TMI Blog2018 (5) TMI 1079X X X X Extracts X X X X X X X X Extracts X X X X ..... n the office of the ld. CIT(A). Therefore, when the alleged application was not found to be received in the office as per the record maintained by the ld. CIT(A) then, in the absence of any evidence to establish beyond that the said application was filed by the assessee, the decision taken by the Tribunal on the basis of fact of the case cannot be said to have suffered from any error merely on the basis of the contentions and submissions which is nothing but assumption of facts - application rejected. - M/A. No. 152/JP/2016 (Arising out ITA No. 339/JP/2013) - - - Dated:- 14-5-2018 - Shri Vijay Pal Rao, JM And Shri Bhagchand, AM Assessee by : Shri Mahendra Gargiya (Adv.) Revenue by : Shri Varinder Mehta (CIT) ORDER Per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of CIT vs. Daulat Ram Rawatmull 87 ITR 349 as well as decision in case of CIT vs. Bedi Co. Pvt. Ltd. 230 ITR 580. Thus, the ld. AR of the assessee has submitted that some very important contention has been completely lost site of the Tribunal while passing the impugned order and therefore, there is a mistake in the impugned order of the Tribunal which is required to be rectified. 3. On the other hand, ld. DR has vehemently opposed the miscellaneous application filed by the assessee and submitted that the Tribunal has decided the appeal of the assessee on merits after considering all relevant facts as well as the contentions of the assessee. Therefore, there is no apparent mistake on record which can be rectified under the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion filed on 18.02.2011, which was held as time barred, was nothing but a reminder of the said previous application. Since the previous application was within the prescribed time limit, hence it was wrong on the part of the learned. CIT(Appeals) to hold that the claim of rectification of the assessee was time barred. In other words, learned A.R. has placed strong reliance on the impugned rectification application dated 18th Sept., 2008. 4.1 One more fact has also been brought on record that against the penalty order u/s 271(1)(e) learned CIT(Appeals) in appeal hearing No. 184/JPR/2006-07 vide order dated 113th January, 2011 has deleted the penalty by accepting the fact that the addition in question was not sustainable in the eyes of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on perusal of record he has noticed that the said petition was not available on record. He has further commented that the stamp affixed did not bear any signature of the receipt clerk. Learned CIT(Appeals) has also noticed that there was no receipt. no. mentioned on the impugned rectification application. Learned CIT(Appeals) has searched the office record and found that -no such rectification application was ever received as per the Receipt Register and Appeal Register maintained in his office. Therefore, learned CIT(Appeals) has issued a show cause notice to the assessee as to why the impugned rectification application dated 18-02-2011 be dismissed as barred by limitation. In the light of the factual matrix, it is not worthy on my par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence not sustainable in the eyes of law. Side by side the applicant seeking a rectification can also not take the liberty of filing a rectification application at anytime. as per his convenience. Particularly in this case the original order was passed-by learned CIT(Appeals)-III, Jaipur on 10-09-2004 and the applicant has pursued the application in the year 2013. There is nothing on record that why the appellant had pursued the application after a long gap of about 8 to 9 years. It has also not been explained that even if an alleged rectification application was submitted on 8th Sept., 2008 then why it was not pursued at that point of time and why it was pressed only in the year 2011. All these questions remained unanswered before me. The T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ld. CIT(A). Therefore, when the alleged application was not found to be received in the office as per the record maintained by the ld. CIT(A) then, in the absence of any evidence to establish beyond that the said application was filed by the assessee, the decision taken by the Tribunal on the basis of fact of the case cannot be said to have suffered from any error merely on the basis of the contentions and submissions which is nothing but assumption of facts. Hence, in the absence of any fresh evidence which can have effect of charging the outcome of the decision on the matter the miscellaneous application filed by the assessee is devoid of any merit or substance. In the result, the miscellaneous application is dismissed. Order pron ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
