TMI Blog2018 (9) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... e under the provision of section 254(2) of the Act which is very limited in its scope and ambit and only applies to rectification of mistake apparent on the face of record. With the aforesaid observations, we decline to entertain the misc. application filed by the Revenue. - M.A. no. 29/Mum./2017 - - - Dated:- 10-9-2018 - SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER For The Revenue : Shri Ram Tiwari For The Assessee : Shri Pradeep Kapasi ORDER PER SAKTIJIT DEY, J.M. The Revenue has filed this application, purportedly, under section 254(2) of the Income Tax Act, 1961 (for short the Act ) seeking recall of the order dated 29th April 2016, passed in ITA no.6165/Mum./2014. 2. The learned Departmental Representative submitted, at the time of disposal of appeal by the Tribunal, though, the final order dated 31.03.2015, passed by the Member, Securities Exchange Board of India (SEBI) was available, however, it was not brought to the notice of the Tribunal while deciding the issue relating to the additions made under section 68 of the Act by the Assessing Officer in respect of the unsecured loan and share capital amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He submitted, on the basis of such report of the Assessing Officer and other material available on record, the learned Commissioner (Appeals) deleted the addition made by the Assessing Officer. He submitted, even at the time of hearing before the Tribunal, there was no change in factual position relating to the disputed issue and the Department did not bring any further material on record to controvert the observations of the Assessing Officer in the remand report and the finding of the learned Commissioner (Appeals) on the disputed issue. He submitted, when there was no adverse material on record to hold that the transaction relating to unsecured loan and share capital investment were not genuine, the Tribunal could not have done anything else but to uphold the order of the learned Commissioner (Appeals). The learned Authorised Representative submitted, the Tribunal upon consideration of facts and materials on record having decided the issue and there being no perversity in the order of the Tribunal because of non consideration of material fact available before it, the appeal order passed cannot be recalled as there is no mistake apparent on record as envisaged under section 254 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry was not done by the learned Commissioner (Appeals) and by the Assessing Officer at the stage of remand which resulted in not bringing certain facts to the notice of the Tribunal. Thus, it is crystal clear that the Tribunal has proceeded on the basis of facts and material on record and as were placed before it at the time of hearing by the learned Counsels appearing for the parties. It must be understood that the role of the Tribunal as a second appellate authority is of an adjudicator and not an investigator. The Tribunal under the provisions of the Act has to decide the grounds raised in an appeal filed either by the assessee or by the Department on the basis of the facts and materials available on record or brought to its notice at the time of hearing of appeal. Keeping in view the aforesaid legal position, if we examine the facts of the present case it can be seen that in the previous year relevant to the assessment year under dispute, the assessee had received certain unsecured loan and share capital investment which were examined by the Assessing Officer during the assessment proceedings. The Assessing Officer has observed in the assessment order that funds by way of unsecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the learned Commissioner (Appeals). Therefore, in the absence of any adverse material brought on record by the department to controvert the finding of the first appellate authority on facts, the Tribunal had to accept the decision of the learned Commissioner (Appeals). After the passing of the order of the Tribunal the Department has come forward with the final order of the SEBI by stating that, though, it was available at the time of hearing of appeal but it could not be brought to the notice of the Tribunal. Thus, as could be seen whatever negligence or laches for not bringing the final order of SEBI to the notice of the Tribunal lies with the Department and for such negligence or laches of the Department, the appeal order passed by the Tribunal cannot be termed as erroneous to bring it within the ambit of section 254(2) of the Act. After disposal of appeal by the Tribunal if the Department comes with fresh evidence certainly it cannot be entertained, much less, by taking recourse to section 254(2) of the Act. Therefore, the present application filed by the department is not maintainable. 6. Having held so, it will be relevant to examine whether the final order of SEBI dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... text examined the accounts of these persons / entities held with the respective banks for forensic audit. Vide letter dated May 16, 2012, RBI, noted that the deficiencies pertain only to non compliance with the procedures for opening of teh bank accounts and non reporting of each transactions to FIU. As regards the trail of movement of funds, RBI in its report observed that on its verification of transactions in the above accounts, there was no prima facie evidence of all or some of the transactions having been orchestrated by the list of 230 persons listed in SEBI orders with a view to camouflage their sole beneficial ownership of the funds and the income by their deployment through the intermediate sham accounts. RBI also stated that this was mainly due to the fact that details of source of funds in these accounts were not available for their verification. x x x x x 14. The findings of the audit report of RBI indicate the role of the entities/ persons mentioned in the Table A is being restricted to suspicious banking transactions. I also note that no adverse comments have been received from FlU. Apart from the observations recorded in the preceding paragraphs, I note t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
