble Supreme Court that the legal position that emerges is that of a retracted statement, though binds the assessee, once retracted cannot be sole basis for making the assessment. It was argued by the Ld. DCIT(DR), Mr. Tarsem Lal that the Tribunal has allowed the assessee to come out of bind simply by stating that he was harassed and humiliated when factual matrix is contrary and it constitutes a mistake apparent from record. In this regard, the Ld. DR has challen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recording that both the persons namely Sh. Yudhvir and Sh. Sushil Kumar Sareen have taken contrary stand in their statements and this was not considered by the ITAT. With regard to the mistake pointed out by the Ld. DCIT(DR) and on perusal of the facts on record before the ITAT, the ITAT has passed the order after considering the totality of the facts and considering all the statements as referred to by the Revenue in the application of the Revenue and as argued by the ld. DR. It appears that the Ld. DCIT(DR), Mr. Tarsem Lal, by using the word monumental mistake and non-speaking order is trying to get the order reviewed, which is not within the scope of section 254(2) of the Act. Therefore, the application in point L of the Revenue is rejected. (m) As regards point M of the Miscellaneous Application of the Revenue with regard to para 92 of ITAT s order, the mistake pointed out by the Ld. DR was that the ITAT has not considered the argument of the ld. DR that it was not sheer coincide that both Sh. Rishi Grover and Sh, Raj Kumar should have identical facts and it is a mistake apparent from record. In this regard, the ITAT has specifically rejected the contention of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. Thus, the miscellaneous application on the point of O of the Revenue is rejected. (p) As regards point P , it was argued by the Ld. DR that the Tribunal has not considered at all the irrefutable evidence in the form of form No.49A being PAN application form dated 15.03.2001 where the assessee has ticked Salaries as the source of his income. In this regard, the contentions of the Revenue and submissions of the assessee are contained in paras 19, 33 and 90 where the findings given by the Tribunal are on the basis of totality of facts and therefore, we find no mistake apparent from record u/s 254(2) of the Act in point P of the application of the Revenue and the same is rejected. (q) As regards point Q of the Revenue, it was pointed out that page 236 of the Departmental paper book which is a letter sent by Sh. Kapil Kumar, CA, counsel for the assessee, the same has wrongly been accepted by the Tribunal. The Tribunal has not considered the Ld. DR s argument in this regard and it constitutes a mistake apparent from record. In this regard, the ITAT has dealt with the statements of the assessee, the prevailing circumstances at that time and after taking into considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... miscellaneous application of the Revenue in para S is rejected. 12. As regards 33 points which the Ld. DCIT(DR), Mr. Tarsem Lal has referred at pages 9 to 57 of the miscellaneous application, though the same were not argued at all and it has not been pointed out what actually mistake is there in the said 33 points. However, in the interest of justice, we have gone through the written submissions of the Revenue and the mistakes so pointed out at pages 9 to 57 of the miscellaneous application and the reply of the assessee in this regard. We deal with such 33 points as under: i) As regards point No.1 of the Miscellaneous Application, we have observed that all the issues have specifically been considered by the Tribunal in paras 19, 33, 37, 52, 53, 57, 88F 91. ii) As regards mistake point-2, the rent agreement and submissions based on the same has been considered at paras 19,54, 88b of Tribunal s order. iii) In point-3, the same has been considered in paras 19,34 and 55 to 57 of the Tribunal s order. iv) As regards point-4 with regard to bills of the State Bank of India, the same has been considered by the Tribunal in paras 32, 38 and 97 to 102 of its order. v) As regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xix) As regards point 22, with regard to the statements of Sh. Vijay Gupta, Sh. Kuljas Rai and others, the same has been considered in paras 88, 39,93 94 of the Tribunal s order. xx) As regards point-23, with regard to the statement of Sh. Kapil Kumar, we find no mistake in this regard and no specific reference how the mistake has crept has been brought on record. xxi) As regards point-24, with regard books of account impounded by DDIT, the same has been considered in paras 23, 32, 38, 96 to 101 of the Tribunal s order. xxii) As regards point-25 with regard to FIR regarding loss of books of account, the same has been dealt with in paras 22, 25 and 94 of the ITAT s order. xxiii) As regards points-26 27 with regard to the dropping of proceedings initiated u/s 148 for the assessment years 1996-97 and 1997-98 and audit report for the assessment year 1998-99, the same has been considered in paras 52 and 53 of the ITAT s order. xxiv) As regards point-28 with regard to retraction filed by the assessee before the Income-tax authorities, the same has been considered in paras 67 to 75 of ITAT s order. xxv) As regards point-29, with regard to dropping of proceedings by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mistake apparent from the record. This view is fortified by the decision of the Hon ble Supreme Court in the case of T.S. Balaram, ITO vs. Volkart Brothers reported in 82 ITR 50 . As per decision of Hon ble Supreme Court of India in the case of C.I.T. vs. Hero Cycles Pvt. Ltd. And Others, reported in 228 ITR 463, rectification under section 154 can only be made when a glaring mistake of fact or law committed by the officer passing the order becomes apparent from the record. Rectification is not possible if the question is debatable. In the present miscellaneous application of the Revenue, the Ld. DCIT(DR), Mr. Tarsem Lal had tried to argue the whole appeal under the garb of mistake apparent from record under section 254(2) of the Act. It is an application under section 254(2) of the Act which has got limited application, it should be a glaring and patent mistake, the mistake should not require any long drawn process of reasoning. It does not cover the review of the order, as was the intention of the Ld. DCIT(DR), Mr. Tarsem Lal, in the present application, who had been pointing out the fault in understanding the facts of the case by the ITAT and wanted the order to be re-written. E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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