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TMI Blog2014 (2) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... rant an opportunity to the assessee to prove his case and to produce the parties before the AO for examination. With the result, a second round of assessment; as also appeal; took place and an another order has been passed by the ITAT Ahmedabad for the same assessment year vide an order dated 19.8.2010, which is also a subject matter of miscellaneous application hereunder. Since that order of the Tribunal dated 30.04.2008 now stood merged with the latest order of the Tribunal dated 19.08.2010, therefore the MA No.52/Ahd/2012 has become redundant, therefore dismissed. 2. The MA No.263/Ahd/2010 (arising from ITA No.l208/Ahd/2010 - A.Y. 2003-04) order dated 19.08.2010 thus survives before us. The petitioner has stated as under:- "The facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the circumstances, there is a mistake apparent, though advertently but apparent from the record. This may kindly be rectified by exercising jurisdiction u/s.254(2) of the act for which this Hon'ble Tribunal is clothed with the provision. 2. As noted in para 5 of the order of the Ron 'ble Tribunal, the remand was to prove genuineness of the purchases. The direction was, "one more opportunity be given to the assessee to prove his case and to produce the parties before the Assessing Officer for examination". Therefore, what is implicit is that though the remand was only on a limited issue of verifying genuineness of the purchases, this could be done in either of the fashion namely; i) to prove his case or ii) to produce the parties for exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts to a mistake apparent on record requiring rectification u/s.254(2) of the act. 3. In para 9 of the order of the Hon'ble Tribunal several case laws have been cited and relied upon. None of these case laws were cited by the appearing parties. The Hon'ble Tribunal of its own have relied upon these case laws without confronting the same to the appearing parties. In such a situation, the applicant did not have any opportunity to distinguish those case laws. Had this opportunity been given, the applicant could have distinguished the same and proved its case. Relying upon uncited cases or decisions not confronted to the parties amounts to a mistake apparent on record requiring rectification u/s.254(2) of the act. 3. In the first round of ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of these facts and circumstances we fairly feel that one more opportunity be given to the assessee to prove his case and to produce the parties before the Assessing Officer for examination. Accordingly, this issue of the Revenue's appeal is set aside to the file of Assessing Officer." 4. In the second round as well there was no substantial compliance from the side of the assessee. When the matter reached to the Tribunal 'C' Bench in ITA No.1208/Ahd/2010 (A.Y. 2003-04) order dated 19.08.2010 it was noticed in para 10 that the assessee had failed to comply with the direction of the Tribunal. The Tribunal was of the view that the AO was not satisfied with the documentary evidence of the assessee. On page 14 the Tribunal has noted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, the Tribunal considering the issue being in departmental appeal granted one more opportunity to the assessee to prove his case and to produce the parties before the AO for examination. As noted above, the AO was not satisfied with the documentary evidences of the assessee. Therefore, the AO in the earlier proceedings as well as in the present proceedings insisted the assessee for production of the parties for examination in order to verify genuineness of the purchases. The view of the AO was supported by the directions of the Tribunal. The AO gave several opportunities to the assessee to produce all these parties for verification before him and the assessee sought adjournments for production of the parties but ultimately shown its i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Tribunal restoring the matter in issue to the file of the AO with specific direction. Considering the facts and circumstances of the case, the decisions cited by the learned Counsel for the assessee would not support the case of the assessee in the present set of the facts. 12. Considering the above discussions in the light of the earlier order of the Tribunal and decisions referred to above, we are of the view that the authorities below have correctly followed the direction of the Tribunal but the assessee has failed to produce the parties for examination before the AO and also failed to prove its case. Therefore, the learned CIT(A) was justified in confirming the addition made by the AO on account of unverifiable purchases/e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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