TMI Blog2018 (9) TMI 1701X X X X Extracts X X X X X X X X Extracts X X X X ..... l decide in the Revenue's tax appeal which is already admitted. However, this is not a case where the Tribunal failed to decide an important issue arising in the appeals or that the consideration of the Tribunal suffered from an error apparent on the record. As is well settled the jurisdiction of the Tribunal to rectify its own order is quite narrow and cannot be equated with the power of review which the Tribunal does not possess. - R/SPECIAL CIVIL APPLICATION NO. 17372 of 2013 - - - Dated:- 24-9-2018 - MR AKIL KURESHI AND MR B.N. KARIA, JJ. For The Petitioner : MR SN SOPARKAR, SENIOR ADVOCATE with MR B S SOPARKAR (6851) For The Respondent : MR PRANAV G DESAI(290) AND MR MR BHATT, SENIOR ADVOCATE with MRS MAUNA M BHATT(174) ORAL ORDER ( PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. The petitioner has challenged an order dated 4.10.2013 passed by the Incometax Appellate Tribunal ( the Tribunal for short) in a Misc. Application No.11/Rjt/2012 filed by the respondent Incometax Department. Relevant facts may be noted at the outset :- 2. The petitioner is a private limited company. The petitioner company was subjected to search operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d two appeals before the High Court. The Revenue s Tax Appeal No.41 of 2012 against Shri M. N. Patel came to be dismissed by the High Court by an order dated 18.3.2013. The Revenue s Tax Appeal No.42 of 2012 against the company has been admitted and is pending for final hearing. 5. On or around 2.3.2012 the Revenue filed an Application No.11 of 2012 before the Tribunal and requested the Tribunal to correct a mistake which according to Revenue had crept in the order disposing of the appeals so far as not deciding the question of remaining part of the profit of 93.75% of ₹ 2.16 crores (rounded off), whether the same has to be brought to the tax and if yes, in whose hands on substantive basis. The Tribunal allowed such application by impugned order dated 4.10.2013. The Tribunal was of the opinion that such remaining amount of ₹ 2.16 crores could be taxed in the hands of the company. The Revenue s Misc. Application was accordingly allowed. The company has thereupon filed present petition challenging the said order of Tribunal. 6. Appearing for the petitioner learned counsel Shri Soparkar raised following contentions : (i) The Misc. Application for rectification fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ising powers of rectification. In this context he relied on the judgment of Bombay High Court in case of R. W. Promotions P. Ltd., vs. Incometax Appellate Tribunal and Ors., reported in (2015) 376 ITR page 126 . 8. We have recorded skeletal facts. As we go along testing the rival contentions, we would at the relevant time refer to the materials on record in greater detail. In the context of the petitioner s first contention of the Department's Misc. Application being confined to the case of Shri M. N. Patel, the record would suggest that though common application was filed, its title contained reference to both the appeals being IT No.24 of 2003 and IT No.51 of 2003 which related to Shri M. N. Patel and the company respectively. In the memo of the application for rectification there is no further indication that the application was confined to the order of the Tribunal concerning Shri M. N. Patel alone. We may recall the order that the Tribunal has passed in said two appeals was common order. In such application reference was made to the conclusion of the Tribunal that Shri M. N. Patel can be taxed only to the extent of 6.25% of the unaccounted income as his share of profit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at statutory provisions do not envisage any embargo on the part of the Tribunal in exercising rectification jurisdiction merely because tax appeal is pending before the High Court. In this context the contention of the counsel for the Revenue that it may be a case of self imposed restriction by the Tribunal in a given case, but not a requirement of law, assumes significance. 12. In the present case, however, we do not find it necessary to go so deep in the issue and give our final opinion thereon. This is so because on the fourth and the last contention in our opinion the petitioner would succeed. This was the petitioner s contention on merits of the impugned order passed by the Tribunal. This would require some further reference to the material on record. 13. In the original order with respect to this global figure of ₹ 2.27 cores reflected in the loose papers seized from the residence of Shri M. N. Patel, the Tribunal first considered its taxability in the hands of Shri M. N. Patel. In this context the Tribunal observed as under :- Now coming to second amount which part of total amount ₹ 34,25,000/which has been sent back to the file of the AO by the ITAT. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion is to examine regarding the ownership of balance amount of profit. Though, M. N. Patel has clearly pointed out that his share of 6.25% in various projects of Ambica Realities i.e. Yoginagar Indraprasth, Ambica Project and Raiya Road. The A.O. made substantive addition of ₹ 2,16,56,000/in the hands of M. N. Patel and protective basis in the hands of the asseseecompany Ambica Realities Pvt. Ltd. In spite of important facts pointing out by M.N. Patel that the shares profit 6.25% from various projects of Ambica Realities but the A.O. has not extended the investigation and examination to find out the true facts what Mr. M. N. Patel has said. Except the contention of M. N. Patel, there is no material on record basis on which it can be said that the balance amount of profit belongs to Ambica Realities Pvt. Ltd. In absence of verification and in absence of the complete facts regarding owner of the balance amount of ₹ 2,16,56,000/the addition cannot be made in the hands of a company. Therefore, same is deleted. 15. The Tribunal thereafter extended its discussion to the assessee company and the protective additions made to the Assessing Officer of the said sum of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with the power of review which the Tribunal does not possess. Reference in this respect laid on the decision of the Supreme Court in case of RDC Concrete (India) Private Limited (Supra) in which it was observed as under :- Upon perusal of both the orders viz. The earlier order dated 4.11.2008 and the order dated 23.11.2009 passed in pursuance of the rectification application, we are of the view that CESTAT exceeded its powers given to it under the provisions of Section 35C( 2) of the Act. This Court has already laid down the law in T.S.Balaram v. Volkart Bros, to the effect that a mistake apparent from the record cannot be something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. It has been also held that a decision on a debatable point of law cannot be a mistake apparent from the record. If one looks at the subsequent order passed by CESTAT in pursuance of the rectification application, it is very clear that CESTAT reappreicated the evidence and came to a different conclusion than the earlier one. 17. In the result, petition is allowed. Impugned order of the Tribunal is set aside. Nothing st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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