TMI Blog2018 (7) TMI 2013X X X X Extracts X X X X X X X X Extracts X X X X ..... 261 - BOMBAY HIGH COURT] has held that the power under section 254(2) is confined to a rectification of a mistake apparent on record. The Tribunal must confine itself within those parameters. Section 254(2) is not a carte blanche for the Tribunal to change its own view by substituting a view which it believes should have been taken in the first instance. Section 254(2) is not a mandate to unsettle decisions taken after due reflection. The provision empowers the Tribunal to correct mistakes, errors and omissions apparent on the face. The section is not an avenue to revive a proceeding by recourse to a disingenuous argument nor does it contemplate a fresh look at a decision recorded on the merits, however appealing an alternate view may seem. Unless a sense of restraint is observed, judicial discipline would be the casualty. That is not what Parliament envisaged. (emphasis supplied by us). What the assessee intends to seek in the present case is the review of the order, which according to us is not permissible under the provisions of section 254(2) of the Act. If we accept the present petition of the Assessee, then it will tantamount to review of the order of the Tribunal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied upon by the Assessee, the Tribunal has further failed to apply the principles of Evidence Act while deciding the appeals, the Bench has had simply concurred with the views of lower authorities without giving its own reasoning in the matter, the Bench has noted incorrect facts. In view of the aforesaid facts, it is alleged that there are apparent mistakes in the order of Tribunal and therefore the order of the Tribunal needs to be recalled. 4. The Ld DR on the other hand objected to the lengthy submissions made by Ld AR and submitted that that the Hon ble Bench while deciding the appeal of the Assessee had considered the submissions of the assessee and also the case laws relied upon by Assessee and has thereafter decided the issues. He submitted that in such a situation there was no apparent mistake in the order of tribunal. He further submitted that through this M.A., the Assessee is seeking a review of the order passed by the Tribunal which is not permissible under the Act. He also relied on the decision of Hon ble Bombay High Court in the case of CIT Vs. Ramesh Electric And Trading Co. reported in [1993] 203 ITR 497 for the proposition that the Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. In the impugned order on Page No.1 it is mentioned that the assessee was represented by following persons : i. Shri Sunil Ganoo ii. Shri Ratanlal C Bafna and iii. Shri S.K. Rumale It is respectfully submitted that Shri Ratnalal C Bafna the appellant assessee never attended before the Hon. Bench due to his old age. In fact one Mr. Abhayraj Fattehraj Chordia Chartered Accountant attended along with Mr. Sunil Ganoo and Mr. S.K. Rumale. Since the name of the appellant is mistakenly mentioned in the impugned order, the same is a mistake apparent from records and hence the same is requested to be corrected by substituting the name of Mr. Abhayraj Fattehraj Chordia in place of Shri Ratanalal C Bafna. 3. Reading application u/s 255[6] of the I.T. Act 1961 filed by the appellant assessee on 18/03/2013 : The appellant assessee for the reasons as fully set out in the said application [vide Para 9 of the application] had requested the Hon. Bench to please direct the department to furnish a report from the learned Assessing Officer clarifying as to how the alleged fictitious loan entries and interest thereon is treated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer, it was an accepted position by the department that the unrecorded income earned by Chhoriya group was shown as loans in fictitious names of various persons including the appellant assessee in the diaries seized and the same has been taxed accordingly in the hands of respective persons of Chhoriya Group. In the circumstances, the aforesaid stand of the department in Chhoriya Group cases acts as estoppel in the case of the appellant and in the circumstances the fictitious loan entries appearing in the seized diaries in the name of the appellant assessee cannot be construed and taxed in the hands of the appellant assessee as unexplained investment of the appellant assessee. It was also further submitted on the basis of the impugned report submitted by the learned Assessing Officer that the department failed to initiate the reassessment proceedings u/s 148 of the I.T Act 1961 in the various cases of Chhoriya Group on the basis of the entries in the seized diaries, without any plausible explanation, the action initiated u/s 148 of the I.T. Act 1961 in the case of the appellant for the year under consideration was bad in law as it was proved beyond doubts that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his report dt. 22/05/2013 as hereinabove referred has vide Comments in Para 4 has given some other names of 23 persons and has conveniently avoided to furnish assessment details of the 79 persons as mentioned in the sworn statement referred above. Even the information furnished in the said report vide Comments on Para 8 9 about the order sheet entries was not full and true and was confusing. Therefore it was requested to the Hon. Bench that the learned D.R. be directed to file the necessary clarifications on the above confusing points and also the information as per the application of the appellant assessee referred above as well as the order sheet noting dt. 30/07/2012 so as to enable the appellant assessee to make effective arguments on his part, particularly when the learned Assessing Officer of Chhoriya Group has accepted the contentions of the appellant assessee. However the Hon. J.M. orally observed that if the department in spite of the specific directions of the Bench was not furnishing the information even after a lapse of considerable time, the appellant assessee should not bother as the adverse inference would be drawn against the department. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legedly advanced prior to 1/4/2001 and was mentioned in the aforesaid diary. [Please refer Page 30 first six lines of the impugned order] It was pointed out that the department was not coming before the Hon. Bench with clean hands as evidenced by following facts: i. Failure to comply with directions of the Hon.Bench vide order sheet entry dt.30/07/2012 ii. Avoiding to furnish relevant information vide appellant assessee's application u/s 255[6] of the I. T. Act 1961 referred above. iii. Failure to produce the diary of Chhoriya Group for the alleged unrecorded transactions for the period 1/ 1/2001 to 31/3/2001 in spite of application filed by the appellant assessee on 22/12/2011 before the Hon. Bench. In the circumstances it was argued that in view of the decision of Hon. Supreme Court in Criminal Appeal No.1406 of 2012, in the case of Kishor Samrite v/s State of U.P. and Others, the appeal of the appellant deserved to be allowed. A copy of the said decision was filed on records during the course of hearing of the appeal.[Please refer Page 21 of the impugned order] However there is no discussion about the said decision in the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... borrowed the amounts from the persons named in the seized diaries. The decision of the Hon. Supreme Court in the case of Rajinder Pershad [Dead] by Lrs. Appellant v/s Darshan Devi [Smt] Respondent reported in 2001 A.I.R. Page 3207 [SC] was brought to the notice of the Hon. Members and a copy of the same was filed before the Hon. Bench [Please refer Page No.21 of the impugned order] It was submitted that failure to give suggestion to the witness is fatal and his testimony goes unchallenged. It appears that the Hon. Members have lost sight of the said decision while framing the impugned order which with due respect to the Hon. Members amounts to non application of mind. Since the Hon. Members have failed to consider and apply the binding decision of the Hon. Supreme Court to the case of the appellant, the same amounts to mistake apparent from records and needs to be corrected. It is therefore humbly prayed that the impugned order be recalled and by following the principle and ratio laid down by the Hon. Supreme Court in the aforesaid decision the appeal of the appellant for the A.Y. 2008-09 be allowed on this short ground. 6. Regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mr. Devichand Motilal Chhoriya recorded on 01/12/2009 u/s 131 of the I.T. Act 1961 was not against the assessee and hence his cross examination was not necessary was contrary to the well settled law and being patently illegal and devoid of merits particularly in view of the aforesaid decision of the Hon. Supreme Court, the impugned assessment order was null and void and no second inning to the department was permissible. Since the Hon. Bench has neither dealt with nor considered the above referred decision of the Hon. Supreme Court the same amounts to mistake apparent from records and needs to be corrected. It is therefore humbly prayed that the impugned order may please be recalled and the issue involved may please be decided as per provisions of law as explained in the above referred decision and evidence on records of the Hon. Bench. 8. Regarding failure to properly appreciate the facts and ratio of the decisions of the Hon. Bombay High Court in the various cases of Kumar and Company. The Hon ble Bench vide Para No.27 of Page No.23 of the impugned order was pleased to allow the following additional ground of appeal raised by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer to form an independent opinion. It is pertinent to note that based on this direction the learned Assessing Officer has worked out the peak credit at ₹ 2,91,36,825.00 and accordingly taxed the same. Similarly vide observations on first Page of report of Dy.Director of Income Tax [Investigation] Nashik dt.14/ 12/2009 addressed to the learned Assessing Officer it has been directed to the learned Assessing Officer to tax the profit / interest income of ₹ 79,12,653.00 as appearing in the ledger, when in fact the said amounts represented repayment of loans given in earlier years as appearing in the rough Cash book of Chhoriya for the period 01/01/2001 to 31/03/2001 which was in possession of the department and the same was never disclosed to the learned Assessing Officer to form an independent opinion. However the Hon. Members have lost sight of this relevant evidence and have erroneously and mistakenly held in Para No.30 Page No.25 of the impugned order that However in the instant case, if we accept the contention of the Ld. Counsel for the assessee that the Assessing Officer has acted at the behest of the Investigation Wing, then in tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. It was explained that on Page No.70 of the said cash book there appeared an entry of loan of 200 i.e.200 lacs in the name of Shreeman Sheth [which is allegedly the name used for the appellant assessee by the author of the seized diary] on 1/1/2001 which was to be repaid in 40 monthly equal installments of ₹ 5 lacs each. ii. The appellant assessee most respectfully submits that the said alleged loan of 200 lacs was repaid as under as mentioned in the seized diaries under the narrations mentioned in the diary: Date Page No of Diary Narration of entry Amount 31/01/2001 23 as first inst.of profit 5 lacs 23/02/2001 42 as second inst. of profit 5 lacs 19/03/2001 57 as third inst. of profit 5 lacs 04/04/2001 3 as April profit 5 lacs 28/05/2001 41 as fifth inst.of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintainability of the Petition The impugned order has been received by the appellant on 22/05/2015 and hence the present petition is filed well within the period of limitation. The appellant has paid the prescribed fees of ₹ 50.00 and the challan is enclosed. In the present Petition, the appellant has pointed out senous mistakes of facts and law which are apparent from records which have caused serious prejudice and injustice to the appellant and hence the same are required to be corrected by recalling the order and by passing the fresh order as per the provisions of law and the facts available on records. In the circumstances, the Hon. Bench has power and authority to hear and decide the present Petition by passing the necessary rectification orders by correcting the various apparent mistakes pointed out hereinabove in this Petition. 6. Before we proceed to dispose of the M.A. of assessee, it would be relevant to refer to the provisions of Sec.254 of the Act under which the assessee has filed the present M.A. The provisions of Sec.254 (pre amended provisions, as they were applicable at the time of passing of the order in app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary. Where an error is far from self-evident, it ceases to be an apparent error. The expression mistake apparent on the record means a mistake either clerical or grammatical or arithmetical or of like nature, which can be detected without there being any necessity to reargue the matter or to reappraise the facts as appearing from the records. In catena of judgments rendered by various Hon ble High Courts, it has been held that a mistake which can be rectified under section 254(2) of the Act is one which is patent, which is obvious and not something which can be established by a long-drawn process of reasoning on points on which there may be conceivably two opinions or whose discovery is not dependent on argument or elaboration. Mistake capable of being rectified u/s 254(2) of the Act does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. Invocation of section 254(2) of the Act is not proper where the matter needs long drawn arguments. The power to rectify the mistake, does not cover cases where a revision or review of the order is intended. A decision on a debatable point of law or fact or failure to apply th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the alleged grievance of the Assessee that the submissions and case laws relied upon by the Assessee during the course of hearing have not been considered by the Tribunal while deciding the appeal, it would be appropriate to refer to the decision of Hon ble AP High Court in the case of Pothina Venkateshwara Swamy Vs ACIT [2014] 369 ITR 639 (T AP) wherein the Hon ble High Court has held that the court or a tribunal is deemed to have taken every aspect that is placed before it into account and granted the appropriate relief in a manner which it felt appropriate. It is not necessary that every aspect must be addressed in greater detail. If on any aspect, the appellate forum is silent, it can be deemed to have concurred with the view expressed by the forum from which the order under appeal has arisen. 12. We further find that Hon ble Apex Court in the case of CIT Vs. Karam Chand Thapar And Bros. P. Ltd. [1989] 176 ITR 535 (SC) has observed that the decision of the Tribunal has not to be scrutinized sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view by substituting a view which it believes should have been taken in the first instance. Section 254(2) is not a mandate to unsettle decisions taken after due reflection. The provision empowers the Tribunal to correct mistakes, errors and omissions apparent on the face. The section is not an avenue to revive a proceeding by recourse to a disingenuous argument nor does it contemplate a fresh look at a decision recorded on the merits, however appealing an alternate view may seem. Unless a sense of restraint is observed, judicial discipline would be the casualty. That is not what Parliament envisaged. (emphasis supplied by us). 17. The Hon ble Punjab Haryana High Court in the case of CIT Vs. Pearl Woolen Mills [2011] 330 ITR 164 (P H) after referring to the various decisions has held that it is well-settled that the power to review is not an inherent power and it must be conferred by law either specifically or by necessary implication It has further observed that there is no express power of review conferred on the Tribunal and therefore neither by invoking the inherent power nor the principle of mistake of court not prejudicing a litigant nor by invoking the doctrine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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