TMI Blog2019 (11) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... of merit and unsustainable. While considering the peculiar facts and circumstances to the effect that the assessee though filed its reply but did not appear regularly before the Ld. CIT(A), therefore, on the basis of reply the Ld. CIT(A) decided the appeal of the assessee as ex-parte, hence, in that eventuality and in peculiar facts and circumstances of the case and for the ends of justice without going into further controversy and deciding the case on merit and other grounds/issues raised by the assessee, the Co-ordinate Bench remanded the case to the file of the Ld. CIT(A) for decision afresh and in the order it was specifically mentioned by the Co-ordinate Bench in the last Para No.6.2 of the order that as the Ld. CIT(A) has passed the order exparte therefore, we are not adverting to the other grounds/ issues raised in the appeal and the Ld. CIT(A) shall decide the appeal without being influenced by any of the observations made above. Claim of the assessee is that the Co-ordinate Bench did not consider the judgment of Supreme Court - We have already mentioned the facts and given thoughtful consideration to issue raised by the assessee. In our considered view, the courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end of justice, we feel it appropriate to remand back this case to the file of the Ld.CIT(A) to decide afresh the appeal of the assessee while affording reasonable opportunities of being heard. It is suffice to say that the Appellant shall co-operate with the appellant proceedings and shall appear as and when required by the Ld. CIT(A) and in case of default the Ld. CIT(A) at liberty to dispose of the appeal on merit ex-parte. As the Ld. CIT(A) has passed the order ex-parte therefore, we are not adverting to the other grounds/issues raised in the appeal and the Ld. CIT(A) shall decide the appeal without being influenced by any of the observations made above. 3. That in para 6.1 of the order the ITAT has given the following findings appearing at Page No. 9 of the order From the replies, it clearly reflects that the appellant categorically taken the stand that amount of ₹ 36 lacs for the Asst. Year 2011-12 does not belong to the appellant s wife but belongs to the appellant himself. From the categorical acceptance on the part of the appellant, the argument to the effect that as the amount of ₹ 36 lacs was found in the accounts of the appellant s wife ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Misc. Application, the Ld. AR has submitted that during the course of argument of ITA No.645/Asr/2018 before the Hon ble Bench, it was submitted that as per provisions of Sec.68 no addition can be made unless there is a credit in the books of account of the assessee which the AO finds unexplained. In the case of appellant, there was no credit appearing in the books of account of the assessee as the credit of ₹ 36 lacs appeared only in the Bank Account of Ms. Heather Chethley, wife of the assessee, therefore, the addition could be made only in her hands. The assessee in support of his contention also relied upon the judgment of Hon ble Apex Court in the case of CIT vs. Chinnathamban (2007) 292 ITR 681(SC) , however, in the order neither the submission nor the judgment of the Hon ble Supreme Court has been considered while passing the order. 3. On the contrary, the Ld. DR submitted that the order under challenge does not suffer from any perversity, illegality and/or impropriety and even no mistake is apparent from record which can be rectified. 4. Having heard the parties and perused the material available on record. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ually well settled 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 noticed by the Tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal, finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal areperverse. It is not necessary for the Tribunal to state in its judgment specifically or in express words that it has taken into account the cumulative effect of the circumstances or has considered the totality of the facts, as if that were a magic formula; if the judgment of the tribunal shows that it has, in fact, done so, there is no reason to interfere with the decision of the Tribunal. 4.4 The Hon'ble Delhi High Court in the case of Ras Bihari Bansal Vs. CIT 293 ITR 365, on the scope of rectification u/s 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant case. The assessee s main contention is that as per provision of Sec.68 no addition can be made unless there is a credit in the books of accounts of the assessee. Further, in the case of appellant, there was no credit appearing in the books of account of the assessee and credit of ₹ 36 lacs appeared only in the bank account of M/s Heather Chethley, wife of the assessee, therefore, the addition could only be made in her hands. Further, the grievance of the assessee that neither the submission nor the judgment of the Hon ble Supreme Court has been considered while passing the order. 6. Let us to reproduce Para No.5 of the order dated 22.03.2019 passed by the Co-ordinate Bench. 5. On aggrieved the Appellant challenged the impugned order by filing the instant appeal and submitted that Appellant had entered into an agreement dated 26.12.2010 for the sale of immovable property situated at Mittal Road, Moga for ₹ 1,05,00,000/- with Sh. Harjit Singh through his attorney Mr. Manjit Singh Chahal and received ₹ 50 lacs as earnest money in cash, out of which amount of ₹ 36 lacs was deposited in the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r letter are cash deposited by the husband of the Appellant , which he has received as advance against his property from Mr. Manjit Singh Chahal S/o Ishar Singh Chahal R/o VPO Kokri Kalan, District Moga. The evidence of the transactions may be produced if required. Yours Faithfully Sd/- (R.R. Chatley) Husband of Heather Chatley To The Income Tax Officer Ward-I, Moga Ref: Your Notice U/s 142(l)in the case of Mrs. Heather Chathley, Moga for the Ay 2011-12 Sir, With due respect and in reference to your above referred letter it is submitted 1. That the Appellant has already submitted in her previous reply that she is a foreign national married to an Indian citizen. She has no source of income in India for which she is assessed in india. She is not having any PAN. 2. That during the AY 2011-12 she opened a bank account with her husband Mr. Raghu Chatley in HDFC Bank Moga. Her husband Mr. Raghu Chatley deposited a sum of ₹ 3600000/- during the AY 2011-12 out of the proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. That during the AY 2011-12 she opened a bank account with her husband Mr. Raghu Chatley in HDFC Bank Moga. Her husband Mr. Raghu Chatley deposited a sum of ₹ 3600000/- during the AY 2011-12 out of the proceeds of agreement to sell his property. A declaration from Mr. Raghu Chatley is attached herewith for your perusal. That as per the agreement as referred in para 2 above Mr. Raghu Chatley entered into an agreement to sell his property and received ₹ 5000000/- from Mr. Manjit Singh Chahal S/o Ishar Singh, VPO Kokri Kalan, Tehsil Distt Moga. Mr. Manjit Singh entered into such agreement on behalf of Haijit Singh S/o Kartar Singh resident of VPO Kokri Kalan, Distt Moga, presently residing at 79 Middleton Avenue, Greenford Middlesex UB6 8BG United Kingdom. Mr. Manjit Singh Chahal, given such amount of ₹ 50.00 Lacs to Mr. Raghu Chatley out of the proceeds of sale of agricultural land which belongs to Mr. Haijit Singh, Indeijit Singh and Mr. Chahal as their Attorney. The copies of agreement to sale, GPA, Jamabandi and Sale deed of land and an affidavit of Mr. Manjit Singh Chahal are enclosed herewith for your perusal. That a copy of a certificate from Notary Public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that the Appellant had filed written submissions and paper book and it is also a fact that the Appellant had raised sole ground of appeal therefore filling of written submissions in support of various grounds of appeal as observed, did not arise. Hence, for the end of justice, we feel it appropriate to remand back this case to the file of the Ld. CIT(A) to decide afresh the appeal of the assesse while affording reasonable opportunities of being heard. It is suffice to say that the Appellant shall co-operate with the appellant proceedings and shall appear as and when required by the Ld. CIT(A) and in case of default the Ld. CIT(A) at liberty to dispose of the appeal on merit ex-parte . As the Ld. CIT(A) has passed the order ex-parte therefore, we are not adverting to the other grounds/issues raised in the appeal and the Ld. CIT(A) shall decide the appeal without being influenced by any of the observations made above. 6.3 We clarify that the Appellant did not raise the grounds No.1 2 for want of assessment order of his wife, reasons recorded u/s 147 and other relevant documents thereto, as we have remanded the case to the file of Ld. CIT(A) for decision afresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee though filed its reply but did not appear regularly before the Ld. CIT(A), therefore, on the basis of reply the Ld. CIT(A) decided the appeal of the assessee as ex-parte, hence, in that eventuality and in peculiar facts and circumstances of the case and for the ends of justice without going into further controversy and deciding the case on merit and other grounds/issues raised by the assessee, the Co-ordinate Bench remanded the case to the file of the Ld. CIT(A) for decision afresh and in the order it was specifically mentioned by the Co-ordinate Bench in the last Para No.6.2 of the order that as the Ld. CIT(A) has passed the order exparte therefore, we are not adverting to the other grounds/ issues raised in the appeal and the Ld. CIT(A) shall decide the appeal without being influenced by any of the observations made above . 13. Further the claim of the assessee is that the Co-ordinate Bench did not consider the judgment of Supreme Court in the case of Commissioner Of Income Tax, Salem Vs K. Chinnathamban (2007) 292 ITR 681 (SC) while deciding the appeal . The assessee has also filed copy of the judgment of the jurisdictional High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusions arrived at by the Tribunal are- perverse. The Hon'ble Delhi High Court in the case of Ras Bihari Bansal Vs. CIT (supra) on the scope of rectification u/s 254(2) of the Act, has held It is well settled that an oversight of a fact cannot constitute an apparent mistake rectifiable under this section. Similarly, failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion, is not an error apparent on the record, although it may be an error of judgment. The mere fact that the Tribunal had not allowed a deduction, even if the conclusion is wrong, will be no ground for moving an application under section 254(2) of the Act. Further, in the garb of an application for rectification, the assessee cannot be permitted to reopen and re-argue the whole matter, which is beyond the scope of the section. Hence coming to instant case on the aforesaid analyzations, the inference can be drawn that in this case, no mistake is apparent from record which could warrant rectification. 14. In the result, the Miscellaneous Applications filed by the assessee stands dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
