TMI Blog2022 (8) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... all the material facts before AO in the regular assessment - HELD THAT:- ITAT after elaborate discussion on the issue of reason to believe has taken a view that reason recorded by the AO was nothing but borrowed satisfaction. In holding so the ITAT analyzed the facts available on record, given various reasoning and also referred several judicial precedent. As Such the Revenue in M.A. has not pointed out any specific mistake in the order which is apparent from the record. The issue raised by the Revenue in M.A. requires long drawn argument which is not allowed under section 254(2) of the Act. If the Revenue feels the order passed by the Revenue is erroneous on account of law or on fact then the only remedy available is to challenge the order at higher forum. In holding so we draw support and guidance from the judgment of Hon ble Supreme Court in case of CIT vs. Reliance Telecom Ltd. [ 2021 (12) TMI 211 - SUPREME COURT] ITAT erred in holding that no addition was made based on reasons to believe recorded - Again it is noted that the ITAT has considered all the materials available on record and also made comparable reference to the income identified by the AO in reasons recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore we do not find any merit in the argument of Ld. Counsel for the Revenue. Hence, the MA filed by the Revenue is dismissed. Whether materials found during the search on the basis of which proceedings under section 153C of the Act were initiated, were not belonging to the assessee? - ITAT after elaborate discussion on the issue whether search materials belong to assessee or not, has taken a view that such materials do not belong to the assessee. In holding so the ITAT analyses the fact available on record, gives various reasoning and also refer the several judicial precedent. As Such the Revenue in M.A. has not pointed out any specific mistake in the order which is apparent from the record. The issue raised by the Revenue in M.A. requires long drawn argument which is not allowed under section 254(2) of the Act. If the Revenue feels the order passed by the Revenue is erroneous on account of law or on fact then the only remedy available is to challenge the order at higher forum. M.A s in this segment filed by the Revenue are hereby dismissed. - M.A. Nos. 28 to 35/ Ahd/2019 In ITA No. 806/Ahd/2019 IT(SS)A Nos. 241 to 247/Ahd/ 2019 , M.A. Nos. 36 to 41/ Ahd/2021 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-6 M.A No. 90 55/Ahd/2021 ITA NO 457 805/Ahd/2019 2008-09 Shri Rajesh Sundardas Vaswani 3. In all these M.A s identical issue was raised by the Revenue. Therefore, we take up M.A. No. 12/AHD/2021 in ITA No. 461/AHD/2019 as lead case and proceed to decide the same. However, the finding given in such MA will apply to all the above mentioned MA Numbers falling under this segment. 4. The Revenue in this miscellaneous Application has requested to recall the order passed by the ITAT in ITA No. 461/Ahd/2019 vide order dated 12/11/2020 on the reasoning that there is mistake apparent from record within the provision of section 254(2) of the Act. 5. The Revenue in M.A. submitted that the Hon ble ITAT erred in holding that the AO at time of recording reasons to believe for the escapement of income has not applied his mind properly. As such the AO properly applied his mind which can be established from the reasons recorded wherein he has analysed the materials found during the course search and decoded the amount relating to different assessee. Thereafter, he reached to reason to believe that the income has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the assessee or the 65 [Assessing] Officer : Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this subsection 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 8.1 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 appeals, we think it appropriate to bear in mind certain basic principles for exercising the powers contemplated under section 254(2) of the Act 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 the 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 mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. 8.3 In this regard, we note that the ITAT after elaborate discussion on the issue of reason to believe has taken a view that reason recorded by the AO was nothing but borrowed satisfaction. In holding so the ITAT analyzed the facts available on record, given various reasoning and also referred several judicial precedent. As Such the Revenue in M.A. has not pointed out any specific mistake in the order which is apparent from the record. The issue raised by the Revenue in M.A. requires long drawn argument which is not allowed under section 254(2) of the Act. If the Revenue feels the order passed by the Revenue is erroneous on account of law or on fact then the only remedy available is to challenge the order at higher forum. In holding so we draw support and guidance from the judgment of Hon ble Supreme Court in case of CIT vs. Reliance Telecom Ltd. reported in 133 taxmann.com 41 where in was held as under: 4. In the present case, a detailed order was passed by the ITAT when it passed an order on 6-9- 2013, by which the ITAT held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under section 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case. 8.4 The 2nd grievance of the Revenue is that the ITAT erred in holding that no addition was made based on reasons to believe recorded. Again it is noted that the ITAT has considered all the materials available on record and also made comparable reference to the income identified by the AO in reasons recorded and final addition made by the AO in the assessment order passed under section 143(3) read with 147 of the Act. Thus, in our considered view, there is no mistake apparent in the order of the ITAT. At the this juncture we again feel pertinent to refer the judgment of Hon ble Supreme Court in case of CIT vs. Reliance Telecom Ltd (supra) where it was held that even if the order passed by the ITAT is erroneous on merit the only remedy available to the aggrieved party to prefer appeal before Hon ble High Court. The relevant observation of the Hon ble Supreme Court (supra) extracted as under: Ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M.A No 58 to 60/Ahd/2021 IT(SS) No. 235 to 237/Ahd/2019 2009-10 to 2011-12 Rajesh Sundardas Vaswani 35-41 M.A No. 74 to 80/Ahd/2021 IT(SS) No. 228 to 234/Ahd/2019 2009-10 to 2015-16 Venus Infra Dev. P. Ltd 42-48 M.A No. 83 to 89/Ahd/2021 IT(SS) No. 102 to 108/Ahd/2019 2009-10 to 2015-16 Venus Infra Dev. P. Ltd 49-50 M.A 81 to 82/Ahd/2021 IT(SS) No. 109 to 110/Ahd/2019 2012-13 to 2013-14 Sanjeet Motors Finance P. Ltd 11. In all these M.A s identical issues were raised by the Revenue. Therefore, we take up M.A. No. 13/AHD/2021 in IT(SS)A No. 111/AHD/2019 as lead case and proceed to decide the same. However, the finding given in such MA will apply to all the above mentioned MA Numbers falling under this segment. 12. The Revenue in these miscellaneous applications have pointed out certain errors in the order of the ITAT which are apparent from record as detailed bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble Gujarat High Court which has been admitted for adjudication. Accordingly, there cannot be any apparent mistake in the given facts and circumstances. The learned AR vehemently supported the order of the ITAT. 13. We have duly considered the rival contentions and gone through the records carefully. It is settled position of law 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 which there may conceivably be two opinions. In this regard, an elaborate discussion has been made in previous paragraph of this order while adjudicating first set of M.A s. 13.1 In the light of the above discussion we proceed to adjudicate the issues raised by the Revenue. The 1st fold of contention of the Revenue is that the ITAT has erred in holding that in the proceeding under section 153A of Act addition or disallowance can only be made on the basis of incriminating material found in the course of search and in holding so ITAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. The relevant observation of the Hon ble Supreme Court (supra) extracted as under: Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case. 16. It is also not out of place to mention that the Revenue against the order of the ITAT has already preferred an appeal before the Hon ble High Court which has been admitted. This argument of the ld. AR was not controverted by the ld. DR appearing on behalf of the Revenue. 17. In view of the above, we hold that there is no apparent mistake in the order of ITAT as alleged by the Revenue in its miscellaneous application as discussed above. Therefore we do not find any merit in the argument of Ld. Counsel for the Revenue. Hence, the MA filed by the Revenue is di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premises were not belonging to the assessee. On the contrary, the satisfaction note clearly records that the seized documents show the payment against the purchase of the land. In fact the land was purchased by the assessee and the payment for the same was also made through the banking channel which can be verified from the bank statement of the assessee. In view of the above, the learned DR before us contended that the order of the ITAT suffers from apparent mistakes and therefore, the same needs to be recalled within the provisions of section 254(2) of the Act. 22. On the other hand, the learned AR for the assessee before us contended that the ITAT has passed the order in detail after analysing all the issues raised in the impugned appeals. Furthermore, the revenue has not pointed out in its miscellaneous application any specific error in the order of the ITAT which is apparent on record. Likewise, the revenue has already preferred respective appeals before the Hon ble Gujarat High Court which has been admitted for adjudication. Accordingly, there cannot be any apparent mistake in the given facts and circumstances. The learned AR vehemently supported the order of the ITAT. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gher forum. In holding so we draw support and guidance from the judgment of Hon ble Supreme Court in case of CIT vs. Reliance Telecom Ltd. (supra). 23.3 It is also not out of place to mention that the Revenue against the order of the ITAT has already preferred an appeal before the Hon ble High Court which has been admitted. This argument of the ld. AR was not controverted by the ld. DR appearing on behalf of the Revenue. 23.4 In view of the above, we hold that there is no apparent mistake in the order of ITAT as alleged by the Revenue in its miscellaneous application as discussed above. Therefore we do not find any merit in the argument of Ld. Counsel for the Revenue. Hence, the MA filed by the Revenue is dismissed. 24. In the result, all the M.A s in this segment filed by the Revenue are hereby dismissed. 25. Coming to the next set of M.A s having common issue are as under: S. No. M.A. Nos. In IT(SS) Nos. A.Y. In case of Assessee 1-4 M.A No. 94 to 97/Ahd/2021 IT(SS) No. 98 to 101/Ahd/2019 2012-13 to 2015-16 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in detail after analysing all the issues raised in the impugned appeals. Furthermore, the revenue has not pointed out in its miscellaneous application any specific error in the order of the ITAT which is apparent on record. Likewise, the revenue has already preferred respective appeals before the Hon ble Gujarat High Court which has been admitted for adjudication. Accordingly, there cannot be any apparent mistake in the given facts and circumstances. The learned AR vehemently supported the order of the ITAT. 30. We have heard the rival contentions of both the parties and perused the materials available on record. It is settled position of law 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 which there may conceivably be two opinions. In this regard, an elaborate discussion has been made in previous paragraph of this order while adjudicating first set of M.A s. 30.1 In the light of the above discussion we proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
