TMI Blog2018 (11) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... there are manifest errors which are obvious, clear and self-evident, the Tribunal cannot recall its previous order in an attempt to rewrite it. Under the garb of rectification, the Tribunal cannot exercise the power of recall and review its earlier order. In the instant case, the Miscellaneous Petition of the Department is prima-facie seeking to review the order of the Tribunal dated 19. 12. 2017, which unfortunately the Tribunal does not have the power under the statute. The Hon’ble Delhi High Court in the case of CIT v. Vichitra Construction (P.) Ltd. [2004 (2) TMI 36 - DELHI HIGH COURT] had held the power u/s 254(2) is to correct any apparent mistake and not to recall its entire order and review the same. Miscellaneous Application filed by the Revenue is dismissed. - MA No. 31/Coch/2018 And ITA No. 196/Coch/2016 - - - Dated:- 31-10-2018 - Shri Chandra Poojari, AM And Shri George George K, JM For The Applicant : Smt. A. S. Bindhu, Sr. DR For The Respondent : Sri. K. J. Abraham ORDER Per George George K . , JM This Miscellaneous Application at the instance of the Revenue is directed against ITAT s order dated 19. 12. 2017 in ITA No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Depot, wherein the Tribunal confirmed the purchase price of the impugned property at ₹ 99. 90 lakh instead of 18. 30 lakh is disclosed in the sale deed dated 24. 04. 2007. 4. 1 The learned AR, on the other hand, has filed a brief written submission. The same is reproduced below for ready reference:- 1 . The application filed by the department under section 254(2) is not sustainable in law or on facts . 2 . The factual finding of the Tribunal in this case is found in paragraph 6 and 6 . 3 of the order and reads thus: The Assessing Officer in his order (para 10) had stated that SJ-Ill is a sale agreement for the sale of property entered into by the assessee and M/s . St . Antony's Timber Depot and the same has been signed for both the parties . But SJ-III which is enclosed in the paper book (page 67 and 68) shows it is only loose sheets of papers in which some transaction of the purchaser are recorded and that too without any signature . Therefore, the imaginary sale agreement relied by the Assessing Officer while adopting the sale consideration at Rs . 99 . 90 lakh is not correct . The CIT (A) has omitted to consider this cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion at Rs . 99 . 90 lakh is not supported by corroborative evidences / materials . Hence, we direct the Assessing Officer to adopt the sale consideration as disclosed in document No . 3424/07 dated 24 . 04 . 2008 viz . , Rs . 18 . 30 lakh instead of Rs . 99 . 90 lakh for the purpose of calculating long term capital gains . It is ordered accordingly . 3 . This Tribunal has rightly found that in SJ-I and in SJ-III the reference is to 27 cents of land . Admittedly this respondent sold 30 . 50 cents . Hence it cannot be in any way correlate to the entries made in SJ-l and in SJ-III . In fact there an error apparent on the face of the record in l . T . A . No . 216/Coch/2012 wherein this Tribunal has accepted the department contention that 27 cents of land shown in SJ-l and in SJ-III correlate to document No . 3424/07 dated 24 . 04 . 2008 which for 30 . 50 cents of land . 4 . Hence it must necessarily follow that there is no error apparent on the face of the record in this case and necessarily the application must be dismissed . 5 . The submissions as regards the legal situation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come Tax Act read as follows: 254(2) : The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under Subsection (1) and shall make such amendment if the mistake is brought to its notice by the assessee or the [Assessing! Officer: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard . 11 . Under the Income Tax Act no power is provided to the Tribunal to review its order . The apex Court in the case of Kapra Mazdoor Ekta Union v . Birla Cotton Spinning and Weaving Mills Ltd . and Ors, reported in 2005 AIR SCW, 1561 held that the Tribunal cannot exercise power of review unless specifically provided . 12 . The tribunal is a creation of statute and it can exercise only those powers which have been conferred upon it . The only power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position of the purchaser, the sale consideration of the property as found in the seized material SJ-1 SJ-III, is reasonable and so the sale value of the property is fixed at Rs . 99,90,000/- . 6. The Tribunal held the finding of the A. O. is incorrect. The Tribunal stated that the seized material marked as SJ-I and SJ-III does not indicate purchase price at ₹ 99. 90 lakh. It was further stated by the Tribunal that SJ-I and SJ-III are certain noting of the purchaser and not agreement for sale of the impugned property as alleged in para 10 of the impugned assessment order. The Tribunal also found that the statement recorded u/s 132(4) from Shri Babu John, Managing Partner of the firm M/s. St. Antony s Timber Depot (purchaser of the property) does not mention anywhere that the assessee s name or its Directors name. The relevant finding of the Tribunal reads as follows:- 6 . We have heard the rival submissions and perused the material on record . The Assessing Officer had adopted the sale consideration at Rs . 99 . 90 lakh on the basis of the statement recorded u/s 132(4) of the Act of the purchaser and the seized material viz . , SJ-I and SJ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer on the so called agreement for sale, viz . , SJ-III . The seized material namely SJ-III is not an agreement for sale, but certain noting of the purchaser without any signature and does not mention anywhere the name of the assesseecompany or its Directors . Even noting of purchaser about property details he purchased does not tally with the description of the property sold by the assessee . Nor the statement u/s 132(4) of the Act recorded from the purchaser indicate that assessee was paid above sum of Rs . 99 . 90 lakh . 6 . 1 In the case of M . M . Financers (P) Ltd . v . DCIT [(2007) 107 TTJ (Chennai) 200], the Tribunal held that no addition could be made in the hands of the assessee on the basis of statement made by a third party and the unsigned agreement and loose papers seized from the residence, in the absence of any corroborative material to show the payment of any undisclosed consideration by the assessee towards the purchase of land . 6 . 2 In the case of CIT v . P . V . Kalyanasundaram [(2006) 282 ITR 259 (Mad . )] , the Hon ble Madras High Court had observed as under:- The Tribunal had giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Bench, the learned Departmental Representative nor the AR was able to throw any light. Now coming to the order of the ITAT dated 05. 04. 2013 in ITA No. 216/Coch/2012 (order dated 05. 04. 2013), we find that the Tribunal had taken the purchase cost at ₹ 99. 90 lakh on admission made by the Managing Partner of the assessee in that case that he had paid more amount than the documented value. It is a clear case of admission by the purchaser, which was subsequently retracted long after (statement retracted after 26 months) denying any additional investments other than the documented value. For this reason the Tribunal had confirmed the investment of ₹ 99. 90 lakh in the hands of M/s. St. Antony s Timber Depot. In the instant case, there is no admission by the seller at any point of time that it had received more amount than the documented value. The Tribunal in ITA No. 216/Coch/2012 (order dated 05. 04. 2013) nowhere has mentioned that the assessee in that case had purchased the property of M/s. Chowallur Builders (P) Ltd. (i. e. the assessee in the present case). The Tribunal in its order dated 05. 04. 2013 in ITA No. 216/Coch/2012 had not mentioned the details of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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