TMI Blog2016 (7) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... t be allowed to be done indirectly. A person cannot say at one time one thing and then turn around to suit his needs. The assessee with sole intention to go out of offer made by the assessee claimed additional expenditure, which is not as per the statement recorded during the survey u/s.133A of the Act. However, considering the modus operandi followed by the assessee, the Tribunal has taken serious objection and reversed the order of the CIT(Appeals) and confirmed the addition of ₹ 15 lakhs. In our opinion, the judgment of the Jurisdictional High Court in the case of Ramanlal Kamdar v. CIT (1976 (12) TMI 52 - MADRAS High Court ), wherein it was held that once the assessee accepts certain addition before authorities, he cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned assessment year, the assessee has claimed a commission payment of Rs. 6 lakhs. The Assessing Officer held that this new item of expenditure has been booked to nullify the effect of additional income of Rs. 15 lakhs offered by the assessee at the time of survey. The Assessing Officer has also pointed out that even though there is a remarkable increase in the turnover reported for the impugned assessment year, the increase reflected in the corresponding gross profit is not satisfactory, which goes to show that the assessee has inflated many of the expenditures, especially after the date of survey. The Assessing Officer has come to a formidable conclusion that the assessee has nullified the effect of offering additional income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through assessee s capital account? This amount of Rs. 15 lakhs ought to have been offered by the assessee over and above the regular profits reflected in his statement of accounts. 10. These vital aspects have not been examined by the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) has only stated that once the assessee has technically offered this income of Rs. 15 lakhs for the impugned assessment year, it is not necessary to examine the bonafides of the expenditure worked out on estimated basis. This cannot be a good proposition in the matter of assessment. Even if the assessee has brought additional income, it is incumbent upon the Assessing Officer to examine the genuineness of the expenditure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akhs amounts to double addition as the same amount has already taken as income of the assessee while computing the income for the assessment year 2008-09. He submitted that as ₹ 15 lakhs has gone into profit and loss account and claimed relevant expenditure, further addition of ₹ 15 lakhs amounts to double addition and the same may be deleted and that the deletion made by the CIT(Appeals) to be confirmed by the Tribunal. The ld. AR further submitted that in this case, there is an offer by the assessee at the time of survey conducted on 27.2.2008. However, while computing the return of income, the assessee claimed expenditure to that extent and nullified the offer made by the assessee. So that, the AO made an addition of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 254(2). It is well settled that a statutory authority cannot exercise power of review unless such power is expressly conferred. There was no express power of review conferred on the Tribunal. Even otherwise, the scope of review did not extent to rehearing a case on the merits. Neither by invoking inherent power nor the principle of mistake of court not prejudicing a litigant nor by involving doctrine of incidental power, could the Tribunal reverse a decision on the merits. The Tribunal was not justified in recalling its previous finding restoring the addition, more so when an application for the same relief had been earlier dismissed. 5. The scope and ambit of application of section 254(2) is very limited. The same is restricte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the original order to correct that particular mistake. The provision does not indicate that the Tribunal can recall the entire order and pass a fresh decision. That would amount to a review of the entire order and that is not permissible under the I T Act. The power to rectify a mistake under section 254(2) cannot be used for recalling the entire order. No power of review has been given to the Tribunal under the I T Act. Thus, what it could not do directly could not be allowed to be done indirectly. 7. In the case of CIT vs. Hindustan Coca Beverages (P) Ltd. (2007) 293 ITR 163/159 Taxman 127 (Delhi), their Lordships while considering the powers of the Tribunal under section 254(2) of the IT Act, 1961 observed as under:- Under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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