TMI Blog2020 (11) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Since 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. Additions under Section 68 - Tribunal, after considering the materials which were already on the record of the Tribunal, like TIN Number, PAN Number, Invoices, etc., of these two Trade Creditors/Sellers and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 (Unexplained Cash credit): - 4. Additions of ₹ 2,79,06,603/- ₹ 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 ₹ 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 ₹ 2,79,06,603/- M/s. D.G. Traders for ₹ 2,19,69,862/- was not established. The learned Assessing Officer had issued notice under Section 133(6) to the above sundry creditors, but the letter was returned stating that no such entity existed in that address. Subsequently, after several opportunities provided by the learned Assessing Officer which is vividly explained in his order additions were made invoking the provisions of section 68 of the Act for ₹ 4,98,76,465/-. Before the learned Commissioner of Income Tax (Appeals) also the assessee could net establish the identity and creditworthiness of the creditors. Therefore the learned Commissioner of Income Tax (Appeals) confirmed the order of the learned Assessing Officer. Even before us, neither the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentative 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 examining the order of the Tribunal, it is apparent that the documents furnished by the assessee in the paper book was lost sight off and were net examined by the Bench on the earlier occasion and there is no discussion with respect to the same in the order of the Tribunal. Therefore in the interest of justice, we hereby recall the order of the Tribunal in order to examine the materials on record pointed out by the assessee and thereafter rectify the mistake if any, in the order of the Tribunal. The Registry is directed to post the appeal for hearing in due course and intimate both the parties. 5. After hearing both sides, the Tribunal finally partly allowed the Appeal of the Assessee for the Assessment Year 2007-2008 vide its order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not proving the sundry creditors at the same time the purchases made by the assessee is not in dispute. iv) The assessee has furnished the details of its quantitative purchase, sales and stock tally before the Revenue. v) The assessee has discharged its prima facie burden for proving the genuineness of the purchase. Since there was a time lag for making enquiries and the purchases related to scrap which is in the business falling in unorganized sector, it was difficult to locate the sundry creditors. vi) The purchases made by the assessee were also not doubted by the Central Excise Authorities. vii) The sales tax registration and CST registration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 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 the fact that the identity of these sundry creditors are genuine. Since the above referred documents were lost sight off by the Tribunal on the earlier occasion, mistake had crept into the Order of the Tribunal which is apparent on record because of non-consideration of certain facts. Further, it is also evident that the assessee had paid by cheque to the sundry creditors, may be not directly by(sic) indirectly which is not prohibited by the Act. Further there is also no other finding by the Revenue on these aspects. Thus, when the identity of the sundry creditors is proved and when the quantity of purchase of raw materials is not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal, 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 the Tribunal, like TIN Number, PAN Number, Invoices, etc., of these two Trade Creditors/Sellers and it has granted the requisite relief to the Assessee, we do not find any question of law to be arising on this issue. Further, with regard to the scope of Section 254 of the Act, we find that ignoring the material already on record on the part of the learned Tribunal was a mistake apparent on the face of record under Section 254 and the learned Tribunal has, in our opinion, rightly recalled its order and rectified the mistake and it has rightly set aside the additions under Section 68 of the Act and they are only findings o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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