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TMI Blog2020 (11) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the course of Survey, and can it be dealt with in the subsequent hearing by the Tribunal by review under Section 254, upon a Miscellaneous Application filed by the Revenue Department? (iii) Whether on the facts and in the circumstances of the documentary evidence on record before the Assessing Authority as well as the learned Tribunal which is not scrutinized by the Tribunal while passing the order on Appeal filed by the Assesssee can amount to a mistake apparent on the face of record within Section 254(2) of the Act entitling the Tribunal to recall its earlier order?" 2. The learned Tribunal initially upheld the additions made in the declared income of the Assessee vide order dated 16.3.2016 for the Assessment Year 2007-2008 with the following observation:- "Ground Nos. 1 & 2 (Unexplained Cash credit): - 4. Additions of Rs. 2,79,06,603/- & Rs. 2,19,69,862/- being credits in the names of M/s.Sree Ganesh Steels & M/s. D.G. Traders respectively as undisclosed income of the assessee. The learned Assessing Officer had made addition of Rs. 4,98,76,465/- invoking section 68 of the Act because the identity and genuineness of the sundry creditors M/s. Sree Ganesh Steels for R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch as invoice from these creditors disclosing their address, sales-tax registration number etc. were furnished in the paper book which was either not examined or brought to notice before the Bench. Further, the learned Authorized Representative submitted that even for the disallowance made under section 40A(3) of the Act for Rs. 17,20,000/-, the Tribunal had arrived at a similar decision without examining the materials on record. For the above stated reasons the learned Authorized Representative pleaded that the order of the Tribunal may be recalled for considering these facts and rectifying the mistakes that had crept into the order of the Tribunal while arriving at the derision on the earlier occasion. 3. The learned Departmental Representative vehemently opposed to the submissions of the learned Authorized Representative by arguing that all these facts were considered by the Bench while arriving its derision on the earlier occasion. It was therefore requested that the order of the Tribunal may be confirmed. 4. We have heard the rival submissions and carefully perused the materials available on record. From the arguments of the learned Authorised Representative and on examini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were made three years after the transaction and the assessee had relied on the address given by the parties at the time of the transaction which was not acceptable to the Ld. A.O. vi) The assessee's contention that purchases were made through mediators and therefore the assessee did not have direct accessibility to its creditors was also not acceptable to the Ld. A.O. vii) The goods were purchased from the sundry creditors who are scrap dealers in the unorganized sector of business can also be not treated as valid reason for not proving the identity of the sundry creditors. viii) Enquiries from the partners of the firm and staff also revealed that transactions were not genuine. 5. On appeal, the learned Commissioner of Income Tax (Appeals) upheld the order of the learned Assessing Officer agreeing with his findings. 6. Before us, the learned Authorized Representative made the following submissions:- i) Both the additions were made based on enquiries behind the back of the appellant; therefore it is in violation of principles of natural justice. ii) The enquiries made by the Inspector were not put before the assessee for rebuttal. iii) The additions are made for no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness of the assessee is minimal as less as one per cent or even lesser. There is also no finding by the Revenue that the assessee had not purchased scrap but the only doubt was with respect to the genuineness of two sundry creditors who had supplied raw materials to the asseesee. Further the assessee has submitted the following materials to show that the sundry creditors were genuine:- i) Order of the Assistant Commissioner of Sales Tax dated 12.9.2016 and notice of demand from ACST dated 12.9.2016 to show the genuineness of the local purchases of iron & steel (at page No.196 & 198 of the paper book). ii) Details of TIN number, CST Number and PAN of M/s.DG Traders and M/s.Sree Ganesh Steels (at page 199 of the paper book). iii) Details of TIN, CST No. downloaded from the relevant Govt. website which shows that both M/s.DG Traders and M/s.Sree Ganesh Steels were active dealers under the CST Act (page No.200 to 203 of the paper book). iv) PAN No. of M/s Sree Ganesh Steels and M/s.DG Traders (Suresh Singh Solanki) (downloaded from the Govt. Website). 9. From these documents which is part of the record and not(sic) before the Tribunal at the time of earlier hearing proves t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment vested with all the three Authorities including the Appellate Authorities are co-extensive in law and there is no prohibition in law in producing the relevant materials before the permission of the second Appellate Authority viz., the Tribunal. There is no dispute or question raised about the manner in which the said documents were placed before the learned Tribunal. It is only the question whether the learned Tribunal failed to take note of the said relevant evidence while passing the original Appellate Order. 10. Since the learned Tribunal found that the said material was already on the record of the learned Tribunal, when it passed the order on 16.3.2016, we cannot doubt that the material was produced before the learned Tribunal in a doubtful manner. No such objection was raised by the Revenue before the learned Tribunal itself. Therefore, the question of material being on record of the learned Tribunal is beyond the pale of doubt and the finding of the learned Tribunal binds us. 11. As far as the question of deletion of additions under Section 68 of the Act is concerned, since the learned Tribunal, after considering the materials which were already on the record of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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