TMI Blog2017 (10) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... fact in a particular manner which as per assessee should have been done, would not constitute a mistake. The grievance of the assessee is that the Tribunal has considered those decisions which were not cited during the course of hearing. Section 254(2) of the Act does not permit the Tribunal to review its order. The re- appreciation of facts, without any apparent factual error in the nature of facts and figures would not fall in the realm of rectification under section 254(2) of the Act. Hence, the present application is beyond the scope of the Section 254(2) of the Act. Therefore, same is hereby dismissed. - M.A. No. 166/JP/2016 Arising out if ITA No. 112/JP/2014 - - - Dated:- 4-10-2017 - Shri Bhagchand, AM And Shri Kul Bharat, JM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n ble ITAT while deciding this issue against the assessee, observed that separate inquiries are not required to be conducted by the A.O. at the stage of penalty as the assessee has failed to discharge the initial onus of proving the genuineness of the parties from whom the said three bill were issued and that no separate proceedings are required at the stage of determining the penalty against the assessee in the penalty proceedings. In this connection reference was made to the decision of Hon ble Delhi HC reported at 67 Taxman.com 344. 4. The Hon ble ITAT has relied on the decision of Delhi HC for the proposition that separate inquires are not required to be conducted by the A.O. at the stage of penalty as the assessee has failed to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the A.O. at the stage of penalty proceedings. In holding so, it has not considered the decision of Supreme Court in case of T. Ashok Pai Vs. CIT 292 ITR 001 1 where it was held that the burden of proof in penalty proceedings varies from that in the assessment proceeding, a finding in an assessment proceeding that a particular receipt is income cannot automatically be adopted, though a finding in the assessment proceeding constitutes good evidence in the penalty proceeding. In the penalty proceedings, thus, the authorities must consider the matter afresh as the question has to be considered from a different angle. Thus, penalty proceedings are separate from assessment proceedings and penalty cannot be levied solely on the basis of reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pparent from record. By way of the present application the assessee is seeking the review of the order. 4. We have heard the rival contentions, perused the material available on record and gone through the order sought to be rectified. There is no dispute with regard to the fact that the scope of Section 254(2) of the Act is to the extent of any mistake apparent from record. The Tribunal cannot re-appreciate the law and the facts in the garb of rectifying the mistake. If there is any non-appreciation of fact in a particular manner which as per assessee should have been done, would not constitute a mistake. The grievance of the assessee is that the Tribunal has considered those decisions which were not cited during the course of hearing. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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