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TMI Blog2019 (10) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... t was without jurisdiction and without having reasons to believe therefore requisition itself is invalid, illegal and contrary to the provision of the Act. Accordingly, the proceedings u/s. 153A/153C of the Act are also illegal and had in law and the assessment made in pursuance thereof deserves to be quashed." which has been admitted by the Hon'ble ITAT, Ahmedabad without giving any opportunity to the concerned Assessing Officer/Department to make any comment on the same. 2.1 It may here be noted that as laid down under Rule 11 of the Income Tax (Appellate Tribunal) Rules, 1963, in case any additional ground is preferred, it is to be put up before the Bench for order and will be kept on the file subject to all just exceptions which may be taken at the time of hearing regarding its admissibility etc., and a copy thereof is to be sent to the respondent for information. While deciding the appeal, the tribunal shall also not rest its decision on any other grounds unless the party which may be affected thereby has had a sufficient opportunity of being heard on that additional ground. As apparent from the facts of the case, the additional ground/s of the assessee was accepted on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i stated that silver bullion 479.50 kgs and cash amounting of Rs. 27,80,110/- belongs to Shri Rupam R. Gorecha, Limdi, Dahod, further statement on oath was also recorded of Shri Rupam R. Gorecha on 13.03.2014 by DDIT [Inv.] Ujjain and during the statement Shri Rupam R. Gorecha stated that seizure of silver bullion 479.50 kgs belongs to him and cash amounting of Rs. 27,80,110/- pertains to his family". Furthermore, in the office note it has also been mentioned that "in this case as discussed above, silver bullion 479.50 kgs and cash amounting of Rs. 27,80,110/- belongs to Shri Rupam R. Gorecha and the assessee Shri Nayan Kothari is salaried person only and he was messenger/ carrier only. Therefore, no any discrepancy was found during the course of assessment proceedings in the case of Shri Nayan Kothari", 5. The legislative intent behind recording of satisfaction note by the AO doing 153A was simply to come to the conclusion that materials belongs not to the person in whose case 153A is being done but to some other person. In the present case the assessee himself during the course of post search proceedings has accepted in his statement dated 13.03.2014 that the seized materials b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that an order passed by this court has been violated in any manner when an order of assessment is passed." Hon'ble High court has further observed that "A reading of an order passed by this Court does not show that an order of assessment could not have been passed." Thus, from the above, it is also very clear that the issue before the Hon'ble Supreme Court was not related to the assessment proceeding but was regarding the proceedings u/s 132A of the Act. Therefore, it is clear that the order of Hon'ble MP High Court is related to release of assets and not about the assessment proceedings and have given a go ahead to complete the assessment proceedings. 8. The appeal to Hon'ble ITAT by way of Miscellaneous Application is being filed considering the above facts. Relief claimed in MA It is therefore prayed that the Hon'ble ITAT "C" Bench Ahmedabad may recall its order dated 24/07/2019 in IT(SS)A No.151/AHD/2018, in the above referred case for the AY 2014-15 on the following grounds: 1. Hon'ble ITAT "C" Bench Ahmedabad has not adjudicated the issue regarding assessment u s 153C' of the Act on merits. 2. There is no technical lapse on the part of rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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" Before we embark upon an enquiry on the facts of present case in order to find out whether there is any apparent error committed by Tribunal or not while adjudicating the appeal, we think it appropriate to bear in mind certain basic principles for exercising the powers contemplated in Section 254(2) of the Income Tax Act, 1961 in the light of various judgments of Hon'ble Supreme Court as well as Hon'ble High Court expounding the scope of exercising powers under section 254(2) of the Act. We do not deem it necessary to recite and recapitulate all of them, but suffice to say that core of all these authoritative pronouncements is that power for rectification under section 254(2) of the Act can be exercised only when mistake, which is sought to be rectified, is an obvious and patent mistake, which is apparent from the record and not a mistake, which is required to be established by arguments and long drawn process of reasoning on points, on whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the assessee for filing the additional ground of appeal dated 04.06.2019, we note that the copy of the additional ground was also forwarded to the departmental representative. 6. It is also interesting to note that Shri O. P. Sharma, the learned departmental representative was present on the date of filing the additional ground of appeal as well as on the date of hearing i.e. 06.06.2019 and 11.06.2019 respectively. Moreover, there was no objection raised by the learned departmental representative on the date of hearing seeking time for the preparation of the case on the additional ground of appeal. Therefore, it is inferred that there was consent of the learned departmental representative at the time of hearing of the appeal and no objection of whatsoever was raised for seeking the adjournment. 7. It is also important to note that the impugned case was the stay granted matter and the assessee in the stay order was directed not to seek any adjournment without just cause. Had there been any objection from the side of the revenue on day of hearing of the case, the learned DR was to move an application for the same. But we find that there was no such application moved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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