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Shakti Cable Industries Versus Income-tax Officer, Ward 22 (3) -2, Mumbai.

2015 (12) TMI 768 - ITAT MUMBAI

Rectification of mistake - lack of jurisdiction in absence of order u/s. 127 - Held that:- The AR had referred to the letter of the assessee dated 14. 05. 2008. We find that the said letter pertains to the AY. 1995-96 only and not to the other years. The letter only proves that the assessee had asked for certain details from the AO, but it does not in any manner prove that the issue of change of jurisdiction u/s. 127 were agitated before the FAA. We find that the FAA had decided the appeal on 27 .....

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second round of litigation and there was no ground about change of jurisdiction. In our opinion, the Tribunal was right when it held that the issue is not arising out of the order of the FAA. While deciding the MA we cannot decide such an issue.

As far as the argument of opening balance of cash credit is concerned, we would like to mention that the issue raised by the assessee was not argued by the assessee before the lower authorities as it had not taken the said ground. Considering .....

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on’ble jurisdictional High Court in the case of Supreme Industries Ltd. (2014 (12) TMI 184 - BOMBAY HIGH COURT). It is not a case of typographical or arithmetical mistake. It is not the case that the judgment delivered by the Hon’ble Bombay High Court or the Hon’ble Apex Court has been not followed. The so called mistakes pointed out by the assessee are neither patent nor manifest nor self-evident and they require elaborate discussion of evidence or arguments to establish. Therefore, we agree wi .....

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proceedings, before the FAA it challenged the re-opening of the assessment as well as the additions made with regard to the creditors. The FAA dismissed the appeal filed by the assessee on both counts. Before, the Tribunal it did not press the ground that dealt with the re-opening of the assessment. Accordingly, the grounds were dismissed. The assessee made a request to the Tribunal to admit additional evidences and the Tribunal restored back the matter to the file of the AO. The assessee could .....

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but it failed to produce the same. In these circumstances the FAA upheld the addition made by the AO. Considering the above facts the Tribunal had in its order dated 15. 06. 2012 had taken a decision. In our opinion, the said decision cannot be rectified under the provisions of section 264(2) of the Act, as no mistake apparent from the record was brought to our notice. - Decided against assessee - MA No. 199-201/Mum/2015(Arising out of ITA/3753-55/Mum/2008)- Dated:- 28-10-2015 - Sh. Rajendra, Ac .....

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see had filed a writ petition before the Hon ble Bombay High Court, that the Hon ble Court vide its order, dated 8. 2. 2013, directed the assessee to avail alternate appellate remedy u/s. 260A of the Act, that it had filed an appeal before the Hon ble court, that while hearing the appeal the Hon ble Court had passed an order on 19. 8. 2015 expressing an opinion that it would be appropriate for the assessee to prefer a miscellaneous application before the Tribunal. 2. The assessee has further con .....

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of reassess - ment was dismissed by the Tribunal, that the reasons recorded for reopening of assessment contained patently erroneous and fatal assumption, that the reasons recorded did not satisfy the pre-requisite of valid re-opening of assessment, that the ground regarding the validity of reassess -ment was dismissed ignoring the submission of the assessee, that paragraphs 19 and 20 of the order of the Tribunal dealt with lack of jurisdiction in absence of order u/s. 127 of the Act, that Tribu .....

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ciding the issue. With regard to opening balance of cash credit the assessee contended that paragraph 27 of the order of the Tribunal referred to the submissions of the Departmental Representative(DR), that the DR had argued that assessee had not taken a plea before the authorities below that a sum of ₹ 20. 85 lacs, being opening balance for the AY. 1994-95 had to be excluded while making an addition u/s. 68 of the Act, that the Tribunal did not refer to the contents of the original reasse .....

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o page 45 and 46 of the paper book. With regard to AY. 95-96, the AR contended that Tribunal had not considered the argument that the assessment was time barred, that it was beyond the period of 4 years that the argument made on behalf of the assessee were not considered. She further argued that letter addressed to the AO, dated 14. 5. 2008, with regard to order u/s. 127 of the Act was not considered, that the arguments with regard to challenging the order was u/s. 127 were also not dealt with b .....

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nse to the notice issued u/s. 148 of the Act, the assessee stated that return filed earlier might be treated as fresh return. The AO mentioned that while finalising the assessment of the year 1997-98 that the assessee did not file loan confirmation in respect of unsecured loans for that AY. , that the amount in question was added to the total income of the assessee as unexplained cash credits u/s. 68 of the Act, that the assessee had taken unsecured loan from similar parties for the year under c .....

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on 26. 03. 2002 u/s. 143(3) r. w. s. 147 of the Act, determining its income at ₹ 79. 38 lacs after making addition of ₹ 81, 26, 031/-(Rs. 68. 18 lacs +Rs. 13. 08 lacs) on account of unsecured loans and interest. 5. Aggrieved by the order of the AO, the assessee preferred an appeal before the First Appellate Authority(FAA). Before him, the assessee challenged the reassessment proceedings initiated u/s. 147 of the Act for the AY. under appeal. While deciding the appeal, on 11. 6. 2002 .....

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High Court and upheld the re-opening. He further observed that the assessee had claimed unconfirmed /bogus loans in the books of account, that simply filing of Balance Sheet and P&L account was not sufficient to prove the genuineness of the transaction. Referring to the judgments of Dr. Amin s Pathology Laboratory(252 ITR 673); Phool Chand Bajrang Lal and Another(203 ITR 456) and Raymond Woollen Mills (236 ITR 34), he held that during the course of regular assessment and reassessment it did .....

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rnments during appellate proceedings, that it did not file any evidence proving the genuineness of the cash credits that sufficient opportunities were given to the assessee. 6. The assessee filed an application, before the Tribunal, for stay of demand(SA. No. 273/M/ 2005, dated23. 8. 2005). Sh. Arvind Shonde, AR, appeared on behalf the assessee. While deciding the stay application, the Tribunal observed as under : 3. The ld. Counsel for the assessee invited our attention to the balance sheet as .....

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Out of the nine grounds, first two grounds were about re-opening of assessment by issue of notice u/s. 148 of the Act. The then AR Sh. Shonde did not press the grounds related with re-opening. The Tribunal, in its order dated 29. 9. 2005, held as under : 1. These appeals are preferred by the assessee against the consolidated order of the CIT(A) for the Assessment Years 1994-95, 1995-96 and 1996-97. Since common issues with regard to validity of the re-opening of the assessment under sec. 147 and .....

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d to the loans, that same should be admitted. Additional evidences, produced by the assessee, were taken on record by the Tribunal. We are reproducing the relevant part of the order of the Tribunal: 3. The other ground relate to the point of addition of ₹ 68, 18, 021/- in the assessment year 1994-95, ₹ 34, 46, 867/- in assessment year 1995-96 and ₹ 32, 28, 067/- in assessment year 1996-97 made u/s. 68 of the I. T. Act on account of unexplained borrowed funds. During the course .....

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on letters, we find some force in the contention of the assessee as we, therefore, set aside the order of the CIT(A) with regard to the additions made under section 68 of the I. T. Act and restore it to the file of the Assessing Officer for its re-adjudication in the light of confirmation letters filed before us by the assessee, after admitting it to be an additional evidence. 6. In these appeals, the assessee has also raised one more issue relating to disallowance of interest paid on the borrow .....

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loan confirmation letters with regard to ₹ 65. 33 lacs. So, he made the addition of the said amount to the income of the assessee. 8. Against the said order of the AO, the assessee filed following grounds of appeal before the FAA: 1. The learned Income Tax Officer erred in assessing the total income of the appellant at ₹ 76, 53, 778/- as against returned income of ₹ 17, 361/-. 2. The learned Income Tax Officer erred in treating unsecured loans amounting to ₹ 65, 33, 021/ .....

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of proof u/s. 68, the said loans were not income of the appellant. 6. The learned Income tax Officer failed to appreciate that the appellant was prevented by a reasonable & sufficient cause from furnishing the evidences in support of genuineness of loans borrowed. 7. The learned Income Tax Officer erred in disallowing ₹ 13, 08, 010/- out of interest paid on account of unsecured loans disbelieved. Before the FAA, the assessee filed an application under Rule 46A of the Income tax Rules, .....

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eness of loans and interest was given to the assessee on various occasions right from February to December, 2006, that the assessee did not avail any of the opportunities. The FAA further asked the AO to file one more remand report. Vide his letter dt. 30. 1. 2008, the AO directed the assessee to produce the creditors with supporting documentary evidences, he directed the assessee to furnish the year wise details of interest paid on loans and the details of subsequent repayment of loans. But it .....

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to produce the documentary evidences and to prove the genuineness of loans, that time was allowed after admitting additional evidences, that in pursuance of the direction of the Tribunal the AO had given number of opportunities to the assessee to produce the confirmation along with the copies of bank statement and copies of income tax return, that the assessee had submitted 98 confirmation out of 145 parties without any supporting document before the AO, that the assessee had not filed confirma .....

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esses were provided by the assessee, that it did not mean that notices were served in all the cases. He further held that the assessee had failed to discharge the prime responsibility to establish the identity and credit worthiness of the creditores and genuineness of the transactions, that merely filing of an affidavit of a broker with the names of the lenders could not be called a confirmation, that the confirmation along with the bank statement, mode of payment/receipt were never made availab .....

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rt the AO had admitted that assessee had proved genuineness of the loans to the tune of ₹ 2. 85 lacs, that interest paid to 8 parties amounting to ₹ 24, 450/- had to be allowed, therefore, he upheld the addition of ₹ 12. 83 lacs out of ₹ 13. 08 lacs ( 13, 08, 010 - 24, 450). 9. During the second round of litigation before the Tribunal, the matter was not represented by Sh. Shonde who had appeared before it for arguing the Stay application as well as the regular appeal. It .....

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ations of the provisions of section 254(2)of the Act. We would also like to discuss the issue of concession made by the AR of a party and various issue raised by the assessee in the rectification application filed by it and the arguments advanced by the AR and the DR. 11. First of all we would like to discuss the concept of finality of order of the Tribunal. In the case of M. S. P. Senthil Kumar(241ITR502)the Hon ble Madras High Court has dealt with the issue at length. Facts of the case were th .....

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essments and with regard to the other contention restored the matter to the FAA. The FAA set aside the assessment for being done afresh according to law, in accordance with the observations of the Tribunal sorder. On the assessee s appeal against the orders, the Tribunal rejected the conten - tion of the assessee by pointing out that the earlier order dated 31. 07. 1978 had become final as the assessee did not take up the matter to the High Court and the question could not be considered afresh. .....

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mitted that the finding of the Tribunal that the earlier order of the Tribunal, dated 31. 07. 1978, had become final and the question could not be considered afresh was not a correct view and that question of reopening should have been considered by the Tribunal. Counsel, appearing for the Revenue, submitted that the Tribunal upheld the jurisdiction and the order of the Tribunal had become final and without challenging the earlier order, the subsequent order could not be challenged. The Hon ble .....

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ll continue to be governed by the order. A decision of the Supreme Court will not automatically have the effect of vacating the order of the Tribunal which has been statutorily made final under section 254(4) of the Income-tax Act, 1961, and which has already been given effect to. It also quoted the head note of the decision in M. K. Mohammad Kunhi(supra)and same read as follow: Where the Appellate Tribunal remands a case the finality of views expressed by it while doing so depends on the nature .....

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reopened. Finally, the Hon ble Court referred to the decision in S. P. Gramophone Co. , wherein the Court had held that if the correctness of the remand order was not challenged through appropriate proceedings, it would not be open to review it when the matter would come again before that authority in appeal or revision against the order passed by the authorities below in accordance with the remand order. Following the above decisions, finally, the Hon ble Court held as under: Even a wrong order .....

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iews. On the other hand, if the Tribunal disposes of the appeal while passing the order of remand and another appeal comes before the Tribunal against the order passed after the remand, it has no power to reconsider the finding or opinion. Questions which have become final and concluded by the remand order cannot be reopened. If the correctness of the remand order was not challenged through appropriate proceedings, it would not be open to review it when the matter comes again before that authori .....

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leted the assessments in pursuance of the directions of the Tribunal, that the assessee preferred appeal before the FAA and once again questioned the powers of the AO to reopen the assessment, that the FAA and the Tribunal held that same was not permissible. A reference was made to the the Hon ble High Court. Deciding the matter, the Hon ble court held as under We are of the opinion that the Tribunal has come to a correct conclusion in not permitting the assessee to reagitate the question regard .....

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ference or for rectification under sections 254(2) or 256(1) of the Act and by the assessees own conduct the earlier order of the Appellate Tribunal upholding the jurisdiction of the Income-tax Officer to reopen the assessment has become final. Therefore, it is neither permissible nor possible for the assessee to reagitate the question once again before the same forum in subsequent proceedings initiated on the basis of its earlier direction. . . . . . We are of the opinion that the decision of t .....

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which is comprehensive and takes in all the aspects of the case is taken as the question referred to us in all the tax cases and we answer the question of law as reframed by us in all the tax cases in the affirmative and against the assessee. The Hon ble jurisdictional High Court, in the case of Jivatlal Purtapshi(65ITR261)has also dealt with the similar issue. Facts of the case were that while an appeal by the assessee challenging an addition of ₹ 4, 72, 500/-was pending before the FAA, t .....

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d by the Tribunal and the case was remanded. Deciding the matter, the Hon ble Court held that the department, having agreed to delete the amount from the assessment and having conceded the deletion before the FAA, could not be held to be aggrieved by this part of the order to enable it to file an appeal to the Tribunal; the appeal of the department regarding the deletion of the amount was neither competent nor capable of being entertained by the Tribunal. In the matter of R. K. Sawhney, Executor .....

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the matter back to the AO to complete the assessment after due notice to the legal representatives. A further appeal was taken to the Tribunal. The Tribunal held that the completion of the assessment without prior notice to the legal representatives was merely an irregularity which could be cured by setting aside the assessment and directing a fresh assessment to be made after proper notice. It also rejected the contention that by setting aside the assessment and directing a fresh assessment, t .....

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al which was claimed to be invalid. The Tribunal, on further appeal, rejected the contentions on the short ground that they had already been raised in the earlier appeal, the Tribunal had disposed of them in the earlier order and, though the Tribunal rejected a reference application, the matter had not been pursued under section 256(2) with the result that the earlier order of the Tribunal became final. On the Tribunal rejecting an application for reference, the executor applied to the High Cour .....

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and not to set aside the same and direct the Income-tax Officer to make a fresh assessment. These contentions were duly considered by the Tribunal and were rejected. They have become final in terms of section 254(4) of the Act, there having been no reference from the order of the Tribunal. To permit the assessee to raise these contentions once again will offend the rule of finality of judicial proceedings. . . . . In M. Syed Alavi v. State of Kerala [1981] 48 STC 150 (Ker) [FB], it was pointed o .....

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the Appellate Assistant Commissioner that would be final, but that it would be open to the Tribunal to consider the contentions if raised before it. On the same principle, in the present case, the contentions having been raised and decided by the Tribunal, it was not open to the Tribunal to reconsider these contentions and the proper and appropriate remedy of the assessee was to file a reference application and pursue the same against the original order of the Tribunal. The decision of the Supr .....

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)Ltd. (167 ITR 83) found that certain assets, belonging to the assessee-company, were transferred to the transferee company on the basis of an order under section 394(2) of the Companies Act, 1956, and the capital of the assessee representing the value of those assets was accordingly reduced. The AO included a sum of ₹ 19, 672 as income of the assessee on the basis of a computation made under section41(2)of the Act. The FAA held that the profit added under section 41(2) was not correctly .....

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Companies Act. On a reference, the Revenue contended that the order of the FAA directing the AO to recompute the profit in terms of section 41(2) which was a final order was not challenged by the assessee, that the subsequent proceeding was only in obedience to that order, that the order of the AAC was thus res judicata in so far as the assessee was concerned in respect of the profit u/s. 41(2)and that the Tribunal had no jurisdiction to consider the ambit and application of section 41(2) in the .....

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x paid came to be more than the tax assessed, the assessee filed an appeal against the assessment order. The appeal filed by it was allowed and the AO was directed to give effect to the said appellate order. The AO gave effect to the order in the appeal and because the tax payable was less than the tax which had been paid, the AO held that the assessee was entitled to interest u/s. 244(1A) of the Act. The AO specifically held that no other interest was allowed to the assessee. The assessee filed .....

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by order dated 12. 01. 1987, however, came to the conclusion that no interest under section 214 of the Act was payable. On appeal being filed, the FAA came to the conclusion that interest u/s. 214 of the Act was allowable. On appeal by the Revenue, the Tribunal held that those contentions could not be raised now by the Revenue because the decision as to whether interest under section 214 was payable or not had been taken by the FAA by his order dated 09. 07. 1986, and that decision had been acce .....

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6, 1987 ? Deciding the matter the Hon ble Court held as under: . . . . the first order of the Commissioner of Income-tax (Appeals) dated July 9, 1986, clearly held that the assessee was entitled to interest under section 214 of the Act. All that the Income-tax Officer was required to do was to compute the amount which was payable. The conclusion of the Tribunal that the question could not be reagitated as the Department had accepted the order dated July 9, 1986, was correct. No question of law .....

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at even a wrong order has a finality and unless that finality is disturbed by a process of law or by a process authorised by law, the rights of the affected parties will continue to be governed by the order. Reasons for the said principle are not difficult to compre • hend. Litigation cannot be allowed to continue perpetually-especially when the AO/Assessee takes a conscious decision for not agitating an issue raised by it. In short, the litigants, in the appeals before the Tribunal/Hon ble .....

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has some grievance to any order, it has to follow the procedure laid down by law. By, not filing an appeal against the order of the Tribunal, dated 29. 05. 2005, the assessee had allowed it to become final. In our opinion, in the proceedings u/s. 254(2)of the Act, such a finality cannot be disturbed. In the matter under consideration, the assessee has not produced any letter written by it to thethen- AR questioning him as to why did he not press the ground of re-opening. It leads to the only log .....

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iscuss the binding nature of concession in succeeding paragraphs. But, here it is sufficient to state that the Hon ble Courts are unanimous that once an issue has been conceded by a party, same issue cannot be raised in the remand proceedings. 12. 1. In paragraph 8 of our order, we have reproduced the grounds raised by the assessee before the FAA in the second round of litigation. A perusal of the Grounds reveal that it had not agitated the issue of reopening/transfer of case as per the provisio .....

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lding the validity of reassessment. The ground is beyond our comprehension. In the Grounds of appeal it had not challenged the reopening. In those circumstances how the FAA was supposed to dispose the issue? In other words, if the FAA does not adjudicate an issue that is not before him how his order can be held to be erroneous. In our opinion, to come out of the trap in which the assessee had put itself, it has not only raised a finality-attained-issue again before the Tribunal, but also made a .....

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Not only this, one of the partners was also present during the hearing before the FAA. The assessee has, in the MA filed by it, argued that concession given by Sh. Shonde was not binding on it. But, it has not said anything about the behaviour the CA and the partner who had appeared before the FAA in the second round of litigation and not agitated the issue of re-opening. It is not clear as what prevented them to challenge the reopening, especially when the assessee had agitated the issue in fir .....

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no mistake on part of the Tribunal in holding that issue of re-opening had become final and that there is no mistake in its order that could be rectified as per the provisions of section 254 of the Act. 13. Now, we would like to consider the scope and limitation of the provisions relating to rectification of mistakes as well as the principles governing the section 254(2) of the Act. In our opinion, the scope of said section is very limited and specific. It is said that if a mistake is so glarin .....

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hical mistakes, non-adjudication of ground of appeal or non-consideration of a judgment of Hon ble Supreme Court or jurisdictional High Court having direct bearing on the case. Hon ble Delhi High Court has, in the matter of Geofin Investment (P. )Ltd. (348 ITR 118), while dismissing the writ petition filed by the assessee, described the concept of mistake apparent from record as under: The power is circumscribed and limited. There should be a mistake which is apparent before the power can be exe .....

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referred to the controversy in question relating to disallowance made on account of short-term capital loss and long-term capital loss and after examining the matter in detail and had allowed the appeal filed by the Revenue. The assessee filed an application under section 254(2)of the Act and same was dismissed by the Tribunal. The Hon ble Karnataka High Court had also an occasion to deal with the same subject in the matter of Mcdowell and Company Ltd. (310ITR 215). In that case Tribunal had dec .....

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ous finding by it based on the facts on record, arriving at a conclusion on erroneous application of provisions of law to the facts of the case, etc. , cannot be held to be a mistake apparent from the record warranting any rectification by the Tribunal in exercise of its power under section 254(2) of the Income-tax Act, ………. . Such an exercise of power under section 254(2) of the Act amounts to review of its earlier order on the merits but not rectification of mistake appare .....

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54(2)does not confer a power on the Tribunal to review its earlier order. A mistake apparent from the record must be an obvious and patent mistake and not something which could be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. We would also like to refer to the decision of Hon ble Delhi High Court delivered in the matter of Smt. Baljeet Jolly(250 ITR113). In that matter, in the application filed u/s. 254 (2) of the Act, the assessee con .....

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r u/s. 254 (2) of the Act. We would like to reproduce the relevant portion of the judgment: In order to the power to rectify under section 254(2) of the Income-tax Act, 1961, it is not sufficient if there is merely a mistake in the order sought to be rectified. The mistake to be rectified must be one apparent from the record. A decision on a debatable point of law or disputed question of fact is not a mistake apparent from the record. The plain meaning of the word apparent is that it must be som .....

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e AO found that all the five partners of the firm of Neeta Electric had close links with the assessee, that the assessee claimed that commission paid by it was allowable under section 37 of the Act, that the AO disallowed the deduction after examining evidence and holding that the commission was not paid for business purposes, that the FAA upheld the order of the AO, that in the appellate proceedings, the Tribunal dismissed the appeal filed by the assessee, that the assessee moved a Miscellaneou .....

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ble Court held as under: Under section 254(2) of the Income-tax Act, 1961, the Appellate Tribunal may, with a view to rectifying any mistake apparent from the record , amend any order passed by it under subsection (1) within the time prescribed therein. It is an accepted position that the Appellate Tribunal does not have any power to review its own orders under the provisions of the Act. The only power which the Tribunal possesses is to rectify any mistake in its own order which is apparent fro .....

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nclusion is not an error apparent on the record, although it may be an error of judgment. The Tribunal cannot, in the exercise of its power of rectification, look into some other circumstances which would support or not support its conclusion. In the case of Earnest Exports Ltd. (323ITR577), the Hon ble court has held that the power u/s. 254(2) of the Act, is confined to rectification of a mistake apparent on record, that the Tribunal must confine itself within those parameters, that section 254 .....

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Tribunal, that when prejudice results from an order attributable to the Tribunal s mistake, error or omission, it is the duty of the Tribunal to set it right and it has nothing to do with the concept of the inherent power to review, that the Supreme Court held that the Tribunal would be regarded as having committed a mistake in not considering the material which is already on record. In the case of Supreme Industries Ltd. (359ITR758)the High Court found that mistake has occurred in the order of .....

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r to the case of Pothina Venkateshwara Swamy(369 ITR 639)of the Hon ble T&AP High Court has dealt with the similar issue. In that matter it was found that the assessees jointly constructed a godown between 1991 and 1992, that for the AY. 1992-93, they showed the cost of construction at ₹ 25, 50, 853/-each, that the report of the valuer was enclosed with the returns, that the AO accepted the figures and completed the assessments, that thereafter, the assessments were reopened on the gro .....

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charges, that the assessees preferred petitions under section 254(2) which were rejected by the Tribunal. In the appeals filed by the assessee before the Hon ble Court, it was argued on behalf of the assessee that there was a clear error apparent on the face of the record and the Tribunal ought to have exercised its jurisdiction under section 254(2) of the Act, that the very reopening of the assessments were without any basis since the respondent failed even to mention as to what constituted the .....

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error was so apparent and patent that it could be discerned without any effort and can be established without taking the help of any external material and such an error did not exist in the instance case at all, that even if there was a possibility of different views being taken on the same facts, it would not constitute the basis for passing an order of rectification and thereby exercising the power of appeal by the Tribunal on its own orders. The Hon ble Court discussed the issue as under: 6. .....

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the absence of factual basis for reopening the assessment was urged. All the same, that ground did not weigh with the Appellate Commissioner. The reason appears to be that the reopening was on the basis of the valuation of the godown by the Superintending Engineer. Accordingly, notices were issued to the appellants duly pointing out the same. 7. Section 148 of the Act has been interpreted by the courts in such a way as to keep the power of the assessing authority intact, as long as there existed .....

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ore the Tribunal, relief in the form of reduction of cost by 10 per cent. towards personal maintenance charges was granted. In case, the appellants were not satisfied with the nature of disposal given by the Tribunal, it was open to them to avail of the further remedies. XXXXX 11. The expression error apparent on the face of the record occurs even in administrative adjudications. An error can be treated as the one apparent on the face of the record, if only it can be discerned just on perusal of .....

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d and not for other purposes. The expression error apparent on the face of the record occurs even in administrative adjudications. An error can be treated as the one apparent on the face of the record, if only it can be discerned just on perusal of the connected record, without the aid of any external material. To put it conversely, if the error can be demonstrated only by recourse to other material or arguments, it ceases to be apparent from the record. . . . . . the assessees were not able to .....

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st be addressed in greater detail. This is particularly so with the appellate fora. If on any aspect, the appellate forum is silent, it can be deemed to have concurred with the view expressed by the forum from which the order under appeal has arisen. Therefore, the petitions filed under section 254(2) were rightly rejected by the Tribunal. 14. From the above discussion, we can safely state that the words mistake apparent from record, as appearing in the section 254(2)have a special meaning and d .....

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arguments, it will not fall under the category of apparent mistake. Besides, provisions of section 254(2)do not confer power on the Tribunal to review its earlier order or re-appreciate or re-evaluate evidence. The Hon ble Calcutta High Court in the matter of Shew Paper Exchange(93 ITR 186) has held that the normal rule is that the remedy of review is a creature of a statute and if the statute does not contain powers for review, then the power cannot be exercised. Review proceedings of this kin .....

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very limited and specific. In our humble opinion, there are no mistakes in the order dtd. 15. 06. 2012 of the Tribunal that could be rectified u/s. 254(2)of the Act. We will discuss about the said aspect more in the last part of paragraph 16 of our order. 15. We would also like to deal with the arguments raised by the assessee in the MA. First of them is about non binding nature of the concession made by the then AR and non consideration of two of the cases. We have perused the log books of both .....

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e not pressing of grounds by the then AR would not fall in any of the two categories i. e. misinterpretation of law or ignorance of facts. The facts with regard to reopening of case were clear from the day one when the assessment order was passed u/s. 143 (3)r. w. s147of the Act was passed by the AO. The then AR did not raise the re-opening of the assessment while arguing the Stay Petition. One of the basic requirement of the stay application is to prove the balance of convenience is favour of t .....

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would not make any concession without understanding the implication of such concession. We have not come across any letter or affidavit of Sh. Shonde stating that he was ignorant of facts or that there was misrepresentation of law on his part during the hearing of stay-petition or the regular hearing. No letter written by the assessee and addressed to Sh. Shonde has been produced before us where in the assessee has questioned his decision of not arguing the grounds that were raised but not argu .....

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assessee are not tenable and are devoid of merits. After changing the AR, the assessee is accusing a person to whom he has authorised to represent the case. With change of AR at every stage of proceedings, if the AO/Assessee is allowed to argue that the stand taken by the earlier counsel was result of misrepresentation of law or ignorance of facts, there will never be finality of litigation. The assessee has argued that that there was misrepresentation of law or ignorance of facts, but has not e .....

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e principles that emerge from the above decisions are : (a) Any concession made by a counsel against the statutory provisions would be unauthorised and any order based on such erroneous concession should be recalled. (Tripura Goods Transport Association v. Commissioner of Taxes, AIR 1998 SC 465 ; (b) A wrong concession on a question of law made by a counsel is not binding on his client. Such concession cannot constitute a just ground for a binding precedent. (Uptron India Ltd. v. Shammi Bhan, AI .....

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, that there can be no estoppel against statute ; (f) Any wrong concession made by a counsel before the court cannot bind the parties when statutory provisions clearly provide otherwise ; (g) A party may be allowed to resile and an appellate court may permit in rare and appropriate cases to resile from a concession made on a wrong appreciation of the law and had led to gross injustice though one may not call in question the very fact of making the concession as recorded in the judgment. While de .....

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own by the above judgment. Not pressing of ground in the appellate proceedings cannot be termed a concession made against the statutory provisions. It is not uncommon that while arguing the cases before the Tribunal, the assessees prefer not to press grounds for various reasons like smallness of tax-effect or issue being decided in early or subsequent AY. s. Sometimes, if the Tribunal decides to admit additional evidence produced by the assessee or admits additional grounds of appeal or decides .....

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r merit-cum-seniority. In the writ petition filed by the person, the department stated that criteria was merit-cum-fitness whereas the recruit - ment rules clearly provided that criteria for selection would be merit-cum-senioity. In our humble opinion, the facts of the case are no help to the assessee. Here, the assessee had not pressed the grounds of appeal against the provisions of Act. There is no bar in the Act, Income-tax Rules, 1962 or the ITAT Rules, 1963 that stipulates that the grounds .....

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cular method for not pressing the grounds of appeals raised before the FAA or the Tribunal. In short, reliance placed by the assessee on the above referred cases is of no use. 16. Second arguments advanced by the assessee is about challenge of validity of jurisdiction. As per the assessee paragraphs 19-20 deal with the legal ground taken by it relating to lack of jurisdiction in absence of order u/s. 127 of the Act. The AR had referred to the letter of the assessee dated 14. 05. 2008. We find th .....

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nal has dealt all the arguments raised by the assessee and had arrived at a conclusion. In our opinion, while deciding the rectification application we cannot sit over the judgment of the earlier bench, because we do not have power of review. We have reproduced the grounds taken by the assessee before the FAA in the second round of litigation and there was no ground about change of jurisdiction. In our opinion, the Tribunal was right when it held that the issue is not arising out of the order of .....

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record, as held by the Hon ble Bombay High Court in the case of Ramesh Electricals (supra). The assessee had not brought to our notice any case by which the said judgment has been reversed. We also find that it is not that kind of a mistake that has been dealt with by the Hon ble jurisdictional High Court in the case of Supreme Industries Ltd. (supra). It is not a case of typographical or arithmetical mistake. It is not the case that the judgment delivered by the Hon ble Bombay High Court or th .....

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assessments were reopened for the above mentioned three years on the basis of subsequent AYs. It was found that the assessee had taken loans from same parties in AY. 1997-98 and had not filed confirmations. It not file any detail, so the AO invoked the provisions of section 68 of the Act. In the appellate proceedings, before the FAA it challenged the re-opening of the assessment as well as the additions made with regard to the creditors. The FAA dismissed the appeal filed by the assessee on bot .....

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object the re-opening of the assessment. One more request was made to admit additional evidences as per Rule 46A of the Rules, before the FAA. He admitted the same and directed the AO to make necessary enquiries. Ample opportunity and time was given to the assessee to produce details about the creditors, but it failed to produce the same. In these circumstances the FAA upheld the addition made by the AO. Considering the above facts the Tribunal had in its order dated 15. 06. 2012 had taken a de .....

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